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The Anatomy of Disgust in Criminal Law

My goal in this review is to call attention to a defect in the dominant theories of criminal law and to identify a resource for remedying it. The defect is the absence of a sophisticated account of how disgust does and should influence legal decisionmaking. The corrective resource is William Miller\u27s The Anatomy of Disgust. To make my claims more vivid, consider two stories. Both involve men who were moved to kill by disgust toward homosexuality

Ignorance of Law Is an Excuse - but Only for the Virtuous

It\u27s axiomatic that ignorance of the law is no excuse. My aim in this essay is to examine what the mistake of law doctrine reveals about the relationship between criminal law and morality in general and about the law\u27s understanding of moral responsibility in particular. The conventional understanding of the mistake of law doctrine rests on two premises, which are encapsulated in the Holmesian epigrams with which I\u27ve started this essay. The first is liberal positivism. As a descriptive claim, liberal positivism holds that the content of the law can be identified without reference to morality: one needn\u27t be a good man to perceive what\u27s lawful, Holmes tells us; one need only understand the consequences in store if one should choose to act badly. The nonnative side of liberal positivism urges us to see the independence of law from morality as a good thing. In a pluralistic society, the law should aspire to be comprehensible to persons of diverse moral views. What\u27s more, it should avoid embodying within itself a standard of culpability or blame that depends on an individual\u27s acceptance of any such view as orthodox; in a liberal society, even the bad man can be a good citizen so long as he lives up to society\u27s rules

The Logic of Reciprocity: Trust, Collective Action, and Law

The Logic of Collective Action has for decades supplied the logic of public policy analysis. In this pioneering application of public choice theory, Mancur Olson ele gantly punctured the premise -- shared by a diverse variety of political theories -- that individuals can be expected to act consistently with the interest of the groups to which they belong. Absent externally imposed incentives, wealth-maximizing individuals, he argued, will rarely find it in their interest to contribute to goods that benefit the group as a whole, but rather will free ride on the contributions that other group members make. As a result, too few individuals will contribute sufficiently, and the well-being of the group will suffer. These are the assumptions that dominate public policy analysis and ultimately public policy across a host of regulatory domains -- from tax collection to environmental conservation, from street-level policing to policing of the internet

Response: Between Economics and Sociology: The New Path of Deterrence

The explosive collision of economics and sociology has long illuminated the landscape of deterrence theory. It is a debate as hopeless as it is spectacular. Economics is practical but thin. Starting from the simple premise that individuals rationally maximize their utility, economics generates a robust schedule of prescriptions - from the appropriate size of criminal penalties,1 to the optimal form of criminal punishments, to the most efficient mix of private and public investments in deterrence. Yet it is the very economy of economics that ultimately subverts it: its account of human motivations is too simplistic to be believable, and it generates policies too severe to be just. Sociology is rich but impractical. Absorbing all the complexity of the world as it is, it supplies breathtakingly elaborate accounts of why individuals turn to crime - from the criminogenic properties of poverty to the self-reinforcing culture of criminality. But this elaborate account yields little usable policy guidance; by now it\u27s clear that our society has neither the political will nor the socialscientific know-how to eradicate the root causes of crime. What\u27s needed is a third way, one that combines the virtues of both economics and sociology without succumbing to the vices of either. If such an approach cannot be fashioned, the idea of deterrence might continue to function as a politically charged creed or as an absorbing focus for abstract formal models, but it will cease to furnish a practical framework for solving America\u27s crime problem on morally acceptable terms. My goal in this essay is to call attention to an emerging body of criminal-law scholarship that I believe has the potential to chart a new course between sociology and economics. These works seek to enrich the standard economic conception of deterrence through attention to social norms, a concept that has figured prominently in other fields of law. Although they employ a diverse array of terms - from social organization, to moral credibility, to social meaning, to social influence - these works all stress the influence between law and shared values as an important explanation for the extent of crime

Reply: Is Ignorance of Fact an Excuse Only for the Virtuous?

Professor Yeager\u27s thoughtful response to my essay has convinced me that there is indeed a connection worth noting between the mistake of law doctrine and the mistake of fact doctrine. Yeager suggests that my position on mistake of law reduces to the view that someone who would be guilty of a lesser wrong were things as he perceived them to be may be punished for the greater wrong that he actually commits - a conception of mistake of fact that has provoked fierce denunciation from commentators. But I would in fact put things slightly differently: under both doctrines courts excuse a mistaken offender when, but only when, the offender\u27s mistake negates the inference that he has failed to internalize society\u27s moral norms