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Criminal Law

Reconstructivism: The Place of Criminal Law in Ethical Life

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Criminal law has a distinctive role to play in the social world — a function that makes it different from other areas of law. Where wrongdoing tears the social fabric, it is criminal law’s task to restitch it. A diverse set of lawyers, sociologists, and philosophers have discussed this function in their own ways, but because they have not been systematically aware of one another and of the intellectual tradition to which they belong, the existence and character of their common view has been unclear. This Article pieces together that intellectual tradition and sets forth the core of the common view, which proves to be a theoretical alternative to both of the dominant foundational accounts of criminal law today: retributivism and utilitarianism. This Article terms the view “reconstructivism,” and the function it sees criminal law as performing, “normative reconstruction.” Reconstructivism holds, first, that shared normative ideas, practices, and institutions are part of what constitute and sustain social life — that every society, to be a society, requires a measure of solidarity around an embodied ethical life. Second, reconstructivism views crimes as communicative attacks on embodied ethical life: crimes threaten social solidarity by undermining the ideas, practices, and institutions at the foundation of social solidarity. Third, reconstructivism holds that punishment is a way of reconstructing a violated social order in the wake of an attack. If, for example, Person A steals Person B’s property, the nature of the wrong is not just the tangible harm to Person B, but also the message that property rights in this jurisdiction are insecure, together with the message that people like Person B can be abused. Punishment declares that the right to property still holds and re-establishes the social status of Person B. Criminal law is thus an enterprise in normative reconstruction, the protector of the shared normative ideas on which a society’s way of life is based — the society’s embodied ethical life.

* Associate Professor of Law, Northwestern Law School; Affiliated Faculty, Northwestern Department of Philosophy. Two people have profoundly influenced my understanding of embodied ethical life as a source of normative theory and as an intellectual tradition: Axel Honneth and Andrew Koppelman. My thanks to them both. Thanks as well to five good friends who were there at this Article’s earliest stages and whose thoughtfulness and insight made it better than I could have made it without them: Vincent Chiao, Chad Flanders, Neha Jain, Gabriel Mendlow, and John Morley.