Subjectivism and Objectivism: Towards Synthesis


in Action and Value in Criminal Law

Published in print December 1993 | ISBN: 9780198258063
Published online March 2012 | e-ISBN: 9780191681783 | DOI:
Subjectivism and Objectivism: Towards Synthesis

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This chapter retraces some steps in the recent history of the criminal law with a view to illustrating how patterns of academic thought may influence judicial conduct, and how academic theory may foreclose moral deliberation by predetermining outcomes. Both subjectivism and objectivism are such patterns of thought. It is argued that subjectivism is unacceptable on practical, doctrinal, conceptual, and ethical grounds given its impact on the doctrine of mistake, its definitional maximalization, and its overly narrow conception of the moral mission and merit of the criminal law. Objectivism is unacceptable, too, on like grounds, given its contrived conviction of the mentally abnormal offender, and for its tendency to remove questions of fact from the jury and to impose fixed rules of law which render all and any evidence about actual states of mind of real human beings wholly irrelevant. Synthesism is an altogether clearer, more coherent, and ethically more acceptable reconstruction of criminal law.

Keywords: law; criminal law; academic thought; judicial conduct; moral deliberation; subjectivism; objectivism; synthesism

Chapter.  11533 words. 

Subjects: Criminal Law

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