Criminalization Tensions: Empirical Desert, Changing Norms, and Rape Reform

Paul H. Robinson

in The Structures of the Criminal Law

Published in print December 2011 | ISBN: 9780199644315
Published online January 2012 | e-ISBN: 9780191732249 | DOI:

Series: Criminalization

Criminalization Tensions: Empirical Desert, Changing Norms, and Rape Reform

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This chapter is part of the organizers' larger Criminalization Project, which seeks, among other things, to develop theories for how criminalization decisions should be made. The argument presented here is that there is both instrumentalist and deotological value in having criminalization decisions that generally track the community's judgments about what is sufficiently condemnable to be criminal, but that there also are good reasons to deviate from community views. Interestingly, those in the business of social reform may be the ones who have the greatest stake in normally tracking community views, in avoiding community perceptions of the criminal law as regularly and intentionally doing injustice. It is the social reformer who may have the most to gain by building the criminal law's moral credibility so that those hard earned ‘credibility chips’ can be used to have criminal law lead rather than follow community views when the reformer seeks to use law to help change existing norms.

Keywords: Criminalization Project; community views; moral credibility; community perceptions

Chapter.  7280 words. 

Subjects: Criminal Law

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