Overcriminalization: The Limits of the Criminal Law

by Douglas Husak

Overview

The United States today suffers from too much criminal law and too much punishment. Husak describes the phenomena in some detail and explores their relation, and why these trends produce massive injustice. His primary goal is to defend a set of constraints that limit the authority of states to enact and enforce penal offenses. The book urges the weight and relevance of this topic in the real world, and notes that most Anglo-American legal philosophers have neglected it. Husak's secondary goal is to situate this endeavor in criminal theory as traditionally construed. He argues that many of the resources to reduce the size and scope of the criminal law can be derived from within the criminal law itself-even though these resources have not been used explicitly for this purpose. Additional constraints emerge from a political view about the conditions under which important rights such as the right implicated by punishment-may be infringed. When conjoined, these constraints produce what Husak calls a minimalist theory of criminal liability. Husak applies these constraints to a handful of examples-most notably, to the justifiability of drug proscriptions.

Product Details

ISBN-13:	9780195328714
Publisher:	Oxford University Press
Publication date:	01/08/2008
Edition description:	New Edition
Pages:	248
Product dimensions:	9.57(w) x 6.43(h) x 0.71(d)

About the Author

Douglas Husak is Professor of Philosophy and Law at Rutgers University.

Table of Contents

Preface
Acknowledgements

Chapter One: The Amount of Criminal Law

I: Too Much Punishment, Too Many Crimes
II: How More Crimes Produce Injustice
III: The Content of New Offenses
IV: An Illustration of Overcriminalization

Chapter Two: Internal Constraints on Criminalization

I: The General Part of Criminal Law
II: From Punishment to Criminalization
III: A Right Not to Be Punished?
IV: Malum Prohibitum

Chapter Three: External Constraints on Criminalization

I: Infringing the Right Not to Be Punished
II: The Devil in the Details
III: Crimes of Risk-Creation

Chapter Four: Alternative Theories of Criminalization

I: Law and Economics
II: Utilitarianism
III: Legal Moralism

Editorial Reviews

"This is a rich and thought-provoking account of a much undertheorized and yet hugely important issue...Husak's book signals a bold attempt to 'shake up' the discipline and to reignite our interest in the core issues of justice, wrong, blame, desert, and proportionality with which we should be concerned."—Vanessa E. Munro, New Criminal Law Review

"Trying to stem the tide of fatuous law that emanates from our incontinent legislatures, at least in the US and the UK, is a luckless and thankless task. I admire Husak enormously for his willingness to take the task on, and for the lively, sensible, and good-natured tone that he brings to it. I also admire his anti-authoritarian and anti-managerial moral instincts, sadly at odds with the spirit of the age. But most of all I admire Husak as a professional philosopher of law. His work is clear, thorough, patient, ingenious, insightful, informed, imaginative, and highly distinctive. Overcriminalization is no exception. Even those who are pessimistic about the possibility of deliberately effecting political change through academic work have a huge amount to learn from this wise, timely, and well-written book."—John Gardner, Notre Dame Philosophical Reviews

''Critically important and easily readable.Highly recommended."—CHOICE

"Douglas Husak embarks upon a provocative and urgent search for a theoretical framework that will enable legislators to identify which of the growing number of criminal law interventions in our daily lives are justified." —Vanessa E. Munro, University of Nottingham

"It is impossible in a review of this length to do justice to Husak's multilayered exploration of the phenomenon of modern overcriminalization and the theoretical frameworks that might be invoked to redress the injustice that it has generated. This is a rich and thought-provoking account of a much under theorized and yet hugely important issue."—Vanessa E. Munro, University of Nottingham

From the Publisher