Professors Malcolm Thorburn, Vincent Chiao, Hamish Stewart and Alan Brudner
What is “the philosophy of criminal law”? Some scholars see it as a branch of political philosophy, others as applied moral philosophy. Some see it as concerned with questions of legitimate authority, focusing on the fundamental distinction between criminal justice and criminal violence. Others see it as flowing more generally from the best justification for the administrative state and what that justification requires of regulations. Regardless of these differences, criminal law philosophers are united by their quest for the deepest understanding of criminal law, criminal punishment and criminal justice.
Interviews conducted in 2017 by Joanna Langille, SJD candidate, and Sarah Bittman, JD ’17
Interview with Alan Brudner
What made you want to become a philosopher?
Etymologically, a philosopher is a lover of wisdom. But one can’t love wisdom unless one knows what wisdom is, and to know what wisdom is, is already to be wise. But already to be wise is no longer to be a philosopher in search of wisdom but a sage in possession of it. Therefore, to be a philosopher is not to be a philosopher. Sorry, what was the question?
Who were the professors and teachers who most influenced your intellectual development?
Professors C.B. Macpherson, Sandford Lakoff, Emil Fackenheim, Allan Bloom, Ernest Weinrib.
What is the most central issue in the philosophy of criminal law? What is the most important under-studied issue in the philosophy of criminal law?
What is the vantage point from which the criminal law is best understood? Is it history? Morality? The administrative state? Political authority? The justification of punishment? Probably the most understudied issue in the philosophy of criminal law is whether there can be a rational solution to that debate or whether we must resign ourselves to a perpetual quarrel among perspectives.
Do you consider yourself to be a lawyer or a philosopher?
Well, I’m definitely not a lawyer, and, considering the transcendent geniuses we call philosophers, it would be extremely presumptuous to call myself a philosopher. So I guess I’m a student of the great philosophers.
Can you tell us a bit about your current research? Can you tell us about the book you are working on now?
I’ve just finished a book on Hegel’s political philosophy. It argues (among other things) that, from a non-individualistic starting-point, Hegel (unlike social contract thinkers who proceed from the individual and invariably end up with some form of authoritarian state) demonstrates the human potential for a state that perfects liberalism, democracy, and the rule of law.
When did you become interested in Hegel’s work? How have you incorporated his work into your scholarship?
I became interested in Hegel during my M.A. studies. I tried reading the Phenomenology of Spirit for an essay on Freud I was writing. I understood only the copyright page, but for some uncanny reason, I knew I would spend the rest of my life studying this book. My scholarship tries to extend Hegel’s philosophy of right by exhibiting the form of all just relations (which he calls the Ethical Idea) in the settled detail of transactional law, constitutional law, and criminal law.
What do you mean when you refer to the unity of the common law (The Unity of the Common Law, 1995 and 2013)?
I mean two things. One, each branch of transactional law exhibits the same architectural harmony: a unity of distinct paradigms connecting justice between insular persons and justice among common subjects of law. Two, one continuous narrative about the fulfillment of freedom connects the branches of transactional law to each other—from first possession all the way to social insurance against accidents.
You have written on both public and private law theory. Can you tell us a bit about how you understand the connection between those two domains, and how your work in one area has helped to develop your work in the other?
Certain parts of public law correct for private law’s openness to non-coercive domination. Private law acts as a constraint on public law’s itself becoming domineering. Their relationship is thus one of mutual complementarity toward the end of reconciling human independence with human interdependence.
What is a liberal theory of punishment, in your view?
A liberal theory of punishment is one for which both the incidence and measure of punishment are derived from the recipient’s will.
Interview with Arthur Ripstein
What made you want to become a philosopher? Did you always know that you wanted to study the philosophy of law, or was there another area that piqued your interest?
I found my way into philosophy more or less by accident. I spent a gap year after high school travelling in Asia, and in March of that year, I was in Nepal, and wrote to my brother suggesting that he should sign me up for University. On his way to do so, he ran into a friend of mine, who suggested that I would really love a certain philosophy course. The most economical way to put me in it was to replace Physics with it – only one letter on the form. I had my first class at 8:30 in the morning my first day as a university student. By 8:40 it was clear to me that this was how I wanted to spend my career.
My interest in legal philosophy came much later. When I first started at the University of Toronto, I joined a legal philosophy discussion group, organized by Ernie Weinrib. At first it seemed like the kind of topic where, as Jerry Fodor put it in the preface to his book Representations, a properly trained philosopher could sort it all out in a couple of hours. Sometime later I had a couple of hours to spare, and have been working on it ever since.
Who were the professors and teachers who most influenced your intellectual development?
My dissertation supervisor, John Haugeland, was a huge influence on me. He really shaped my conception of what counts as a philosophical problem, and drilled into me a commitment to intellectual clarity, and to making philosophical ideas accessible. I think he partly regretted one way in which he influenced me: the day that my dissertation topic was approved, he took me to lunch, and cautioned that my dissertation was the last thing that I did as a graduate student, not the first thing I did in my career. I wrote my dissertation in the philosophy of mind, and never did anything else in the area. To his dying day, John marvelled at the extent to which I took him at his word.
Although he was never officially my teacher, my colleague Ernie Weinrib has been and continues to be a huge influence.
Which intellectual figure(s) have most inspired your work?
Immanuel Kant.
Can you recommend five books that you think are essential reading in the philosophy of law?
Immanuel Kant, The Doctrine of Right (first part of the Metaphysics of Morals)
Hugo Grotius, The Law of War and Peace
HLA Hart, The Concept of Law
Yevgeny Pashukanis, The General Theory of Law and Marxism
Oliver Wendell Holmes, The Common Law
Can you tell us a bit about your current research?
I am currently working on a book developing a Kantian account of the law and morality of war. Kant’s general approach to normative questions, both legal and moral, is to seek the regulative principle for a thing by looking at its constitutive principle. In the case of war this seems like a bizarre approach, since he also describes war as barbaric and says that it to be “repudiated entirely.” The striking feature of Kant’s view is that understanding what is barbaric in war lets us understand its internal moral and legal limits.
Who is the audience for your work in legal theory?
I write for different audiences at different times, hoping to generate as much overlap as possible. Some of my writing on Kant seeks attention from legal and political philosophers and Kant scholars; my writing in torts aims to be accessible to legal philosophers and scholars of private law.
Can you tell us about your theory of private wrongs, from your recent book on the topic (Private Wrongs, 2016)? How does that relate to your prior book (Force and Freedom, 2009)?
A proper understanding of private rights governing relations between individuals is fundamental to the Kantian understanding of political philosophy. Private Wrongs seeks to provide an articulation of that in the special case of tort law. Although it is inspired by Kant – the general outlines of the nature of wrongs and remedies, and especially the structure of the tort of defamation are glosses on scattered remarks of Kant’s – I spent almost no time talking explicitly about Kant in it.
Who have been your most important interlocutors at the Faculty of Law? Who are your most important interlocutors outside the Faculty of Law?
I am extremely fortunate to have a large group of colleagues working in legal philosophy in general, and philosophical issues in private law in particular. Outside the law school, I engage regularly with many scholars in Canada, the US, the UK, Israel, and Germany.
Why should someone interested in law and philosophy study at the University of Toronto Faculty of Law? What sets it apart?
The best reason to study legal philosophy at the University of Toronto is the way in which the scholars working on it here integrated with doctrinal issues in the law. Law is very unusual among academic disciplines in that someone can spend a successful career working on topics that are mostly found within the first-year curriculum, and, the first year curriculum opens out onto all of the deepest questions of legal thought. Toronto is unusual, in that legal philosophy is not treated as a subject that exists apart from the main thrust of legal education, either, as in the case of some institutions, through a sort of marginalization in favour of economic and social science approaches to the law or, in other places, through a self-isolation undertaken by scholars who think that "legal philosophy proper" need not attend to any doctrinal structures of the law.
How is your current work on the law of war connected to your prior scholarship?
I’m interested in the differences between various ways in which Legal Powers might give effect to a system of rights. I have some interest in questions about defensive force. In the past I have examined its role in the criminal law, and then in my current project I look at defensive war. I am particularly interested in the ways in which protective force of these kinds differs from the sort of remedial force involved in a court ordering damages, as well as from the sort of punitive force that accompanies criminal punishment. I think that both philosophers and legal scholars in the 20th century tended to treat criminal wrongdoing as the basic form of wrongdoing, leading to significant misunderstandings of the nature of both remedies and defensive force.
Interview with Vincent Chiao
You did your philosophy PhD before your JD. Did you always plan to go into law? Would you recommend that path to someone interested in legal academia?
In “Science as a Vocation,” Weber stressed the degree to which an academic career is defined by sheer dumb luck. That seems to me to be true today, as well. The path to becoming an academic is long, uncertain and filled with random contingencies of all kinds, so I think you need to be able to live with that.
One of my classmates who is currently in 2L took criminal law in their first year with you. They commended your approach to teaching about sexual assault. How do you approach the subject?
Sexual assault is one of the trickiest parts of the criminal law curriculum, and tends to give rise – understandably – to rather intense emotions. In a large class, you can pretty much be assured that there are people in the room who have experienced sexual assault in one way or another. It’s hard to balance understanding the trauma of that experience, while also respecting the general principles of open discourse and diversity of viewpoints, including those that are controversial or even upsetting to others.
I don’t really have a set way of approaching sexual assault, other than not calling on people when we cover those materials. I do think there are some important tensions in the law in this area, and I try to encourage students to think about how some of the principles that may seem appealing elsewhere in the criminal law become more problematic when applied to sexual assault. But it’s a stressful subject matter pretty much however you go about it.
What is your favourite Canadian criminal law case?
I’m a big fan of the BC Motor Reference. I think there’s a clarity to the judgment that cuts through a lot of formalistic categories, and really gets to the heart of the matter: what, concretely, is at stake for the accused?
I also quite like Hare v Hare, a somewhat obscure limitations case, and for the opposite reason. It’s complicated, technical, statute-driven and calls for a methodical mode of analysis. That’s refreshing after teaching a couple dozen cases that all boil down to the court deciding what they think is just or fair or whatever. It feels like actual law, rather than just some more navel gazing by a bunch of judges.
Can you tell us about your new book on criminal law and the administrative state?
Asking an academic to explain his or her work is a decision that one frequently has cause to regret… I will try to be brief. The book starts by looking at how criminal law gradually became public law over the 18th and 19th centuries, and suggests that the kinds of political values we are inclined to apply to other public institutions (the tax code, the health care system, the labor market, etc.) should apply to the criminal law as well. These are values like democratic control, equality and fair distribution. Most legal theorists of the last generation have tended, instead, to think of the criminal law as the manifestation of a special type of justice – retributive justice. Consequently, they tend to think of the morality of the criminal law as akin to the morality of punishment in private, interpersonal contexts: did he deserve it? Was what he did morally wrong? Is the punishment proportionate? Perhaps a moralistic view of that kind could make sense of the criminal law in earlier times, when public institutions were much less deeply involved in peoples’ lives. But in the age of the administrative state – which regulates nearly much everything we do, from cradle to grave – the criminal law has become more than just an institution for giving wrongdoers the punishment they deserve. It stabilizes cooperation with a wide range of public institutions and policies, and it allocates scarce goods – safe neighborhoods, bodily integrity, security of possessions, and so forth – across a population. In virtue of doing these things, the criminal law has a profound impact on peoples’ life chances. So it seems reasonable to expect the criminal law to live up to the same standards of democratic control, equality and fair distribution that we expect of public institutions generally – even when doing so seems at odds with the logic of retributive justice.
I understand that you and Professor Thorburn both accept a ‘public law conception of the criminal law’. How would you explain the differences between your views?
Well I don’t think there’s that much that separates our views, but I’m pretty sure he does! So you’ll have to ask him. My guess is that I tend to be more focused on policies and outcomes, and relatively less interested in the law’s “inner morality.” It’s hard to say how much this matters, though; on the big picture stuff, I think we’re pretty close.
What do you enjoy about teaching law in Canada? Do you notice any significant differences between legal academia in Canada and in the United States?
There are definitely some differences. American law, and the American legal academy, can be somewhat insular. It’s very US-focused; obsessively so, even. My colleagues here are very open to, and very interested in, work being done in many other places around the globe. In part, this is by necessity, since Canada is a small country and many of its legal traditions are so new and unsettled. On the other hand, Canadian law schools sometime seem traditional to a fault. Attitudes about the common law, the obsession with courts (and relative lack of interest in other legal institutions), naiveté about the Charter, the lack of investment in clinics, legal writing, statutory interpretation, negotiation and other critical legal skills – to an American-trained lawyer, this all smells vaguely 19th-century. Mid-20th, at the latest.
Why should someone interested in practicing criminal law be interested in the theoretical aspects of the field?
The criminal law is a very troubling area of law. I don’t think many people can spend much time working in criminal justice without at least occasionally having some serious reservations about it. As a practicing lawyer, you don’t really have the luxury of time and distance to think these things through. So I think there’s some value in taking some time, whether in law school or in some other setting, to try and work through what you think the criminal law is for, why it should be doing those things, and how it ought to go about doing them.
Why are you interested in criminal law?
As I tell my students, the criminal law is the law that people care about – people don’t get into yelling matches about the mailbox rule, easements or whether there are adequate grounds to survive a motion to dismiss. Criminal law is the blood and guts: it’s where people’s feelings tend to be both visceral and muddled at the same time. What’s not to like about that?
In your paper, “Mass Incarceration and the Theory of Punishment” (2015) you argue that we should reject an exclusively deontological theory of punishment. Can you tell us a little more about your view? Did you discuss the paper with Professor Stewart?
The basic idea is that what’s wrong with mass incarceration might not be decomposable into wrongs done to particular individuals. A society can wind up with very high levels of incarceration even if each case looks fine when considered on its own (the person is guilty, sentenced proportionately, for a non-controversial crime, etc.) This is because in most societies there is enough crime, and proportionality a loose enough standard, that prosecuting and punishing any reasonable fraction of them will quickly result in very high levels of incarceration. This is a problem for theories of punishment that are focused on the rights of particular individuals to the exclusion of the social costs and benefits of a system of punishment, which is true of most deontological theories. In my opinion, to explain what’s wrong with mass incarceration you need an account of the good that a system of punishment is meant to achieve, not just of how it relates to the rights of individual people. That said, Hamish (who was a great sounding board as I was working on this paper) has recently written a paper that begins to make the case for a rights-based answer to this question, so perhaps it’s possible!
What books or authors are essential reading in the philosophy of law?
Hobbes and Rawls.
What intellectual figure(s) living or dead would you most like to have dinner with?
Maybe Gabriel Garcia Marquez. Or Cindy Sherman.
Why should someone interested in law and philosophy study at the University of Toronto Faculty of Law? What sets it apart?
We’re overrun with legal philosophers around here! You can’t throw a rock without hitting one, and that’s without taking into account the exceptionally strong philosophy department or the Centre for Ethics. Especially if you have interests in private law or contemporary Kantian legal theory, we should probably be pretty close to the top of your list.
Interview with Hamish Stewart
You did a PhD in economics before studying law. Why did you decide to do a law degree?
My reasons for returning to Toronto to study law were primarily personal. But it would also be fair to say that I was unsatisfied with the largely unexamined normative presuppositions of mainstream economics. My doctoral thesis was written under the supervision of scholars who were open to challenging those presuppositions (Amartya Sen, Steve Marglin, and Juliet Schor).
As someone who started their academic career in economics, how did you come to approach the study of law from a philosophical perspective?
This is not a direct answer. It is hard to overstate the impact of having Ernie Weinrib, Stephen Waddams, and Michael Trebilcock as teachers in the same year. They showed me three different ways of thinking about law. I still hope these three ways can be reconciled.
What intellectual figure(s) living or dead would you most like to have dinner with?
Michel Foucault. (I would say Arthur Ripstein, but I talk to him several times a week as it is.)
What is your favourite Canadian criminal law case?
R. v. Tutton, [1989] 1 S.C.R. 1392. The accused were charged with criminal negligence causing death on the basis that they had withheld insulin from their diabetic child. Their reason for withholding the insulin was that they believed the child had been miraculously cured. The Supreme Court of Canada did not know quite what to make of this. The case was heard by nine judges, but three did not participate in the final judgment for various reasons. The remaining six judges divided 3:3 as to whether the fault element for criminal negligence causing death should be subjective or objective. A new trial was ordered, but defence counsel advises me that the Crown decided not to proceed. On the subjective standard, it seems obvious to me that they should have been acquitted. Subsequent cases hold that the fault element is objective, but even on that standard, there would still be the issue of whether it was reasonable for the accused to rely on God’s word. Who could be a better authority than God? Would a judge or a jury be willing to say that it was unreasonable for them to act on their religious beliefs, where those beliefs related not to norms of behaviour but to facts? The Tuttons loved their child and had no reason or motive to kill him. So the case raises starkly the question of what we are trying to do when we impose criminal punishment.
Why should someone interested in practicing criminal law be interested in theoretical aspects of the field?
Having a general sense of what criminal law is for is, I think, very helpful in guiding argument on specific criminal law issues.
How does your background in economics inform your work in law?
It gives me a relentlessly instrumental point of view to refer to.
You have traveled to China many times, and can speak Mandarin (or is it Cantonese?). How did your fascination with the country begin? Have your experiences there affected the direction of your work?
I have visited China more than a dozen times since 2010. My longest visit was a four-month stay in the spring of 2016, when I taught a course at Tsinghua University. My knowledge of Mandarin is best described as basic: good enough for directing taxi drivers and ordering food in restaurants, but not good enough for a serious conversation, let alone for scholarship.
I think China poses a very interesting challenge for legal theory. China has built a legal system from practically nothing at the end of the Cultural Revolution to the situation today: China has a constitution and statutes and even a sort of case law system (the “guiding cases” identified by the Supreme People’s Court as being of particular significance); it has courts that decide cases; it has law schools (where I have taught) and hundreds of thousands of lawyers who advise clients. But neither the judiciary nor the legal profession is truly independent of the ruling party. So, on the one hand, given the lack of judicial and professional independence, can it be said that China has a legal system? On the other hand, if a Western scholar were to say, “China does not really have a legal system”, would he/she be merely replicating Montesquieu’s Orientalist assertion that Qing-dynasty China did not have law? And what would be the pragmatic implications of such an assertion?
Can you tell us a bit about your current research?
I am working on a book which is intended to provide a principled basis for procedural fairness. One might think such a project was unnecessary, but in light of various things that have happened in the last 20 years, it seems that it is. I am also revising my book on s. 7 of the Charter, which is not unconnected with the procedural fairness project.
You, and Professor Chiao have both written papers on mass incarceration and theories of punishment. Can you say how your views differ?
I am not sure our views differ all that much. I am not even sure that Professor Chiao’s view is essentially different from Professor Ripstein’s, though he presents it that way. All three of us have the naïve view that punishment is just a public response to the commission of a crime. Where we disagree, perhaps, is as to (i) what should be a crime and (ii) what is the meaning of the public response to the crime.
How did you become interested in criminal law?
By spending a summer working at Downtown Legal Services.
Interview with Malcolm Thorburn
Can you tell us a bit about your view of criminal law as public law?
I sometimes say that I am just telling philosophers about something that practicing criminal lawyers find to be pretty obvious: criminal law is not about punishing people who do morally bad things; it is about enforcing the law. We are punished for breaking the law, whether or not what we did was also morally wrong.
The tricky part is to show what might be morally redeeming about that vision of the criminal law. How can it be a good thing to punish people who did nothing we’d normally think of as morally wrong? The idea, I think, is that there is something morally valuable about everyone living under law, rather than subject to any particular person’s say-so. The criminal law makes sure that we are all subject to the same law, whatever its merits or demerits.
So when we think about what should be a crime, we shouldn’t just think about whether it is morally wrong or whether it causes harm to others. Instead, we should think in terms of the limits of public power generally – in the sort of terms we in Canada associate with the Charter of Rights. So for me, constitutional proportionality – the stuff of s. 1 of the Charter – is a hugely important part of thinking about the limits of the criminal law.
I understand that you and Professor Chiao both accept a ‘public law conception of the criminal law’. How would you explain the differences, if any, between your views?
I think there are two main difference between our accounts. The first lies in our understanding of what public law is all about. As I understand him, Professor Chiao sees public law as an all-purpose tool for making the world a better place. So his main focus is to argue for his view of what that better world looks like and how to bring it about. My conception of public law is focused on rule of law constraints on its exercise: Who is entitled to exercise public power? What sorts of purposes count as public? What would be disproportionate means to achieve them?
The second difference lies in our understanding of criminal punishment. For Professor Chiao, I believe that criminal punishment is really just a tool for inducing compliance with a legal rule. I think that’s part of the story, but there’s also something more to it than that. The added part comes from subjective mens rea: when someone intentionally engages in prohibited conduct, he not only breaks a legal rule, he sets his own rule on the matter in its stead. So crimes challenge the rule of law in a special way that calls for a special sort of reply. We impose deterrent sanction as a reassertion of the state’s authority over the offender. That, I think, changes many things about the exercise of prosecutorial discretion and much else.
Of the people in the faculty, with whom do you most often discuss your work and ideas?
In the last year and a half, since we’ve moved into the new building, it has become much easier to talk about ideas with my colleagues. We used to be spread out across quite a few buildings that were sometimes quite far apart. But now, we have a corner populated almost entirely by philosophers of law, many of whom work in the philosophy of criminal law. Arthur Ripstein, Hamish Stewart, Vincent Chiao, and Alan Brudner are all my close neighbours, so we can get together to chat very easily. There’s also a larger group of public lawyers and legal theory people on faculty I talk to quite regularly.
What intellectual figures have most inspired your work?
Before I came to law school, I was in graduate school working on Ancient Greek philosophy, focusing on Plato’s Laws. Since I started to study law, it’s been mostly Immanuel Kant and some of the usual suspects in political philosophy, from Rousseau to Rawls.
What is your favourite Canadian criminal law case?
We are lucky in Canada. Since the advent of the Charter, we have had lots of really deep and interesting criminal law cases. One of my favourites, though, is not a Charter case at all. It is a case about the limits of consent to injury: R. v. Jobidon.
For a long time, courts in Canada have had the common law power to recognise new defences. In Jobidon, though, Justice Gonthier uses this common law power to narrow the scope of a defence (in this case, the defence of consent). Justice Gonthier argues that we ought not to recognise any consent to assault that intentionally causes non-trivial bodily harm. It is a case that engages so many basic issues about what criminal law is all about. What is a defence (that is within the courts’ jurisdiction to alter) and what is a negative element of an offence (which is not)? Does the court’s power to recognize new defences also include the power to narrow existing defences? What are the proper limits to individual autonomy and what possible rationale can there be for refusing to recognize consent to harm? It is also a great case to teach because students love to think through why we should allow intentional injury in sports like boxing but we shouldn’t allow it in bar fights.
What is the most central issue in the philosophy of criminal law? What is the most under-studied issue in the philosophy of criminal law?
The philosophy of criminal law needs to take much more seriously the fact that we are dealing with a coercive state institution. All the big moral questions about criminal law look very different when we keep this in mind.
Can you tell us a bit about your current research?
My public law account puts the nation state at the heart of the idea of criminal law. So one of the things I’ve been thinking and writing about recently is how to make sense of areas of criminal law where the place of the nation state is not so obvious. One place is in wartime. Why are soldiers immune from criminal prosecution for killing or destroying property etc. as part of their country’s war efforts? Another place is in transnational crimes such as human trafficking where the various elements of the crime might take place in different jurisdictions.
Another topic I’m working on is setting the public law idea in historical context. The idea of punishment as a reassertion of the state’s authority is something that transcends time and place, but the need to do so for rule of law reasons is quite specific to the modern West.
Can you tell us about your new work on the difference between war and crime?
In domestic criminal law, I’ve argued that there’s a very good rule of law reason why we distinguish between the legitimate coercion of police and other public officials and the illegitimate coercion of vigilantes. Police use coercive force in the name of the law and vigilantes don’t.
In the law of war, soldiers are immune from criminal prosecution for the otherwise criminal things they do as part of their army’s military efforts (so long as they abide by certain minimum requirements of proportionality and distinguishing between civilian and military targets). This is so even if the soldier’s army was the aggressor. If we think of this just in terms of the individual morality of the situation, it’s hard to make sense of it. But if we think of the special role of soldiers as agents of their governments, it becomes clearer. States need to defer to the decisions of other states on certain matters, and once that’s the case, those decisions must shield their agents from criminal liability.
You have spent time visiting at a number of different institutions outside of Canada, including Oxford, Australian National University, Ludwig Maximilians University in Munich, and the French National Centre for Criminology. Why have you chosen to spend time abroad, and how has this enriched your scholarship?
Nowadays, it is much easier to stay in touch with developments around the world than ever before. We have Skype meetings, various website where we post and comment on one another’s writing, we have social media accounts, and so on. But valuable as that sort of exchange is, it’s not possible to spend the time over days, weeks, and months working through problems and arguments with colleagues elsewhere. I have learned immensely from all these visits.
What made you interested in studying criminal law?
George Fletcher, a law professor at Columbia Law School, the author of the bestselling book on criminal law in English and my eventual doctoral supervisor, gave the Wright Lecture at U of T when I was a student. He wove together issues about doctrine, legal traditions, political theory and constitutional law into a fascinating argument about the presumption of innocence and its changing meaning in recent years. It was clear to me from that lecture that this was a subject with the history, the social significance, the doctrinal complexity, and the current relevance to people’s everyday lives to keep me fascinated for a whole career.
Can you recommend five books that you think are essential reading in the philosophy of criminal law?
There are a few books in the English-speaking literature that are must-reads, such as HLA Hart’s Punishment and Responsibility, Alan Brudner’s Punishment and Freedom, George Fletcher’s Rethinking Criminal Law, and Antony Duff’s Answering for Crime. But I’d have to reserve at least one spot for reading a bit more broadly. Since one of my main concerns with contemporary criminal law theory is that it does not sufficiently address the larger setting of criminal law, I’d insist that we add works on the history and sociology of crime and punishment and on political philosophy more broadly: Durkheim, Foucault, Marx, Kant, Hegel…
