The Fall and Rise of Criminal Theory

These are good times – at least for the theory of criminal law. This special issue of Buffalo Criminal Law Review testifies to a remarkable surge of interest among younger scholars in perennial questions: Why should we punish offenders? Do we require a human act as a precondition for liability and what is its structure? What does it mean for someone to be guilty or culpable for committing an offense? How do we avoid contradictions in structuring the criteria of liability? The time has come for renewed intensity in pondering and discussing these basic issues. The contributions of this symposium follow hard on a spate of publications testifying to the revival of the field that I vaguely call criminal theory. Michael Moore\u27s properly celebrated 1993 book, Act and Crime, has brought to bear an entirely new body of literature on action theory to the analysis of the act requirement in different contexts. Paul Robinson has several new and important books on the market. Significantly, we are witnessing more and more young scholars devoting their energies to the perennial questions at the foundations of criminal liability. Criminal theory is defined by a commitment to probe the philosophical foundations of crime and punishment. You would think that in a country that houses over a million and half people in its prisons, this field would be of natural interest. In fact the issues of policy and justice that define criminal justice have gone remarkably unnoticed in the last two decades. For a variety of reasons, research and philosophical reflection on the criminal law declined in the 1980s and early 1990s. If we look back three decades we encounter a different picture. In the mid-1960s criminal justice ranked among the premier subjects of the law school curriculum. As students now discuss feminism and originalism in constitutional interpretation, the reigning question of the 1960s was the confrontation of the state and the individual in the field of criminal justice. Every thoughtful graduate yearned for literacy in the then current decisions of the progressive Supreme Court and in the reformist ambitions of the 1962 Model Penal Code. To be educated in law meant that among other things, one pondered the future of criminal justice in the United States. The fall and rise of criminal theory in the United States cries out for an explanation. Can we explain the decline? And what path should the new found emphasis on criminal theory take in the next several decades? These are the questions I have set for myself in this introduction to the Buffalo Criminal Law Review symposium on criminal theory