The theory of criminal law has little place for victims. Yet victims have a place in ordinary moral thought. We make a distinction, morally, between one gangster attacking another and a gangster attacking a bystander (though the assaults might be formally identical), or between selling drugs to an adult and selling them to a child (though the criminal code might treat the two as the same). That is, our intuitions take account of a concept this paper terms “victimization”—the idea that the moral status of a wrongful act turns in part on the degree to which the wrong’s victim is vulnerable or innocent and the wrongdoer preys upon that vulnerability or innocence. In this regard, both in doctrine and in practice, actual criminal law tracks ordinary moral thought more than it does criminal theory. Victimization, this paper argues, is part of the unstated normative logic of the criminal system.
The argument has three parts. Part I sets forth the concept of victimization as an element in normative reason, giving philosophical content to the moral intuition. Part II shows the concept to be implicit in both the doctrine and practice of criminal law—in penal codes, on the one hand, and, empirically, in the decision-making of police and capital juries on the other. Part III asks normatively whether the concept of victimization is something that should have a place in criminal law, arguing that the concept is both essential to the project of retributive justice and also dangerous, prone to patterns of distortion that offend a democratic criminal system’s commitment to equality.
A concluding section reflects methodologically on the paper’s approach to moral philosophy in law—an approach in which the law is not just a tool with which to implement the conclusions of an extralegal philosophical inquiry, but an object of study with a certain immanent moral content already in place, which philosophy can help bring to light and expose to question.
Available at: http://works.bepress.com/joshua_kleinfeld/1/