Title
Wrongdoing and Criminalization: Gaining Perspectives
Abstract
This talk explains and defends a method for understanding wrongdoing. It is grounded in several philosophical commitments: moral realism, moral anti-positivism, legal positivism, and sociopolitical positivism (that is, positivism regarding the existence of sociopolitical norms). The method developed here distinguishes various normative perspectives through which we can view wrongdoing and related concepts. For economy, I will group these perspectives into three broad categories: moral, sociopolitical, and legal.
The argument proceeds in four steps. First, I clarify my grounding commitments. I will not present an independent defense of each, but I hope to say enough to make them plausible. Second, I distinguish the moral, sociopolitical, and legal normative perspectives by explaining the distinctive features each illuminates when considering whether any given conduct (A’s φ-ing) constitutes wrongdoing. In particular, I distinguish conduct being morally wrongful from its being made a sociopolitical or legal wrong in virtue of social facts that constitute sociopolitical or legal norms.
Third, I explain how the moral perspective can be used to evaluate sociopolitical and legal responses to wrongdoing. This step requires that we shift our focus from the moral quality of A’s φ-ing to the moral quality of conduct by those agents who respond to A’s φ-ing or to φ-ing more generally. We must identify the conduct that those distinct agents undertook in responding, determine whether the things they did (or failed to do) require justification, and evaluate whether, all things considered, their responses are justified. Finally, I argue that my method offers advantages over versions of legal moralism that justify criminalization by direct appeal to the defendant’s culpable wrongdoing, and approaches associated with the recent “political turn” in criminal law philosophy.
Bio
Michelle Madden Dempsey is the Harold Reuschlein Scholar Chair and Professor of Law at Villanova University, where she teaches and writes on criminal law, feminist legal theory, and philosophy of law. Before joining Villanova in 2009, she taught at the University of Oxford. Her book, Prosecuting Domestic Violence: A Philosophical Analysis, was published by Oxford University Press and received 2nd Prize in the Peter Birks Award for Outstanding Legal Scholarship.
Dempsey’s publications have appeared in leading law and philosophy journals, including Oxford Review of Legal Studies, Modern Law Review, and Ethics. She is co-editor-in-chief of Criminal Law and Philosophy, co-general editor of OUP Monographs on Criminal Law and Justice, and co-founder of The Collective: Women in Legal Philosophy. An elected member of the American Law Institute and Fellow of the American Bar Foundation, she previously worked as a domestic violence prosecutor and civil litigator. She holds a DPhil from Oxford, an LLM from the LSE, and a JD from the University of Michigan.
