Saturday, December 15, 2012
In the latest issue of the Ohio State Journal of Criminal Law, Chad Flanders and Richard Posner have written commentaries about the work of Sir James Fitzjames Stephen, which follow, to one extent or another, this piece of mine. I've learned a lot from Judge Posner's earlier work on Stephen and from correspondence with him about some of Stephen's ideas. The judge focuses on the importance of "force" in Stephen's conception of criminal law and punishment, something which I discuss in my piece as well.
As to Professor Flanders's piece, I should say first that I'm very grateful to him for taking the time to respond to my work at length; I am glad to have provoked this response. On the substance, we have, as will be plain for those who read the pieces, many disagreements, and I'm also grateful to have them spelled out as crisply and energetically as Chad does here. But one area where I think we very much agree is this. Theory is certainly not objectionable, provided that it is understood as the activity of giving organized thought to any issue. Indeed, I think I can cheerfully agree with that view, and still maintain my claims about some of the deficiencies of punishment theory today, deficiencies which, Chad is right to point out, may not be unique to work in this area.
But this is a blog post, and interested readers (all 2 of you) should take a look. Here's something from Judge Posner's piece that might be useful as well: "I do think [Stephen] had a theory of criminal law and a philosophy of life, but he was not a systematic or disciplined thinker, and this allowed him to make observations that owe nothing to theory, that are simply shrewd and sensible[.]"