Christopher D. Berk. “Must Penal Law Be Insulated from Public Influence?” Law and Philosophy 40 (2021): 67–87.
DOI: 10.1007/s10982-020-09391-6

Published version: Link
Preprint: SocArXiv / PhilPapers / SSRN

Overview

Democratic societies routinely confront a tension between expert judgment and popular will in criminal justice. Public attitudes toward punishment are often criticized as ill-informed, punitive, or unstable, leading some scholars and reformers to argue that penal law should be insulated from democratic pressures. This article asks whether such insulation is compatible with the demands of political legitimacy.

The article argues that proposals to shield punishment policy from public influence risk misunderstanding how democratic authority operates. Even when public opinion appears troubling, removing punishment from the domain of democratic contestation can weaken the justificatory relationship between citizens and the laws enacted in their name. The challenge, therefore, is not simply to correct the public, but to clarify how democratic participation bears on the moral standing of penal law.

Central Question

When, if ever, is it legitimate in a democracy to remove punishment policy from popular influence?

Contribution

This article intervenes in debates in:

  • democratic theory
  • philosophy of criminal law
  • political legitimacy
  • technocracy and democracy
  • the rule of law

It shows that arguments for insulation often depend on contested assumptions about authority, expertise, and representation.

Who might find this useful?

Scholars working on:

  • penal populism
  • democratic backsliding
  • mass incarceration
  • institutional design
  • legitimacy of punishment
  • the politics of expertise

Related work by the author

Readers interested in this argument may also want to see:

Suggested citation

Berk, Christopher D. 2021. “Must Penal Law Be Insulated from Public Influence?” Law and Philosophy 40: 67–87.

[Cite with BibTeX] 

@article{berk2021must,
  title={Must penal law be insulated from public influence?},
  author={Berk, Christopher D},
  journal={Law and Philosophy},
  volume={40},
  number={1},
  pages={67--87},
  year={2021},
  publisher={Springer}
}