HOW VICTIMS MATTER: RETHINKING THE SIGNIFICANCE OF THE VICTIM IN CRIMINAL THEORY

Leora Dahan Katz*

*Corresponding author for this work

Research output: Contribution to journalArticlepeer-review

Abstract

Classic theories of punishment have been deeply criticized for their failure to attribute significance to victims and the fact of their victimization within their proposed frameworks for the justification and distribution of punishment. Retributive theory, in particular, has been criticized for its failure to recognize the significance of victims. Some theorists have been led by this lacuna to adopt a victim-centred approach to punishment as a solution to the ‘absence-of-victim’ problem. Per victim-centred approaches, the very justification and imposition of punishment rely on victims and the restoration of egalitarian relations between the offender and victim that were disturbed by crime. This move toward constructing criminal law and punishment in terms of victim recognition and vindication has become increasingly popular and has been endorsed by a number of prominent theorists, yet it raises important worries. This article proposes an alternative solution, embracing the insight that victims ought to matter to the punishment of those who offend against them, yet without constructing the edifice of criminal law and punishment on the function of victim vindication. It offers an account of the way in which the introduction of a victim changes the balance of reasons in favour of punishment, becoming important to the determination of whether or not punishment ought to be imposed (in full). Yet it does so without taking the ‘victim’s turn’ – that is, without reconstructing the institution of criminal punishment entirely in victim-centric terms.

Original languageAmerican English
Pages (from-to)263-292
Number of pages30
JournalUniversity of Toronto Law Journal
Volume73
Issue number3
DOIs
StatePublished - Jul 2023

Bibliographical note

Publisher Copyright:
© UNIVERSITY OF TORONTO PRESS.

Keywords

  • harm doctrine
  • legal philosophy
  • moral luck
  • moral philosophy
  • punishment
  • reasons
  • retributivism
  • victims

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