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4 Critical Analysis L. 1 (2017)

handle is hein.journals/cclaysolw4 and id is 1 raw text is: Making Modern Criminal Law Theory: Reflections on Farmer Vincent Chiao* Abstract This brief review essay is devoted to a discussion of Lindsay Farmer's recent book, Making the Modern Criminal Law. I focus on the following themes: a formal and material interpretation of criminal law in facilitating civil order; the relation between criminal law's history and its justification; and the idea that the criminal law forms a sufficiently cohesive and distinctive body of law that it makes sense to ascribe moral principles to it that we would not be prepared to ascribe to public institutions, and public law, more generally. As has often been observed, it can be a difficult thing to write a critical essay in response to a book that one admires. So it is in this case. Lindsay Farmer's Making the Modern Crimi- nal Lahr: Criminalization and Civil Order (2016) is a novel, erudite and wide-ranging rethinking of the field of criminal law theory. As is typical of Farmer's work, his contribu- tion manages to be fundamental, raising challenges to basic presuppositions of contemporary criminal law theory, while also attentive to the fine-grained nuances of how the criminal law has been subtly and overtly transformed by courts, legislatures, treatise writers and theorists. As I find myself in the position of having learned from much of the book, and be- ing in agreement with most of the rest, there may not be much left over for productive disputation. In particular, I am fully onside with Farmer's insistence that normative theo- rizing about the criminal law should take into account its institutional character, and that an important part of this institutional character has to do with the criminal law's role in securing the conditions of what Farmer calls civil order. I also agree with Farmer that much contemporary theorizing about the criminal law-including the main topic ad- dressed in this book, criminalization-has instead operated as if the criminal law were simply moral philosophy in disguise. Often, criminal law theory seems to give the impres- sion that once one has satisfied oneself about the interpersonal morality of, say, property or sexual autonomy, or the nature of moral responsibility, the only remaining question is how to operationalize those concepts in positive law, with occasional accommodations made for practical or administrative concerns.' I find Farmer's skepticism about this Associate Professor, University of Toronto, Faculty of Law. 1 Two otherwise quite different examples of this tendency can be found in Michael Moore, Placing Blame: A General Theory of the Criminal Law (1997), and Victor Tadros, The Ends of Harm: The Moral Foundations of Criminal Law (2011). ISSN 2291-9732

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