America’s criminal system has unraveled, becoming unjust and dysfunctional in ways that dishonor the nation. At the root of the crisis of policy is a crisis of ideas: caught between the two competing paradigms of retributivism and utilitarianism — which in popular political culture become mere moralism and instrumentalism — the scholars, lawyers, political officials, and citizenry concerned with the crisis cannot see their way to a form of criminal law that would comport with standards of justice and address the practical problems that confront real legal systems. The crisis calls for a new foundational vision of criminal law. My work is an effort to build that new foundational vision and explain what it means for policy.

The basis of the work is this argument: Criminal law has a distinctive role to play in the social world — a function that makes it different from other areas of law. Where wrongdoing tears the social fabric, it is criminal law’s task to restitch it. A diverse set of lawyers, sociologists, and philosophers — above all Hegel and Durkheim — have discussed this function in their own ways, but because they have not been systematically aware of one another and of the intellectual tradition to which they belong, the existence and character of their common view has not been clear. But the strands of their various arguments can be woven into a common view, which I term »normative reconstruction« or »reconstructivism,« and which proves to be a true alternative to both of the dominant foundational accounts of criminal law today: retributivism and utilitarianism. Reconstructivism holds, first, that shared normative ideas, practices, and institutions are part of what constitute and sustain social life — that every society, to be a society, requires a measure of solidarity around an embodied ethical life, or what Hegel termed Sittlichkeit. Second, reconstructivism views crimes as communicative attacks on embodied ethical life: crimes threaten social solidarity by undermining the ideas, practices, and institutions at the foundation of social solidarity. Third, reconstructivism holds that punishment is a way of reconstructing a violated social order in the wake of an attack. If, for example, Person A steals Person B’s property, the nature of the wrong is not just the tangible harm to Person B, but also the message that property rights in this jurisdiction are insecure, together with the message that people like Person B can be abused. Punishment declares that the right to property still holds and re-establishes the social status of Person B. Crime and punishment are thus an exchange of meanings; justifying punishment and understanding the nature of crime are linked. And criminal law is thus an enterprise in normative reconstruction, the protector of the shared normative ideas on which a society’s way of life is based — the society’s embodied ethical life. (Joshua Kleinfeld)