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If Sandy Kadish has reminded us of limitations of consequentialist approaches to the criminal law and has proposed persuasive resolutions of issues that deontological perspectives reveal, Meir Dan-Cohen has jarred us to rethink fundamental premises about rules in the criminal justice system. His Essay is an example of his ingenuity for unsettling understandings. The Essay reads easily and seems deceptively straightforward, but it is rich in nuance and its themes are complex. This Response identifies the various themes and evaluates their plausibility. I take Professor Dan-Cohen's Essay as a preliminary exploration of a major subject, and I have responded accordingly, indicating doubts without trying to pursue them to any systematic resolution. I hope these thoughts will contribute to the evolution of Dan-Cohen's ideas about dignity and criminal law.

What are Professor Dan-Cohen's main theses? He claims: (1) some crimes cannot be adequately understood as safeguarding autonomy or consequentialist welfare: They need to be conceived as protecting dignity, a respect for people's equal worth; (2) a special feature of basic offenses to dignity is that no essential role is played by the victim's state of mind-in this respect violations of dignity differ from violations of welfare and autonomy; (3) dignity is an "expressive value" whose violation depends on the social meaning of practices within a linguistic community; and (4) dignity, in some ultimate sense, is more fundamental than welfare or autonomy.

I think Dan-Cohen's first thesis is right. I also believe that the final claim is correct, but only in a way that makes it less profound than Dan-Cohen may suppose. I have serious doubts about the second thesis – that the victim's state of mind is not important for offenses against dignity – and I do not believe that the expressive aspect of dignity determines the scope of violations in quite the way Dan-Cohen suggests. My doubts are linked to reservations about some of the conclusions he draws from his examples. Among other things, I think the role of the state figures much more prominently in the examples than he acknowledges.

I briefly summarize Dan-Cohen's Essay, making a few tangential criticisms in footnotes. I then undertake more sustained critical analysis.


Criminal Law | Criminal Procedure | Law