American Criminal Law: Its People, Principles, and Evolution

Paul Robinson

Using as examples criminal charges against the famous—Frank Sinatra and Oscar Wilde—and the infamous—Hermann Göring and the Marquis de Sade—in American Criminal Law: Its People, Principles, and Evolution (Routledge, 2022), Paul H. Robinson, Colin S. Diver Professor of Law at the University of Pennsylvania Carey Law School, and co-author Sarah M. Robinson convey the unending evolution of law and societal values.

“Criminal law is one of the most interesting perspectives on the human adventure,” the authors write. “It requires us to examine how we want people to act, what we will do when they act improperly, and how we decide what we can reasonably expect of people. And to do this, we must assess what makes a successful society, what citizen protections and obligations a society should enforce, as well as the principles of justice that the community shares.”

Professor Robinson is one of the world’s leading criminal law scholars. A prolific writer and lecturer, he has published articles in virtually all of the top law reviews, lectured in more than 100 cities in 34 states and 27 countries, and had his writings appear in 15 languages.

The book’s authors maintain that the topics and case studies in American Criminal Law are “not meant to be comprehensive or representative but rather interesting and thought-provoking.”

Here, Professor Robinson delves further into the book’s themes.

Q: You write in the preface that American Criminal Law is “not meant to be a workman’s handbook for criminal justice participants but rather a travel brochure for anyone interested in the life and evolution of criminal law and society.” A two-part question: Why did you want to write this book, and why did you want it to appeal to a broader audience than just those in the legal community and students?

Robinson: Much of my scholarly work has focused on the shared intuitions of justice of ordinary people. The research suggests that those intuitions are sophisticated and nuanced. In other words, criminal law is a special area of law to which ordinary people come with a certain natural expertise in judging the relative wrongfulness of conduct and the relative blameworthiness of an offender. That has led me to start writing books for a general audience, appreciating that they have a natural aptitude and interest in criminal law that they do not have for other areas of law.

But not only is it possible to speak to a general audience about criminal law, it is also important to do so. Criminal codes ought to reflect the community’s shared intuitions of justice, rather than being drafted primarily upon the theories of experts and academics that ignore the importance in criminal law of community views.

Q: You write that “criminal law remains as one of the only moral authorities available to describe what society considers to be truly condemnable.” What gives criminal law its moral authority?

Robinson: That is an extremely interesting question on which I’ve actually written a good deal. Criminal law earns its moral authority by publicly committing itself to doing justice above all else. A system that regularly does injustice and regularly fails to do justice is a system that will lose its moral authority with the community and will thereby lose access to the powerful forces of social influence that the law’s earned moral credibility can bring.

It is for just this reason that I have long argued that the criminal justice system must avoid rules and practices that produce systematic injustice or failures of justice. Unfortunately, there are many who have influence in shaping criminal justice rules and practices who are willing to produce regular deviations from justice in order to promote some other goal, be it crime-control, a political or ideological agenda, or some other goal that they see as important.

Q: In what ways does criminal law concern itself not just with tangible harms to people and property but also with intangible harms to institutions and larger societal interests?

Robinson: Certainly, people tend to think first about physical harms to persons or property when they think of criminal law, but the vast majority of offenses in the criminal code concern intangible rather than tangible interests. Counterfeiting, insider trading, and deceptive business practices all concern injuring an intangible societal interest, such as the perceived reliability and fairness of particular economic activity, not causing a tangible harm. Mistreating a dead body, defecating in public, and consensual adult incest with birth control all concern violation of societal norms, not tangible harms.

Q: You write that “generations from now people will look back on our present society and roll their eyes—or scowl in disgust—at something we now criminalize that they have come to see as wholly acceptable or at something we fail to criminalize that they have come to see as highly condemnable.” What is something we now criminalize that will be seen as acceptable or something that might be condemnable that we have failed to criminalize?

Robinson: Well, of course, that’s the challenge. No generation can know for sure what is coming around the historical corner. I’m sure many centuries ago in Europe no one could have imagined a world in which blasphemy was not a crime. They could not see it coming.

Will it turn out that a century from now future generations will see our failure to recognize the equality between human rights and animal rights to be barbaric? There has never been a generation in human history that “got it right”—and there never will be because human society continues to evolve. (This is one of the reasons I think it is shortsighted for our current generation of activists to imagine that they have it exactly right. Their arrogance will appear downright silly at some future time when their own conduct and views are “revealed” as seriously wrongheaded. It is for this same reason that I think it is sad that current activists are often wildly judgmental of past generations, tearing down statues, etc., of historical figures who were simply a product of their times—as if the current crop of activists are not similarly simply a product of their times, which will be discredited soon enough.)

Read more about Paul H. Robinson’s research and scholarship.