Why the Mind Matters in Criminal Law

Joshua Kleinfeld

Professor of Law and (by courtesy) Philosophy 
Northwestern University

A theory of a social practice must be able to carry a certain descriptive and interpretive burden: it must be able to account for those features of the practice sufficiently central to its character that, without them, the practice would become distorted or unrecognizable as a phenomenon in the social world. A theory of jazz music needs an account of improvisation; a theory of natural science needs an account of experimentation; a theory of democracy needs an account of voting. A theory with no place for these architectural features is, at a minimum, revisionist, and, at the limit, not a theory of the practice (of jazz, of science, of democracy) at all. As Ernest Weinrib has argued in developing a theory of private law: “within private law’s massive complex of cases, doctrines, principles, concepts, procedures, policies, and standards,” there are “certain features” whose “systematic absence would mean the disappearance of private law as a recognizable mode of ordering” and that therefore must, “[a]t the level of theory … be explained or explained away.” The social theorist’s burden is to explain or convincingly explain away his practice’s architectural features.