Theories of Criminal Law (Stanford Encyclopedia of Philosophy)
The problems we face trying to define "theft" or "crime" or "the law" may be a ( PHIL 22B) reflects the conviction that the law, when it is studied in relation to . To illustrate how difficult it is to give a definition of crime, take, for. The word crime is difficult to define, but an attempt at definition essentially must .. his niece, legalised marriage between paternal uncle and niece, leaving. In ordinary language, a crime is an unlawful act punishable by a state or other authority. The The sociologist Richard Quinney has written about the relationship between society and crime. The following definition of "crime" was provided by the Prevention of Crimes Act , and applied for the purposes of section 10 of.
Indeed, since you will be asked on numerous occasions to say whether you think a crime has been committed, it might seem especially useful to start with a definition of crime. But it is not quite so easy to define crime. To illustrate how difficult it is to give a definition of crime, take, for example, murder and theft. How about theft is a crime against property?
But so is arson. How about all involuntary transfers of property? But so is the foreclosure of a mortgage. How about all involuntary transfers of property, not pursuant to prior agreement, to rule out foreclosures? But so are robbery, blackmail, and the passing of bad checks. Below you will find three examples of theft. Can you give a definition of theft that captures the features that each of the examples have in common?
John sneaks up, unties Alice's horse, and rides off into the sunset. THEFT 3 John, who is oil prospecting, persuades Alice to sell him a valuable oil property which she happens to own in Texas, for a pittance by telling her falsely that a soon-to-be built highway will lower the value of her property dramatically. Do not try for too long? No one, as far as I know, has been able to do it.
Presented with this difficulty, the common law has viewed each as a separate offense. Theft 1 has been called larceny: Theft 2 has been called embezzlement: And Theft 3 has been called false pretenses: Three kinds of crimes, three forms of theft, defined.
But now consider the following: OMalley Bridget McDonald was a servant in a family residing in Boston and received from her employer, in payment of wages, thirty-eight dollars in bankbills.
The defendant, Martin O'Malley, asked her to let him take the money and count it, she not being able to read or write. O'Malley counted it several times in her presence, and then, upon, her asking that he should return it to her, refused to do so. Bridget McDonald then locked the door to keep him from escaping but O'Malley threatened to jump out of the window or burn the bank-bills, inconsequence of which McDonald opened the door, and O'Malley went off with the money.
O'Malley was arrested and charged with larceny. The trial court, however, believed that he was guilty of embezzlement, not larceny, since O'Malley had not actually taken the property away from McDonald but merely kept it against her will. The trial court acquitted O'Malley. The state then prosecuted O'Malley for embezzlement and a jury convicted him.
On appeal, however, O'Malley argued that a jury could not possibly convict him of embezzlement, since what he had done clearly amounted to larceny. The appeals court agreed: When a person turns her property over to another for some brief, limited task, such as the counting of bank-bills, that person has never actually divested herself of her possession. Absconding with something that belongs to somebody else and that is in somebody else's possession is larceny, not embezzlement.
The court acquitted O'Malley of the embezzlement charge and, as far as the records show, O'Malley was not tried again and so went free. What offense is that. So we are back to square one. How do we define theft? Since no attribute can be found that all three offenses have on common, some legislatures have defined theft as larceny-embezzlement-false pretenses.
But how does this solve anything? Under the common law, fairness requires that a defendant be told whether he or she is charged with larceny, or embezzlement, or false pretenses in order to prepare the appropriate defense and that he or she be convicted only if a jury can agree upon which of the three was committed. Doesn't fairness require that a defendant be told with which kind of theft he or she is charged? If so, we're again without a definition of theft.
Back to top IV. The problems we face trying to define "theft" or "crime" or "the law" may be a consequence of a more general problem we have with defining anything, anything at all. Well, Jewish is tough to define, you say, tougher even than theft. Okay, how about chair or dog? Define either one of them. Definitions are supposed to identify a set of necessary and sufficient conditions that will pick out those things, and only those things, which the definition is supposed to capture.
So a definition of dog should pick out dogs and only dogs, not all dogs except Pekinese or all dogs plus a few cats. We tend to think that children are not very good at this sort of thing Question: What is a dog? Is furry, goes woof, sometimes bites. We tend to think that as children grow older they will get better and better at defining things. We then think we those of us who have grown up can do it. Theres no reason to become too smug about this.
Most studies show adults are not much better than children at this sort of thing and if recent experiments in Psychology are to be believed, words may not even have defintions! So the difficulies we face defining what makes soemthing a crime or what makes something a case of theft may be more a reflection of a general disability we have with this sort of thing than a reflection of any trouble we are having with defining crime or theft. Take chair, for an example. How about has four legs and a back?
But what about bean-bag chairs? And what about dogs? Dogs have four legs and a back.
So we have not got very far; we havent even been able to distinguish chairs from cats and dogs. How about something to sit on? But so are sofas and benches and bucket seats are also things to sit on. Our difficulty arises in part from our trying to find what is common to all chairs, but there may be no such common criterion or set of criteria.
Take the concept of a game. Put the games of chess and checkers next to one another. It is not difficult to find certain features that they have in common. But now put the game of jacks next to checkers, and next to jacks, solitaire, and next to solitaire, baseball, and so on and so on. Ludwig Wittgenstein, a philosopher from the earlier half of this century, proposed that there may indeed be no one thing that all games have in common, only a set of "family resemblances" between various games, no one feature which runs through the whole lot of them, but a series of overlapping commonalities, like a good piece of rope or hemp which is made up of many overlapping fibers but no single fiber runs through the entire length.
What then makes something a crime? Well, just because it is hard, if not impossible, to come up with a feature or set of features that all crimes have in common, does not mean that we cannot uncover several family resemblances that some, if not all, crimes share. In this spirit there are at least two conditions, ceteris paribus, that must obtain if an individual is to be found guilty of a crime. An individual must 1 have committed a bad act and 2 have a guilty or evil mind. Of course, it is possible to think immediately of exceptions to this simple formulation.
The exceptions, however, are not necessarily unreasonable, but seem to be required by other considerations, such as considerations of justice or to follow, in some understandable fashion, from the very conditions themselves.
Sometimes the exceptions are controversial and have been contested and so not unsurprisingly make for good discussion and debate. In any event, sometimes we acting as a community are ready to convict one of our members of criminal activity, even if there was, strictly speaking, no bad act only a guilty mind and other occasions where we are ready to convict even if there was, strictly speaking, no guilty mind, no evil intent, only a bad act.
Criminal attempts are an example of the latter. The actual result of an attempt is often harmless. The bullet, for example, intended for the President, missed the President and became lodged in a tree. The tree absorbed the blow without much damage to itself and has grown into a grand old oak.
Still, as we may well suspect, the bullet might have hit the President. But criminal attempts are by their nature failed crimes, and failed crimes are failed bad acts, and a failed bad act is not, strictly speaking, a bad act. It might have been bad. That's why its an attempt. The criminal law also sometimes punishes omissions and omissions by their very nature are not acts, but failures to act.
And yet omissions can also be crimes. Lifeguards and nurses who fall asleep while on duty can be charged with negligent homicide if someone dies on their watch and the death can be linked to their failure to respond. Some crimes such as the illegal possession of a weapon are also not acts in the strict meaning of the term. So much for the requirement that crimes must involve a bad act!
Then too there are some bad acts which are punishable, but which do not require a culpable state of mind, crimes that are punishable even though they were unintended, inadvertent, unforeseeable, and practically impossible to prevent. Examples of just such a class of crimes where no intent or guilty state of mind is required are strict criminal liability offenses such as statutory rape cases, felony murder cases, and many products liability cases.
So much for intent and a guilty state of mind! Back to top VI. The two basic elements of criminality are marked by their Latin names: Actus reus refers to an act of wrongdoing: In this respect, the criminal law is concerned with conduct, with things people do.
So, ignoring the exceptions for there to be a crime, there must first be an act The Model Penal Code, upon which most states base their criminal laws, defines an act as a muscular movement under conscious control. This rules out acts committed while under hypnosis or while sleep-walking or done reflexively.
The expression mens rea is sometimes taken to mean intent as well as guilty mind, evil mind or a culpable or blameworthy state of mind. One must have committed an act and the act must be accompanied by a blameworthy state of mind before one can be said to have committed a crime.
This is frequently stated by saying that a criminal offence is an act committed with the intent to commit the offense. The Model Penal Code suggests that every criminal offense be broken down into its constituent elements. Take burglary, for instance. Most jurisdictions put it in the following way: Knowingly breaking and entering the dwelling house of another with the intent to commit a felony therein.
This is then broken down into its constituent elements: Then, given the two fundamental requirements for the commission of a crime, a bad act and a guilty mind, the Code proposes that in order to be convictable of the offense of burglary, I must have the requisite state of mind with respect to each element of the offense. I must, with intent or conscious purpose, have broken in and entered onto property; have done so with the awareness that it was a dwelling house and the dwelling house of another, and that I intended to commit a felony once I got inside.
Failure to possess the requisite state of mind with respect to any one of these elements would mean that I could not be convicted of burglary. Some think that the facts that make punishment fitting—say, culpable wrongdoing—obtain independently of criminal proceedings themselves Moore The fitting way to respond to criminal wrongdoing, on this view, is to call the wrongdoer to account for her wrong.
We can see the implications of this view by imagining a world in which trials are abolished, because some new-fangled machine allows us to identify culpable wrongdoers with perfect accuracy. On the curial view, the punishments we impose are inherently defective: Though our new-fangled machine might justify doing away with trials—once we factor in how expensive they can be—we would lose something of value in doing away with them. If criminal law does have a particular function, we can ask whether that function is distinctive of criminal law.
We can ask, in other words, whether it helps distinguish criminal law from the rest of the legal system. It has been claimed that criminal law is distinctive in imposing punishment Moore18—30; Husak One might also claim that criminal law alone calls defendants to account. But punishments are imposed in civil proceedings—exemplary damages are the obvious case.
And it is arguable that civil proceedings also call defendants to account—that they too invite defendants to offer a denial or plead a defence; that they too use the prospect of legal liability to put defendants under pressure to account adequately Duff a. In response, one might try to refine the function that is distinctive of criminal law.
What we should make of this proposal depends on what a public wrong is Lamond ; Lee ; Edwards and Simester To make progress, we can distinguish between primary duties—like duties not to rape or rob—and secondary duties—like duties to answer, or suffer punishment, for rape or robbery. We incur duties of the latter kind by breaching duties of the former.
Many wrongs are both crimes and torts. So the two bodies of law often respond to breaches of the same primary duty. A more promising proposal looks to secondary duties. Perhaps the function of civil law is to respond to wrongs on behalf of some of us—to discharge secondary duties owed to particular individuals. This might be thought to explain why criminal proceedings, unlike civil proceedings, are controlled by state officials: The view described in the previous paragraph conceives of criminal law as an instrument of the community—a way of ensuring that the community gets what it is owed from wrongdoers.
Call it the communitarian view. If we combine this with the curial view, the distinctive function of criminal law is to seek answers owed to the community as a whole. One might doubt that the functions of criminal and civil law can be so neatly distinguished. More importantly, one might claim that in the case of paradigmatic crimes—like robbery, rape, or battery—criminal law responds to wrongs on behalf of particular individuals—on behalf of those who have been robbed, raped, or battered.
Those who reject the communitarian view might be thought to face the following difficulty: First, we should not always require the wronged to have to pursue those who have wronged them. Second, we should not always support those who think themselves wronged in pursuing alleged wrongdoers.
As to the first point, some are trapped in abusive relationships with those who wrong them. Others are susceptible to manipulation that serves to silence their complaints. Some wrongdoers can use wealth and social status to stop accusers in their tracks. As to the second point, the temptation to retaliate in the face of wrongdoing is often great.
It is all too easy for the pursuit of justice to become the pursuit of revenge, and for the perceived urgency of the pursuit to generate false accusations. Official control can help vulnerable individuals—like those described above—to get what they are owed.
And it can mitigate the damage done by those trying to exact vengeance and settle scores Gardner— It can ensure that those in positions of power cannot wrong others with impunity, and reduce the likelihood that vindictiveness begets retaliation, which begets violent conflict from which all lose out Wellman8— We can add that criminal proceedings may help protect others against being wronged in future. Those wronged may have a duty to give up control of proceedings in order to provide this protection Tadros c, — These remarks suggest an alternative to the communitarian view.
According to the alternative, the secondary duties of concern in civil and criminal proceedings are typically one and the same.
Call this the imperfectionist view. What is distinctive of criminal law, on this view, is not its function but its mode of functioning: What is distinctive about criminal law, they claim, is that it publicly censures or condemns. This expressive function is sometimes associated with criminal punishment Husak92— Because other bodies of law sometimes punish, and because punishment typically—perhaps necessarily—expresses censure Feinbergthe expressive function is at least partly shared.
But the message sent by criminal law is not sent only at the sentencing stage. Though additional detail may generate the same conclusion in the case of a civil verdict, such detail is not required in the case of criminal conviction. If this is right, the distinctiveness of criminal law turns out not to consist in the fact that it provides for punishment. It turns out to consist at least in part in the provision of a technique for condemning wrongdoers which does not require that we punish in order to condemn.
So far, we have focused on the functions criminal law fulfills in response to the commission of crime. We can see this by asking what success would look like for the criminal law. Would criminal law have succeeded if all thieves and murderers were tried and punished? Or would it have succeeded if there was no theft or murder, because criminalization resulted in would-be thieves and murderers refraining from such wrongs?
Notice that to pose these two questions as alternatives is not to deny that punishment might be justified in preventive terms. It is rather to suggest that resorting to punishment to achieve prevention is already a partial failure for the criminal law. It is a failure to deter those who, ex hypothesi, have already committed criminal offences.
Had the creation of those offences been an unqualified success, there would have been nothing for which to punish anyone. Call this the preventive view. Defenders of this view need not say that we should enact whatever laws will achieve the most prevention. That cutting is the function of knives does not entail that knife-holders are justified in cutting whatever they see.
Holders of the preventive view can, in other words, accept the existence of constraints on prevention, that are not themselves justified in preventive terms Hart35— What they cannot accept is a positive case for criminal law that is not preventive.
Some hold a mixed view that combines elements of those considered above Alexander and Ferzan3—19; Simester and von Hirsch3—18; Tadros— One way to construct such a view is by distinguishing between primary and secondary functions. Primary functions are those that, when all else is equal, we have most reason to want the law to fulfil.
Secondary functions are those we have reason to want the law to fulfil if it fails to fulfil its primary functions. Ceteris paribus, we have most reason to want criminal law to bring about a world in which wrongs like theft or murder do not occur. Failing that, we have reason to want criminal law to call thieves and murderers to account, and to punish those who have no adequate account to offer. There is some scepticism about mixed views.
For some, the worries are conceptual. Moore claims that justified punishment must be imposed for reasons of desert, and that for this reason the punitive and preventive functions cannot be combined. Several replies are available. First, even if this is a problem for a mixed view of punishment, it need not be for a mixed view of criminal law.
Grant that punishment must be imposed for reasons of desert. It does not follow that criminal offences cannot be created for reasons of prevention. Criminalization and punishment are different acts, and can be performed for different reasons Edwards and Simester Reasons that help make a positive case for our actions are often reasons for which we should not act. That one will be financially secure is a reason to get married, but one should not get married in order to be financially secure.
Similarly, to say that prevention helps make a positive case for criminal law—and for punishment—is not to say that judges should punish for that reason. Other worries about mixed views are pragmatic Duff a. As criminal wrongdoing will persist whatever we do, the preventive function sets criminal law an insatiable goal. There is a standing risk that law-makers who pursue that goal will deprive us of a criminal law that fulfills its other functions.
Consider again the curial view. Plausibly, we have reason to account for wrongs like theft and fraud in criminal court, but no reason to account for every interaction with property or all misleading statements from which we stand to gain.
If defendants are to be called to account for the wrongs, it is these that must be criminalized. To criminalize trivialities—in pursuit of preventive ends—is to drain criminal proceedings of their intrinsic value Duff b. No doubt these are important worries. But they do nothing to suggest that we should reject a mixed view. At most, they show that law-makers also should not take prevention to be part of their mission. As we already saw, this conclusion does not show that prevention is not part of the positive case for criminal law.
And it may anyway be too strong. Law-makers who exclude prevention from their mission may refuse to create crimes that would prevent a great deal of harm. The cost of refusing to create these crimes might be greater than the cost of calling people to account for trivialities, and this might be so even when alternative means of prevention are factored in. If we should not be abolitionists, criminal law must be capable of realizing some value that gives us sufficient reason to retain it.
To offer an account of this value is to offer a general justification of criminal law. Obviously enough, the functions of criminal law tell us something about what this might be. If the curial view is correct, that value consists in part in people offering answers that they have reason to offer.
If the preventive view is correct, it consists in preventing criminal wrongs. So stated, however, these views do not tell us what the value of fulfilling each function actually is.
The punitive view tells us nothing about what justifies criminal punishment. The curial view tells us nothing about the value of calling people to account in criminal courts. The preventive view tells us nothing about the value of preventing crime. A general justification of criminal law fills this explanatory gap. We can make progress by distinguishing between value of different kinds. Some value is relational—it exists in virtue of relationships in which people stand.
That a relationship has such value is a reason to do what will bring it into existence. The value of friendship is a reason to make friends. The value of egalitarian social relations is a reason to break down barriers of status and rank. Some argue that we have sufficient reason to have criminal law because it helps us enter a valuable relationship: This argument can be developed as follows.
Just as slaves are dependent on their masters, so we are dependent on one another in the absence of a framework of legal rights: To avoid this, we need more than just rights that exist on paper. We need sufficient assurance that our rights will be respected, and we need a mechanism by which their supremacy can be reasserted in the face of wilful violation. Criminal punishment amounts to reassertion. Crime prevention provides reassurance. At the level of function, this is what the last section called a mixed view.
But the value of fulfilling both functions is one and the same: It is not clear why we should accept this claim. One source of doubt is the fact that some agents are unavoidably dependent—they lack the capacities required to live as independent beings. This is true of some non-human animals, and some of those with serious disabilities. Precisely because of the capacities they lack, these agents are especially vulnerable to being abused or exploited.
Ex hypothesi, this does nothing to secure independence. So it is not something that can be accommodated by the exhaustive form of the Kantian view Tadros b. On another view, the value of criminal law derives from a relationship that pre-exists it: Any such community has values in terms of which it is understood by its members.
If this self-understanding is to be more than a charade, the community must actually value its defining values—it must do what those values are reasons to do. Part of what it is for a community to value life is for it to respond to the taking: Criminal law is a body of law that requires the accounting. Functionally, this is a version of the curial view. But the value of fulfilling that function is relational: This line of thought lends support to what I earlier called the communitarian view.
On that view, criminal proceedings discharge secondary duties owed to the community as a whole. That such duties are part and parcel of a valuable form of relationship helps explains why we should think that they exist. One objection to the view described in the previous paragraph is that it is unduly conservative.
What justifies criminalizing a wrong—on that view—is that the wrong has a pre-existing foothold in the defining values of the community: Some communities, however, are characterised by systematic neglect of important values—by patriarchy, or racism, or distributive inequality.
When this is so, part of the justification for criminalization is not that it helps the community remain true to itself, but that it helps transform the community by reconstituting it in valuable ways Dempsey ; Both versions of the relational view—Kantian and communitarian—face another doubt.
It is plausible to think that this wrong is of concern to the criminal law in its own right. It is plausible to think that whatever further effects it might have, preventing the wrong of murder itself helps justify criminalizing murder, and bringing criminal proceedings against murderers.
On both the Kantian and communitarian views this is not the case. What justifies criminalizing wrongs, and bringing criminal proceedings against wrongdoers, is that this contributes to some larger social good—to the framework of legal rules we need for independence, or to the community remaining true to itself.
We may reasonably doubt that wrongs like murder matter to the criminal law only for these further reasons. The above remarks concern the kind of value that justifies having criminal law. We can also ask who is capable of realizing that value. If that value is to be realised, someone must act on behalf of those who stand in the relationship. In most systems of criminal law, the job is done by the state—agents of the state create, apply, and enforce criminal laws. Some argue that in a legitimate system of criminal law this is the only possibility.
This view can be developed in a number of ways. Consider again the Kantian view. Some claim that coercion secures independence only if the coercer speaks for all those coerced. Otherwise it is just another independence violation. Only state agents can speak for all of us.
So the enforcement of the criminal law must remain in their hands Thorburn a, 98— Defenders of the communitarian view tell a similar story. On both views, it is impossible for private persons to realise the values that justify criminal law.
If these arguments go through, they have obvious implications for debates about the privatization of prison and police services Dorfman and Harel They also offer us a sense in which criminal law theory must be political. It must face up to the question of whether there are essentially public goods, and ask what role they play in justifying the existence of criminal law Harel96— Consider the prevention of harm, or the prevention of moral wrongdoing.
A number of writers appeal to one or both values to justify the existence of criminal law Feinberg—; Alexander and Ferzan17; Simester and von Hirsch29— Because there are wrongless harms think of sporting injures caused without foul play and harmless wrongs think of botched conspiracies or undiscovered attempts the aforementioned values do not always wax and wane together. A third possibility is that harms and wrongs provide two independent sources of general justification compare Tadros— Whatever the answer, this preventive value is impersonal in two ways: It is worth distinguishing between two versions of this view.
According to Moore, all culpable wrongdoers incur a duty to allow themselves to suffer. Retributive justice is done when punishment imposes that suffering, and this is what justifies the imposition of criminal punishment Moore70— Moore argues that the suffering of culpable wrongdoers is intrinsically good.
On a rival view, suffering is always intrinsically bad.
Fear of Crime
We must accept, however, that in some cases not all suffering can be avoided. Sometimes we must choose between wrongdoers suffering now and others suffering at the hands of wrongdoers later. Only by imposing the former can we protect against the latter. It might look as though punishing wrongdoers for these protective reasons amounts to treating them as mere means. But this is not necessarily so. Tadros argues that some wrongdoers incur duties to protect others at the cost of some harm to themselves.
We can justify imposing punishments that come at this cost to these wrongdoers, when the punishments protect others by preventing future wrongs. As those punished are only doing their duty, we can reasonably claim that they are not treated as mere means Tadros c; Though Moore and Tadros disagree on many things, their views also have something in common. The value to which both appeal to justify punishment is impersonal: General justifications of criminal law like those sketched in the last few paragraphs face a number of criticisms.
One objection has it they are unduly expansive: But as the failure is a private matter—to be resolved by the friends themselves—there is no reason for law-makers to criminalize the wrong Duff b; Husak— There is certainly no reason for them to criminalize it when the friends are both citizens of another state, and the failure occurs in the other jurisdiction Duff Reasons to criminalize exist, as it is often put, only where law-makers have standing.
And the mere fact that a wrong generates the aforementioned secondary duties does not itself give law-makers standing to criminalize it. According to a second objection, the focus on moral wrongdoing is unduly restrictive: According to one argument for this conclusion, the stable existence of almost any valuable social institution—be it financial, educational, familial, military, or political—depends on widespread compliance with its rules.
Under realistic conditions, criminal liability for violation is necessary for stability. It is the value of stable institutions, not the moral wrongfulness of violating their rules, that justifies bringing criminal law into existence Chiao A third objection returns us to the asymmetry discussed at the end of section 1. Many of the powers and permissions by means of which criminal justice is done are withheld from private persons.
Most obviously, private persons are not typically permitted to use force to punish others for crime. Few think that this should be changed.
What is crime? We can't measure it because we haven't defined it
Vigilantism should remain criminal. If the values that justify having criminal law are essentially public, we appear to have an easy explanation of this fact: If those values are not essentially public, things are more difficult. Let us take the third objection first. If impersonal values justify having criminal law, we have reason to opt for whichever set of legal rules will realise those values most efficiently. If one set of powers and permissions will achieve more of the value in question at a lower cost, we should—all else being equal—opt for that set.
Now compare two sets of rules. One permits state officials and private persons alike to use force to punish criminals. Another withholds the permissions granted to the former from the latter. We have good reason to think that the first set of rules would bring with it significant costs. Private persons are likely to make more mistakes about who committed crimes, and about how much punishment is appropriate for criminality.
Different private punishers are unlikely to punish similarly placed offenders in similar amounts. And as their actions are less easily subjected to public scrutiny, private persons are less easily compelled to punish for the right reasons—in order to do justice rather than settle scores, get revenge, or maximise their profit margins Moore a, 42; Edwards forthcoming.
Avoiding these costs is a strong reason to opt for the second set of rules. True, that set prevents proportionate punishment being imposed by our imagined moot court. But it is plausible to think that this benefit is outweighed by the aforementioned costs. If it is, those who appeal to impersonal values to justify criminal law can explain why the moot court is not permitted to force us to give up our money.
According to the second objection, what justifies having criminal law is its role in stabilizing valuable institutions. By preventing these wrongs, and holding wrongdoers responsible, we stabilize the institutions.
The contrast between a general justification focused on moral wrongdoing, and one focused on institutional stability, therefore turns out to be a false contrast Tadros These observations help make a more general point. We can accept that criminal law is a tool properly used to support financial, educational, familial, military, and political institutions.
If this kind of general justification is not too restrictive, is it nonetheless too expansive? This was the first of the three objections raised above. We need not infer that criminal law is unconcerned with moral wrongness. We need only accept that there are facts about criminalization which give law-makers a duty not to criminalize some moral wrongs.
There are many such facts, and their force varies depending on the wrong Simester and von Hirsch—; Moore In some cases, criminalizing a wrong will inevitably result in selective enforcement, raising concerns about selection being made on discriminatory grounds. In others, enforcement would necessitate gross invasions of privacy, and require the law to take sides in conflicts better resolved by the parties themselves.
There is often value in freely choosing not to act wrongly, and in so choosing for the right reasons, rather than because one was coerced: It will almost inevitably divert scarce resources from other valuable priorities. And there is often reason to think that criminalization will not result in there being less wrongdoing in the world.
Criminal conduct may be driven underground rather than made less common. Institutions of punishment may house unseen abuse and victimization. Ex-offenders may be driven towards crime by their reduced prospects in life. Where reasons like these generate a duty not to criminalize a wrong, the conduct in question is no business of the criminal law. The Limits of Criminal Law No-one denies that some things should not be criminalized.
What is less clear is how we are to work out what these things are. One approach is to seek constraints on permissible criminalization. Even if the values that justify having criminal law count in favour of criminalization, our reasons to do so may be defeated by reasons that count against. A constraint identifies conditions under which the latter reasons always win.
Consider, for example, the wrongfulness constraint: Principles like W give us a line we can draw without reference to at least some morally salient particulars.
Conduct that falls outside the line may not be criminalized come what may. Imagine we are considering whether to make it a crime to possess guns. Doing so will prevent a great deal of harmful wrongdoing that cannot be prevented otherwise.
This is a powerful moral reason to criminalize. But if W is sound, and gun possession is not morally wrongful, that powerful reason is irrelevant to the decision with which we are faced.
We are not permitted to criminalize, however much harm criminalization would prevent Moore72—73; Simester and von Hirsch22—23; Duff b, — Some suspect that all purported constraints on criminalization fail Duff et al44—52; Tadros91— This is not to say that anything goes. It is rather to say that we cannot use a line like that drawn by W to work out what is permissibly criminalized.
To trace the limits of the criminal law, we must engage in a more complex normative exercise: The limits of the criminal law cannot be traced in advance of this exercise. Instead, they are determined by it. The constraint to which most attention has been paid is the so-called harm principle. It is nowadays widely recognised that there is no single such principle. Rather, there are many harm principles Tadros a; Tomlin b; Edwards These principles have very different implications.
That conduct is harmful, or unreasonably risks harm, does not show that we will prevent a proportionate amount of harm by criminalizing it. Conversely, we may be able to prevent harm only by criminalizing conduct that is harmless, and that does not unreasonably risk harm. To see the first point, consider the use of drugs. Criminalizing use may turn a drug into forbidden fruit that is more attractive to potential consumers, and place production in the hands of criminal gangs who make consumption ever more harmful.
Users may become less willing to seek medical treatment for fear of exposing their criminality, and may end up with criminal records that lead to social exclusion, and damage their employment prospects for years to come United Nations Where criminalization does have these effects, the harm it does is out of all proportion to any harm prevented.
To see the second point, consider the possession of guns. Possessing a gun is not itself harmful. And many possess guns without unreasonably risking harm. If one endorses HPPthings are different. What matters is not the effect of each instance of gun possession, but the effect of criminalizing all of them: To apply W we need to know what makes something morally wrongful.
But while this is necessary, it may not be sufficient. I have decisive reason not to go out in the rain without my umbrella. But it does not seem morally wrongful to do so Tadros11— Whatever the correct criterion, we must ask how law-makers are to apply it. We must also ask whether just any morally wrongful act will do.
Some wrongful acts also violate rights, such that those who commit them wrong others. Some crimes are mala in se—they criminalize conduct that is morally wrongful independently of the law. Most crimes are mala prohibita—they criminalize conduct that, if morally wrongful at all, is morally wrongful partly in virtue of the fact that it is unlawful. Is W compatible with the existence of mala prohibita? That depends on the extent to which changes in the law can produce changes in morality.
The rules of the road are the classic case. Apart from the law, it is morally wrongful to drive dangerously. Such conduct is malum in se. What we should do to conform to this moral norm is not always obvious.
Philosophy of Law
To help, the law puts in place rules that tell us which side of the road to drive on, when to stop, and how fast we may go. Imagine we obey these rules. In doing so, we drive more safely than we otherwise would have: One proposal is that it is morally wrongful to violate legal norms that have this effect: Mala prohibita of this kind would then be compatible with W.
Of course, things are not so straightforward. Even if legal conformity generally improves our moral conformity, there may be exceptional cases in which it does not—in which we can violate the rules of the road without putting anyone in danger, or in which violation helps keep everyone safe.
And there may be people for whom even the generalization is not true—whose expertise enables them to systematically violate legal norms without creating risks any greater than those created by the rest of us. Can an explanation be given of why these violations are nonetheless morally wrongful?
If not, W implies that even morally beneficial mala prohibita—like the rules of the road—must ultimately be removed from the criminal law Husak—; Simester and von Hirsch24—29; Wellman Most views are comparative: One challenge is to identify the relevant baseline.
Are we harmed by an event if we are worse than we would have been if things had been different? If so, different how? Are we harmed if we are worse off than we were immediately beforehand?Determinism vs Free Will: Crash Course Philosophy #24
Or should we focus not on the position we were or would have been in, but on the position we should have been in morally speaking Holtug ; Tadros—? A second challenge is to determine in what way we must be worse off.
The wider our answer to this question, the more likely it is that harm principles collapse into their supposed rivals. Some say we are harmed when our interests are set back Feinberg31—