Representations of Law, Rights, and Criminal Justice - Oxford Research Encyclopedia of Criminology
a special relationship between motherhood and crime, students need only to open their first year criminal law casebook to the omission liability section.3 Most of. Basically crime and law are things that are often mentioned almost simultaneously most times. The reason for this is the fact that in this world we live in, there are. Crime and the media or law in film classes are no longer exceptional at law schools Criminal justice is indicative of the state of human relations and of society.
Film and TV lawyers often collaborate with paralegals or in-house detectives to solve crimes. In the German Anwalt Abel — series, the lead character investigates cases himself and is supported by his secretary, Jane. Greenfield and Osbornp. Experienced viewers will be able to recognize certain patterns of action. This is not necessarily off-putting. The media makers are assured that the public will buy their product or switch on their devices as long as they offer them an intelligent variation of previous films, TV series, or printed stories.
The public, in turn, feels they can rely on being served up content they prefer. While this has a conservative element, there is also an inbuilt mechanism of regeneration and change. Even if the change only involves a recombination of proven formulas. Viewers may watch The Caine Mutiny USA, for its qualities as courtroom drama or as war movie, and there even is a love story between the youngest officer and a bar singer. Ideal for the whole family to have an evening together at the cinema.
Self-reference of film can be an additional delight for the connoisseur. Viewers who have seen many courtroom dramas may compare specific scenes with those they already know and notice the development, or absence of, between certain examples.
Stories are another ingredient of crime and justice entertainment and documentaries. They are already important for obtaining an indictment or making a defense in court. Bennettp. For a judge show on German television, a team of lawyers and scriptwriters scanned crime reports in newspapers, rulings reported in law journals, and other sources for ideas. Audience reaction was systematically studied to further select the most promising stories. Moreover, there is the story in the trial and the story of the trial Jackson,p.
One consists of the murder or other crime committed, and the other may be about the attempted manipulation of evidence, police bias, and lawyer trickery.
As these examples show, they are sometimes taken from religious belief or nationalistic tales. They review cases where they think a guilty defendant got off. Yet the judge repents, stops the hired killer, and the final scenes show him in league with police acting against the vigilante judges. Finally, as Blackp. At least for a moment the recipient must be able to give up her disbelief or a film, book, or television series would not work.
It is an art of its own to involve audiences into goings-on that on cool reflection cannot be real. In the Japanese masterpiece Rashomonthe ghost of the deceased samurai tells his story in court through a medium.
This may only work because many of the other conflicting testimonies are introduced through flashbacks in which witnesses recalling their experiences and because it is prepared by the exotic sensation of a shamanistic ritual. Pop cultural products are often given a degree of leeway that allows the storytelling to transgress logic. While there are inherent qualities in crime and criminal justice topics lending themselves very well to entertainment, there also is a dominant place of production for the world market.
The American Template Given a powerful media industry, a complex and sometimes controversial justice system, and a long history of severe, often particularly violent crime, the criminal justice system in the United States, moreover, its fictionalization, forms the pattern that is followed by many products around the globe.
The United States has a rich cultural repertoire of crime legends. Printed media in the 19th century was already sensationalizing violent events taking place in the West during the territorial expansion of the nation.
When the legend becomes fact, print the legend. Moreover, famous lawyer figures, even those who went into politics like the abovementioned Abraham Lincoln and Daniel Webster, became film heroes.
In parts of the United States, crime is a real threat to citizens, as evidenced by the number Lubkin, of gun-related deaths. The system of self-censorship developing in the s and s Springhall,as a side-effect made sure that films were palatable for the widest possible, indeed a world, audience. Its provisions Motion Picture Association of America, obliged filmmakers to present the law as victorious in the end, and required that legal institutions and officers of the law be portrayed in a positive light.
For dramaturgical reasons, there were villains and injustice had to threaten, but the final message was to be a reassuring one. There were other kinds of tales occasionally, and with the cultural turn of the s, more critical films were made Chase, In And Justice for All USA, the protagonist learns that moral corruption has become a prerequisite of being able to serve as lawyer or judge.
Yet large parts of the audience at the time, in countries like France and Germany, were being affected by the same currents, and thus the films had their markets. Later cultural changes were equally successfully mastered by the U.
For example, female characters are since at least the s more frequently seen in powerful positions and more often favorably portrayed, or, what is perhaps the true test, feature as formidable villains. In addition, some aspects of U. In some Latin American countries, a trial often is conducted through paperwork; in many European countries, the trial is conducted in open court but with a judge taking the evidence and only complementary action by lawyers; and in totalitarian states, the court hearing just enacts a foregone conclusion.
By contrast, the U. In German courts, the leading idea is that judge and lawyers act as a kind of team to establish what the case is Machura, b ; in a U. Despite that in reality the jury is used only rarely and most cases are decided through plea bargaining by the prosecution and the defense or dealt with swiftly by a single judge, most U.
Again, these have specific theatrical qualities that are not found in other jury countries. Already in the process of jury selection, the inbuilt tension between the ideal of the unbiased jury, on the one hand, and lawyer strategies to get a sympathetic jury, makes for entertainment.
The election of judges and prosecutors, common in the United States but not known to most other parts of the world, is a double-edged sword and can play out in very different ways Machura, Punishment can be draconian in the United States. The death penalty is imposed and carried out in some states. Accordingly, the stakes can be high, making good material for news, fiction, and documentaries.
And these are only some of the features that lend themselves to tales of pop culture. The legal profession is one of the defining ingredients of U. Again, the peculiarities that make it worth depicting in films and television become clear from an international comparison.
This is less so in, for example, England and Wales, where lawyers receive their final preparation in the Inns of Court and it seems to matter less where they studied. In countries like Germany, all future lawyers, judges, and prosecutors go through a common apprenticeship and only then specialize. The key differences have to do with personal achievement in rigorous final exams. Rich lawyers seem suspect to Americans Pfau et al. It is legal for lawyers to advertise their services in the United States, even in television spots, but advertising is closely controlled in other countries, where the size of his or her shingle may be about everything a lawyer has to compete with.
However, frequent dealings with lawyers can also contribute to negative stereotypes Macaulay,p. People in the United States have a peculiar relation to lawyers, they elect them to high public office on the one hand, and on the other, make them objects of public ridicule on lawyer jokes, see Galanter, In contrast, lawyers are a less prominent profession in other countries, and in some, such as Germany, for example, they fare comparatively well in trust surveys Machura, ; with a recent dip, Zitka,p.
Having a rich variety of lawyer stereotypes in the public conscience allows the telling of lots of stories in an easy-to-follow fashion. To these aspects, the more active role of lawyers in U. They are the movers and shakers, and if the ethics of some is perceived as dubious, news and entertainment are nonetheless guaranteed. The dominant pattern of storytelling, however, requires that bad and failing lawyers are pushed aside by heroes who set things right. But what is the function of lawyers in the justice system?
They reconstruct interests in terms of rights and raise them. Cinema of Rights Films and, increasingly, TV series related to law inform the public about rights, including human rights, and the procedures to uphold and defend them. Law-related films and series are among the most popular media genres. In addition, they attract some of the most creative filmmakers and tend to involve legal experts.
In many cases, those expert lawyers like the film industry professionalsstrive to make a political point. In the tradition of Hollywood cinema, they construct powerful stories around the travails of their main characters.
The audience is invited to sympathize with victims of rights abuse and to identify with the lawyers who are struggling to achieve justice. Patterns vary, from the lawyer defending an innocent client unsuccessfully e. Lincoln, USA, to the victorious victim who was defending his right not to be discriminated against Philadelphia, USA, to jurors protecting an innocent person 12 Angry Men, USA, to the righteous officer of the law defeated by corrupt machinations e.
This configuration effectively prepares the audience for a rights discourse. Genre-specific dramatization requirements expose viewers to a variety of tropes. These include examples of what can be perceived as rights abuses. Nevertheless, here, films and television series often suggest that having legal safeguards in place is more important than their occasional utilization for disagreeable ends. The overall main message of law-related films and television series amounts to an endorsement of the law as social mechanism to regulate behavior, with an inbuilt liberal agenda.
There have been press campaigns to alert the public to the plight of innocents suffering at the hands of a misguided justice system. The most notable example is the case of Alfred Dreyfus, who was falsely convicted as a spy, but eventually released from prison and rehabilitated.
Personalization of public legal topics is a major trait of those media and so attention is shifted from abstract legal rules to single cases, in which the needs of individuals often stand against abstract rules Chase, In other instances, the rules have been distorted by corrupt individuals, and that is why there is suffering.
The moral limits of behavior and what constitutes justice can be discussed. The workings of the justice institutions can be questioned, as can who is entrusted with power. Occasionally, as in To Kill a Mockingbird, a tale of deep-rooted racism, society looks at its own shortcomings and injustices. Click to view larger Figures 1 and 2. The motion picture as medium lends itself to the depiction of emotions.
In Lucia de B. Later, the devastated assistant prosecutor Judith Jensen confesses to Lucia in prison Figure 2. Film still from Lucia de B. She has a criminal record for prostitution. The audience learns that as a defenseless child she was rented out to men by her own mother—and this is now turned against her as evidence of bad character. Even after Jansen demonstrates Lucias innocence, her boss declines to drop charges. The press creates a public climate of enmity, turning the nurse into a folk devil.
The appeals court reinstates the original verdict. Only much later is her name cleared and she begins to educate the public about criminal justice. The most pitiful figure, however, is cut by Judith Jansen, when she visits Lucia de B.
In Amistad USA,numerous parties line up in court to raise legal causes. Not only do they portray human suffering, mainstream law-related stories also offer up the notion of rights as a panacea. Everyone has rights that can be pursued with the help of lawyers who are morally and technically up to the task. The courts are the place to fight for justice. In this story based on a historic case from the midth century, a group of Africans is at the heart of the events.
Out on the ocean, they rose up against the crew of the slave ship, were subsequently taken prisoner by a U. Navy frigate, and now stand trial. In a long and winding story, the Africans and their supporters, led by two lawyer heroes, one young and inexperienced, the other an ex-president, in the end sway the Supreme Court to free the Africans, despite political intervention.
This is the metanarrative of popular legal culture: Lawyer Heroes and Rule of Law Films and TV series on criminal justice and its institutions have a profoundly political subtext. Not only do they educate the audience about the rights that can be claimed in court and legitimate legal procedures; they also point at the people who are expected to handle the business of making justice a reality: Although, in the United States and other countries, law is seen as something that can be understood by lay people, for example by a jury.
Law as a technical subject, inaccessible to the scrutiny of the people, is depicted as suspicious even. The law needs to be rooted in basic understandings of right and wrong. In court, he stops the all-to-eager prosecutor in his tracks: Felder, but I know what's right and what's wrong. And I know what you're asking is wrong.
Lincoln prevents the lynching of his clients and stops a miscarriage of justice, demonstrating better judgment than people in the town and lawyers alike, but always only acting as an instrument of the true law of the people. This simple concept is bound to upset critics. But as Greenfield, Osborn, and Robsonp. The institutions of law must allow the just application of the law in fair procedures.
On a very basic level, many films and television series point out the importance of a separation of powers. Political might does not triumph over the due process. The rule of law—and not of man—needs to be safeguarded. Countless films draw their themes from transgressions between the legal and the political systems and entertain and educate the audience by depicting a heroic struggle to stop corruption.
Adams points to one of his potted plants: Herein lies the danger so often alluded to in popular culture. Films and television shows outlining the abuse of power by private forces and the superiority of legal instruments are also a staple of popular fiction.
Crime - Classification of crimes | klokkenluideronline.info
The state monopoly on the legitimate application of physical force Weber,p. The scene that is relevant here takes place in a barn, as Custonaci places green olives where they can be crushed by the stone wheel of an age-old mill. Confronted by Inspector Montalbano, Custonaci professes, proudly, to have stopped an outbreak of war between the Cuffaro and the Sinagra families.
He made the clan elders accept that a brute related to one mafia family is allowed to avenge the rape of his sister, committed by a member of the other family. As Montalbano hands Custonaci over to uniformed police officers for his part in the horrible deal, the camera shows the giant stone wheel in the foreground at a standstill, the olives are safe for now.
Imagine Chika intentionally killed Dawn to defend herself or others. Neither of these defendants, we can assume, is justifiably punished. On the curial view, things are different.
Alisha and Chika both have reason to account for their behaviour—to explain what they did and why they did it. Criminal proceedings invite each to provide that account and put each under pressure to do so. Assuming Alisha and Chika have reason to account in a criminal court, proceedings in which they are called to do so are of intrinsic value. To endorse the curial view is not, of course, to say that we should do away with criminal punishment. But it is to say that the connection between trial and punishment is not merely instrumental.
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.
Theories of Criminal Law
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.
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.
- Representations of Law, Rights, and Criminal Justice
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. 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. 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: