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Conscience (rule) utilitarianism and the criminal law

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  1. Among those who roughly hold a rule-utilitarian theory of some sort: Francis Hutcheson, Bishop Berkeley, J. S. Mill, J. O. Urmson, Kurt Baier, J. D. Mabbott, Stephen Toulmin, R. F. Harrod, Kai Nielsen, A. MacBeath, C. A. Campbell, Marcus Singer, P. H. Nowell-Smith, John Harsanyi, and (probably, at least at one time), Wilfrid Sellars, early John Rawls, may be mentioned. Some of the above might object to being so classified, and doubtless there should be additions.

  2. See, for instance, Kent Greenawalt,Conflicts of Law and Morality (New York: Oxford University Press, 1987).

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  3. This was a recurring thesis in the work of Conrad Johnson. See his “Toward a Cautious Return To Natural Law: Some Comments on Moral and Legal Obligation,”Western Ontario Law Review 4 (1975): 31–49; “Moral and Legal Obligation,”Journal of Philosophy 72 (1975): 315–33; andMoral Legislation (Cambridge: Cambridge University Press, 1991).

  4. George Fletcher,Rethinking the Criminal Law (Boston: Little, Brown, and Co., 1978), p. 804. See also his “The Individualization of Excusing Conditions,”Southern California Law Review 47 (1974): 1269–309.

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  5. See my “A Utilitarian Theory of Excuses,”Philosophical Review 78 (1969): 337–61, and “A Motivational Theory of Excuses in the Criminal Law,”Nomos 27 (1985): 165–200, both reprinted inMorality, Utilitarianism, and Rights (Cambridge: Cambridge University Press, 1992).

  6. For discussion of the complications, see Donald Regan, “Law's Halo,”Social Philosophy and Policy 4, 15–30; also M. B. E. Smith, “Is There a Prima Facie Obligation to Obey the Law?,”Yale Law Journal 82 (1973): 950–76; Joseph Raz,The Authority of Law (Oxford: Clarendon Press, 1979), pp. 233–49.

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  7. See, for instance, Kent Greenawalt, op. cit.

  8. The New York Times, Sept. 15, 1993, A-15, reports a 17-year-old (undoubtedly black) boy in Thomaston, Georgia, being sentenced to three years in prison for allegedly stealing (he had entered a school building without authorization and a box of ice-cream bars was found missing from the cafeteria) ice cream bars, after plea-bargaining with no advice from a court-appointed lawyer who was busy with another case. The legal system of Georgia of course does not mandate such a sentence in such circumstances, but it did permit it, and the operation of the system had that result. (As a result of the efforts of the NAACP and newspapers, the boy, after ten days in prison, was released on $15,000 bail, for a new hearing.) I suggest that this sentence (and indeed probably the proceeding) was outrageously immoral. What can be done to prevent such occurrences?

  9. George Berkeley,Passive Obedience (1712), reprinted inBerkeley, M. W. Calkins, ed. (New York: Charles Scribner's Sons, 1929), p. 436.

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  10. U.S. Sentencing Commission,Supplementary Report, Washington, D.C., 1987.

  11. See Michael Davis, “Setting Penalties: What Does Rape Deserve?”Law and Philosophy 3 (1984): 61–110.

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  12. Some contemporary writers on the criminal law do not take a utilitarian view at all. They say general obedience to the law is for the public benefit, and obedience to it requires sacrifice on the part of those who set personal desires aside so as to conform with the law; those who break the law therefore arrogate to themselves an advantage as compared with law-abiding citizens, and must in fairness be punished in order to rectify this disparity. (This is sometimes called “the fair-play theory.”) See Herbert Morris,On Guilt and Innocence, 1976, 33–34; and various others, e.g., George Sher,Desert (Princeton University Press, 1987); M. Davis, “How to Make the Punishment Fit the Crime,”Ethics 93 (1983): 726–52, and “The Relative Independence of Punishment Theory,”Law and Philosophy 7 (1988–9): 321–50, and “Harm and Retribution,”Philosophy and Public Affairs 15 (1986): 236–56. A somewhat similar view is put forward by Jean Hampton in “The Retributive Idea” in J. Murphy and J. Hampton,Forgiveness and Mercy (Cambridge: Cambridge University Press, 1988). For a critique see R. Wasserstrom inPhilosophy and Social Issues, 1980, 139–46; Hyman Gross, “Unfair Advantage and the Price of Crime,”Wayne Law Review 38 (1987): 1395–411; David Dolinko, “Some Thoughts about Retributivism,”Ethics 101 (1991): 537–59. The theory has puzzling consequences. Does it imply that mere attempts to commit a crime should be punished not at all? And is the criminal not punished for the particular kind of harm he has done, not on the amount of advantage he may have taken? Do law-abiding citizens suffer from not permitting themselves to commit murder or rape? Or should not all crimes be punished equally, since all are breaches of law? Moreover, it must be recalled that not all criminals have been fairly dealt with by society, having been raised in poverty, and we must ask if the system of law has benefitted them equally. See David Lyons,Ethics and the Rule of Law (Cambridge: Cambridge University Press, 1984), chapter 5; also chapter 3.

  13. “Deterrence and Incapacitation: Estimating the Effects of Criminal Sanctions on Crime Rates,” 1978, reported in S. H. Kadish, S. J. Schulhofer, and M. G. Paulsen,Criminal Law and its Processes (Boston: Little, Brown and Company, 1983), pp. 197–201. See also J. Andenaes, “The Morality of Deterrence,” reprinted in H. Gross and A. von Hirsch, eds,Sentencing (New York: Oxford University Press, 1981), pp. 191–202.

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  14. Hugo Bedau found that in twelve states, from 1900 to 1976, of 21,646 persons convicted of murder and subsequently released, only 16 were later convicted of homicide. A later nationwide study showed that, between 1965 and 1974, of 11,404 persons convicted of willful homicide and then released, only 34 committed another murder. In Hugo Bedau, ed.,The Death Penalty in America, 3rd ed. (New York: Oxford University Press, 1982), p. 175. See also Anna Quindlen, “Marking Time,”New York Times, March 11, 1992, A-16.

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  15. John Braithwaite,Crime, Shame, and Reintegration (Cambridge: Cambridge University Press, 1989).

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  16. Between Prison and Probation (New York: Oxford University Press, 1990). See also Hyman Gross and A. von Hirsch,Sentencing (New York: Oxford University Press, 1981).

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  17. There is controversy about how “justification” should be defined. See Kent Greenawalt, “The Perplexing Borders of Justification and Excuse,”Columbia Law Review 84 (1984): 1897–1927; alsoLaw and Contemporary Problems 49 (1986). For helpful discussion see also B. Sharon Byrd, “Wrongdoing and Attribution: Implications Beyond the Justification-excuse Distinction,”Wayne Law Review 33 (1987): 1289–342.

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  18. For some interesting comments see George Fletcher, “Self-defense as a Justification of Punishment,”Cardozo Law Review 12, 859–66; and D. W. Elliott, “Necessity, Duress, and Self-defense,”Journal of Criminal Law and Criminology 74 (1983): 343–62.

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  19. “Self-defense,” inPhilosophy and Public Affairs 20 (1991): 283–310; see alsoThe Realm of Rights (Cambridge, Mass.: Harvard University Press, 1990), chap. 14. See Larry Alexander, “Self-defense, Justification, and Excuse,”Philosophy and Public Affairs 22 (1993): 53–66. W. D. Ross, in a rather qualified way, seems to hold that a person's failure to respect the rights of others abolishes his own corresponding rights. SeeThe Right and the Good (Oxford, 1930), pp. 60–61, also pp. 54–56. But a person hardly fails to “respect” the rights of others by an unintentionally threatening form of behavior.

  20. See her 1990, Introduction, pp. 4–5, 15–20, 32–3.

  21. L. A. Alexander, “Justification and Innocent Aggressors,”Wayne Law Review, 1987, 1177–89, especially 1178–80; George Fletcher,Rethinking the Criminal Law. 860–64; and M. Bayles,Principles of Law (Dordrecht: Reidel, 1987), p. 334.

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Brandt, R.B. Conscience (rule) utilitarianism and the criminal law. Law Philos 14, 65–89 (1995). https://doi.org/10.1007/BF01000525

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