Abstract
I take it as obvious that attempts to justify the criminal law must be sensitive to matters of criminalization—to what conduct is proscribed or permitted. I discuss three additional matters that should be addressed in order to justify the criminal law. First, we must have a rough idea of what degree of deviation is tolerable between the set of criminal laws we ought to have and the set we really have. Second, we need information about how the criminal law at any given time and place is administered, since the law in action is bound to differ radically from the law on the books. Finally, we must have some basis for speculating what life would be like in the absence of a system of criminal justice—if the state ceased to impose punishments.
This is a preview of subscription content, log in via an institution to check access.
Similar content being viewed by others
Notes
For a nice discussion of C.S. Kenny’s eight definitions of crime in the nineteen editions of his Outlines of Criminal Law, see Farmer (1997, pp. 176–177).
I confine my attention to state punishments, not to punishments inflicted by private persons or other institutions. For reasons to think that we need to produce a more general account of punishment, see Zaibert (2006).
See, for example, Perkins and Boyce (1982, pp. 11–12): “A definition of the term crime cannot practically be separated from the nature of proceedings used to determine criminal conduct.”
See Stuntz (1996).
See Kansas v. Hendricks, 521 U.S. 346 (1997).
See Smith v. Doe, 538 U.S. 84 (2003), which decided whether the Alaskan version of “Megan’s Law,” the Sex Offender Registration Act, is so punitive either in purpose or effect as to negate the State's description of the Act as civil.
See Nolan (2001).
See Peele et al. (2000).
Or perhaps not. For a less favorable assessment, see Miller (2004).
This issue is complicated when some but not all persons who commit the same offense become eligible for treatment rather than for a more conventional punishment, with judges given the discretionary power to draw the distinction. Perhaps we should say that a statute belongs to the criminal domain when any person who breaches it becomes eligible for state punishment.
U.S. v. Ward, 448 U.S. 242, 248–249 (1980).
Logan (1998, pp. 1261, 1268, 1280).
H.L.A. Hart coped with this problem by identifying what he called secondary or sub-standard cases of punishment. Hart (1969, p. 5).
“Even on a theoretical plane, fixing the proper boundaries of the criminal law is likely to involve not sharp distinctions and clearly-defined categories, but rather judgements of degree.” Ashworth (2003, p. 27).
I do not offer a definition of punishment, since my conditions are not conjointly sufficient. Instead, I describe what it is about punishment that requires justification. I concur that an attempt to provide a definition of punishment “is doomed to futility if it is intended to … [capture] all and only those practices that properly count as ‘punishment.’” Duff (2001, p. xiv).
Hart, Op. Cit. Note 15, p. 4.
For a defense of the view that punishment includes both hard treatment and censure, see von Hirsch (1993).
I readily concede that legal rules that are not quite criminal must satisfy stringent standards of justification as well. Many practices that are not paradigm forms of punishment are objectionable for much the same reason that would apply if they were punishments. No one should believe that a state cannot be guilty of monstrous injustices simply because these injustices do not, strictly speaking, involve modes of punishment. This complex topic, however, must be reserved for another day.
No standard terminology about rights has taken hold. Conduct implicates a right when it comes within or falls under the scope of that right. I intend this term to be neutral about whether the conduct is or is not permissible.
See Morris (1968).
The distinction between rights-infringements and rights-violations is drawn in Thomson (1977).
For a challenge to my use of the distinction between infringements and violations of rights, see Oberdiek (2004).
See Dworkin (1977, p. 184).
This view might be called threshold deontology. See Moore (1997, p. 158, n. 13).
Opponents of threshold deontology have pressed this difficulty. See Alexander (2000).
This distinction is developed in Raz (1990, p. 27).
Ibid, pp. 202–203.
See Raz (1994, p. 146).
See Gardner (1997, p. 103).
These issues are explored in Berman (2008).
In claiming that we need a justification from each of these perspectives, it may seem that I am simply endorsing the insight developed by H.L.A. Hart. Hart famously argued for a “mixed” justification of punishment by contending that different normative theories could be combined as coherent responses to different questions. Retributivism is a plausible answer to the questions “to whom may punishment be applied?” and “how severely may we punish?” while utilitarianism provides a viable answer to “why are certain kinds of actions forbidden by law and so made crimes or offenses?” Hart: Op. Cit. Note 15, p. 3 and p. 6. Despite the power of Hart’s insight, we should not attempt a complete divorce of questions about the institution of punishment from those about its distribution. We can hardly decide whether to have an institution of punishment without making at least some assumptions about what punishment will be imposed for.
For example, it requires that many procedural safeguards be observed. If we are to hold persons responsible for their conduct, we must give them opportunities to respond by developing fair trials. See the three volumes by Duff et al. (2004).
See Hart, Op. Cit. Note 2, p. 412.
Husak (2008).
Op. Cit. Note 16, p. 33ff.
Husak (1992).
See U.S. Department of Justice (2006, Table 1).
See The Innocence Project: “Causes and Remedies of Wrongful Convictions,” http://www.innocenceproject.com/causes/index.php. See also Symposium (2006, pp. 1–217).
See, for example, Bouza (2001).
Moore, Op. Cit. Note 27, p. 104.
Ibid, p. 88 (emphasis in original).
Moore’s clarification is that immorality suffices for criminality only “within the set of conditions constituting intelligible reasons to punish.” Ibid, p. 173.
Ibid, p. 68 and pp. 661–665. Perhaps most importantly, the criminal law should protect basic liberties from state interference; sometimes the goodness of allowing free choice outweighs the badness of leaving wrongful action unpunished. Ibid, pp. 763–777.
The legal moralist position encounters two additional problems I will not discuss. First, it must struggle to account for jurisdictional limits to the criminal law. Second, it must strain to draw the distinction between public and private wrongs. See Duff (2008, forthcoming).
Op. Cit. Note 27, p. 111.
Frequently, Moore presents examples in the first person, explaining what he would feel he deserved were he guilty of a serious crime. See Ibid, p. 145.
See Husak, Op. Cit. Note 37.
For a critical discussion of whether the drawbacks of punishment can be overridden for the reasons I suggest, see Wood (2002).
As R.A. Duff indicates, “anti-retributivists make quite a meal … about the general idea that crimes ‘deserve’ punishment.” See Duff (1999, pp. 48, 50).
Among the best critiques of retributive theories is Christopher (2002).
One commentator describes the assumption that punishment can be justified as “the fallacy of begging the institution.” See Mackenzie (1981, p. 41).
Duff, Op. Cit. Note 18, p. 175. In his illuminating discussion of this inevitable lack of fit, Duff focuses “not on the content of the law,” although he admits this is “certainly important.” Ibid, p. 182.
Stuntz (2001, pp. 505, 508).
See, for example, Morris, Op. Cit. Note 23, p. 478.
In recent jurisprudential history, an analogue of this issue was raised most prominently by Lon Fuller. He indicated that several distinct kinds of deviations from the “internal morality of law” would make a system not merely bad law, but not all at all. Curiously, none of the peculiar deviations Fuller described involved bad content. In any event, we need not join Fuller in his controversial jurisprudential position to agree that either procedural or substantive deviations of a given degree will lead the system of criminal justice to become illegitimate. See Fuller (1969).
See Husak, Op. Cit. Note 37.
Generally, see Ashworth and Redmayne (2005, especially Chap. 6).
Stuntz (2004, pp. 2548, 2550).
See Husak (2003).
Stuntz (2002, pp. 828, 833).
See Ashworth and Redmayne, Op. Cit. Note 60, p.140.
See Robinson (1997, p. 73).
See von Hirsch (1987).
See Waldron (1999).
See Ronald Dworkin, Op. Cit. Note 26, pp. 31–37.
See the discussion in Beale (2005, pp. 747, 765; n. 98).
See Lichtenberg (2002–2003).
See Harris (1998).
Ibid, p. 51.
See Kossick (2004).
It is noteworthy that relatively few abolitionists reside in the United States, even though the case against criminal law and punishment may be stronger in the United States than in Europe.
Antony Duff usefully coins the term contingent abolitionists to describe those commentators who believe that punishment should be abolished until social reforms are implemented. Contingent abolitionists do not reject the justifiability of penal sanctions in principle. Op. Cit. Note 18, p. 30.
Deirdre Golash, for example, is fairly typical; she devotes 160 pages to critiquing purported justifications of punishment, but only 12 pages to the crucial issue of how the state should respond to crime in the absence of punishment. Moreover, she provides no reason to believe her preferred alternative would actually emerge. See Golash (2005).
See Braithwaite (1989).
John Rawls remarked that it “is rather surprising” that “only a few have rejected punishment entirely” in light of “all that can be said against it.” See Rawls (1955).
But see some of the reservations expressed about drug courts in Miller, Op. Cit. Note 11.
See Golash, Op. Cit. Note 77, p. 147.
Hobbes famously argued that life in the absence of a sovereign with the authority to punish would be intolerable for everyone: solitary, nasty, poor, brutish, and short. If this description were accurate, it is easy to see why even the worst of states might be preferable to anarchy. See Hobbes (1994, Chap. XIII).
Is it even possible to imagine a state that has relinquished its authority to punish? Perhaps the state depicted in this thought-experiment would necessarily lose many essential features in addition to its authority to punish. See Harel (2008, forthcoming).
Economic analysts have sought to assess the relative advantages and disadvantages of private law enforcement. For one such effort, see Polinsky (1980).
John Locke famously argued that partiality to self and passions for revenge would make a system of private retribution less just than state punishment. See Locke (1961, Chapter 2, Section 13).
See, for example, Tonry (2004).
See Tyler (1990).
Many abolitionists concede this point—as they must. See Golash: Op. Cit. Note 77, p. 149.
References
Alexander, L. (2000). Deontology at the threshold. San Diego Law Review, 37, 893.
Ashworth, A. (2003). Principles of criminal law (4th ed.). Oxford: Clarendon Press.
Ashworth, A., & Redmayne, M. (2005). The criminal process (3rd ed.). Oxford: Oxford University Press.
Beale, S. S. (2005). The many faces of overcriminalization: From morals and mattress tags to overfederalization. American University Law Review, 54, 747.
Berman, M. N. (2008). Punishment and justification. Ethics, 108, 258.
Bouza, A. V. (2001). Police unbound: Corruption, abuse, and heroism by the boys in blue. Amherst, NY: Prometheus Books.
Braithwaite, J. (1989). Crime, shame, and reintegration. Cambridge: Cambridge University Press.
Christopher, R. L. (2002). Deterring retributivism: The injustice of ‘just’ punishment. Northwestern University Law Review, 96, 843.
Duff, R. A. (1999). Punishment, communication, and community. In M. Matravers (Ed.), Punishment and political theory (p. 48). Oxford: Hart Pub. Co.
Duff, R. A. (2001). Punishment, communication, and community. Oxford: Oxford University Press.
Duff, R. A. (2008). Democratic criminal responsibility (forthcoming).
Duff, A., Farmer, L., Marshall, S., & Tadros, V. (Eds.) (2004). The trial on trial. Oxford: Hart Pub. Co.
Dworkin, R. (1977). Taking rights seriously. Cambridge: Harvard University Press.
Farmer, L. (1997). Criminal law, tradition and legal order: Crime and the genius of Scots law. Cambridge: Cambridge University Press.
Fitzgerald, P. J. (1960). A concept of crime. Criminal Law Review, 25, 257.
Fuller, L. (1969). The morality of law. New Haven: Yale University Press.
Gardner, J. (1997). Justifications and reasons. In A. P. Simester & A. T. H. Smith (Eds.), Harm and culpability (p. 103). Oxford: Oxford University Press.
Golash, D. (2005). The case against punishment. New York: New York University Press.
Hampton, J. (1984). The moral education theory of punishment. Philosophy and Public Affairs, 13, 208.
Harel, A. (2008). Why the state must punish: On the vices of privately-inflicted sanctions for wrongdoing. (forthcoming).
Harris, D. (1998). Car wars: The fourth amendment’s death on the highway. George Washington Law Review, 66, 556.
Hart, H. M. Jr. (1958). The aims of the criminal law. Law & Contemporary Problems, 23, 404.
Hart, H. L. A. (1969). Punishment and responsibility. Oxford: Oxford University Press.
Hobbes, T. (1994). In E. Curley (Ed.), Leviathan. Indianapolis: Hackett Pub. Co.
Holmes, O. W. (1987). The path of the law. Harvard Law Review, X, 457.
Husak, D. (1992). Why punish the deserving? Nous, 26, 447.
Husak, D. (2003). Is the criminal law important? Ohio State Journal of Criminal Law, 1, 261.
Husak, D. (2008). Overcriminalization. Oxford: Oxford University Press.
Klein, S. R. (1999). Redrawing the criminal-civil boundary. Buffalo Criminal Law Review, 2, 679.
Kossick, R. (2004). The rule of law and development in Mexico. Arizona Journal of International and Comparative Law, 21, 715.
Lichtenberg, I. (2002–2003). Police discretion and traffic enforcement: A government of men? Cleveland State Law Review, 50, 425.
Locke, J. (1961). Second Treatise of Civil Government (Chapter 2, Section 13).
Logan, W. (1998). The ex post facto clause and the jurisprudence of punishment. American Criminal Law Review, 35, 1261.
Mackenzie, M. M. (1981). Plato on punishment. Berkeley: University of California Press.
Miller, E. J. (2004). Embracing addiction: Drug courts and the false promise of judicial interventionism. Ohio State Law Journal, 65, 1479.
Moore, M. (1997). Placing blame. Oxford: Clarendon Press.
Morris, H. (1968). Persons and punishment. Monist, 53, 474.
Morris, H. (1981). A paternalistic theory of punishment. American Philosophical Quarterly, 18, 263.
Nolan, J. L. Jr. (2001). Reinventing justice: The American Drug Court Movement. Princeton: Princeton University Press.
Oberdiek, J. (2004). Lost in moral space: On the infringing/violating distinction and its place in the theory of rights. Law and Philosophy, 23, 325.
Peele, S., Bufe, C., & Brodsky, A. (2000). Resisting 12-step coercion. Tucson: Sharp Press.
Perkins, R. M., & Boyce, R. N. (1982). Criminal law (3rd ed.). Mineola: Foundation Press.
Polinsky, M. (1980). Private versus public enforcement of fines. Journal of Legal Studies, 9, 105.
Rawls, J. (1955). Two concepts of rules. Philosophical Review, 64, 3.
Raz, J. (1990). Practical reasons and norms (2nd ed.). Princeton: Princeton University Press.
Raz, J. (1994). Ethics in the public domain: Essays in the morality of law and politics. Oxford: Clarendon Press.
Robinson, P. (1997). Structure and function in criminal law. Oxford: Oxford University Press.
Steiker, C. S. (1997). Punishment and procedure: Punishment theory and the criminal-civil divide. Georgia Law Journal, 85, 775.
Stuntz, W. (1996). Substance, process, and the civil-criminal line. Journal of Contemporary Legal Issues, 7, 1.
Stuntz, W. J. (2001). The pathological politics of criminal law. Michigan Law Review, 100, 505.
Stuntz, W. J. (2002). Correspondence: Reply: Criminal law’s pathology. Michigan Law Review, 101, 828.
Stuntz, W. (2004). Plea bargaining and criminal law’s disappearing shadow. Harvard Law Review, 117, 2548.
Symposium. (2006). The faces of wrongful conviction. Golden Gate University Law Review, 37, 1.
The Innocence Project: Causes and remedies of wrongful convictions, http://www.innocenceproject.com/causes/index.php.
Thomson, J. (1977). Some ruminations on rights. Arizona Law Review, 19, 45.
Tonry, M. (2004). Thinking about crime: Sense and sensibility in American penal culture. New York: Oxford University Press.
Tyler, T. (1990). Why people obey the law. New Haven: Yale University Press.
U.S. Department of Justice. (2006). Sourcebook of criminal justice statistics.
Von Hirsch, A. (1993). Censure and sanctions. Oxford: Clarendon Press.
Von Hirsch, A., Knapp, K. A., & Tonry, M. (1987). The sentencing commission and its guidelines. Boston: Northeastern University Press.
Waldron, J. (1999). The dignity of legislation. Cambridge: Cambridge University Press.
Wood, D. (2002). Retribution, crime reduction and the justification of punishment. Oxford Journal of Legal Studies, 22, 301.
Zaibert, L. (2006). Punishment and retribution. Burlington, Vermont: Ashgate Pub. Co.
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
About this article
Cite this article
Husak, D. Why Criminal Law: A Question of Content?. Criminal Law, Philosophy 2, 99–122 (2008). https://doi.org/10.1007/s11572-008-9048-3
Published:
Issue Date:
DOI: https://doi.org/10.1007/s11572-008-9048-3