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Criminalization and Sharing Wrongs

Published online by Cambridge University Press:  09 June 2015

S.E. Marshall  and
R.A. Duff
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Extract

In colloquial speech the terms ‘crime’ and ‘criminal’ have a use which, though connected to the strictly legal notion of criminality, goes well beyond it. It is a way of indicating a serious condemnation of an activity or action. Similarly, when people say of something “There ought to be a law against it,’ they are not necessarily speaking literally, though they might be. Nonetheless, even when they are speaking colloquially and figuratively in using this expression, it is clear that the ‘law’ here is the criminal law and not the civil law. The sense that ‘something ought to be done’ expressed in these usages reflects the idea that there is a kind of wrong which demands a collective response rather than just an individual one. The figurative, colloquial use trades, of course, on the literal one. However, pace Devlin, it requires more than a general feeling of outrage to characterise just what kinds of wrongs are appropriately categorised as crimes. The enduring debates concerning the distinction between crime and tort bear witness to the fact that such a characterisation is far from easy.

These academic debates can be situated against the background of wider philosophical discussions about the relationship between the individual and the collective, the private and the public, and the way in which these pairs of concepts map onto one another. We might agree with George Fletcher that “Blackstone had a point in identifying crimes as public wrongs and torts as private wrongs”: the criminal law should deal with those kinds of wrong which are matters of public concern, and which therefore require a collective response from the whole community; wrongs which are, by contrast, properly the concern only of the private or individual victim should be dealt with under the civil law. What is far less clear, however, is how we should characterise that distinction.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 11 , Issue 1 , January 1998 , pp. 7 - 22
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 1998 

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References

1. See, notoriously, P. Devlin, ‘Morals and the Criminal Law’ in P. Devlin, The Enforcement of Morals (Oxford: Oxford University Press 1968) 1.

2. See the recent symposium in (1996) 76 Boston U. L. Rev. 1. Public policy debates concerning the possible decriminalization of a whole range of activities including drug-taking, prostitution and insider trading display the complexities of the concept of crime—though rarely do participants in those public debates address that complexity head on.

3. G. Fletcher, ‘Domination in Wrongdoing’ (1996) 76 Boston U. L. Rev. 347 at 347.

4. Thus part of the definition of the rarely prosecuted crime of ‘defamatory libel’ in English law is that the libel must be ‘serious’—more serious than it would need to be to be the subject of a civil suit: see J. C. Smith & B. Hogan, Criminal Law, 8th ed. (London: Butterworths, 1996) at 735–36.

5. The German term ‘Rechtsgut,’ which figures prominently in German discussions of the proper aims and functions of the criminal law, is convenient here, as capturing die notion of a significant legally protected interest: see U. Ebert, Strafrecht Allgemeiner Teil, 2nd ed. (Heidelberg: C. F. Miiller, 1994) at 1–4; and C. Roxin, Strafrecht Allgemeiner Teil, 3rd ed. (Warszawa: C. H. Beck, 1997) at 10–30.

6. The distinction between crimes of ‘concrete’ and of ‘abstract’ endangerment is important in the German literature (see Ebert, ibid, at 38; Roxin, ibid at 351–60): we cannot take up here the question of just how broad the category of crimes of ‘abstract’ endangerment should properly be: see A. von Hirsch, ‘Extending the Harm Principle: “Remote” Harms and Fair Imputation’ in A. P. Simester & A. T. H. Smith, eds., Harm and Culpability (Oxford: Oxford University Press, 1996) 259; R. A. Duff, Criminal Attempts (Oxford: Oxford University Press, 1996) at 134–35.

7. Compare J. Braithwaite & P. Pettit, Not Just Deserts (Oxford: Oxford University Press, 1990) at chs. 4–5, on ‘dominion,’ as including the ‘assurance’ of liberty, as the central aim of the law.

8. In particular, our argument here is related to Charles Taylor’s distinction between ‘convergent’ and ‘common’ goods: see C. Taylor, ‘Cross-Purposes: The Liberal-Communitarian Debate’ in N. L. Rosenblum, ed., Liberalism and the Moral Life (Cambridge, MA: Harvard University Press, 1989) 159.

9. M. Sandel, Liberalism and the Limits of Justice (New York: Cambridge University Press, 1982) at 150.

10. See N. Christie, ‘Conflicts as Property’ (1977) 17 British J. of Criminology 1.

11. On the ‘civil’ model in some systems of ancient law, see J. Lindgren, ‘Why the Ancients May Not Have Needed a System of Criminal Law’ (1996) 76 Boston U. L. Rev. 29.

12. See, e.g., supra note 10; L. Hulsman, ‘Penal Reform in the Netherlands IF (1982) 21 Howard J. 35, and L. Hulsman, ‘The Abolitionist Case: Alternative Crime Policies’ (1991) 25 Israel L. Rev. 681 [hereinafter ‘Abolitionist’].

13. On which see R. Abel, ed., The Politics of Informal Justice (New York: Academic Press, 1982); M. Cain, ‘Beyond Informal Justice’ (1985) 9 Contemporary Crises 335; R. Matthews, ed., Informal Justice (London: Sage 1988).

14. L. Becker, ‘Criminal Attempts and the Theory of the Law of Crimes’ (1974) 3 Phil. & Publ. Affairs 262.

15. See e.g. J. G. Murphy, ‘Marxism and Retribution’ (1973) 2 Phil. & Publ. Affairs 217; W. Sadurski, ‘Distributive Justice and the Theory of Punishment’ (1985) 5 Oxford J. of Legal Stud. 47.

16. See e.g. supra note 10; L. Hulsman, ‘Critical Criminology and the Concept of Crime’ (1986) 10 Contemp. Crises 63.

17. This feature of crime, that it must involve conduct which is not merely wrong, but wrong in a way which gives the community the standing to prohibit and condemn it, raises important questions about the notion of ‘standing’ which we cannot pursue here: see R. A. Duff, ‘Law, Language and Community: Some Preconditions of Criminal Liability’ (1998) 18 Oxford J. of Legal Stud. (forthcoming).

18. We talk here and elsewhere of ‘the community’ rather than of ‘the state’, on the (ideal) assumption that the state should represent and serve the community: an assumption that clearly raises large issues both about the nature of the state and about the conditions for the existence of a community which the state could serve.

19. See C. Wells, Corporations and Criminal Responsibility (Oxford: Oxford University Press, 1993).

20. See supra note 10; ‘Abolitionist,’ supra note 12.

21. Contrast some abolitionists who object to any such ‘imposition’ of values: see e.g. H. Bianchi, ‘Abolition: Assensus and Sanctuary’ in H. Bianchi & R. van Swaaningen, eds., Abolitionism: Towards a Non-Repressive Approach to Crime (Amsterdam: Free University Press, 1986) 113; we have also heard Christie and Hulsman talk in such terms.

22. Another identifying feature of crime is that the law may allow the use of force to prevent crime—but not to prevent merely civil wrongs (see, e.g., Criminal Law Act 1967 (U.K.), 1967, c. 58, s.3(1); American Law Institute, Model Penal Code, s.3; Canadian Criminal Code, R.S.C. 1985, c. C-34, S.27). We will not discuss this here, save to note that the question of which kinds of conduct should be criminalized is then also partly the question of which kinds of conduct can legitimately be prevented by force.

23. See supra note 13.

24. The ‘People’ or the ‘State’ (or the ‘Commonwealth’, as in some American states) might seem to be a more appropriate way of expressing the community’s role in bringing the case than ‘Regina’: though we cannot discuss this point here, we would certainly argue that those who want to see themselves as citizens of a polity rather than (merely) as subjects of a sovereign should indeed prefer some such alternative to ‘Regina.’

25. On the significance and importance of censure, see A. von Hirsch, Censure and Sanctions (Oxford: Oxford University Press, 1993), especially ch. 2; and R. A. Duff, ‘Penal Communications: Recent Work in the Philosophy of Punishment’ (1996) 20 Crime and Justice 1 at 31–57.

26. On ‘hard treatment’ see J. Feinberg, ‘The Expressive Function of Punishment’ in J. Feinberg, Doing and Deserving (Princeton, NJ: Princeton University Press, 1970) 95: for two different accounts of how it can be justified within an account of punishment as serving (primarily) to communicate censure, see A. von Hirsch, ibid, at ch. 2; Duff, ibid, at 45–57.

27. See R. E. Goodin, “Theories of Compensation’ in R. Frey & C. Morris, eds., Liability and Responsibility (Cambridge: Cambridge University Press, 1991) 257.

28. See A. J. Ashworth, Sentencing and Criminal Justice (London: Weidenfeld & Nicolson 1992) at 249–52.

29. See generally A. J. Ashworth, ‘Punishment and Compensation: Victims, Offenders and the State’ (1986) 6 Oxford J. of Legal Stud. 86.

30. See R v. R, [1991] 4 All ER 481; supra note 4 at 452–53.

31. See supra note 10 and accompanying text.

32. See supra notes 14–15 and accompanying text.

33. See Duff, supra note 25.

34. Taylor, supra note 8 at 170.

35. J. Wisdom, ‘A Feature of Wittgenstein’s Technique’ in J. Wisdom, Paradox and Discovery (Oxford: Blackwell, 1965) 90 at 102; see also J. Wisdom, ‘Philosophy, Metaphysics and Psycho-Analysis’ in J. Wisdom, Philosophy and Psycho-Analysis (Oxford: Blackwell 1953) 248 at 248–54.