The authors in this volume go beyond traditional questions to challenge our conventional understandings of the criminal law. In doing so, they draw from a number of disciplines including philosophy, history, and social science.
The authors in this volume go beyond traditional questions to challenge our conventional understandings of the criminal law. In doing so, they draw from a number of disciplines including philosophy, history, and social science.
The New Philosophy of Criminal Law
282
The New Philosophy of Criminal Law
282eBook
Available on Compatible NOOK devices, the free NOOK App and in My Digital Library.
Related collections and offers
Overview
The authors in this volume go beyond traditional questions to challenge our conventional understandings of the criminal law. In doing so, they draw from a number of disciplines including philosophy, history, and social science.
Product Details
| ISBN-13: | 9781783484157 |
|---|---|
| Publisher: | Bloomsbury Publishing |
| Publication date: | 12/16/2015 |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| Pages: | 282 |
| File size: | 1 MB |
| Age Range: | 18 Years |
About the Author
Zachary Hoskins is Assistant Professor of Philosophy at the University of Nottingham.
Contributors:
Christopher Bennett, Senior Lecturer in Philosophy, University of Sheffield; Vincent Chiao, Assistant Professor of Law, University of Toronto; Jovana Davidovic, Assistant Professor of Philosophy, University of Iowa; R. A. Duff, Professor and Russell M. and Elizabeth M. Bennett Chair in Excellence, University of Minnesota School of Law; Stuart Green, Distinguished Professor of Law and Nathan L. Jacobs Scholar, Rutgers School of Law; Douglas Husak, Professor of Philosophy, Rutgers University; Joshua Kleinfeld, Associate Professor of Law, Northwestern University School of Law and Affiliated Faculty, Department of Philosophy, Northwestern University; Richard L. Lippke, Professor of Criminal Justice, Indiana University; Arlie Loughnan, Associate Professor of Law, University of Sydney; S. E. Marshall, Professor Emeritus, University of Stirling; Alice Ristroph, Professor, Seton Hall School of Law; Mary Sigler, Professor and Willard H. Pedrick Distinguished Research Scholar, Arizona State University College of Law
Read an Excerpt
The New Philosophy of Criminal Law
By Chad Flanders Zachary Hoskins
Rowman & Littlefield International, Ltd.
Copyright © 2016 Chad Flanders and Zachary HoskinsAll rights reserved.
ISBN: 978-1-78348-415-7
CHAPTER 1
Two Conceptions of the Criminal Law
Vincent Chiao
In commenting on H. L. A. Hart's Punishment and Responsibility, John Gardner poses the following rhetorical question: "Doesn't the criminal justice system attempt, in its inevitably clumsy way, to institutionalize certain moral practices, including the practice of punishment with its familiar relationships to wrongdoing and guilt, that already exist quite apart from the law and its institutions?" The idea that Gardner here so succinctly expresses is a prevalent — one might even say predominant — idea about what the criminal law and its associated institutions are for. This is the idea that the way in which institutions matter for the criminal law is that they serve to give force to, and to make more precise, moral relationships between people that exist anyway. Call this the "private right" conception of the criminal law. The aim of this chapter is to contrast the private right conception with a sharply contrasting conception, one that I, borrowing a term from Malcolm Thorburn, refer to as the "public law" conception. On the public law conception, the criminal law serves to contribute to securing the viability of the rule of law as an ongoing project, and hence serves to make possible moral relationships — such as that of free and equal citizens — that would not otherwise be possible. The rule of law depends on stable and broadly shared expectations of mutual compliance, and the criminal law is a means — one among many — for securing those expectations.
To be clear, my sympathies are squarely with the public law conception. That said, my aim in this chapter is not to defend the public law conception, nor is it to critique the private right conception. My aim is to sketch in a perspicuous — and hence inevitably somewhat exaggerated — form what I take to be the core of the contrast between the private right and public law conceptions. The private right and public law conceptions as I will present them are ideal types, rather than characterizations of any particular theorist's views. The utility of the contrast between a private right and public law conception lies in how well (or how poorly) it serves to illuminate and synthesize a range of more particular substantive and methodological disagreements in the philosophy of criminal law.
In parts I and II of the chapter, I sketch the outlines of the private right and public law conceptions, and in part III, I consider some implications of this stylized contrast for the substantive agenda and methodology of the philosophy of criminal law. I seek to make the contrast vivid in part IV, by considering the case of preventive policing as an alternative mode of response to crime from punishment administered ex post. I argue that a private right conception is committed to viewing preventive policing as a fundamentally different type of endeavor — one subject to entirely different principles of justification — from punishment. In contrast, from a public law point of view, ex post punishment is functionally continuous with attempts to manage the social risk of criminal victimization through prevention and other forms of regulation.
I.
I start by identifying two central features of the private right conception.
• (PR1) The criminal law is an institution that serves to enforce people's independent moral rights. A right is "independent" insofar as its existence does not depend on it being granted or otherwise protected by a system of positive law, and a right is a "moral" right insofar as it is a right each person has in virtue of being a person, and not, for instance, as a result of a private agreement he or she has entered into.
• (PR2) What is distinctive about the criminal law, and the criminal justice system more generally, is that it seeks to vindicate private rights through the means of punishment. Punishment is not simply hard treatment; rather, it is hard treatment that is motivated, in part, by the belief that an unwarranted violation of another's independent moral rights creates a pro tanto reason in favor of some form of negative reaction toward the rights violator.
The link between (PR1) and (PR2) stems from the thought that crimes, as moral wrongs, call out not just for deterrence or prevention, but punishment in particular. The criminal justice system is for this reason set apart from society's other basic allocative institutions. Punishment is a distinctive kind of good that is subject to a distinctive standard of allocation. To ignore that standard of allocation is to ignore that what one is allocating is punishment, not health care, or security, or spots in classrooms.
Putting (PR1) and (PR2) together yields the result that the criminal law is the institutional representation of a familiar moral practice from everyday life, which is that on occasion people transgress moral norms, and when they do, other people react negatively by gossiping about them, shunning or ostracizing them, or punishing them in other ways. The state, through its criminal justice system, simply does on a bigger scale what we all do in our everyday lives. Hence, even when a private right theorist emphasizes the role of the state in punishment, it is from a curiously apolitical point of view: it is simply a matter of responding to wrongs on a bigger scale, and there is no further question of the political legitimacy of punishment specific to the operation of large, public, and highly coercive institutions. On a private right conception, the authority that the state claims it has to punish is "no more in need of explication than the authority to punish in other kinds of cases in which wrongs are committed against whomever inflicts a punitive sanction." In short, a private right conception, as Corey Brettschneider puts it, is focused on "the question of what is deserved by the criminal qua person rather than the question of what punishment the state can rightfully mete out."
Given the strong association between retribution and moral deservingness, there is a natural consilience between retributive theories of punishment and a private right conception, but the relation is not one of mutual implication. After all, the reason created by rights-violating conduct is only pro tanto, and it may be that anything approximating an institutionalized practice of punishment would require supplementation by instrumental reasons of various sorts. Conversely, one could defend a retributive theory of punishment that describes the wrongs requiring retribution in terms of politically generated, rather than purely moral, obligations.
It follows from (PR1) and (PR2) that the criminal law is a body of law that hangs together in a particular way: it is about punishing violations of independent moral rights. In other words, the private right view conceives of the criminal law as a body of law that is identified by the union of a specific subject matter — the vindication of independent moral rights — and a specific means of regulating it — punishment. Thus:
• (PR3) Only conduct that either is, or can in some way be plausibly connected to, the violation of independent moral rights should be criminalized. A distinction at least roughly corresponding to the traditional distinction between mala in se and mala prohibita is therefore of central importance to the philosophy of criminal law.
• (PR4) The justification of punishment is a — perhaps the — central question for the philosophy of criminal law. Punishment is here understood in the sense of (PR2), rather than as merely an instance of state coercion generally.
Other bodies of law may serve to protect independent moral rights (for instance, by allocating municipalities with the authority to provide public lighting, or to search bags on public transportation); and other bodies of law may also impose costs on people (for instance, through administrative sanctions, or preventive detention), but only the criminal law protects independent moral rights by means of punishment. There can be, of course, a wide range of responses to rights-violating conduct, but only hard treatment motivated by an intention to respond to the wrongness of the accused's conduct constitutes punishment. When the state punishes, it engages in intentional infliction of harm, and this makes it particularly difficult to justify.
The private right conception of the criminal law is thus bound up with — it is hard to say whether it supports or is supported by — an understanding of the criminal law as a distinct legal institution subsystem, one that stands apart from other superficially parallel state institutions. Other state institutions sometimes inflict harm, and sometimes knowingly inflict harm. But what is distinctive about the criminal law is that it inflicts harm intentionally. Indeed, from a private right point of view, this feature of the criminal law marks a fundamental divide between the criminal law and the other institutions comprising modern welfare states. While it may be that punishing people has the effect of enhancing security or welfare, what the criminal law is for is fundamentally the vindication of independent moral rights through punishment (i.e., the intentional infliction of hard treatment). While the vindication of those rights might not be sufficient on its own to justify creating a criminal justice system, it nevertheless remains an important feature of that system, and is moreover a feature that other parts of the welfare state do not share.
The private right conception might as well be labeled the traditional conception, for two reasons. First, the view is traditional in the sense that for many it resonates with an intuitive, everyday understanding of the meaning of crime and punishment; of what it means to describe a person or conduct as "criminal"; of the significance of seeking public prosecution for murderers, rapists, drug dealers, and so forth. It is also traditional in a more polemical sense, in that it reflects an implicit understanding of the legal universe as separated into conceptually and functionally autonomous fiefdoms, one of which is the vindication of private right. The growth of the administrative state is, from this point of view, a distraction from the proper functioning of the criminal law. This understanding of the legal universe is most at home in the context of minimal government, since it is more likely that there could be truly distinct legal subsystems when the state is simply not in the business — either by choice or by necessity — of providing many services to begin with. When the government is not regulating food safety, traffic, financial markets, pollution, animal welfare, public transportation, health care, alcohol and narcotics, education, public utilities, intellectual property, and on and on, then there is of course no need to enforce those regulations through the threat of criminal sanctions. Mala prohibita offenses can be — as indeed they are in most contemporary criminal law scholarship — sidelined as extrinsic to the "core" of the criminal law. However, when so-called mala prohibita offenses come to vastly outnumber the relatively tiny number of "core" mala in se offenses because of the expansive reach of the administrative state, and when the state is in the position to manage ex ante the risk that people will in the future engage in rights violating conduct — rather than simply respond to particular occurrences ex post — it becomes correspondingly more difficult to view the criminal law, and the institutions that administer it, as simply devoted to the vindication of private right. Of course, this is no criticism of the private right conception, since a private right theorist can simply insist that the use of nonpunitive means to prevent crime ex ante, as well as the use of ex post sanctions as a means of response to a wide range of socially managed problems beyond "true crimes" shows how defective modern criminal justice systems are by her lights. My claim is only that the descriptive adequacy of the private right conception of criminal law is diminished in the age of the administrative state.
II.
A public law conception takes a contrasting view on both the subject matter of the criminal law and the nature of the means it uses to regulate that subject matter.
• (PL1) The criminal law provides an enforcement mechanism for a jurisdiction's legal rules, regardless of the substantive content of those rules — and, hence, regardless of the particular justification given in favor of having those rules in the first place.
• (PL2) What is distinctive about the criminal law is that it enforces legal rules through the imposition of unusually harsh or invasive sanctions on violations, rather than the spirit in which the sanction is imposed or its social meaning.
Underlying the public law conception is a more or less orthodox account of the value of the rule of law. The rule of law solves a series of otherwise endemic and intractable collective action problems. The resolution of social problems is often, as Scott Shapiro has recently put it, complex, contentious, or arbitrary. In the context of large, heterogeneous populations, disagreement about the terms of shared social life is the norm, not the exception. The problems of disagreement, free riding, and social coordination are, moreover, significantly more pressing as the range of publicly provided goods and services increases, from simple protection of person and property to regulation of complex financial markets, public health, education, and the regulation of trades and professions, to name but a few examples. In the context of anything approaching the modern administrative state, it is extremely important that the state have means of coordinating the activities of a great number of people for it to be possible for them to act collectively in a reasonably coherent and consistent manner. The threat of sanctions — in some cases, ultra-harsh ones — is one such means for encouraging compliance, though hardly the only one, and in many cases not even a particularly effective one.
On a public law conception, the central function of the criminal law is not to vindicate independently existing moral relationships but to contribute to making the rule of law possible. The criminal law does not "institutionalize" preexisting moral relationships, as Gardner suggests, but rather contributes to establishing the institutional and political preconditions for developing and sustaining novel moral relationships — most notably, those of free and equal citizenship. From this point of view, the criminal law is valuable only insofar as the rule of law — that is, coordinated public action rather than private dispute resolution — is itself valuable. The degree to which it is valuable in any given instance is a function of, among other things, the content of the laws enforced and the grimness of the alternatives.
For a great many decisions, it is more important that people coalesce around a particular rule of conduct than it is that they choose the "right" one. This is, again, a condition that one should expect to obtain with increasing frequency as collectivities seek to coordinate greater and greater areas of life: in a world where the only roads are dirt paths and the only vehicles are burros and pushcarts, perhaps it is not so important to decide which side of the road to travel on. Rather than relying on each person's view of the merits of some disputed question, or on spontaneous ordering, law establishes dedicated institutions and procedures for arriving at decisions and coordinating conduct. By deferring to those decisions, individuals and officials under the law's jurisdiction are able to coordinate their conduct because they will be able to form stable expectations about what others will do. Moreover, they are empowered to coordinate their conduct even as they remain in private disagreement with each other. In no small measure, the function of legal ordering is to enable people to coordinate action regardless of each person's private view on the merits, or indeed, regardless of whether they even have a private view on the merits. By doing so, a system of law substitutes what are hopefully easier questions (What is the position of the appropriate legal authority?) for harder or more controversial questions, such as: Is the death penalty immoral? Should the state provide universal health care? Is abortion on demand permissible? These are evidently different questions, but for purposes of coordinating social conduct, private agreement on such matters is not required. What is required is only that a person be able to identify what the relevant legal authority has determined, and to use that determination as a guide to his or her own conduct.
It is not enough for the rules to be explicit; often, they must be enforceable as well. Compliance with rules requiring some level of shared sacrifice is often individually rational only in the presence of the credible threat of sanctions, even when everyone involved shares a common goal. Naturally, this is not to insist that threatening to impose costs on people is the primary means for ensuring compliance with law. Probably for most people, most of the time, compliance is fostered by some combination of habit, conformity to social norms and attitudes of reciprocity. Moreover, it is hard to see how a decent level of compliance could be otherwise achieved, at least in anything short of a police state. That said, the threat of coercively imposed sanctions remains valuable to provide a back-up sanction, and to provide reassurance that those who conform to the rules will not be taken advantage of by those who are tempted to circumvent them. These sanctions thereby render expectations of mutual compliance individually rational.
(Continues...)
Excerpted from The New Philosophy of Criminal Law by Chad Flanders Zachary Hoskins. Copyright © 2016 Chad Flanders and Zachary Hoskins. Excerpted by permission of Rowman & Littlefield International, Ltd..
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.