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Published online by Cambridge University Press: 07 December 2020
According to an influential view, using the criminal law against innocent actions or agents is wrong. In this paper, I consider four related arguments against this view: a debunking argument that suggests that the intuitive appeal of this view may be due to a conflation of different ideas; a counterexamples argument that points out that there are many cases in which using the criminal law against innocent actions or agents is justified; a theoretical argument, according to which the force of the reasons for and against using the criminal law is a matter of degree and it is therefore implausible to hold that the latter always defeat the former; and an analogy argument, which holds that it is implausible to maintain that harming innocents is often justified in other contexts but (almost) never in the context of the criminal law.
Faculty of Law, The Hebrew University of Jerusalem. For helpful comments, I am grateful to Richard Arneson, Miri Gur-Arye, Alon Harel, Ofer Malcai, the participants in the panel on “Non-Paradigmatic Punishments” in the Political Theory Workshop at the University of Manchester, the Law & Political Though Workshop at Tel-Aviv University, the Criminal Law Workshop at the Hebrew University of Jerusalem, the editors of the Cambridge Law Journal, especially Findlay Stark, as well as two anonymous reviewers. I am also grateful to Inbar Gil for excellent research assistance and to the Israel Science Foundation for financial support (Grant 888/18).
1 See Husak, D., Overcriminalization: The Limits of the Criminal Law (Oxford 2008), 65–66Google Scholar, 76–77, 82–83; Husak, D., “Wrongs, Crimes and Criminalization” (2019) 13 Criminal Law and Philosophy 393, 400–06CrossRefGoogle Scholar; Duff, R.A., “Towards a Modest Legal Moralism” (2014) 8 Criminal Law and Philosophy 217, 218–21CrossRefGoogle Scholar; Moore, M.S., “Legal Moralism Revisited” (2017) 54 San Diego Law Review 441, 445Google Scholar; Alexander, L., “Is There a Case for Strict Liability?” (2018) 12 Criminal Law and Philosophy 531, 532CrossRefGoogle Scholar; Simester, A.P. and von Hirsch, A., Crimes, Harms and Wrongs: On the Principles of Criminalisation (Oxford 2011), 19–29Google Scholar.
2 See Duff, R.A., The Realm of the Criminal Law (Oxford 2018), 61CrossRefGoogle Scholar.
3 This is a common understanding of deontological constraints, and the IC is typically based on deontological concerns. See L. Alexander, “Retributivism and the Inadvertent Punishment of the Innocent” (1983) 2 Law & Phil. 233, 237; L. Alexander and K.K. Ferzan with S. Morse, Crime and Culpability: A Theory of Criminal Law (Cambridge 2009), 130, 300; D. Husak, Ignorance of Law: A Philosophical Inquiry (Oxford 2016), 2–4.
4 See R. Nozick, Anarchy, State, and Utopia (New York 1974), 30.
5 Some of these arguments are related. For example, the counterexamples argument relies on assumptions that are intuitively appealing in themselves but are also defended independently as part of the theoretical argument.
6 This common definition is inaccurate since what is morally significant is often not the law itself but a social norm that is related to it. For example, we should drive on the side of the road that most drivers in fact use because this is the conventional and therefore safer option – not because it is required by law. The law may generate or reinforce the convention that makes driving safer, or provide a reliable indication regarding its content, but the crucial fact is the convention and not the law itself. If they diverge, we should follow the convention and not the law. Therefore, it is inaccurate that “a reason to drive on any particular side of the road… arises as soon as the state stipulates on which side of the road citizens should drive”: A.P. Simester, “Enforcing Morality” in A. Marmor (ed.), The Routledge Companion to Philosophy of Law (New York 2012), 484.
7 This contrast may also be misleading because an action may be both MS and MP, that is, wrong due to a reason that is unrelated to the law and due to a reason that is related to the law.
8 See Section IV.
9 See V. Tadros, Wrongs and Crimes (Oxford 2016), 97–98, 197; J. Edwards, “Criminalization without Punishment” (2017) 23 Legal Theory 69, 75–78; A. Cornford, “Rethinking the Wrongness Constraint on Criminalisation” (2017) 36 Law & Phil. 615, 639–44.
10 See R.A. Duff, “Political Retribution and Legal Moralism” (2012) 1 Virginia Journal of Criminal Law 179, 186; Duff “Modest Legal Moralism”, 220.
11 Duff, Realm, 68–70; N. Lacey, “Historicising Criminalisation: Conceptual and Empirical Issues” (2009) 72 M.L.R. 936, 942–47; Alexander and Ferzan with Morse, Crime and Culpability, 295; Husak, Ignorance of Law, xiii.
12 See e.g. M. Moore, Placing Blame: A Theory of the Criminal Law (Oxford 1997), 94–95.
13 Indeed, even a consequentialist theory that includes only one consideration of moral desert may entail that using the criminal law against innocents is justified, if this is the only way to prevent worse cases of undeserved suffering. See Section V.
14 See J.C.C. Smart, “An Outline of a System of Utilitarian Ethics” in J.J.C. Smart and B. Williams (eds.), Utilitarianism: For and Against (Cambridge 1973), 69–73.
15 See Husak, Overcriminalization, 4–17; Duff, “Political Retribution”, 198.
16 For the view that many prohibitions on MP actions are unjustified, see Husak, Overcriminalization, 103–19.
17 See Tadros, Wrongs and Crimes, 94.
18 See Husak, Overcriminalization, 4–17.
19 Cf. L. Ross, “Rehabilitating Statistical Evidence” (forthcoming) Philosophy & Phenomenological Research, available at https://onlinelibrary.wiley.com/doi/full/10.1111/phpr.12622 (last accessed 27 July 2020).
20 See R. Segev, “Should Law Track Morality?” (2017) 36 Criminal Justice Ethics 205, 206, 217–19; R. Segev, “Reasons For and Against Criminalization: Discussion of The Realm of Criminal Law” (2018) 18 Jerusalem Review of Legal Studies 16, 34–37.
21 See Husak, Overcriminalization, 65–66, 76–77; Simester and von Hirsch, Crimes, Harms and Wrongs, 19–29; Duff, “Modest Legal Moralism”, 218–21.
22 See Alexander, “Strict Liability”, 532; Husak, Overcriminalization, 82–83; J.G. Murphy, “Last Words on Retribution” in J. Jacobs and J. Jackson (eds.), The Routledge Handbook of Criminal Justice Ethics (New York 2016), 31; Moore, “Legal Moralism”, 445.
23 Assuming that the moral status of actions depends on the relevant facts and not on the beliefs of the agent.
24 This distinction is related to the question of whether, when evaluating the moral status of actions, the focus should be on actions as types or as tokens (see Section IV(C)). For while criminal offences typically refer to types of actions, punishment is imposed on people for specific actions.
25 R. Segev, “Actions, Agents, and Consequences” (forthcoming).
26 For the view that the rationale of the IC is based on desert, see, for example, Alexander, “Retributivism”, 246; Husak, Ignorance of Law, 2–4; D. Husak, “What's Legal about Legal Moralism” (2018) San Diego Law Review 381, 384.
27 An intermediate case is that of a person who performed a wrongful action but is not fully responsible for it. In this case, the wrongful action is correctly attributed to the person but only to some degree.
28 Discussed further in Section V.
29 See e.g. Smart, “An Outline”, 69–70.
30 Cf. F. Schauer, Playing by the Rules: A Philosophical Examination of Rule-based Decision-making in Law and in Life (Oxford 1991), 128–34; L. Alexander, “The Gap” (1991) 13 Harvard Journal of Law and Public Policy 695, 696; L. Alexander and E. Sherwin, The Rule of Rules: Morality, Rules, and the Dilemmas of Law (Durham 2001), 53–61; L. Alexander and K.K. Ferzan, Reflections on Crime and Culpability: Problems and Puzzles (Cambridge 2018), 50. Cf. Simester and von Hirsch, Crimes, Harms, and Wrongs, 24–29.
31 The importance of the last factor is emphasised by D. Husak, “Vehicles and Crashes: Why Is this Moral Issue Overlooked?” (2004) 30 Social Theory and Practice 351, 361–62.
32 See e.g. Road Traffic Act 1988, ss. 1–2A.
33 See e.g. Road Traffic Regulation Act 1984, s. 81.
34 Cf. Simester and von Hirsch, Crimes, Harms and Wrongs, 251; Alexander and Ferzan with Morse, Crime and Culpability, 295–306; J. Smids, “The Moral Case for Intelligent Speed Adaptation” (2018) 35 J.Applied Phil. 205, 210.
35 For a host of examples in existing theoretical work, see F. Schauer, Profiles, Probabilities, and Stereotypes (Cambridge 2003), 224–50; Alexander and Ferzan with Morse, Crime and Culpability, 302–04; Simester and von Hirsch, Crimes, Wrongs and Harms, 28; V. Tadros, “Wrongness and Criminalization” in Marmor (ed.), The Routledge Companion to Philosophy of Law, 157, 169; Tadros, Wrongs and Crimes, 98–99; R. Arneson, “The Enforcement of Morals Revisited” (2013) 7 Criminal Law and Philosophy 435, 445; R. Arneson, “Discrimination and Harm” in K. Lippert-Rasmussen (ed.), The Routledge Handbook of the Ethics of Discrimination (New York 2018), 160–61; K. Lippert-Rasmussen, Born Free and Equal: A Philosophical Inquiry into the Nature of Discrimination (New York, 2014), 270; Edwards, “Criminalization without Punishment”, 75–78; Cornford, “The Wrongness Constraint”, 639–44.
36 See e.g. Road Traffic Act 1988, ss. 5, 11.
37 Cf. P. Westen, “Reflections of Joshua Dressler's Understanding Criminal Law” (2018) 15 Ohio St.J.Crim.L. 311, 319 (who assumes that this is a case of MP).
38 See Southwark London Borough Council v Williams [1971] Ch. 734, 743–46; A. Poama, “Social Injustice, Disadvantaged Offenders, and the State's Authority to Punish” (2020) The Journal of Political Philosophy, available at https://onlinelibrary.wiley.com/doi/pdf/10.1111/jopp.12218 (last accessed 26 July 2020); D. Ormerod and K. Laird, Smith, Hogan and Ormerod's Criminal Law, 15th ed. (Oxford 2018), 367–69.
39 See A. Cornford, “Preventive Criminalization” (2015) 18 New Criminal Law Review 1, 3–8.
40 See Sexual Offences Act 2003, s. 13 (when read with s. 9), discussed in J. Edwards, “Justice Denied: The Criminal Law and the Ouster of the Courts” (2010) 30 O.J.L.S. 725, 731.
41 Duff does not seem to be very confident that his scheme would be successful. Indeed, he: acknowledges that his approach depends on “a range of factors both normative and empirical”, including the way in which the people to whom the law applies and the enforcement officials would employ their discretion; admits that it is “unclear how problematic” his proposed scheme is; and concludes that “we might hope” that it will provide what is “a reasonably effective disincentive for those who are tempted to violate the regulation without good enough reason”. See Duff, Realm, 61–71.
42 Ibid., at 69.
43 Ibid., at 230, 249.
44 It may be possible to construct a similar argument that refers to a deontological, rather than consequential, reasons. If there is a deontological reason, for example, to protect certain people, which it may be possible to follow, inter alia, by criminalising actions that are not wrong.
45 See G. Dworkin, “Devlin Was Rights: Law and the Enforcement of Morality” (1999) 40 William and Mary Law Review 927, 938; Duff, Realm, 65.
46 See Husak, Overcriminalization, 111.
47 For similar conclusions in this context, see Moore, “Legal Moralism”, 445; M.S. Moore, “The Strictness of Strict Liability” (2018) 12 Criminal Law and Philosophy 513, 526; Cornford, “The Wrongness Constraint”, 644–48.
48 Cf. Cornford, “The Wrongness Constraint”, 618.
49 See Alexander and Ferzan, Reflections, 85.
50 A similar analysis applies to the claim that obedience to otherwise pointless rules is sometimes necessary in order to ensure the cooperation of others. For this claim, see J. Tosi, “Rethinking the Principle of Fair Play” (2018) 99 Pacific Philosophical Quarterly 612, 616–19.
51 Simester and von Hirsch, Crimes, Harms and Wrongs, 78–79.
52 H.L.A. Hart, “Are There Any Natural Rights?” (1955) 64 The Philosophical Review 175, 185–86; J. Rawls, A Theory of Justice (Cambridge 1999), 96–98, 301–12.
53 Duff, “Political Retribution”, 200; Duff, Realm, 329.
54 Duff, Realm, 321.
55 Schauer, Profiles, 239–40.
56 See Duff, “Political Retribution”, 189, 219.
57 For references, see R. Segev, “Justification under Uncertainty” (2012) 31 Law and Philosophy 523.
58 R.A. Duff, “Crime, Prohibition, and Punishment” (2002) 19 Journal of Applied Philosophy 97, 103.
59 Ibid., at 104.
60 See Husak, Overcriminalization, 111.
61 Simester and von Hirsch, Crimes, Wrongs and Harms, 11.
62 A. Walen, “Retributive Justice” in E.N. Zalta (ed.), The Stanford Encyclopedia of Philosophy, s. 2.1, available at https://stanford.library.sydney.edu.au/archives/fall2014/entries/justice-retributive/ (last accessed 27 July 2020).
63 Duff, Realm, 19.
64 Simester and von Hirsch, Crimes, Wrongs and Harms, 5–6.
65 Ibid.
66 Duff, Realm, 19 (my emphasis).
67 Simester and von Hirsch, Crimes, Wrongs and Harms, 5–6.
68 See Ormerod and Laird, Smith, Hogan and Ormerod's Criminal Law, 158–59.
69 Simester and von Hirsch, Crimes, Wrongs and Harms, 7.
70 See Husak, “Wrongs, Crimes and Criminalization”, 401; Moore, “Strictness”, 529; Simester and von Hirsch, Crimes, Wrongs and Harms, 19–20; Duff, Realm, 19.
71 See the examples in Section V.
72 Cf. Tadros, Wrongs and Crimes, 12.
73 R. v Hinks [2000] UKHL 53, [2001] 2 A.C. 241.
74 See A.P. Simester and J.R. Sullivan, “On the Nature and Rationale of Property Offences” in R.A. Duff and S. Green (eds.), Defining Crimes: Essays on The Special Part of the Criminal Law (Oxford 2005), 168, 179; Ormerod and Laird, Smith, Hogan and Ormerod's Criminal Law, 832–34. The dissenting judges (who would have quashed Hinks’ conviction) describe the defendant's actions as “morally reprehensible” (Hinks [2000] UKHL 53).
75 Cf. Tadros, Wrongs and Crimes, 91.
76 See Duff, “Modest Legal Moralism”, 220–21; Duff, Realm, 59–61.
77 A similar argument is directed against a more general proportionality principle that requires that the degree of punishment will always reflect the degree of wrongfulness or blame accurately.
78 Regarding MP actions, there seems to be a better option: preventing the possibility of wrongdoing by not enacting the offence to begin with.
79 There may be also considerations in favour of criminal prohibitions that apply only to NM (and MP) actions, for example, distributive considerations in favour of tax offences, which are also a matter of the degree.
80 Cf. Cornford, “Preventive Criminalization”, 23–27; Tadros, Wrongs and Crimes, 297, 333.
81 An analogous argument applies against the claim that there is an (almost) absolute constraint on infringing property rights that forbids distributive taxes (Nozick, Anarchy, 149–82) and, more generally, the claim that there is an (almost) absolute constraint that applies to minor harms.
82 See e.g. Edwards, “Justice Denied”, 738–40.
83 See Courts Act 1971, s. 6; Magistrates’ Courts Act 1980, s. 2.
84 See: D. Teichman, “Convicting with Reasonable Doubt: An Evidentiary Theory of Criminal Law” (2017) 93 Notre Dame Law Review 758, 783–800; P. Roberts and A. Zuckerman, Criminal Evidence, 2nd ed. (Oxford 2010), 253.
85 Cf. Pereboom, D., Living without Free Will (New York 2001), 177CrossRefGoogle Scholar.
86 Empirical results suggest that around 90% accept this judgment. For a survey of pertinent empirical findings, see Cushman, F. and Young, L., “The Psychology of Dilemmas and the Philosophy of Morality” (2009) 12 Ethical Theory and Moral Practice 9, 11CrossRefGoogle Scholar.
87 A notable exception is Thomson, J.J., “Turning the Trolley” (2008) 36 Philosophy and Public Affairs 359, 370CrossRefGoogle Scholar.
88 A well-known example is the case of the conjoined twins in which the court allowed killing one baby in order to save the other, offering self-defence and necessity as justifications (In Re A (Children) [2001] Fam. 147, 204, 240).
89 See Rosen-Zvi, I. and Fisher, T., “Overcoming Procedural Boundaries” (2008) 94 Virginia Law Review 79Google Scholar; Chiao, V., “Punishment and Permissibility in the Criminal Law” (2013) 32 Law and Philosophy 729, 732CrossRefGoogle Scholar, 752.
90 V. Bergelson, “Does Fault Matter?” (2018) 12 Criminal Law and Philosophy 375, 382.
91 Ibid.
92 This was acknowledged in In Re A (Children) [2001] Fam. 147.
