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Towards a Modest Legal Moralism

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Abstract

After distinguishing different species of Legal Moralism (positive vs. negative; modest vs. ambitious) I outline and defend a modest, positive Legal Moralism, according to which we have good reason to criminalize some type of conduct if (and only if) it constitutes a public wrong. Some of the central elements of the argument will be: the need to remember that the criminal law is a political, not a (merely) moral practice, and therefore that in asking what kinds of conduct we have good reason to criminalize, we must begin not with the entire realm of wrongdoing, but with conduct falling within the public realm of our civic life; the need to look at the different processes of criminalization (of which legislation is only one), and to ask what kinds of consideration can properly figure in those processes; the need to attend to the relationship, and the essential differences, between criminal law and other modes of legal regulation.

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Notes

  1. On ‘negative’ and ‘positive’ retributivism, see Dolinko (1991: 539–543). Compare (Alexander et al. 2009: 7–10), on ‘weak’, ‘moderate’ and ‘strong’ retributivism.

  2. See Feinberg (1984) (though it is not clear that this was how Feinberg understood the Harm Principle, since in his official statement of it (26) what matters is not whether the conduct is wrongfully harmful, but whether criminalizing it will prevent wrongful harms). See also Husak (2007: 73–76).

  3. Compare the contrast between Mill’s Harm Principle, according to which the prevention of harm to others is the only purpose that can justify coercive measures (Mill 1859: ch. 1 para. 9), and Feinberg’s version, according to which the prevention of harm to others is always a good reason in favour of criminalization, which leaves open the possibility that we could also have other good reasons for criminalization, such as the prevention of grave offence or of ‘free floating’ evils that do not cause harm (see Feinberg 1984, 1985, 1988).

  4. See further Duff (2007: chs. 4.4, 7.3), contrast Husak (2005) (Husak argues that negative Legal Moralism cannot justify mala prohibita). The account of mala prohibita at which I gesture here clearly commits me to insisting, contra Bentham and those who have followed him, that the distinction between mala in se and mala prohibita can be drawn in a tolerably clear way (contrast Bentham 1776/1977: iii, 63, on this ‘acute distinction…. which being so shrewd, and sounding so pretty, and being in Latin, has no sort of occasion to have any meaning to it’): but I need not argue that it can always be drawn sharply.

  5. See e.g. Feinberg (1970), von Hirsch (1993).

  6. There are actually two requirements of truthfulness here. One is a requirement of honesty: that legislatures define conduct as criminal only if they believe it to be relevantly wrongful. The other is a requirement of truth: that they define conduct as criminal only if it really is wrongful (compare Tadros 2007: 197–200).

  7. Tadros (2012: 169–172), see also Tadros (2011: 323–325).

  8. Why is it now morally wrong to carry a knife? Either because the prohibition serves this aspect of the common good in a way that does not impose unreasonable burdens, and we should obey it for that reason; or because, even if it is a ‘dumb’ regulation, it is not illiberal (see Markel 2012), and can claim our obedience as a matter of our civic duty to respect the democratic process that produced it. I cannot discuss the latter kind of malum prohibitum offence, or the reasons we can have for obeying misguided laws, here.

  9. On presumptive wrongs and defenses, see Duff (2007: ch. 9).

  10. A similar point applies to the example of the spy who ought to refrain from leaking a piece of information if, but only if, everyone else who has the information refrains from leaking it (Tadros 2012: 168).

  11. See Moore (1997: chs. 16, 18, 2009). Note too that for Moore only wrongdoing is criminalizable.

  12. On any plausible version of Legal Moralism, the question of whether we should in the end criminalize, all things considered, is a much more complicated question, of both principle and practicality.

  13. Compare Thorburn (2008, 2011), on criminal law’s ‘public’ character: even if one does not accept his particular account of its role, he is right to focus on its place within the political structure of the state. Also relevant here is the German idea of criminal law as ultima ratio or a last resort, and the related principle (or slogan) that it has an essentially ‘fragmentary’ and ‘subsidiary’ character: for a very helpful discussion, see Jareborg (2005).

  14. As might be evident, I think that the republican tradition provides the best grounding for an account of the civic enterprise: see e.g. Dagger (1997), Pettit (1999). But my argument here is that any account of the proper scope of the criminal law must be grounded in a political theory of some kind, whether or not its spirit is republican.

  15. This is not to deny the importance of judicial development and creation of criminal law, especially in common law countries. We should also bear in mind the extent to which the power to legislate, and to criminalize, can be delegated from parliament to other official bodies.

  16. Sometimes a criminal statute does not bring new conduct within the reach of the criminal law, but defines some already criminal type of conduct as a new, distinct offence: see Husak (2007: 36–38).

  17. On the legality principle and its operations in different European jurisdictions, see e.g. Tak (2009), Kyprianou (2010: ch. 2). We cannot discuss here the extent to which that principle is actually obeyed in the jurisdictions in which it officially obtains.

  18. See Rogers (2006), Ashworth and Redmayne (2010: 204–206), Crown Prosecution Service (2010a: 10–15).

  19. For a good example see Crown Prosecution Service (2010b), specifying the factors that would guide decisions about whether to prosecute those who helped others to travel to the Dignitas clinic.

  20. For a very straightforward example from England, see R [1992] 1 AC 599, holding intra-marital rape to be criminal, although it had been clear until that case that, in the law’s eyes, a man could not rape his wife. A striking feature was the lack of protest about such judicial, and retrospective, expansion of the criminal law.

  21. This is not the place to debate the proper role (if any) of jury nullification in a democratic criminal law (see, e.g., Hreno 2007; Rubenstein 2006). Also worth considering are cases in which English lay magistrates acquitted peace demonstrators who caused symbolic damage to American fighter planes in protest of the Iraq war: the demonstrators pleaded the necessity of stopping an illegal war—a kind of plea that had been firmly and formally rejected by the House of Lords (Chandler v Director of Public Prosecutions [1964] AC 763).

  22. Whether ‘we’ are politicians, or civil servants, or members of a law reform body, or concerned citizens, when we think about criminalization we must be thinking in political terms, of what the polity should do.

  23. Compare Moore’s account of the proper function of criminal law (Moore 1997, 2009)—though I do not try to capture the complexity of his view here.

  24. That is one reason why the notorious remark by the soon to abdicate Edward VIII that ‘something must be done’ for the unemployed miners he met in Wales was crass: it distanced him from any responsibility for helping them—hardly an appropriate attitude for someone presenting himself as their king.

  25. I leave aside here the question of whether that realisation is grounded simply in the fact that we are able, collectively, to do something without incurring unreasonable costs, or also partly in the fact that we share in the causal responsibility for their present suffering.

  26. Compare Schonsheck (1994), on the ‘filters’ through which arguments for criminalization must pass.

  27. See n. 4 above.

  28. I do not have space here to compare the approach taken here with that taken in Husak (2007), which looks for constraints on criminalization, and has little to say about the ‘substantial state interests’ that could generate positive reasons for criminalization; or with that taken in Simester and von Hirsch (2011), which specifies both wrongfulness and harm as criteria of legitimate criminalization.

  29. It must indeed be a public wrong, which concerns us all as citizens: but since we have got this far only because the matter in hand is a public matter, wrongs related to it will also be public wrongs.

  30. As with offences of recklessly causing either physical harm to the person or damage to property: see e.g. Offences Against the Person Act 1861, s. 20; Criminal Damage Act 1971, s. 1.

  31. As with the Model Penal Code offences of reckless endangerment in §§ 211.2, 220.1.

  32. On this kind of malum prohibitum offence, see Husak (2007: 73–76, 103–119), Simester and von Hirsch (2011: 24–29), Duff (2007: 89–93, 166–174).

  33. See Marshall and Duff (1998), on ‘stealing’, see Christie (1977).

  34. This raises, of course, a host of issues about the distinctions between the criminal law and other kinds of law, notably tort law, which we cannot pursue here: see e.g. Honoré (1995), Goldberg and Zipursky (2010), Gardner (2012).

  35. Some of these issues are illustrated by debates about the criminalization of reckless HIV-transmission: see Chalmers (2002).

  36. See Duff (2001).

  37. Compare Feinberg’s account of a ‘harmed condition’ (1984: 31–36).

  38. See further Duff (2007: 126–130, 147–158).

  39. Even here we must begin, therefore, not with wrongfulness as such, but with a conception of the public realm. But since the public realm is specified partly in terms of the values which structure the civic enterprise, wrongs that violate those values cannot but be seen ab initio as public wrongs.

  40. Libel and slander provide other interesting examples in this context: English law leaves it to the wronged individual to seek redress if she wishes, through the civil courts; it is worth asking why (or whether) it is right to see these as being to that degree private rather than public wrongs.

  41. On dwarf throwing see Rao (2011: 226–227), and further references given there; on sado-masochism and R v Brown ([1994] 1 AC 212), see Bergelson (2007).

  42. On offensiveness see generally Feinberg (1985), Simester and von Hirsch (2005, 2011: chs. 6–8).

  43. See e.g. Protection of Animals Act 1911. I leave aside here the question of whether harm to self can ever be a proper ground for criminalization (see Simester and von Hirsch 2011: chs. 9–10): on the approach sketched here, we must begin with the question of what kind of interest a polity should take in its members’ prudent or imprudent conduct; to the extent that it can properly seek to dissuade or discourage imprudent conduct, we must then ask whether self-harming conduct can count as a wrong that might merit a public calling to account and censure.

  44. I do not suggest that either of these paradigms is neatly exemplified in our existing systems, which permit of no such clear distinction between the criminal and the civil; but as ideal models they can still serve a purpose.

  45. The German provisions for victims to have a formal role in initiating, requesting, or blocking prosecutions are of interest here: see Bohlander (2012: xxx–x).

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Acknowledgments

Grateful thanks for helpful comments are due to participants in seminars at which earlier versions of this paper were discussed: at the 2011 IVR World Congress in Frankfurt, at Uppsala and at the University of Pennsylvania Law School. Special thanks to Frank Meyer, Matthew Lister and Lucia Zedner.

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  1. University of Stirling, Stirling, UK

    R. A. Duff

  2. University of Minnesota, Minneapolis, USA

    R. A. Duff

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Duff, R.A. Towards a Modest Legal Moralism. Criminal Law, Philosophy 8, 217–235 (2014). https://doi.org/10.1007/s11572-012-9191-8

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