The Oxford Handbook of Criminal Law 9780199673599, 0199673594

Table of contents :
Cover
The Oxford Handbook of Criminal Law
Copyright
Contents
List of Abbreviations
Notes on the Contributors
PART I APPROACHES AND METHODS
1 Criminology
2 Critical Race Theory
3 Economic Analysis of Criminal Law
4 Feminist Approaches to Criminal Law
5 The Transition to Modernity
6 Law and Literature
7 Philosophy
8 Criminal Law and Sociology
9 Criminal Law and Technology in a Data-Driven Society
PART II SYSTEMS AND MODELS
10 Medieval Canon Law: The Origins of Modern Criminal Law
11 Indigenous Legal Traditions: Roots to Renaissance
12 Islamic Criminal Law
13 Jewish Law
14 Marxist and Soviet Law
15 Military Justice
PART III ASPECTS AND ISSUES
SECTION A Foundations
16 Theories of Crime and Punishment
17 Codification
18 Jurisdiction
19 Constitutional Principles
SECTION B Substantive Criminal Law (i) General Part
(i) General Part
20 Acts and Actus Reus
21 Causation
22 Subjective Elements of Criminal Liability
23 Inchoate Crimes
24 Complicity
25 Corporate Criminal Liability
26 Necessity/Duress
27 Self-Defense
28 The Defense of Consent
29 Insanity and Intoxication
(ii) Special Part
30 Theories of Criminalization
31 Homicide
32 Offenses Against the Person
33 Sexual Autonomy
34 Property Offenses
35 Drug Offenses
36 Terrorism
37 “White Collar” Crimes
38 Public Welfare Offenses
SECTION C Criminal Process
39 The Long Shadow of the Adversarial and Inquisitorial Categories
40 Discretion
SECTION D Criminal Sanctions
41 Types of Punishment
42 Sentencing
43 Prison Law
PART IV CONTEXTS AND COMPARISONS
SECTION A Province of Criminal Law
44 Paradigms of Penal Law
45 Public and Private Law
46 Regulatory Offenses and Administrative Sanctions: Between Criminal and Administrative Law
SECTION B Beyond Domestic Criminal Law
47 Comparative Criminal Law
48 European Criminal Law
49 International Criminal Law
Index

Citation preview

THE OXFORD HANDBOOK OF

CRIMINAL LAW

The Oxford Handbook of

CRIMINAL LAW Edited by

MARKUS D. DUBBER and

TATJANA HÖRNLE

1

1 Great Clarendon Street, Oxford, ox2 6dp, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © The several contributors 2014 The moral rights of the authors‌have been asserted First Edition published in 2014 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2014937266 ISBN 978–0–19–967359–9 Printed and bound by CPI Group (UK) Ltd, Croydon, cr0 4yy Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

Preface

The Oxford Handbook of Criminal Law is designed to facilitate the transformation of criminal law scholarship into a global discipline, by supplying its readers with a comprehensive resource, a common point of entry into cutting edge work in crim­ inal law, freed of its traditional parochialism.1 To this end, the Handbook takes a broad approach to its subject matter, disciplinarily, geographically, and systemic­ ally. Its contributors include current and future research leaders from 11 countries (Argentina, Australia, Belgium, Canada, Finland, Germany, Israel, the Netherlands, Switzerland, the United Kingdom, the United States), who represent a variety of legal systems, methodologies, areas of expertise, and research agendas. Its content is similarly diverse in scope and substance, covering a wide spectrum of perspectives and topics. Each chapter aims to provide an original, critical, and accessible account of the current state of debate. Chapters are conceived as freestanding essays targeted at an international audience of scholars and interested laypersons. Meant to inspire and to facilitate further awareness in its particular slice of the study of criminal law, each chapter also provides a short bibliography of key sources. The Handbook is divided into four parts: Approaches and Methods (I), Systems and Models (II), Aspects and Issues (III), and Contexts and Comparisons (IV). The chapters in Part I explore various methodological vantage points on criminal law, providing an overview of past, present, and future work in the field, ranging from criminology, critical race theory, economics, and feminist studies, to history, litera­ ture, philosophy, sociology, and technology. Part II features chapters on systems or conceptions of criminal law, including canon law, indigenous law, Islamic law, Jewish law, Marxist and Soviet law, and military law. Laying the foundation for further inquiry into specific conceptions of criminal law as well as for comparative analysis, these chapters highlight the basic features of the model in question, with a general focus on substantive—rather than procedural—aspects of criminal law (in keeping with the focus of the Handbook as a whole).

1   Work on this project was supported by a grant from the Social Sciences and Humanities Research Council of Canada.

vi   preface Part III makes up the bulk of the book and covers the three aspects of the penal process:  the definition of norms and principles of liability (substantive criminal law), along with a considerably less detailed treatment of the imposition of norms (criminal procedure) and the infliction of sanctions (prison or correctional law), subjects that deserve their own Handbook treatment. Chapters in this part address many of the basic topics traditionally covered in criminal law scholarship, while collectively beginning to push analysis of these issues beyond its historically domes­ tic doctrinal focus and, more broadly, beyond the familiar common law–civil law divide. Finally, Part IV is explicitly devoted to placing criminal law in context, domes­ tically and transnationally. Chapters in this part begin by exploring the con­ trasts—and points of contact—between criminal law, as a species of law, and other paradigms of state penal power, and by considering criminal law’s place within the realm of law of a given legal system, against the backdrop of the distinction between public law and private law as types of law and alongside other fields of law, such as tort law and administrative law. Part IV, and the book, end fittingly with chapters on comparative criminal law, European criminal law, and international criminal law, areas of inquiry that already exemplify the external critical analysis of criminal law beyond the domestic sphere. Markus D. Dubber Tatjana Hörnle

Contents

List of Abbreviations

xiii

Notes on the Contributors

xix

PART I  APPROACHES AND METHODS 1. Criminology

3

Mariana Valverde and Pat O’Malley

2. Critical Race Theory

25

Bennett Capers

3. Economic Analysis of Criminal Law

38

Talia Fisher

4. Feminist Approaches to Criminal Law

59

Prabha Kotiswaran

5. The Transition to Modernity

84

James Q. Whitman

6. Law and Literature

111

Simon Stern

7. Philosophy

131

Leo Zaibert

8. Criminal Law and Sociology

152

Galia Schneebaum and Shai J. Lavi

9. Criminal Law and Technology in a Data-Driven Society Mireille Hildebrandt

174

viii   contents

PART II  SYSTEMS AND MODELS 10. Medieval Canon Law: The Origins of Modern Criminal Law

201

Heikki Pihlajamäki and Mia Korpiola

11. Indigenous Legal Traditions: Roots to Renaissance

225

Val Napoleon and Hadley Friedland

12. Islamic Criminal Law

248

Silvia Tellenbach

13. Jewish Law

269

Arnold Enker

14. Marxist and Soviet Law

295

Stephen C. Thaman

15. Military Justice

326

Rain Liivoja

PART III  ASPECTS AND ISSUES SECTION A.  FOUNDATIONS 16. Theories of Crime and Punishment

355

Emmanuel Melissaris

17. Codification

379

Lindsay Farmer

18. Jurisdiction

399

Alejandro Chehtman

19. Constitutional Principles Benjamin L. Berger

422

contents   ix

SECTION B.  SUBSTANTIVE CRIMINAL LAW

(i) General Part 20. Acts and Actus Reus

447

Vincent Chiao

21. Causation

468

Carl-Friedrich Stuckenberg

22. Subjective Elements of Criminal Liability

490

Thomas Weigend

23. Inchoate Crimes

512

Michael T. Cahill

24. Complicity

534

James G. Stewart

25. Corporate Criminal Liability

560

Susanne Beck

26. Necessity/Duress

583

Ulfrid Neumann

27. Self-Defense

607

Victoria Nourse

28. The Defense of Consent

629

Vera Bergelson

29. Insanity and Intoxication

654

Christoph Safferling

(ii) Special Part 30. Theories of Criminalization

679

Tatjana Hörnle

31. Homicide Guyora Binder

702

x   contents

32. Offenses Against the Person

727

James Chalmers

33. Sexual Autonomy

747

Vanessa E. Munro

34. Property Offenses

768

Stuart P. Green

35. Drug Offenses

789

Beatrice Brunhöber

36. Terrorism

812

Kent Roach

37. “White Collar” Crimes

837

Samuel W. Buell

38. Public Welfare Offenses

862

Darryl K. Brown

SECTION C.  CRIMINAL PROCESS 39. The Long Shadow of the Adversarial and Inquisitorial Categories 887 Máximo Langer

40. Discretion

913

Frank Meyer

SECTION D.  CRIMINAL SANCTIONS 41. Types of Punishment

941

Nora V. Demleitner

42. Sentencing

964

Erik Luna

43. Prison Law Dirk van Zyl Smit

988

contents   xi

PART IV  CONTEXTS AND COMPARISONS SECTION A.  PROVINCE OF CRIMINAL LAW 44. Paradigms of Penal Law

1017

Markus D. Dubber

45. Public and Private Law

1040

Alon Harel

46. Regulatory Offenses and Administrative Sanctions: Between Criminal and Administrative Law

1064

Daniel Ohana

SECTION B.  BEYOND DOMESTIC CRIMINAL LAW 47. Comparative Criminal Law

1089

Luis E. Chiesa

48. European Criminal Law

1115

Kimmo Nuotio

49. International Criminal Law

1139

Elies van Sliedregt

Index 

1165

List of Abbreviations



A. Atlantic Reports A.C. Appeal Cases AFA Armed Forces Act 2006 (United Kingdom) AI artificial intelligence AIR All India Reports AJIL American Journal of International Law AJR Accessing Justice and Reconciliation Allen Allen’s Reports All E.R. All England Reports AmCHR American Convention on Human Rights API/II Additional Protocol I/II (Geneva Conventions) ArabCHR Arab Charter on Human Rights Ariz. Arizona Reports BayObLG Bayerisches Oberstes Landesgericht (Bavarian Supreme Regional Court) BCCA British Columbia Court of Appeal BCSC British Columbia Supreme Court BDSM bondage, discipline, sadism, and masochism BGBl. Bundesgesetzblatt BGH Bundesgerichtshof (German Federal Court of Justice) BGHSt Entscheidungen des Bundesgerichtshofs in Strafsachen BIID Bodily Integrity Identity Disorder BTLC Butterworth’s Trading Law Cases BVerfG Bundesverfassungsgericht (German Federal Constitutional Court) BVerfGE Entscheidungen des Bundesverfassungsgerichts BWS Battered Woman Syndrome C. & P. Carrington and Payne’s Nisi Prius Reports C.A. Court of Appeal CAH crimes against humanity Cal. California Reports Cal. App. California Appellate Reports Cal. Rptr. California Reporter CC Criminal Code CCC Canadian Criminal Cases CCL corporate criminal liability CCLR Consumer Credit Law Reports CETS Council of Europe Treaty Series CHEKA Commission for the Fight Against the Counterrevolution

xiv   list of abbreviations

CLR CLS CMAC CND CNLR Conn. Co. Rep. Cox C.C. CPSU CPT C.R. Cranch. Cr. App. R. Cr. Cas. Res. CRT CTS DEA DFDA DLR DPP DPR DUI ECCC East P.C. EAW EC ECHR ECJ ECR ECtHR EHRR EPR E.R. EU EWCA Crim. Ex. F. F.C. Fed. Appx. FGC F. Supp. Ga. GC GCIII/IV GF GG GID

Commonwealth Law Reports Critical Legal Studies Court Martial Appeal Court Reports Commission on Narcotic Drugs Canadian Native Law Reports Connecticut Reports Coke’s King’s Bench Reports Cox’s Criminal Cases Communist Party of the Soviet Union Committee for the Prevention of Torture Canadian Reports, Appeal Cases Cranch’s Reports Criminal Appeal Reports Crown Cases Reserved Critical Race Theory Consolidated Treaty Series Drug Enforcement Administration Defence Force Discipline Act 1982 (Australia) Dominion Law Reports Director of Public Prosecutions Decisiones de Puerto Rico driving under the influence Extraordinary Chambers of the Courts of Cambodia East’s Pleas of the Crown European Arrest Warrant European Community European Convention on Human Rights European Court of Justice European Court Reports European Court of Human Rights European Human Rights Reports European Prison Rules English Reports European Union England and Wales Court of Appeal, Criminal Division Reports Exchequer Reports Federal Reports Federal Court Reports Federal Appendix female genital cutting Federal Supplement Georgia Reports Grand Chamber Geneva Convention III/IV governance feminism Grundgesetz (German Basic Law) Gender Identity Disorder

list of abbreviations    xv

Haw. App. HCA HCJ H.L. How. H.R. HRLR Hum. Ia. ICC ICCPR ICJ ICL ICLQ ICR ICRC ICT ICTR ICTY Ill. ILO ILR IMT IMTFE IPC IsrSC J.C. JCE JHA J.P. JR JSP K.A. Kans. K.B. KBD KDD KritV Ky. Leach L.Ed. LJ LNTS LQR LR L.R. CCR L.R. Ex.

Hawaii Appeal Reports High Court of Australia High Court of Justice House of Lords Howell’s Reports Hague Regulation Human Rights Law Review Humphrey’s Reports Iowa Reports International Criminal Court International Covenant on Civil and Political Rights International Court of Justice international criminal law International and Comparative Law Quarterly Industrial Case Reports International Committee of the Red Cross information and communication technology International Criminal Tribunal for Rwanda International Criminal Tribunal for the former Yugoslavia Illinois Reports International Labour Organization International Law Reports International Military Tribunal International Military Tribunal for the Far East Indian Penal Code Israeli Supreme Court Justiciary Cases joint criminal enterprise Justice and Home Affairs Justice of the Peace Reports Juristische Rundschau Joint Service Publication Kanonistische Abteilung Kansas Reports King’s Bench Reports King’s Bench Division knowledge discovery in databases Kritische Vierteljahresschrift für Gesetzgebung und Rechtswissenschaft Kentucky Reports Leach’s Cases in Crown Law Lawyers’ Edition Law Journal League of Nations Treaty Series Law Quarterly Review Law Review Law Reports, Crown Cases Reserved Law Reports, Exchequer

xvi   list of abbreviations

L.R. Q.B. LRTWC M. & W. Man. CA Mass. Md. MDR Me. Mich. MICT Misc. M.J. MPC NAACP N.C. NDA N.E. NEP Nfld & PEIR NGO N.J. NJW NPM NPS NRA NStZ NTSC N.W. N.Y. N.Y.S. NZCA NZLR OAC OECD OJLS Ont. CJ ONCA ONDCP OPCAT O.R. OTP P. PCA PCIJ PEI TD Plowd. PLRA

Law Reports, Queen’s Bench Law Reports of Trials of War Criminals Meeson and Welsby’s Exchequer Reports Manitoba Court of Appeal Massachusetts Reports Maryland Reports Monatsschrift für Deutsches Recht Maine Reports Michigan Reports Mechanism for International Criminal Tribunals Miscellaneous Reports Military Justice Reporter Model Penal Code (United States) National Association for the Advancement of Colored People North Carolina Reports National Defence Act 1985 (Canada) North Eastern Reports New Economic Policy Newfoundland and Prince Edward Island Reports non-governmental organization New Jersey Reports Neue Juristische Wochenschrift National Preventive Mechanism new psychoactive substances National Rifle Association Neue Zeitschrift für Strafrecht Northwest Territories Supreme Court North Western Reporter New York Reports New York Supplement New Zealand Court of Appeal Reports New Zealand Law Reports Ontario Appeal Cases Organisation for Economic Co-operation and Development Oxford Journal of Legal Studies Ontario Court of Justice Ontario Court of Appeal Reports Office of National Drug Control Policy Optional Protocol to the Convention against Torture Ontario Reports Office of the Prosecutor Pacific Reporter Permanent Court of Arbitration Permanent Court of International Justice Prince Edward Island Trial Division Plowden’s Commentaries Prison Litigation Reform Act

list of abbreviations    xvii

PoW prisoner of war Q.B. Queen’s Bench Reports QBD Queen’s Bench Division RCADI Recueil des cours de l’Académie de droit international RCAP Royal Commission of Aboriginal People RIAA Reports of International Arbitral Awards RSC Revised Statutes of Canada RSFSR Russian Soviet Federated Socialist Republic S. Ct. Supreme Court Reports SAR sexual abuse in authority SCC Supreme Court of Canada SCR Supreme Court Reports (Canada) SCSL Special Court for Sierra Leone S.E. South Eastern Reporter SLT Scots Law Times SLT (Sh. Ct.) Scots Law Times (Sheriff Court Reports) So. Southern Reporter SPT Subcommittee for the Prevention of Torture Stat. Statutes at Large Stb. Staatsblad StGB Strafgesetzbuch (Austrian/German/Swiss Criminal Code) STL Special Tribunal for Lebanon StV Strafverteidiger Tenn. Tennessee Reports Term Rep. Durnford and East’s Term Reports Tex. App. Texas Appeal Reports TFEU Treaty on the Functioning of the European Union UCMJ Uniform Code of Military Justice (United States) UKHL United Kingdom House of Lords Reports UKPC United Kingdom Privy Council Reports UNODC United Nations Office on Drugs and Crime UNSMR United Nations Standard Minimum Rules for the Treatment of Prisoners UNTS United Nations Treaty Series U.S. Reports of Cases in the Supreme Court of the United States USC United States Code USLW United States Law Week Va. Virginia Reports VAR Victorian Administrative Reports VSCA Victoria Supreme Court of Appeal Decisions Wash. Washington Reports Wash. App. Washington Appeal Reports WCB Workers Compensation Board Reports WDO Wehrdisziplinarordnung (German Military Disciplinary Code) WHO World Health Organization WLR Weekly Law Reports WStG Wehrstrafgesetz (German Military Criminal Code) ZRG Zeitschrift der Savigny-Stiftung für Rechtsgeschichte ZStW Zeitschrift für die gesamte Strafrechtswissenschaft

Notes on the Contributors

Susanne Beck is Professor of Criminal Law, Criminal Procedure, Comparative Criminal Law, and Philosophy of Law at Leibniz Universität Hannover Vera Bergelson is Professor of Law and Robert E. Knowlton Scholar at Rutgers Law School-Newark Benjamin L. Berger is Associate Professor at Osgoode Hall Law School, York University Guyora Binder is SUNY Distinguished Professor and Vice Dean for Research and Faculty Development at SUNY Buffalo Law School Darryl K. Brown is O. M. Vicars Professor of Law at the University of Virginia School of Law Beatrice Brunhöber is a Research Associate at Humboldt University, Berlin Samuel W. Buell is Professor of Law at Duke University Law School Michael T. Cahill is Professor of Law and Vice Dean at Brooklyn Law School Bennett Capers is Professor of Law at Brooklyn Law School James Chalmers is Regius Professor of Law at the University of Glasgow School of Law Alejandro Chehtman is Associate Professor at the Law School of the University Torcuato Di Tella Vincent Chiao is Assistant Professor at the University of Toronto Faculty of Law Luis E. Chiesa is Professor of Law and Director of the Buffalo Criminal Law Center, SUNY Buffalo Law School Nora V. Demleitner is the Dean and Roy L. Steinheimer, Jr. Professor of Law at the Washington and Lee University School of Law Markus D. Dubber is Professor of Law at the University of Toronto Faculty of Law Arnold Enker is Professor Emeritus at Bar-Ilan University Lindsay Farmer is Professor of Law at the School of Law, University of Glasgow Talia Fisher is Professor of Law at the Faculty of Law, Tel-Aviv University Hadley Friedland is a PhD candidate at the University of Alberta Faculty of Law

xx    notes on the contributors Stuart P. Green is Distinguished Professor of Law at Rutgers Law School-Newark Alon Harel is the Mizock Professor of Law at the Hebrew University of Jerusalem Mireille Hildebrandt holds the chair of Smart Environments, Data Protection, and the Rule of Law at the Institute for Computing and Information Sciences at Radboud University Nijmegen Tatjana Hörnle is Professor of Criminal Law, Comparative Criminal Law, and Penal Philosophy at Humboldt University, Berlin Mia Korpiola is Professor of Legal History at the University of Turku Prabha Kotiswaran is Senior Lecturer in Law at the Dickson Poon School of Law, King’s College London Máximo Langer is Professor of Law at UCLA School of Law Shai J. Lavi is Associate Professor at the Faculty of Law, Tel-Aviv University Rain Liivoja is a Senior Lecturer at Melbourne Law School and Project Director for the Law of Armed Conflict at the Asia Pacific Centre for Military Law Erik Luna is Sydney and Frances Lewis Professor of Law at the Washington and Lee University School of Law Emmanuel Melissaris is Associate Professor of Law at the London School of Economics and Political Science Frank Meyer is Professor for Criminal Law and Criminal Procedure Law, including International Criminal Law, at the University of Zürich Vanessa E. Munro is Professor of Socio-Legal Studies at the School of Law, University of Nottingham Val Napoleon is the Law Foundation Professor of Aboriginal Justice and Governance at the University of Victoria Faculty of Law Ulfrid Neumann is Professor of Criminal Law, Legal Philosophy and Sociology at the Law Faculty of the Goethe Universität, Frankfurt am Main Victoria Nourse is Professor of Law at Georgetown University Law School Kimmo Nuotio is Professor of Criminal Law at the University of Helsinki Daniel Ohana is an Adjunct Lecturer at the Hebrew University of Jerusalem Pat O’Malley is Honorary Professor at the University of Sydney Law School Heikki Pihlajamäki is Professor of Comparative Legal History at the University of Helsinki

notes on the contributors    xxi Kent Roach is Professor and Prichard Wilson Chair in Law and Public Policy at the University of Toronto Faculty of Law Christoph Safferling is Professor of International Criminal Law at PhilippsUniversity Marburg Galia Schneebaum is an Adjunct Lecturer at Tel-Aviv University Elies van Sliedregt is Professor of Criminal Law at VU Amsterdam Simon Stern is Associate Professor and Co-Director of the Centre for Innovation Law and Policy, University of Toronto Faculty of Law James G. Stewart is Assistant Professor at the Faculty of Law, University of British Columbia Carl-Friedrich Stuckenberg is Professor of German and International Criminal Law and Criminal Procedure, Comparative Criminal Law, and Criminal Law History at the University of Bonn Silvia Tellenbach is Head of Section (Turkey, Iran, and the Arab States) at the Max Planck Institute for Foreign and International Criminal Law, Freiburg Stephen C. Thaman is Professor at the School of Law, St. Louis University Mariana Valverde is Professor of Criminology at the Centre for Criminology and Sociolegal Studies at the University of Toronto Dirk van Zyl Smit is Professor of Comparative and International Penal Law at the University of Nottingham Thomas Weigend is Professor of Criminal Law at the University of Cologne James Q. Whitman is the Ford Foundation Professor of Comparative and Foreign Law at Yale Law School Leo Zaibert is Professor of Philosophy at Union College

part i

APPROACHES AND METHODS

­c hapter 1

CRIMINOLOGY mariana valverde pat o’malley

i.  Introduction to Criminology Over the past half century or so criminological teaching and research has grown exponentially, a fact that would normally give rise to optimism and collective self-congratulation. But paradoxically, many of the field’s leading lights, especially theorists, feel that the subject is in a state of deep fragmentation and suffers from a loss of purpose. Some of the pessimists—who often cite the field’s very success in attracting government and university resources as a symptom of the collective illness—are currently leading campaigns to “save” true or scientific or “critical” criminology.1 Others are more or less quietly abandoning criminology by attempting to morph it into a broader and more timely and/or theoretically interesting enterprise, such as the study of regulation and order, the study of risks and risk management, or the study of security management.2

1  James Williams and Randy Lippert, “Governing the Margins:  Exploring the Contribution of Governmentality Studies to Critical Criminology in Canada,” (2006) 48 Canadian Journal of Criminology and Crim. Justice 5 ff. 2  Jennifer Wood and Clifford Shearing, Imagining Security (2013); Richard Ericson and Kevin Haggerty, Policing the Risk Society (1997); Pat O’Malley, Risk, Uncertainty, and Government (2004); Lucia Zedner, Security (2010).

4    mariana valverde and pat o’malley In one of many worried “state of the union” essays produced in 2007 by leading theorists, Oxford criminologist Lucia Zedner asks whether criminology can adapt and innovate and thus maintain its relevance in a world that is focused more on risks and security than on criminal acts.3 And in a move that is typical of the general shape of theorists’ crisis discourse, Zedner exhorts colleagues to deepen criminological inquiries by learning from a variety of disciplines, from economics to moral philosophy—while, oddly, neglecting to even mention criminal law scholarship, despite the fact—or perhaps because of the fact—that she is a professor in a renowned law faculty.4 This chapter does not provide a new and improved diagnosis, much less a new prescription, for the field’s collective malaise. Any general argument about what criminology should become would be quite at odds with our own analysis of the historical roots of the current identity crisis. The reason why we do not join in the hand-wringing about what criminology should become or how it can be saved is that, in our view, there is no such thing as “criminology” as a whole—there is no one entity the future of which one can discuss. That criminology is not and has never been a coherent discipline, but is rather a field or a topic area upon which bits of various disciplines (law, psychology, sociology, etc.) converge is a long-established view—the view that gave rise, in the 1950s and 1960s, to such interdisciplinary research centers as the Cambridge Criminology Institute and the Centre for Criminology at the University of Toronto (now Centre for Criminology and Sociolegal Studies). But our point here is a more novel one. We recognize that criminology is a topic area rather than a discipline; but we also point out, based on a survey of the history and current shape of the field, that even as a topic area criminology lacks clear boundaries and a shared mission. Perhaps once upon a time one could say that criminology was the scientific study of (a) the causes of crime and (b) the best way to address crime through criminal justice measures. However, for several decades now academic criminologists have been reconceptualizing their field in ways that undermine the “crime” focus, either by shifting attention to forms of social regulation that are outside the criminal law or by burying crime in a much broader category (risk; security; regulation). While criminology’s turn away from criminality is of relatively recent vintage, if one looks at the history of the enterprise one sees that well before “crime” began to be supplanted by such broad categories as security and risk, researchers working under the banner of criminology were actually pursuing quite different projects, many of which were not primarily concerned with crime or criminality. We thus argue that it is helpful to see “criminology” as a bundle of several distinct enterprises

  Lucia Zedner, “Pre-Crime and Post-Criminology,” (2007) 11 Theoretical Criminology 261 ff.   Zedner, (2007) 11 Theoretical Criminology 261 ff., 272.

3

4

criminology   5 that had separate (though often intertwined or at least connected) historical trajectories. In what follows we will provide a brief sketch of four different projects which are all plausible meanings for the word “criminology,” thus emphasizing divisions and divergences that we feel are minimized in most general accounts of the history or the current state of “criminology.” For the purposes of the present chapter it is important to point out that only one of the four principal criminological research traditions—the second one, namely the empirical study of criminal law and criminal justice mechanisms undertaken with a view to reform—has the criminal law, and criminal justice policy, at its core. When criminology is dismissed by law professors as nothing but applied policy studies, this is the tradition that they have in mind. Criminal law scholars, especially theorists, who dismiss or simply ignore empirical research on criminal justice policies and techniques because they lack theoretical depth may believe that this disposes of the whole criminological question. This chapter shows, however, that while the policy-oriented study of particular criminal justice mechanisms, useful as it is, has little theoretical sophistication (for the most part), it should nevertheless not be neglected. Furthermore, there are other important research traditions huddling under the criminological umbrella with which criminal law scholars should be acquainted. While in turn often guilty of avoiding legal and political questions, these research traditions have made very significant contributions to our understanding of social ordering processes, regulatory logics, and the human dimensions of breaking and enforcing rules—that is, the larger social dynamics of order, disorder, governance, and compliance that criminal law scholars neglect at their peril. Criminal law scholars and teachers can indeed learn something from all the research traditions that have since the beginning contributed to “criminology.” Some of the studies carried out by criminologists shed light on unintended effects of criminal law reforms and are thus informative albeit atheoretical. Others, for instance most of those in the mainstream American sociological tradition, studiously avoid discussing law and state power in general, but could nevertheless be used by criminal lawyers to question the rational-choice, individualist assumptions about “persons” and “acts” that are generally taken for granted in criminal law writings. And because sociological research traditions have done the most to explore the dynamics of stigma, coercion, compliance, and governance in general, we will spend most of the chapter describing largely sociological research traditions—though the term “sociological” is somewhat of an awkward fit, since urban geographers and anthropologists have in recent years emerged as leading scholars whose work is read by younger sociologists. Our brief survey will conclude that criminal law scholarship and teaching can benefit from closer interactions with various types of empirical and theoretical work that shed light on key questions about regulation, coercion, and state power—even if such work does not directly address criminal law’s own questions about itself.

6    mariana valverde and pat o’malley An important caveat here is that the focus of our chapter is social science research; we are not in a position authoritatively to comment on the work of biolologically oriented psychiatrists, molecular biologists, neuroscientists, etc. who are exploring biochemical and other physiological processes that may have a bearing on people’s propensity to commit crimes. It has been traditional for social construction-oriented criminologists to cast aspersions on biological and biomedical approaches to crime and to polemicize in favor of nurture and against nature; but we prefer to avoid unnecessary large-scale polemics and instead focus on criminological research located within social science, which is already a complex and heterogeneous field. But the biomedical and natural sciences were not always as separate from the social sciences as they have become in today’s academy. We will, therefore, begin with a very brief commentary on knowledges of crime and criminality that Foucault called the “psy” knowledges. This term refers mainly to psychology and psychiatry but also covers psychologically informed projects such as those found in clinical social work. The section on the psy knowledges is largely historical and meant primarily to contextualize the “social” knowledges described in the rest of the chapter; as mentioned previously, it is not possible within the confines of this chapter to cover current developments in forensic psychology and psychiatry.

ii.  The Rise of Psy Knowledges The criminal law has traditionally been focused on particular acts to be judged mainly according to the seriousness of the crime and/or the evil intentions of the offender. As Foucault famously pointed out, the logic of criminal law thus clashes with the logic of the late nineteenth-century enterprises of psychology and psych­ iatry, which focused on the person and his/her identity—that is, on the delinquent, not the offender.5 If the history of sexuality saw, in the late nineteenth century, a shift away from acts such as sodomy and toward inner identities (the homosexual being the paradigm case)—with the “case history” replacing the single act as the target of both knowledge and power—so, too, did the history of criminal justice undergo a shift whereby crimes began to appear as relatively unimportant symptoms of an underlying “abnormal” identity.6   Michel Foucault, Discipline and Punish: The Birth of the Prison (1975).  Michel Foucault, The History of Sexuality:  An Introduction, Vol. 1 (1980); David Garland, Punishment and Welfare: A History of Penal Strategies (1985). 5

6

criminology   7 While the struggle between the criminal law and the psy knowledges is very important to understand trends in modern governance, its impact, at a prac­ tical level, within criminal justice settings, has been exaggerated, not least by Foucault himself. In fact, from the beginning of the “psy” sciences—around the 1860s—until today, psychiatrists have intervened in very few cases—mainly horrific murders in which economic motives were not thought to play a role.7 While the process known as the medicalization of deviance acquired traction at various points (especially in the immediate postwar period, a time in which it was easier than at any time before or since to garner new resources for medical as well as correctional institutions), the vast majority of offenders have never been “psychiatrized” or “medicalized.” Indeed, while early feminist criminologists argued that women’s crime and deviance has generally been historically subject to more medicalization than men’s,8 empirical studies of women’s imprisonment have shown that doctors of any kind, psychiatric or not, have played but a very small role in the criminal justice system, especially within correctional settings.9 Religious organizations such as the Salvation Army and the Catholic Church, and lay, non-expert groups and individuals such as Elizabeth Fry and John Howard, were crucial actors in the development of the penitentiary system and still play a much larger role in defining personal problems and reforming prisoners than psychologists or physicians. The “mad vs. bad” question has therefore played a less important role in the history of criminal law and criminal justice than many people believe. It continues to raise its head in particular situations (e.g. today, cases of abused women murdering their abusers); but if we are to venture a generalization we would have to say that psychiatry has been and still is a minor player in the realm of criminal justice. The psy experts, of course, have their own networks, their authoritative texts, and their channels for influencing public opinion; but they directly challenge standard crim­ inal law accounts of criminality only in special situations. If psychological and psychiatric theories of the human soul have challenged criminal law’s emphasis on personal responsibility for acts in a direct way only occasionally, there are nevertheless some psy “inventions” that have become integral to the working of criminal justice, and that should therefore be understood by criminal lawyers. Today, the most important “psy” contribution to criminal justice is a set of tools designed not to probe and diagnose deep psychological abnormalities but simply to gather actuarial data on crime and recidivism. The hope that 7   Martin J.  Wiener, Reconstructing the Criminal:  Culture, Law, and Policy in England, 1830–1914 (1990); Joel Peter Eigen, Witnessing Insanity: Madness and Mad-Doctors in the English Court (1995); Joel Peter Eigen, Unconscious Crime: Mental Absence and Criminal Responsibility in Victorian London (2003). 8   See e.g. Russel R. Dobash and Sue Gutteridge, The Imprisonment of Women (1986). 9   See e.g. Kelly Hannah-Moffat, Punishment in Disguise: Penal Governance and Canadian Women’s Imprisonment (2001).

8    mariana valverde and pat o’malley gave rise to the actuarial project was that such aggregate data, if properly analyzed, would have some predictive value—in respect of the population in general, at any rate; actuarial data’s lack of ability to predict any individual’s future acts is, as ever, its Achilles heel. Risk assessment scales are now used everywhere:  to sort those convicted of crimes into various institutions and programs, to gauge the risk that society incurs when releasing someone on parole, and, more generally, to try to manage the risks of reoffending. More worrisome from a criminal law perspective is the use of aggregate data preventively to target people who fit certain “risk profiles”—as carried out in airport screening as well as in street law enforcement.10 Risk assessment scales are produced by psychologists who gather data on such “risk factors” as poverty, unsettled family structure, low educational achievement, drug and alcohol habits, etc. and link these to data on crime. However—and this is an important reason for the popularity of such tools—once created, the risk assessment scales do not need much if any expertise to be administered. Any probation officer can check off the boxes and generate a workable result, one that usually takes the form of a high-risk, medium-risk, or low-risk designation. Indeed, any school teacher could use the same scales to “predict,” with some accuracy—at least in regard to a sufficiently large sample—what type of pupil from what type of family is likely to end up in trouble with the law. The risk scales do not tell us anything we would not know from other sources, since it has long been known that engaging in criminal activity, especially on a regular basis, is not something that is randomly distributed in the population. But having a checklist and a “risk score” on paper helps authorities to justify their decisions, to the public as well as to their superiors—with managing any reputational risks to the institution playing a more important role than either treatment or justice, in this age of “audit cultures.”11 A further feature that explains the ubiquity and popularity of risk assessments is that those scores are not hardwired to any one political or legal project: they can be used to help the risky offender or the child at risk access needed resources, but they can also be used to take coercive measures for the security of the institution (or both). Risk factor analysis is inherently deterministic—those whose fathers were unemployed and/or alcoholic end up with higher risk scores, and nothing they do in their own life changes that score. Such determinism is clearly at odds with the logic of the criminal law, which takes it for granted that every person who is not insane or incap­acitated could indeed have chosen to do otherwise. This direct conflict,   Bernard Harcourt, Against Prediction: Profiling, Policing, and Punishment in an Actuarial Age (2007); Kevin Stenson and Robert Sullivan (eds.), Crime, Risk, and Justice: The Politics of Crime Control in Liberal Democracies (2001); Pat O’Malley, Crime and Risk (2010). 11   Marilyn Strathern (ed.), Audit Cultures: Anthropological Studies in Accountability, Ethics, and the Academy (2000). 10

criminology   9 however, is swept under the rug by means of a division of labor embodied in the temporal progress of a criminal case. The verdict itself, the core of criminal law, is arrived at using almost exclusively legal means: by contrast, what we could call the anti-legal logic of risk profiling plays a large role before the person is charged (e.g. as police officers decide which drivers to pull over and stop) and after the verdict (in sentencing and in correctional settings). If one takes a doctrinal perspective on the criminal law one is likely to focus almost entirely on what is or is not a crime and on what determines or should determine verdicts. In doing so, the larger governance processes that bring disproportionate numbers of certain kinds of people into court in the first place, and the processes that afterward determine offenders’ specific, post-conviction fate, are both obscured from view. It is these pre-prosecution and post-conviction phases that have come to be dominated by risk profiling, in both its commonsense versions (racial profiling and bail court decision-making) and in the expert-produced risk tools, such as the checklists used to make decisions about sentencing, parole, and correctional programs. Therefore, those criminal lawyers who want to expand their studies to include more than the traditional questions of guilt and responsibility—those who appreciate that courts only see those people who are apprehended by police for what are often risk-profiling reasons, and that courts’ verdicts send people into a system that will then use profiling logics that reinforce and harden social inequality—should acquaint themselves with some of the vast literature on risk management and risk profiling. These tools—not the old-fashioned psychiatric diagnosis of Hitchcock’s Psycho fame—are, indeed, central to criminal justice today, even if their import­ ance is often hidden from defense lawyers and judges, who only see offenders one at a time and in the context of either a plea bargain or a trial, neither of which use actuarial data or risk predictions systematically. Bernard Harcourt’s highly critical survey of the history and current deployment of risk information and risk assessment tools, tellingly entitled Against Prediction, would be a good place to start.12 Critical studies of risk assessment practices are much more relevant to the everyday working of criminal justice and criminal law than the classic studies of medical vs. legal theories of responsibility produced by scholars studying unusual trials featuring unusual criminals (mothers who kill their children, psychotic serial killers, etc.), trials that shed no light at all on the run-of-the-mill cases. The run-of-the-mill case has never featured psychiatry; but it now may indeed feature a risk assessment score that may have more impact on the offender’s future life than the verdict itself. This brings us to the first of the more or less sociological research traditions that we believe are important for criminal lawyers: empirical studies of criminal law and

  Harcourt (n. 10).

12

10    mariana valverde and pat o’malley criminal justice that have an implicit or explicit reformist agenda and shun philosophical questions in favor of policy analysis.

iii.  Empirical Studies of Criminal Law/Criminal Justice One moment often cited as the beginning of criminology is the European Enlightenment effort to rethink criminal law and state punishment. As is well known, Cesare Beccaria and his contemporaries, sharing the late eighteenth-century’s general enthusiasm to reform state power in a humanist and liberal direction, thought that the key function of criminal law and criminal justice was not, or no longer, to promote and uphold “the king’s peace” by sheer fear of physical punishment. Instead, criminal law and the associated system of state punishment could function, they believed, rationally to deter individuals from offending and implicitly to gain the consent of the people being punished to their own punishment. A crim­ inal justice system based on social contract theories of sovereignty and utilitarian views about inflicting only as much pain as is absolutely necessary to deter would, it was felt, include the offender in the polis instead of excluding or shaming him/ her. It would, simultaneously, also educate the general population in the civic ideals of rational choice and individual freedom, thus building a state that would finally unite “sense and sensibility,” rationality and human fellow-feeling. While Beccaria’s vision can be said to be one of the foundations of modern crimin­ ology, and indeed is still the unofficial creed of most criminal justice researchers (even those who never read either legal or social theory), Beccaria’s own work proceeded primarily philosophically, not empirically. Although he was interested in acquiring information about criminal law and justice, when discussing such topics as the brutalizing effects of harsh punishments he did not refer to empirical studies of either offenders or the general public—not surprisingly, since statistics was in its infancy, public opinion surveys were unknown, and neither psychology nor any of the other social sciences had yet been invented. Later developments in the Beccaria tradition—such as the limitation of the death penalty to fewer crimes, and the attempt at graduating sentences to fit the gravity of the crime (mainly by establishing specific prison terms for specific crimes, and to a lesser extent through graduated fines)—were also motivated more by philosoph­ ical beliefs than by anything resembling what would now be called social science evidence. It was only toward the end of the nineteenth century, when tools from psychology and sociology began to be used both by correctional officials and by the

criminology   11 small number of academic researchers who were interested in criminal justice, that “evidence-based” criminal justice policy can be said to have begun. In France, social “facts” pioneers, notably Adolphe Quetelet, began to examine crime as a social phenomenon, by which was meant that examination of crime stat­ istics could reveal the extent to which crime could be understood as something other than the product of free will. His identification of correlations between crime and such factors as age, gender, poverty, and education founded what was to become a powerful tradition of positivist criminology which dominated criminology until the mid-twentieth century, and even later in many places. In this approach, crime came to be understood as socially (and psychologically) determined. In effect, this not only challenged the free will assumptions of Beccaria and of most criminal justice, but clearly established what was thought to be a scientific basis for the governance of crime through the manipulation of psychological, social, and population factors. While most of this early work was pursued in France and elsewhere on the continent, it was to be in the United States that it was to grow most prolifically and become highly influential.13 Indeed, as David Garland has mapped out for Britain,14 a major struggle emerged between policies that assume free will and moral culp­ ability attract punishment and, on the other hand, a “scientific” vision of crime as the effect of social or psychological determinants thus attracting therapeutic, educational, and social alleviation interventions. In the first years of the twentieth century the sociology department at the University of Chicago, which also, and not coincidentally, pioneered urban sociology, teamed up with the state of Illinois department of corrections to undertake some of the world’s first actuarial studies of crime and recidivism.15 But in the postwar era in American criminology (which strongly influenced criminology elsewhere in the English-speaking world), approaches growing out of the Chicago tradition and the macrosociological tradition established by Quetelet began to link crime to major features of social structure. “Anomie” or “strain” theory explained high crime rates among the working classes by reference to disjunctions between strongly emphasized and pervasive social values underlining material success and “blocked” opportunity structures. The potentially radical overtones of the “strain” model were later tempered by a reinterpretation in which American society was understood to be “norm deficient,” so that the values of individual success were not matched by equally strong norms reinforcing legitimate means to success. In turn, this was frequently hypothesized to give rise to “delinquent subcultures,” particularly among new immigrant populations and their children, who were represented as having even weaker attachment to American norms of legitimate behavior. Thus, what became by far the predominant sociological approach in the Anglophone world after World War II shifted ground

  Harcourt (n. 10).

13

  Garland (n. 6).

14

  Harcourt (n. 10) 40–45 ff.

15

12    mariana valverde and pat o’malley from a potentially radical account, to one that became quite compatible even with law-and-order politics. Either way, perhaps precisely because its focus was on broad sociological processes, the “strain” model had very little visible impact on criminal justice and, especially, on criminal law. In Britain, early social science methods also began to be used to study criminality and recidivism, though there sociology was less advanced (due to the intellectual conservatism of the major universities), whereas the paradigm of racial/national “degeneration” was very powerful, being promoted by many leading physicians as well as public intellectuals. Thus, the focus was less on the mechanisms of criminal justice and more on the body and soul of the criminal, thought of as a distinct and degenerate human type.16 In Britain, too, research into criminal justice remained a marginal enterprise for many decades, indeed for most of the first half of the twentieth century. In Britain, for example, criminological teaching started only in the 1940s (with the London School of Economics’ Hermann Mannheim, a German émigré judge with a great interest in criminal justice policy, playing a key role); and criminological research only became established after the Home Office agreed to support the creation of the first criminological institute, at Cambridge University, in 1958. Strongly influenced by the postwar developments in American sociological criminology, Mannheim came to the view that criminal justice had changed its function to one of social defense—but, as a result, that it could never achieve effective results in this new function. Instead, he advocated large-scale social reconstruction to deal with the structural determinant of crime.17 This approach was to predominate in British socio­logical criminology thereafter—in more and less radical visions—and was linked closely with the development of the welfare state in that country after World War II. However, despite Mannheim’s own involvement in law reform, as a result of its acceptance of social determination of crime, British criminology, too, began to cut itself adrift from questions of criminal law and criminal justice. Sociological criminology on both sides of the Atlantic was thus, in a sense, condemning itself to irrelevance in the minds of those focused on criminal law and practice—who in turn increasingly came to be seen sociologically as part of the problem of crime rather than part of the solution. In the United States, research on criminal justice has never been dominated by the federal government (which has very limited criminal law powers as well as a minimal role in university governance, in contrast to most European countries). In addition, the U.S. university system has been and remains much less centralized and hierarchical than is the case in European countries: therefore, generalizations about research trends are risky. But it is fair to say that the same impetus that eventually gave rise to the U.S. Model Penal Code also fostered empirical research promoting   Garland (n. 6).   Hermann Mannheim, Criminal Justice and Social Reconstruction (1946).

16 17

criminology   13 innovations in studying and “treating” both offenders and “delinquents” who had not yet been charged with offences. As is well known, postwar welfare-state innovations tended to promote rehabilitation and medicalization, or psychologization at any rate, rather than retribution. Such “enlightened” mechanisms as pre-sentence youth diversion programs had existed since the creation of the first specialized courts (for youth, for women, etc.) in the early years of the twentieth century. But they only flourished in the post-World War II period, when, as the welfare state apparatus grew, welfarist and rehabilitative programs of all types began to receive serious funding. What Roscoe Pound famously called “sociological jurisprudence,” an approach to law and lawbreaking that contextualized crime with studies of urban poverty, overcrowded housing, child neglect, and so forth, had led to major institutional innovations in the United States in the period before World War I, but almost exclusively at the local level (e.g. the complex Chicago system of specialized municipal courts18). Sociological jurisprudence did not disappear completely, but was largely invisible in national-scale politics and in academic research in the period from the 1920s to the 1950s, reviving, often at a national rather than local scale, only as part of the overall growth of the postwar welfare state. For some decades—until approximately the Thatcher–Reagan revolution of the 1980s—the same spirit that led to the Model Penal Code and, in Britain, the Wolfenden Report, also permeated what one could call the lower reaches of crim­ inal law/criminal justice. But a sea change in both criminal law and criminal justice policy, in the United States especially, began to be felt as President Nixon declared a “war on crime”—whereas his predecessor, Lyndon Johnson, had famously declared a war on poverty.19 It is important to note that events in the United States were not necessarily representative, however. Much of Western Europe was greatly affected by neoliberal economics but remained largely immune to the Reagan-era approach to criminal justice; to this day, many European countries have sentencing practices and correctional systems that are more or less continuous with the postwar rehabilitative ideal. But in the United States, and to a lesser but nevertheless significant extent in the United Kingdom,20 “tough on crime” politics, such as California’s “three strikes and you’re out” policy, reversed some, perhaps many, of the postwar innovations, and eventually gave rise to policies that would make Beccaria, Mannheim, and the entire Chicago School turn in their respective graves. The return of the death penalty in the early 1980s was also an important marker for our purposes, in that this major change in policy went against the findings of criminological research. Researchers were and are unanimous that the death penalty does not necessarily deter more than other penalties, and that its administration   Michael Willrich, City of Courts: Socializing Justice in Progressive Era Chicago (2003).  Johnathan Simon, Governing Through Crime:  How the War on Crime Transformed American Democracy and Created a Culture of Fear (1997). 20   David Garland, The Culture of Control: Crime and Social Order in Contemporary Society (2001). 18

19

14    mariana valverde and pat o’malley serves as a mechanism to further and compound the anti-black racism that had long characterized U.S. criminal justice. Its revival is thus one of the many indicators of the loss of prestige and authority suffered by American policy experts both inside and outside government. As Jonathan Simon documents, law-and-order prosecutors began to use their prosecutorial credentials to win political office, including becoming governors of a number of key states21—and prosecutors have never had much time for soft-on-crime sociological, psychological, or medical experts. Indeed, for a good two decades after the 1980s, U.S.  criminal justice researchers could only throw up their hands in despair. Study after study showed that the drop in the crime rate was not the result of imprisoning vast numbers of actual and potential offenders, since the drop was just as noticeable in countries (e.g. Canada) in which prison populations remained constant and the death penalty remained illegal. But such studies were largely ignored by U.S. politicians. Nevertheless, while having little or no impact on criminal law itself, on sentencing and on parole mechanisms researchers did contribute to some changes that took place in the period from the 1980s to the early 2000s. One was the spread of specialized, more or less therapeutic, courts mainly for drug users, homeless, and aboriginal offenders, but also for abusive men, who began to be sent to anger management or other “treatment” programs (though mainly instead of receiving a caution from police, rather than instead of jail). On another front, fairly radical changes in police and prosecutorial policies in regard to domestic violence were initiated by feminists (often supported by feminist research) but were then incorporated into state practices. For many criminal justice researchers, especially women, the innovations in this field provided one of the few hopeful avenues for both policy engagement and research during an otherwise bleak time, although it has been argued that feminists succeeded only to the extent that they supported a tough-on-crime agenda. There was also a powerful international movement, which had some resonance even in the United States, promoting “restorative justice” as an enlightened and humane alternative to standard criminal justice. Criminal justice researchers thus had some opportunities to engage productively with state officials even during the darkest days of neoconservative crime policy, but mainly on the margins of the system (as in restorative justice pilot projects or specialized domestic violence courts). Throughout this period, prison populations were growing while the crime rate was dropping, even if no other country matched the United States’ astounding levels of what has been called “mass incarceration.” Since the 2008 financial crisis, fiscal pressures in many U.S.  states, and more recently court decisions putting limits on prison overcrowding, have combined to moderate these trends. There have also been states that have stopped using the death penalty. While it is not possible to generalize about the drivers of change that

  Simon (n. 19).

21

criminology   15 in many cases were not deliberate policy choices but simply the final vector sum of various uncoordinated games of political football, we would venture the generalization that research has played a small part in the current narrative. Researchers can and do document the effects on inmates of prison overcrowding, and such studies (like those of the racial bias of the death penalty) are introduced as evidence in constitutional challenges to current law; but the question of how much unpleasantness and suffering ought properly to be tolerated in a state prison system is not one for which science can provide a definite answer. The question of the state’s right to kill its citizens is also one that is fundamentally ethical, not factual. This brief overview suggests that while research on criminal justice and the implementation of policies has sometimes been used to make or reform policy, it is not unreasonable to conclude that on the whole criminal justice research has served only to make slight adjustments to programs the existence and ultimate fate of which do not depend on research. For example, the legal changes in the United States and the United Kingdom that have made it nearly impossible for sex offenders to return to the community after sentence, through draconian registration and community notification measures, are completely at odds with everything that sociological and psychological research on stigma, labeling, and social exclusion has told us. But, by contrast, the “treatment” that is delivered to sex offenders in the prison system is based on forensic psychology, and in-prison treatment programs are evaluated and refined constantly (though, if Canada is at all representative, the research is carried out in-house by correctional authorities themselves, which have grown very wary of independent researchers). Along the same lines, the proliferation of drug treatment courts has made but a tiny dent in the number of offenders in prison for drug and drug-related offences. The often minimal improvements that are eventually implemented, often for special, small populations, after years of research showing the flaws of the system certainly give good grounds for the collective pessimism mentioned at the outset. The limited reach of evidence-based changes has also fueled left-wing university-based researchers’ denunciations of what they call “administrative criminology.”22 Such denunciations are self-righteous and often use straw-man arguments; but even if one takes a respectful attitude toward the hard-pressed researchers who are trying to make improvements in the system, it is difficult to avoid the conclusion that for most of the past century, the important changes in criminal law and criminal justice have not been evidence-based. This does not mean, however, that criminal law scholars and students can afford to ignore criminal justice research. Criminal law is sometimes taught as if it were a branch of political theory. But the criminal law has far more impact on the lives of ordinary people, particularly those who are already disadvantaged before they   See e.g. Williams and Lippert (n. 1); Kevin Haggerty, “Displaced Expertise: Three Constraints on the Policy-Relevance of Criminological Thought,” (2004) 8 Theoretical Criminology 2 ff. 22

16    mariana valverde and pat o’malley break the law, than any other theory, including economic theory. It is, therefore, only sensible for those interested in the criminal law to read studies that shed light on the often unintended consequences of particular areas of criminal law and criminal procedure. Admittedly, criminal justice policy conducted for or within the state apparatus is often conservative in tone and purpose; but there are many researchers who are using their social science training to try to keep Beccaria’s dream alive in often hostile political climates. Turning up one’s nose at such research on the basis that it is either insufficiently radical or insufficiently theoretical is not particularly helpful:  if the criminal law is indeed to be truly reformed, this will not happen through the efforts of either philosophers or left-wing critics.

iv.  From Criminal Acts to Vicious Groups and Spaces: The History of Miserology The conventional account of the history of criminology posits two different and in many ways opposed beginnings. The first is the moment of Beccaria and Enlightenment law reform mentioned earlier. A century later, there was, the story goes, “another beginning and another set of influences,” namely, the scientifically oriented work of “criminal anthropologists” and other experts on human abnormality.23 As Stanley Cohen points out, a major difference between the first beginning (Beccaria) and the second (Cesare Lombroso’s “criminal anthropology”) was that the first was wholly focused on legal principles, whereas the second moment, born out of hybrid natural-social knowledges of vice and degeneration and continued later by psychologists and sociologists, “managed the astonishing feat of separating the study of crime from the contemplation of the state,” and law in particular.24 This generalization is not quite correct: those who agreed with Lombroso that there was such a thing as a “born criminal”25 certainly tried to influence state policy, and succeeded in some instances (e.g. indeterminate sentencing and the development of categories such as “habitual offender”26). But what is important for our purpose and is hinted at in Cohen’s description is that as the new social sciences developed, at the end of the nineteenth century, the “acts” that are the focus of the criminal law were of little interest other than as symptoms of deeper problems.   Stanley Cohen, Against Criminology (1988), 4 ff.   Nicole Hahn Rafter, Creating Born Criminals (1997).

23 25

  Cohen (n. 23) 4 ff. 26   Garland (n. 6).

24

criminology   17 These important problems were thought of as located in the inner psyche, in physio­ logical hereditary characteristics, in human groups, from families to neighborhoods to nations, and/or in spaces of vice, namely the slums of industrializing cities. For the new “positivists” (i.e. those who believed the methods of the natural sciences ought to be applied to human affairs), the objects of study were twofold. First, physical anthropologists and proto-psychiatrists focused on the deep identities of “deviants” who might commit crimes but were to be targeted even if they did not, since they posed a constant danger to the nation and the race.27 There was a great concern to distinguish various human subgroups from one another— the “feeble-minded” from the normal but also from the “moron”; the “habitual offender” from the ordinary, rational, one-time offender; the ordinary female criminal from the sexualized middle-class kleptomaniac—and so forth. The taxonomies that enthralled these proto-criminologists clearly set them at odds with the Beccaria tradition and with rationalist liberal approaches generally, which emphasize the Lockean common human light of reason. Secondly, the emerging discipline of sociology, eschewing the study of individuals, borrowed the methods that had been used by explorers and anthropologists to document “savage” tribes abroad, and proceeded to explore and classify the exotic Others at home—the beggars, prostitutes, street swindlers, and assorted tribes of “dangerous classes” living in the heart of the world’s great cities.28 While the sciences of psychology and psychiatry were, indeed, new in the late nineteenth century, the type of sociology that from that time onward has been a mainstay of criminological research—the sociology of underclasses and “bad” neighborhoods—was not a novel invention. There were no official sociologists before the 1880s and 1890s: but the great disruptions wrought by industrial capitalism much earlier in the nineteenth century, certainly by the 1830s, in cities such as Manchester, London, Lyons, and Paris had already given rise to the intellectual enterprise, related to but not subsumed by urban sociology, that we here call “miserology.” Then and for the rest of the nineteenth century, miserological writings were generated outside universities: it is because of that provenance that they have rarely if ever been properly considered as forebears of today’s criminology. A formal feature of the miserology genre that helps to explain its lack of influence in criminal law circles is that while miserological accounts do feature individuals, the individuals who make appearances in the texts are mere examples of “types.” And the various “types” are in turn shown to be the inevitable products of more or less invisible social processes. In both literary and academic versions of this genre, individuals are portrayed as rising out of their physical environment and their economic situation (either unskilled industrial labor or shady street occupations   Garland (n. 6); Rafter (n. 25).   Mariana Valverde, “The Dialectic of the Familiar and Unfamiliar:  ‘The Jungle’ in Early Slum Travel Writing,” (1996) 30 Sociology 493 ff. 27

28

18    mariana valverde and pat o’malley including crime) as inexorably as mosquitoes in a swamp. Since the great debt that contemporary criminology owes to early nineteenth century hand-wringing about “les miserables” has not been hitherto acknowledged, we will discuss this early form of social science/social reform briefly before returning to today’s miserological writings. “Misery,” and its near-synonym, “pauperism,” was in the 1830s said to be something new, something unique to industrializing cities in the most advanced economies in the world.29 Poverty, in the sense of inadequate resources, had always existed and continued to exist in the countryside, it was noted. But when Frederick Engels attempted to explain just what was new and different about the condition of the industrial working class in English cities, he (typically) focused not so much on sheer material deprivation as on the combination of economic, moral, and social factors that created a historically unprecedented population of uprooted and “demoralized” families. Even if individually named (which they are not, in Engels, though they are in more journalistic accounts, such as Henry Mayhew’s) the people and families appear only as examples or instances of the underlying phenomenon that came to be called “the social question”—with “social” acquiring here its modern meaning, as in “social welfare” or “social problems,” which contrasts with the previous pre-1830s meaning of “society” as the “high society” of the society pages. The “nameless misery”30 of the industrial slums was seen, not only by Engels but by observers of all political stripes, as qualitatively different from the traditional poverty of peasant communities with strong traditions, deep roots in their locality, and a sense both of history and of a collective future. The nature and the urban location of industrial work, Engels tells his readers, creates not so much poverty as “demoralization”;31 “demoralization and crime”;32 “crime, misery and disease”;33 “want and disease” and “demoralization.”34 While miserological writing played a large role in the development of socialism, socialist writers were not the only or even the main contributors to this genre; philanthropists and public health doctors were much more influential. Novelists were also very important, much more important then than they are today (since today social science is sharply differentiated from fiction). Key figures in nineteenth-century miserology were Dickens in England and Victor Hugo in France—and Zola to some extent, though he fell under the sway of the degeneration paradigm and wrote multi-generational sagas that focused as much on inherited “taints” as on the social and environmental causes of “vice.”

29  Giovanna Procacci, “Social Economy and the Government of Poverty,” in Graham Burchell, Collin Gordon, and Peter Miller (eds.), The Foucault Effect: Studies in Governmentality (1991); Giovanna Procacci, Gouverner La Misere: La Question Sociale en France, 1789–1848 (1993). 30   Frederick Engels, The Condition of the Working Class in England ([1844] 1885), 24ff. 31 32 33   Engels (n. 30) 119 ff.   Engels (n. 30) 121 ff.   Engels (n. 30) 26 ff. 34   Engels (n. 30) 211 ff.

criminology   19 At about the same time as Zola, but using different tools, the amateur English sociologist Charles Booth took the study of urban industrial misery and pauperism to new scientific heights. He can therefore be regarded as a sociologist (though he had no university connections) because he focused not on individuals (as the small number of psychologists then in existence did) but on what later came to be called “communities”—essentially, very small neighborhoods. His multi-year, multi-volume magnum opus, Life and Labour of the People of London featured one of the first, or perhaps the first, printed color-coded maps ever made.35 Glued to the back cover of some of the volumes as a special pull-out feature, these street-bystreet maps used different colors to represent not just poverty but also the less tangible factors that Engels lumped under the term “demoralization.” Although income was a key quantitative fact for Booth and his assistants, the black color that—not coincidentally—he used to indicate the lowest grade of street blocks was not a purely economic indicator, but rather a composite, just as the yellow and white used for the “better” streets represented not just a higher income but a purer moral condition (in keeping with Christian iconography). Throughout the work, crime, poverty, and vice are as intertwined as they were in Engels’ account of “demoralization.” When in 1902 he decided to update the massive study produced a decade earlier, he again chose to map conditions that were much more complex than income levels. For example, “Drinking habits and the disorderliness resulting from them could not be but continually mentioned in the course of the long walks taken in all parts of London day after day with the picked police officers who were permitted to assist us during the revision of our maps. . . . ”36 Miserology, then, is characterized by enfolding criminality in a hybrid and multi­ faceted collective condition that is specific to the “bad neighborhoods” of urban industrial capitalism. It is important to note that the miserology writers, then and now, are not necessarily moralistic or judgmental; many of them, again, then as well as now, are quite sympathetic to the slum dwellers, often portrayed as hapless victims of larger social and economic processes. An important subgenre of sociological criminology today, for example, consists of ethnographies of drug-dealing and drug-using urban communities, and these are generally produced by researchers who are as sympathetic to the community they study as Engels was to Manchester’s early proletariat. Our final example of contemporary miserology comes from an extremely influential author who, while having earned his stripes in a Chicago working-class boxing gym (his intellectual stripes, that is), is currently working primarily at the global level, writing accounts of criminalization and impoverishment influenced primarily by Marxist political economy. This is the French American criminologist

  Charles Booth, Labour and Life of the People of London, Vol. 2 (1891); Charles Booth, Life and 36 Labour of the People in London, Vol. 8 (1902).   Booth (n. 35) 61 ff. 35

20    mariana valverde and pat o’malley Loïc Wacquant, author of such influential works as Urban Outcasts: A Comparative Sociology of Advanced Marginality37 and Punishing the Poor:  The Neoliberal Government of Social Insecurity,38 with the latter book, quickly translated into many languages, having become very popular, especially in continental Europe and Latin America. In Punishing the Poor, Wacquant takes miserology out of its traditional domain—the local—and shifts its analysis to a global scale, a scale shift which has helped to make Wacquant’s account extremely influential among left-wing intellectuals from all manner of disciplines who are grappling with global capital flows, transnational migration, and the variety of phenomena covered by the capacious term “neoliberalism.” If the individuals encountered by Engels in his walks through Manchester in 1844 were not described as flesh-and-blood, complex characters, but rather treated as mere instances of a larger phenomenon that came to be called “the social question,” so, too, for the kind of left-wing global-scale criminology that Wacquant represents, national and subnational trends in crime or in imprisonment are only mentioned if and when they fit the grand narrative of “neoliberalism.” And yet, even if he falls into functionalism, Wacquant’s work can play a useful role, especially as an antidote to the Panglossian perspectives popular in many law schools, especially amongst law-and-economics advocates. Despite treating people, events, and even whole cities and whole states as mere examples of industrial capitalism’s darker side, then, miserology has certainly made many important contributions, from the nineteenth century “social novel” to today’s urban ethnographies. This genre has its flaws, such as romanticizing the exploits of intrepid “street-corner” sociologists, but nevertheless the findings are important, since they show that even in the heart of the most prosperous cities in the world, the conditions that produce certain types of crime continue to flourish and will continue to flourish, in the absence of structural socioeconomic changes.

v.  The Social Construction of Deviance/Social Interactionism Our fourth and final stream or version of criminology is the “social construction of deviance” tradition. This was rooted in the symbolic interactionism that rose to the fore in the 1960s as an antidote to the conservatism and functionalism of 1950s   Loïc Wacquant, Urban Outcasts: A Comparative Sociology of Advanced Marginality (2007).   Loïc Wacquant, Punishing the Poor: The Neoliberal Government of Social Insecurity (2009).

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criminology   21 sociology and has remained an important tradition within criminology ever since. This tradition overlaps to a variable extent with miserology; however, it is useful to consider it separately here in order to highlight, for a criminal law audience, the contributions made by social construction/symbolic interactionist scholars to our understanding of how policing and other legal and regulatory mechanisms construct the very “crimes” and forms of deviance that are then subject to state regulation, including criminalization. Harold Garfinkel and Erving Goffman are two scholars who pioneered this approach. They both emphasized face-to-face interactions and tended to study small-scale phenomena in person, eschewing the grander scale of traditional sociology. Goffman famously studied “total institutions” (especially psychiatric hospitals) in person, and largely confined his analysis to what he could actually observe—instead of relying on documentary sources, policy statements, or medical discourse.39 A hugely influential term generated by this school of sociology was “stigma.” That someone, say, a young person acting out at school, can be turned into a “delinquent” merely through the effects of repeated interactions with teachers and other author­ities may be conventional wisdom today, but in the 1960s this was quite a revolutionary insight, since at that time mainstream social science still believed that certain people were inherently different, inherently abnormal. The symbolic interactionist/social construction tradition did not stop with examining how individuals are stigmatized and therefore burdened with identities that are in large part produced by the powers that be. Researchers using these tools also turned their attention to institutions and organizations engaged in civic politics and social reform, and produced a lively literature on the “social construction of social problems.” A noted author in this regard was Joseph Gusfield, who studied how alcohol and drinking had served as triggers for a variety of reform and policy initiatives that constructed certain acts— mainly, drinking alcohol—as morally and socially problematic for reasons that often had nothing to do with public health. Famously, Gusfield showed that road accidents caused by drinking and driving always lead to efforts to curtail drinking—never efforts to provide better public transport or otherwise curtail driving.40 The social constructions approach is represented to this day (in the United States at any rate) by the journal Social Problems, and by the academic organization, the Society for the Study of Social Problems. Scholars who work in this tradition show that mainstream assumptions about what is and is not a social problem are embedded in law and policy in such a way as to curtail or foreclose more inventive and possibly more effective solutions (e.g. better 39   Erving Goffman, Asylums:  Essays on the Social Situation of Mental Patients and Other Inmates (1961). 40   Joseph Gusfield, Contested Meanings: The Construction of Alcohol Problems (1996).

22    mariana valverde and pat o’malley public transit could have a much greater impact on accident rates than any campaign about designated drivers). The social construction of the social problems approach is not as popular as it once was, having been replaced, to some extent, by newer perspectives, some deriving from the work of Michel Foucault. And yet the approach continues to be influential (though usually not under that name) in current criminal law reform debates, most notably those concerning pornography, prostitution, and illegal drugs. Criminal law scholars working in areas where moral and cultural assumptions play a large role in law and policy would do well to read some of the classic works on “stigma” and the social construction of deviance. Current jurisprudence on the criminal liability of HIV+ for the transmission of HIV/AIDS, for example, is an area that would greatly benefit from understanding how the stigmatization of certain activities and people has worked in the past, often to the detriment not only of the minorities in question but of the public interest as well. Law and policy on illicit drugs is also an important area where this perspective can be brought to bear (as has been the case in the legalization of safe injection sites). In the social construction of social problems tradition, however, the specificity of law is seldom highlighted: crime and criminals are almost completely dissolved into the larger category of “deviance.” The focus is more on stigma, abnormality, and the obverse process of normalization, rather than on specifically legal processes. One could argue, however, that precisely because it considers criminalization in the broader context of the social construction of deviance, this perspective has a great deal to offer to those who want tools to place the criminal law in the larger cultural and social context within which it exists.

vi.  Criminology and Criminal Law: Conclusion Criminal law is often taught as a branch of philosophy or political theory. Law students are encouraged to think about the philosophical foundations of state punishment, but not about the governing practices studied by criminologists, which deserve to be understood in their own right because they may or may not accord with the system’s supposed principles. The four traditions outlined here offer a variety of resources for criminal law scholars and practitioners who are interested in learning more about “law in practice,” and about what contemporary social science can tell us about the broader dynamics of ordering and sanctioning within which the criminal law is located.

criminology   23 The first tradition, the psy sciences, is today playing an important role in criminal justice. Its importance can be missed by criminal law scholars since it is usually limited to pre-verdict and post-conviction phases, but for anyone interested in the fate of those who are charged and convicted, and not just on the theoretical principles of the criminal law, gaining some knowledge of current psychological tools used in criminal justice is necessary. The second tradition mentioned here, the empirical study of criminal justice institutions and mechanisms, has long provided important information on the kind of aggregate phenomena (e.g. systemic police racial profiling; the racial bias of U.S. death penalty administration) that cannot be discerned if one limits one’s view to the mens rea of individual offenders or the particular judgments made by judges. Especially since appeal courts today are more open to social science evidence about aggregate, systemic effects than they have been in the past, criminal lawyers need to have the tools to find and understand relevant studies, as needed; and, contrary to popular belief among law students, it is not necessary to have any technical know­ ledge of quantitative data analysis in order to appreciate and benefit from much of this research. A third tradition we call “miserology” is not directly concerned with legal mech­ anisms, but sheds a great deal of light on the collective life of the urban communities most affected by the type of crime that is of greatest concern both to politicians and to the public: street crime. While much of this literature is marred by a certain voyeuristic exoticism, the best studies in this tradition do offer insights into the practical situation of people living in neighborhoods in which criminal activities may indeed be a rational and sensible career path, given the systematic economic disempowerment that characterizes not so much individuals or families but whole communities. Though this tradition tends to focus on homicides and other violent acts and on street property crime and drug-related crimes, while ignoring domestic violence as well as corporate and other white-collar crime, nevertheless lawyers would do well to sample this literature. It sheds light not only on law enforcement at the coal face but also on the deep problems afflicting the communities in which most criminal accused have been raised. Finally, a critical tradition that arose out of the symbolic interactionist sociology of the 1960s has emphasized the “social construction of social problems,” including the ways in which criminal law has actively constituted the very problems and identities that are then regulated. This tradition can teach criminal law scholars that “the prostitute” is a product of prostitution laws rather than of psychological or sociological processes; it has also pointed out that the distinction between a “drug addict” and a respectable person with an alcohol problem is in large part a product of particular laws. And it has the potential to illuminate the broader social context of such current issues as the criminalization of HIV transmission. Overall, then, we have here outlined some research traditions that certainly have their deficiencies and flaws, like all areas of scholarship, but that nevertheless

24    mariana valverde and pat o’malley contain valuable resources for anyone wishing to gain a broader perspective on the fundamental issues and dilemmas that shape not only the criminal law but state regulation generally.

References Cohen, Stanley, Visions of Social Control (1985) Downes, David et al. (eds.), Crime, Social Control and Human Rights: Essays in Honour of Stanley Cohen (2007) Foucault, Michel, Discipline and Punish: The Birth of the Prison (1975) Garland, David, Punishment and Modern Society: A Study in Social Theory (1990) Garland, David, The Culture of Control:  Crime and Social Order in Contemporary Society (2001) Matza, David, Delinquency and Drift (2nd ed., 1990) Sumner, Colin (ed.), The Blackwell Companion to Criminology (2004) Willrich, Michael, City of Courts: Socializing Justice in Progressive Era Chicago (2003) Wolfgang, Marvin et al. (eds.), The Sociology of Crime and Delinquency (1970)

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CRITICAL RACE THEORY bennett capers

i.  What is Critical Race Theory? Any discussion of Critical Race Theory (CRT) and its contribution to criminal law would be incomplete without first answering a few questions: What is CRT? And how has CRT contributed to legal scholarship in general? To begin, CRT is still fairly new, only now approaching its 25th anniversary. Frustrated by the continuing salience of race and racism notwithstanding legal reforms made during the civil rights era of the 1960s, and hoping to build on the inroads made by feminist legal scholars and the Critical Legal Studies movement, a group of scholars convened in Madison, Wisconsin in 1989 to launch what they coined “Critical Race Theory.” The attendees included many individuals who are today considered key scholars in CRT, including Kimberle Crenshaw, Richard Delgado, Mari Matsuda, Kendall Thomas, Patricia Williams, Neil Gotanda, and CRT’s intellectual father, Derrick Bell. This origin story, however, still leaves unanswered the question: What is CRT? Although there is no single answer—indeed, most CRT scholars eschew the notion of a fully unified school of thought—CRT begins with a rejection of legal liberalism. As one group of CRT scholars put it: Critical Race Theorists have not placed their faith in neutral procedures and the substantive doctrines of formal equality; rather, critical race theorists assert that both the procedure and the substances of American law, including American antidiscrimination law, are structured to maintain white privilege.1 1   Francisco Valdes, Jerome McCristal Culp, and Angela P. Harris, “Battles Waged, Won, and Lost: Critical Race Theory at the Turn of the Millennium,” in Crossroads, Directions, and a New Critical Race Theory (2002).

26   bennett capers In addition to revealing how the law operates to constitute race and maintain hierarchy, CRT is also committed to challenging racial hierarchy, and indeed hierarchy and subordination in all of its various forms. To that end, CRT insists on progressive race consciousness, on systemic analysis of the structures of subordination, on the inclusion of counter-accounts of social reality, and on a critique of power relationships that is attentive to the multiple dimensions on which subordination exists. Beyond this, a review of the key writings that formed the movement reveals some recurring themes and tenets. First, that “formal,” color-blind laws often serve to marginalize and obscure social, political, and economic inequality. Secondly, that legal reforms that ostensibly benefit minorities occur only when such reforms also advance the interests of the white majority, a requirement most often referred to as “interest convergence.” Thirdly, that race is biologically insignificant; rather, the concept of race is, to a large extent, socially and legally constructed. Fourthly, CRT rejects crude essentialism and recognizes that oppression and subordination operate on multiple axes. For example, a black working-class lesbian in one part of the United States likely experiences oppression differently than a black male investment banker in another part of the United States. Fifthly, that race is often elided in the law; much CRT thus involves making race visible, or as I have described it elsewhere, “reading black.” While there is no one methodology in CRT, much of the literature incorporates personal narrative, or what is often referred to as “legal storytelling.” In addition, in the past decade, CRT scholars have increasingly turned to research on implicit biases to support their claims. Although CRT is not without its detractors—for example, CRT has been criticized, often unfairly, for being separatist, insufficiently prescriptive in offering solutions to structural problems, and even described as a “lunatic fringe”2—its influence in the legal academy cannot be easily dismissed. It has influenced every area of the law, from anti-discrimination law, to property and environmental law and tax policy, to criminal law and procedure. Courses on CRT are taught at law schools throughout the United States. Its practice has spread internationally, with scholars in such countries as Australia, the United Kingdom, India, and Spain producing CRT scholarship. And it has spawned a plethora of other critical approaches to the law, including LatCrit theory, Asian–American Jurisprudence, Queer Critical Theory, Critical Race Feminism, and even Critical White Studies. The remainder of this chapter will discuss CRT’s influence on particular areas of criminal law in the United States.

  Richard A. Posner, “The Skin Trade,” New Republic, Oct. 13, 1987 (book review).

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critical race theory   27

ii.  Critical Race Theory and Criminal Law Given the stark racial disparities in U.S. prisons, it is little surprise that numerous criminal law scholars have turned to CRT as a way to address such imbalances. Racial and ethnic minorities currently comprise more than 60% of the U.S. prison population. The numbers are even starker when viewed as a percentage of the population. One in every 10 black men in his 30s is in prison or jail, and in many minority communities the ratio is closer to 1 in 4. While much of this disparity is attributable to the so-called “war on drugs” that the government has engaged in throughout the last few decades, this disparity also suggests that civil rights reforms won during the 1960s may have been pyrrhic victories. As many CRT scholars have noted, blacks are incarcerated at a greater rate now than they were in 1954 when Brown v. Board of Education was decided, the case that ended de jure racial segregation in schools, and at eight times the rate whites are incarcerated. In fact, racial disparities in incarceration now dwarf other black/white disparities such as in unemployment (2:1); wealth (1:4); out of wedlock births (3:1); and infant mortality (2:1).3 Equally troubling, racial disparities appear at all levels of the U.S. criminal justice system, from which groups are targeted for surveillance during investigations, to the imposition of the death penalty and sentences of life imprisonment without the possibility of parole. For example, statistics from numerous jurisdictions reveal that blacks and Hispanics are frequently targeted for police stops and frisks. Consider recent numbers from New York City, which is one of the few jurisdictions that require officers to make a record of certain stops and frisks. According to recent data analyzing 867,617 stops over a two-year period, blacks and Hispanics constituted over 80% of the individuals stopped, a percentage far greater than their representation in the population. Moreover, of the blacks stopped, 95% were not found to be engaged in activity warranting arrest. When considered as a percentage of the population, the numbers are even more jarring. Stops of whites, if spread across the population of New  York City, would amount to stops of approximately 2.6% of the white population during the period. By contrast, stops of blacks, if spread across the population, would amount to stops of approximately 21.1% of the population.4 Statistics also reveal disparities in connection with the police stop of vehicles for traffic violations. For example, a report compiled by the Maryland State Police revealed that, during the period examined, African Americans comprised 72.9% of all of the drivers that were stopped and searched along a stretch of Interstate 95,   James Forman, Jr., “The Black Poor, Black Elites, and America’s Prisons,” (2011) 32 Cardozo LR 791.  Bennett Capers, “Rethinking the Fourth Amendment:  Race, Citizenship, and the Equality Principle,” (2011) 46 Harvard Civil Rights-Civil Liberties LR 1. 3

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28   bennett capers even though they comprised only 17.5% of the drivers violating traffic laws on the road.5 Even though blacks were disproportionately the subjects of searches, the hit rate for blacks—that is, the rate at which contraband was found—was statistically identical to the hit rate for whites. The terms “driving while black” and “driving while brown” have become part of the common lexicon to describe the belief that many officers consider race and ethnicity in determining whom to target for a traffic stop. A similar type of profiling has been documented with respect to individuals who appear to be Muslim, who are often subjected to heightened surveillance and airport screening, and with respect to individuals who appear to be Mexican, who are often targeted and interrogated about their citizenship, ostensibly as a means to identify illegal immigrants. Lastly, this disparity exists in the imposition of punishment, with numerous studies showing that defendants of color receive harsher punishment than white defendants, and that crimes against victims of color are punished less severely than crimes against white victims. Indeed, one well-known study of capital punishment showed that defendants charged with killing white victims were 4.3 times more likely to receive a death sentence as were defendants charged with killing black victims.6 It should be noted that one of the rationales for the promulgation of the U.S. Sentencing Guidelines in 1987, which limited the discretion of judges, was to address racial disparities in sentencing. Unfortunately, in part due to the “War on Drugs” and the 100-to-1 disparity in sentencing guidelines for crack cocaine vis-à-vis cocaine, these disparities have increased, rather than decreased, since 1987.7 It is with these disparities in mind that scholars have incorporated CRT as a tool better to understand, question, and challenge substantive criminal law. In doing so, they have found ample support in implicit biases research, which demonstrates that most individuals, including racial minorities, make implicit associations between race and criminality. What follows is a brief discussion of just a few uses of CRT.

1.  Defining crimes and discretion Given that the state’s “police power” has been described as one of the least limitable powers of the government, allowing the state to criminalize whatever conduct it reasonably deems harmful to the public health, safety, welfare, and morals as long as it does not prohibit an individual right guaranteed in the Constitution, it is not surprising that CRT scholars have turned a critical lens to what conduct is criminalized

  Capers, (2011) 46 Harvard Civil Rights-Civil Liberties LR 1.   McCleskey v. Kemp, 481 U.S. 279 (1987) (discussing the Baldus study). 7   cf. David P. Mustard, “Racial, Ethnic, and Gender Disparities in Sentencing: Evidence from the U.S. Federal Courts,” (2001) 44 Journal of Law & Economics 285; Albert W. Alschuler, “Disparity: The Normative and Empirical Failure of the Federal Guidelines,” (2005) 58 Stanford LR 85. 5

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critical race theory   29 and what conduct is not, and how such criminalization is often drawn along racial lines to serve some social need. One example of this criticism comes from the CRT scholar Richard Delgado. Borrowing a legal storytelling device from Derrick Bell, the patriarch of CRT, Delgado uses an imagined dialogue between a law professor and a law student interlocutor to make several arguments about race and the social construction of threat. First, that while various ethnic and racial groups, including whites, have always engaged in different types of criminal activity, society marked the crime engaged in by African Americans as particularly dangerous and in need of control. Thus, while Irish–Americans may have been associated with rum-running or Italian Americans with numbers rackets and organized crime, their criminal activity was deemed less threatening to the social order than crimes committed by blacks. Secondly, that the social construction of blacks as criminal, and the accompanying nomenclature “black crime,” was in response to civil rights breakthroughs and successes in the 1960s and early 1970s as a way of limiting black gains. Thirdly, that society’s interest in punishing black crime stands in stark contrast to society’s relative indifference to punishing crimes associated with whites. For example, Delgado’s fictional interlocutor demonstrates that the dollar losses for white-collar crime exceed the dollar losses from all the crimes associated with African Americans by several multiples. Moreover, spread across the population, the average American loses between $500 and $1,000 a year to white-collar crimes, compared to a mere $35 a year for crimes associated with African Americans. Yet white-collar crime is not pursued as vigorously and punished as severely. More to the point, much conduct committed by white-collar individuals that causes extreme harm and could be criminalized is simply not made criminal at all, but is subject only to ethical or civil sanctions. All of this adds a racial gloss to the common assumption that the main distinction between civil and criminal conduct is that the latter will incur a formal and solemn pronouncement of the moral condemnation of the community. If this assumption is correct, then the racial composition and interests of that community must be considered. In addition, this adds a racial layer to the ranking of offenses in terms of seriousness. That the definition and ranking of crimes is race-dependent has informed critiques of the grading of crack cocaine offenses vis-à-vis other drug offenses, such as those involving powder cocaine. It has also informed critiques of the ranking of crimes reflected in the Model Penal Code. CRT scholars have made a similar intervention in problematizing the broad, unchecked discretion that is given to decision-makers in U.S. criminal law. Although this discretion appears at multiple levels—from police officers’ decisions about whom to stop, to a judge’s decision about appropriate punishment—the use and abuse of discretion at the prosecutorial level and how this discretion is informed by implicit biases about race has come in for particular scrutiny. Just as what society chooses to mark as criminal and worthy of punishment is racially informed, so are decisions about whom to prosecute, what charges to file, which plea offers to make,

30   bennett capers and which strategies to pursue at trial. For example, the criminal law scholar Angela Davis persuasively argues that, through the use of discretion, prosecutors not only make decisions that dictate the outcome of cases, but they also contribute to the discriminatory treatment of African Americans as both defendants and victims of crime. Thus, a prosecutor may choose aggressively to prosecute a defendant in a case involving a white victim, but be less aggressive in prosecuting when the victim is from a racial minority. Moreover, such decisions, almost entirely unreviewable, are rarely the product of racial animus or explicit racial favoritism. Rather, they are part and parcel of the implicit biases we all have about race, worth, and crime. As such, one contribution of CRT has been to call attention to such discretion and its racial inflections, and to propose ways to track and curb such discretion.

2. Self-defense Criminal law scholars incorporating CRT have also challenged the supposed color-blindness and neutrality of criminal law defenses, especially that of self-defense. Far from being racially neutral, such defenses, they argue, are freighted with issues of race, gender, and identity. The right of self-defense is recognized in every jurisdiction in the United States. Although the elements of the defense vary in details from jurisdiction to jurisdiction, in general, the defense allows an individual to use physical force to defend himself as long as he reasonably believes that such force is necessary to protect himself from the imminent use of unlawful force. Such force may include deadly force, but only if the individual reasonably believes that deadly force is necessary to protect himself from the imminent use of deadly force. Even where the actor is wrong about whether he is facing an imminent attack, or indeed wrong about whether he is being attacked at all, he will have a complete defense as long as his belief, however wrong or mistaken, was reasonable. The reasonableness of his belief is positivist rather than normative. In other words, the reasonableness of his belief does not turn on whether it is morally or empirically right, but rather whether a typical person might hold the same belief. While on its face this defense would appear to be race-neutral, scholars incorporating the lessons of CRT observe that the defense is in fact racially contingent, since whether a person’s belief will be viewed as reasonable will always turn on the race (and other identity characteristics) of the actors. As one scholar observes, most individuals engage in “suspicion heuristics,” which in turn are likely to be informed by implicit biases, including implicit biases against stigmatized racial groups. In the case of minority men, this may lead to the association of minority men with crim­ inality, even in the absence of traditional bigotry. Thus, a prosecutor—with his almost unfettered discretion—may decline to bring charges against a white woman who shoots a black man walking behind her,

critical race theory   31 mistakenly believing him to be a mugger or, if charges are filed, a jury might acquit, because they deem her race-influenced fear to be reasonable. At the same time, these decision-makers would be likely to reach the opposite conclusion if the man following her were white. In short, the decision-makers would be able to use racial stereotypes and associations with violence to reach a decision that is ultimately race-based. This advantages whites and disadvantages racial minorities, including minority victims. For example, a prosecutor may be more likely to bring charges against a black woman who shoots a man behind her, and a jury more likely to convict; the decision-makers, mostly white, would think her fear of a white man unreasonable, even where the actions of the white man are identical to the actions of the black man. Accordingly, scholars incorporating CRT have criticized the reasonableness element of self-defense, and its failure to include a normative component, as rewarding “reasonable racists,” “intelligent Bayesians,” and “involuntary Negrophobes,” to borrow terms from one scholar in this field, Jody D. Armour. Nor has this critique been limited to the black/white binary. Indeed, one tenet of CRT is to go beyond the black/white binary. To this end, criminal law scholar Cynthia Lee has demonstrated how the Asian-as-foreigner stereotype and the Latino-as-dangerous stereotype also render self-defense claims racially contingent. More importantly, Lee offers an intervention that has become a mainstay in CRT: she argues that decision-makers in self-defense and provocation cases should engage in race-switching exercises in order to foreground racial biases and thus neutralize them. In short, scholars argue that rather than insuring equal treatment before the law without regard to race, criminal defenses such as self-defense serve to maintain racial imbalances through the use of such color-blind, but color-dependent, standards as reasonableness.

3. Rape Building on the tenets of CRT, criminal law scholars have also offered new ways of looking at rape law, including many of the rape reforms won by feminists in the 1970s and 1980s. Scholars note that historically rape was explicitly racialized in the United States, with many jurisdictions explicitly allowing for harsher sentences, including the death penalty, in cases involving black defendants and white female complainants, and all but ignoring rapes involving black victims. Indeed, in some jurisdictions the whiteness of the accuser was something that had to be “charged in the indictment and proved” at trial.8 As the court put it, “Such an act committed upon a black

  Grandison v. State, 21 Tenn. (2 Hum.) 451, 452 (1841).

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32   bennett capers woman would not be punished with death,” since it is the white race of the victim that “gives to the offense its enormity.”9 Although these explicit laws became dead letters with the passage of the Fourteenth Amendment to the U.S. Constitution in 1868, indirect laws, and what at least one scholar terms “white letter laws,”10 continue to inform whether rape will be punished and, indeed, whether in fact a rape has occurred. With respect to punishment, scholars note that between 1930 and 1967, 89% of the men executed for the crime of rape in the United States were black men, the overwhelming majority of whom were convicted of raping white women.11 Perhaps most telling, during the same period no one was executed for raping a black woman.12 Thus, even when the elements and possible sentences for rape were explicitly race-neutral, the implementation of those sentences remained racially dependent, allowing for valuations of worth, harm, and culpability based on race. Scholars incorporating CRT have also pointed to the law of rape itself as facilitating racialized implementation. For example, at common law, whether or not in fact a rape occurred required proof that the accuser “resisted to the utmost.” However, what this meant depended on the race of the victim and the race of the attacker. Minimal resistance often sufficed to prove rape where the defendant was black and the accuser white. Much more was required when both the accuser and defendant were white. Moreover, scholars point out that feminist rape reforms in the 1970s and 1980s perhaps only exacerbated the problem. As a result of feminist reforms, many jurisdictions relaxed the resistance requirement, excusing it when failure to resist was reasonable. But this provided even more discretion to decision-makers, who could conclude that it would be reasonable for a white woman to be afraid to resist a black man, and yet find her failure to resist a white man under similar circumstances unreasonable. Scholars point to a similar indeterminacy in ascribing mens rea in rape cases. At least one scholar observes that there appears to be a presumption of intent to rape in cases involving men of color, a presumption of consent where the accuser is a women of color, and a presumption of non-consent where the accuser is a white women.13 Again, many reforms won by American feminists in the 1970s and 1980s, including the widespread passage of rape shield laws, appear to exacerbate rather than lessen racial imbalances. Lastly, scholars incorporating CRT build on the observation that rape was once a property crime against the accuser’s husband or father, adding that racial disparities in rape prosecutions and convictions can be partly explained by considering rape a property crime against a racial group. Rape of a white woman is thus understood   Grandison v. State (n. 8).   Bennett Capers, “The Unintentional Rapist,” (2010) 87 Washington University LR 1345 ff. 11   Capers, (2010) 87 Washington University LR 1345 ff. 12   Capers, (2010) 87 Washington University LR 1345 ff. 13   Capers, (2010) 87 Washington University LR 1345 ff. 9

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critical race theory   33 not only as a harm to her, but also as a harm to the dominant society’s interest in preserving white womanhood and white privilege.

4.  Jury nullification Arguing that substantive criminal law itself is racially inflected and thus contributes to racial disparities in incarceration, at least one prominent criminal law scholar has stated that minority jurors should respond by engaging in jury nullification, the common law right of jurors to return a verdict of not guilty even when they believe the government has established its burden of proving all the elements of the crime beyond a reasonable doubt. In so arguing, Paul Butler notes that the right traditionally existed to serve as an important and necessary check on government power, and argues that community-based acquittals would be consonant with that tradition. According to Butler, African Americans are better positioned to determine what conduct in their communities should be punished, based on the costs and benefits to their community, than is “the traditional justice process, which is controlled by white lawmakers and white law enforcers.”14 Butler draws on several familiar tenets of CRT and the Critical Legal Studies movement, including the tenet that law itself is incapable of neutral determination. He also provides some guidance as to what type of cases may be appropriate for nullification based on this cost–benefit analysis, singling out cases involving minority defendants charged with non-violent, malum prohibitum offenses such as the distribution of narcotics. Through such nullification, Butler argues, African Americans can “dismantle the master’s house using the master’s tools”15 and draw attention to the need to develop non-incarceratory ways to address lawbreaking. Butler, perhaps more than any other CRT/criminal law scholar, exemplifies how employing a racial lens can reveal new aspects to criminal law issues, including issues assumed to be static and settled. Partly as a result of Butler’s work, scholars are increasingly exploring the power of juries, both in ways that are race-based and ways that are not.

5.  Mass incarceration Given the disparity rates in incarceration in the United States along the lines of race—approximately 1 in 40 white men will be incarcerated during their lifetime; among black men, the number is 7 in 40—criminal scholars have also turned to CRT better to understand and challenge how and what we punish. While scholars working outside criminal race theory have tended to focus on measurable disparities,   Paul Butler, “Race-Based Jury Nullification,” (1995) 105 Yale LJ 677, 679.   Butler, (1995) 105 Yale LJ 677, 679.

14 15

34   bennett capers such as disparities in arrest, charging, and sentencing, scholars deploying CRT have offered broader, more creative critiques. For example, several scholars have used CRT to argue that the traditional utilitarian and retributative rationales for punishment are woefully incomplete and in fact obscure other race-based interests. Traditional retributivism might not acknowledge that the harmfulness of the crime, which in turn dictates the appropriate punishment, has historically been explicitly raced-based and, to a large extent, continues to be race-based. Returning to the law of rape, for example, early laws that set differing punishments for the crime of rape depending on the race of the defendant and the race of the victim, with the death penalty often reserved for black defendants convicted of raping white women, clearly included race as a component in measuring harm. While explicit laws allowing race to play a factor are no longer valid, implicit biases and norms remain extant, allowing for a similar outcome, as studies reflecting charging decisions in rape cases demonstrate. The public outcry in response to rapes involving white victims and men of color further buttresses the notion that racial attitudes inform any retributive analysis. Several scholars refer specifically to the attention given to the rape of a white female jogger in Central Park in 1989. In fact, there were 3,254 other reported rapes in New York City that year, mostly of women of color, including one the following week involving the near decapitation of a black woman in another public park, and one two weeks later involving a black woman who was robbed, raped, sodomized, and thrown down an air shaft of a four-story building.16 Those rapes, however, were ignored. While rape is just one example, it serves to illustrate how traditional rationales for punishment implicitly allow for the consideration of factors such as race, all of which contribute to racial disparities in punishment. Similarly, scholars point to other factors that might impact traditional rationales for punishment, including the interests of the prison industrial complex or, as I have suggested elsewhere, a desire to “disappear” those who are black, Hispanic, or poor so that we may live in “newly configured, sanitized, and purged cities.”17 This discussion of CRT and mass incarceration would be incomplete without mention of Michelle Alexander’s bestselling book, The New Jim Crow:  Mass Incarceration in the Age of Colorblindness. Building on the work of sociologist Loïc Wacquant, Alexander puts forward an argument grounded in CRT: that the mass incarceration of African Americans is not an accident or solely a response to lawbreaking. Mass incarceration also functions as a means of social control, specifically a way to reinstitute the explicit racial hierarchy that existed in the United States during Jim Crow, that period post-Civil War during which southern states passed laws—including laws limiting voting rights and education—to ensure that newly 16   Bennett Capers, “Real Women, Real Rape,” (2013) 60 UCLA LR 826 ff.; Kimberle Crenshaw, “Mapping the Margins:  Intersectionality, Identity Politics, and Violence Against Women of Color,” (1991) 43 Stanford LR 1241 ff. 17   Bennett Capers, “Defending Life,” in Life Without Parole: America’s New Death Penalty? (2012).

critical race theory   35 freed blacks would not in fact have equal citizenship. Alexander observes that while it is no longer legally permissible or socially acceptable explicitly to use race as a justification for discrimination, exclusion, and social contempt, it is legally permissible and socially acceptable to use the label “criminal” to engage in these practices. Alexander adds: Once you’re labeled a felon, the old forms of discrimination—employment discrimination, housing discrimination, denial of the right to vote, denial of educational opportunities, denial of food stamps and other public health benefits, and exclusion from jury service—are suddenly legal . . . We have not ended racial caste in America; we have merely redesigned it.18

Indeed, one could add that by using criminality, rather than race, to limit citizenship, the United States has been able to present itself to the world as having ended de jure racial subordination. Alexander also points to one of the difficulties in addressing racial disparities in incarceration: since racial disparities in incarcer­ ation advance the interests of the white majority, mobilizing majority support for real reforms is all but impossible. In other words, until there is interest convergence among whites and people of color for reducing racial disparities in incarceration, change will have to come from within communities of color, not from without. In this sense, Alexander brings her analysis full circle back to Derrick Bell, who first introduced the concept of interest convergence as an animating but unstated principle of civil rights reform.19

iii.  Looking Forward Kimberle Crenshaw, one of the founders of CRT, offered the following advice to fellow CRT scholars: We need to determine how to translate our work better, to intervene in ways that help model interventions at the local level, to show people what difference Critical Race Theory makes in their own workplaces and communities. And we need to learn how to demand popular space and make good use of it when we get it.20

All of this is true. Just as it is also true that the racial hierarchies that seeded the birth of CRT still exist. Given that it is impossible to think of the U.S.  criminal   Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010).   Derrick A. Bell, Jr., “Brown v. Board of Education and the Interest–Convergence Dilemma,” (1980) 83 Harvard LR 518. 20   Kimberle Williams Crenshaw, “The First Decade: Critical Reflections, or ‘A Foot in the Closing Door,’ ” in Crossroads, Directions, and a New Critical Race Theory (2002). 18

19

36   bennett capers justice system without thinking “race,” the challenges facing criminal law scholars incorporating CRT are many. Perhaps most importantly, there is still much work to be done to show that criminal law itself is not race-free—from the rationales for punishment to the elements of substantive offenses, and from justification and excuse defenses to punishment. Likewise, there is still work to be done on producing scholarship that can point the way to real reform that matters on the ground. What appears to be revitalizing the CRT movement is a growing embrace of empirical evidence and social science data. For example, recent studies suggest that there exists a racial empathy gap: when white individuals observe a person receiving a painful stimulus—for example, being pricked with a needle—their reactions through skin conductance tests vary depending on whether the individual observed is white or black. Their physical reflexes were more dramatic when they observed a white individual receiving a painful stimulus, suggesting greater empathy. Other studies have shown similar results, and also tap into stated beliefs; namely, that most individuals assume blacks are more pain-tolerant than whites. What do these racial empathy studies suggest about the reasonableness and necessity of using non-deadly force or deadly force in confrontations involving blacks or involving whites? Or what sentence is appropriate for a defendant who is white versus a defendant who is black? Or how we understand the imposition of the death penalty, or the use of force by law enforcement officers? What do these studies suggest about how we understand the harm of battery, or rape, or domestic violence, in cases involving black victims or white victims? Just perhaps, incorporating these and other studies will be the next frontier in CRT and criminal law.

References Alexander, Michelle, The New Jim Crow:  Mass Incarceration in the Age of Colorblindness (2010) Armour, Jody David, Negrophobia and Reasonable Racism: The Hidden Costs of Being Black in America (1997) Butler, Paul, “Race-Based Jury Nullification,” (1995) 105 Yale LJ 677 Crenshaw, Kimberly, Gotanda, Neil, Peller, Gary, and Thomas, Kendall, Critical Race Theory: The Key Writings that Formed the Movement (1995) Capers, Bennett, “Reading Back, Reading Black,” (2006) 35 Hofstra LR 9 Capers, Bennett, “The Unintentional Rapist,” (2010) 87 Washington University LR 1345 Capers, Bennett, “Real Women, Real Rape,” (2013) 60 UCLA LR 826 Davis, Angela J., “Prosecution and Race: The Power and Privilege of Discretion,” (1998) 67 Fordham LR 13 Delgado, Richard, “Rodrigo’s Eighth Chronicle: Black Crime, White Fears—On the Social Construction of Threat,” (1994) 80 Virginia LR 503 Delgado, Richard and Stefancic, Jean, Critical Race Theory: The Cutting Edge (2nd ed., 2000) Delgado, Richard and Stefancic, Jean, Critical Race Theory: An Introduction (2nd ed., 2012)

critical race theory   37 Lee, Cynthia, “Race and Self-Defense: Toward a Normative Conception of Reasonableness,” (1996) 81 Minnesota LR 367 Lee, Cynthia, Murder and the Reasonable Man (2003) Richardson, L. Song, “Self-Defense and the Suspicion Heuristic,” (2012) 98 Iowa LR 293 Valdes, Francisco, McCristal Culp, Jerome, and Harris, Angela P., Crossroads, Directions and a New Critical Race Theory (2002)

­c hapter 3

ECONOMIC ANALYSIS OF CRIMINAL LAW talia fisher*

i.  Introduction to Economic Analysis of Criminal Law Legal theorists and economists share much in common: law is a mechanism for the guiding of social behavior, and therefore lawyers, like economists, place incentives at the centerfold of their analysis.1 Due to the close association between the perspectives underlying the two fields, it is not surprising that the economic approach to law has emerged as one of the most successful intellectual movements of legal theory. Before discussing the contours of the economic analysis of criminal law, it is imperative to introduce the theoretical infrastructure supporting this school of thought—economic analysis, generally, and economic analysis of law, specifically. Broadly speaking, economics is the social science that analyzes the rational choice and behavior of individuals in the production and consumption of economic goods—namely, goods that are scarce. The underlying assumption of economic analysis is that under conditions of shortage, agents—whether individuals, firms, *  My thanks go to Markus Dubber and Tatjana Hörnle for inviting me to participate in this project and for their tremendous help. I would also like to thank the editorial board of Oxford University Press for their superb work. Ram Yamin provided valuable research assistance. 1   Thomas Miceli, The Economic Approach to Law (2009) 1 ff.

economic analysis of criminal law    39 or even the state—act as rational and forward-looking maximizers of their utilities. Put differently, the economic analysis is premised upon the claim that agents are well aware of their preferences, and operate in a rational manner in order to further them. From this rational maximization assumption derives central economic principles—these include the proposition that individuals will not act unless the expected benefit of the action outweighs its expected cost; the principle that a change in price will affect the demand for and quantity of an economic good as well as the appeal of its substitutes; the derivative prediction that the market will move to equilibrium price; and the prediction as to market efficiency, according to which when transaction costs are marginal, goods traded on the market will gravitate toward their most valuable users. Although traditionally economic analysis was applied to market transactions, its relevancy is in fact much broader. While market price is the most noted incentive, and its previously mentioned effect on allocation by the market is indeed paramount, there are nonmonetary and intangible costs and benefits that motivate a decision or action. Such intangible costs may include damage to one’s reputation, deprivation of liberty, or less time spent with one’s family. Intangible benefits include intellectual pleasure, a greater sense of accomplishment, or more recreation—all ends which individuals may wish to pursue. Such costs and benefits thus enter into the agent’s calculus when deliberating whether to consume certain goods or engage in certain activities. As a result, the economic logic of rational maximization applies not only to the operation of agents in pure market transactions, but also in human settings that are exterior to the market (which some have termed “implicit markets”). This is where the economic analysis of law enters the picture. The economic approach views law in an instrumentalist manner, rooting its justification not in some predetermined set of internal logical connections among legal doctrines, but rather in the manner in which it furthers social ends. The fundamentals of economic analysis of law are identical to the previously mentioned principles underlying the economic discipline more generally. Thus, the economic analysis of law shares with other branches of economics the principle of rational maximization under conditions of scarcity, and the premise that rational maximizers react to incentives. In the contexts that are of interest to the law, such rational maximizers may consist of potential tortfeasors, potential criminals, litigating parties, prosecutors, and even potential victims. The economic analysis of law stresses the role of law in incentive-setting and highlights the effect of legal rules on the choices of those subjected to such rules. When the legal sanction for an action increases (i.e. its price rises) people are disincentivized to engage in this activity (i.e. consume it to a lesser degree). Thus, for example, under economic analysis of law, the purpose of damage awards in tort law is to deter individuals from causing accidents, to provide an incentive for potential tortfeasors to take efficient precautions. The economic analysis of law contains both positive and normative strands, based upon the underlying legal efficiency theory: the positive theory pre-assumes

40   talia fisher law’s efficiency and employs economic logic to unearth why the common law has taken the form that it has. The normative approach views efficiency as a normative end which ought to guide legal policy. It employs the analytical tools of economics for the design of legal rules, and devises suggestions for legal reform in light of the cost–benefit calculus. Additional distinctions which can be drawn in the economic analysis of law literature refer to the types of economic tools which are being employed—ranging from theoretical tools to empirical analysis which utilizes real-world data and regression models. Armed with this brief description of economic analysis and economic analysis of law, we can now move to economic analysis of criminal law: the criminal law arena is considered one of the most controversial sites for the application of economic logic.2 Even those who are sympathetic to the application of economic logic to legal settings closely associated with the market (e.g. contract law or antitrust law), are often reluctant to apply economic intuitions to criminal law. The notions of rationality, utility maximization, or efficiency strike many as foreign to the criminal sphere, commonly associated with questions of moral culpability, fairness, justice, and retribution. But the conceptual link between economic analysis and criminal law is strong and deeply rooted. In fact, criminal law is the “native domain” of the law and economics movement:3 economic analysis of law essentially emerged from the economic analysis of criminal law, and the pioneering work in modern law and economics evolved, to a large degree, from Becker’s economics of crime. Moreover, Beccaria and Bentham—whose utilitarian moral theories motivate today’s economic analysis—addressed many issues currently underlying the economic analysis of criminal law. As I shall attempt to demonstrate in this chapter, economic analysis has much to offer in the understanding and design of criminal law doctrine. The economic analysis of criminal law refers to the application of economic reasoning to criminal rules and institutions. In line with the general contours of economic analysis and with the rational maximization principle, the economic approach to criminal law assumes that offenders are rational agents who seek to maximize their utilities in the criminal context. Thus, they compare the expected costs of criminal activity to its expected benefits, and engage in the criminal activity when the latter outweighs the former. The expected benefits include the gains derived from the criminal activity—whether tangible (the stolen good) or intan­ gible (the pain and suffering of the hated victim). The costs of the criminal act include the resources expended for committing the crime (e.g. burglary tools), the costs of apprehension avoidance (e.g. purchasing gloves, destructing evidence), opportunity costs, and, most importantly, the expected costs of criminal punishment. Criminal law’s primary focus is on this last cost. Criminal law attempts to   Jules L. Coleman, “Crimes and Transactions,” (2000) 88 California LR 921 ff., 926.   Dan M. Kahan, “The Theory of Value Dilemma: A Critique of the Economic Analysis of Criminal Law,” (2004) 1 Ohio State Journal of Crim. Law 643 ff. 2 3

economic analysis of criminal law    41 increase the expected cost of the wrongful activity, through the imposition of expected punishment. By setting the expected punishment (price) at the optimal level of severity, the potential offender will be deterred from committing the crime. The economic analysis to criminal law and punishment thus revolves around deterrence. The economic model of criminal law focuses not only on the choice of individuals, in their capacities as potential offenders, but also on another facet of this analysis which relates to the institutions of criminal justice—to the social planner and to the crime-control policies it employs: deterrence and crime prevention do not come cost-free. They are contingent upon the state investing resources in apprehending wrongdoers (the costs of policing and prosecuting) and in imposing punishment upon these offenders (the costs of imprisonment). Just as potential offenders seek to maximize their utilities, subject to the constraints imposed upon them, so the state seeks to maximize its utility. And in light of the costs associated with law enforcement, the state’s utility function can be formulated as directed at minimizing the overall expected costs of crime and crime prevention (at achieving optimal—rather than maximal—deterrence). Put differently, according to the economic analysis of criminal law, the object of the criminal law apparatus is not to eliminate crime altogether—it is not to completely deter individuals from engaging in criminal activity—but, rather, to reach an optimal level of crime and deterrence. Lastly, the economic approach to criminal law focuses on the regulated activities. The chapter will be devoted to demonstrating how these principles and arguments unfold in a host of criminal law settings. It proceeds as follows: Section II will discuss the intellectual history of the economic analysis of criminal law, and unearth its utilitarian roots; Section III will be dedicated to surveying the foundations of the economic analysis of criminal law—criminalization, the tort law– criminal law divide, and the multiplier principle; and Section IV concludes.

ii.  The Intellectual Foundations of the Economic Approach to Criminal Law The traditional criminal law theory was premised upon retributivist thought with Kant’s theory placed at its center. A principal element of retributivism is that the sole justification for punishment is the existence of guilt. Punishment cannot be administered in order to promote another good—whether relating to society at

42   talia fisher large or even to the offender herself.4 Under retributivist thought, people ought not to be treated as a means subservient to the purpose of others and imposing punishment upon an individual for the furthering of some greater good—such as deterring others from committing the crime—amounts to such objectification. As mentioned earlier, one of the distinctive features of the economic analysis of criminal law—as compared to the traditional retributivist approaches to criminal law—is its focus on deterrence, on the social ends that are promoted through the imposition of punishment, rather than retribution and moral culpability. The economic analysis of criminal law and the deterrence-based case for criminal punishment can be traced back to the workings of the founding fathers of utilitarianism and instrumentalism in legal theory—Thomas Hobbes, Cesare Beccaria, and Jeremy Bentham.

1.  Thomas Hobbes (1588–1679) Thomas Hobbes’s social contract theory was the first to view and justify criminal law not on its own intrinsic terms but rather from the perspective of the underlying social ends. In his book Leviathan, published in 1651,5 Hobbes linked criminal law and the establishment of a criminal justice system with the very preservation of mankind, thereby setting the ground for the deterrence-based case for crim­ inal punishment. Hobbes’s understanding of crime and criminal law pre-assumes a particular conception of mankind, according to which in a hypothetical “State of Nature”6 people behave in a self-regarding manner, irrespective of the damage to others. The condition of man absent sovereign authority is thereby one of persistent war: driven by their desire for material gains or intangible desires—food, wealth, and power—people turn to violence against each other, and are placed under constant threat of crime, war, and violence. Human beings, as rational creatures, will be prepared to exchange their freedom to engage in war for blanket protection from strikes by others. They will rationally choose to exit the state of nature by entering into a social contract. In the framework of this social contract, rational individuals will agree mutually to forego their natural rights to protect their lives by means of private violence, and transfer these self-preservation rights to the sovereign, who—in 4   In Kant’s words, “Punishment by a court . . . can never be inflicted merely as a means to promote some other good for the criminal himself or for civil society. It must always be inflicted upon him only because he has committed a crime.” Only a link between the criminal act and the act of punishment can ensure that the defendant’s human dignity is preserved and prevent his transformation into an instrument for realizing social goals, “For a man can never be treated merely as a means to the purposes of another or be put among the objects of rights to things: His innate personality protects him from this, even though he can be condemned to lose his civil personality.” Immanuel Kant, The Metaphysics of Morals: Essays in Legal Philosophy and Moral Psychology (transl. Mary Gregor, 1991), 141. 5   Thomas Hobbes, Leviathan (1651), 183. 6   The term “State of Nature” is not taken from Leviathan, but is the commonly accepted term used to describe this condition.

economic analysis of criminal law    43 exchange—will establish a criminal justice system, and provide them with protection from crime and human predicament. The role of the sovereign and of criminal law is, thus, to enforce the social contract, and to deter people from violating it through their criminal activity. According to Hobbes, the sovereign is authorized to use force—that is, to impose criminal punishment—in order to uphold this social contract. In order to fulfill this function, punishment for the crime, claimed Hobbes, must exceed the benefit that the offender derives from engaging in the criminal activity.

2.  Cesare Beccaria (1738–1794) Building on the principles of social contract theory, Cesare Beccaria’s Essay on Crimes and Punishments7 provided the justification of criminal punishment and its limits. Similar to Hobbes’s depiction of the state of nature, Beccaria also assumed people to be rational creatures seeking to further their pleasures. And, like Hobbes, Beccaria also argues that such furthering of individual utilities may entail acts which harm others, and that as a result the natural state of man is that of a never-ending war. In order to escape such a state of war and peacefully enjoy the residual liberty, claimed Beccaria, men would be willing to sacrifice some of their liberty. Criminal law and punishment are the means to defend the reservoir of peace and liberty. These institutions are needed to control deviant acts that an individual with free will and rational thought might engage in, seeking personal utility and pleasure. In Beccaria’s words: What were wanted were sufficiently tangible motives to prevent the despotic spirit of every man from resubmerging society’s laws into the ancient chaos. These tangible motives are the punishments enacted against law-breakers. I say tangible motives because experience shows that the common run of men do not accept stable principles of conduct. Nor will they depart from the universal principle of anarchy which we see in the physical as well as in the moral realm, unless they are given motives which impress themselves directly on the senses and which, by dint repetition, are constantly present in the mind as a counterbalance to the strong impressions of those self-interested passions which are ranged against the universal good.8

Punishment plays an instrumental deterrent role in Beccaria’s theory, not a retributive function:  “the purpose of punishment is not that of tormenting or afflicting any sentient creature, nor of undoing a crime already committed . . . The purpose, therefore, is nothing other than to prevent the offender from doing fresh harm to his fellows and to deter others from doing likewise.”9 7  Cesare Beccaria, “On Crimes and Punishments,” in On Crimes and Punishments, and Other 8 Writings ([1767] ed. Richard Bellamy and transl. Richard Davies, 1995).   Beccaria (n. 7) 9. 9   For depictions of Beccaria’s theory as both retributivist and deterrence-based, see David Williams, The Enlightenment (1999), 59 ff.

44   talia fisher Beccaria emphasizes the role of certainty in deterring potential transgressors of the law, and goes on to delineate the boundaries of punishments and the limits of the means for inflicting punishment. His principle of proportionality is based on cost–benefit analysis: in order to fulfill their deterrence function, punishments must be set just above the pleasure derived from committing the deviant act. Any punishment that outweighs that which is necessary to deter individuals from committing prohibited acts would be considered unjust. In his words, “That a punishment may produce the effect required, it is sufficient that the evil it occasions should exceed the good expected from the crime, including in the calculation the certainty of the punishment, and the privation of the expected advantage.”10

3.  Jeremy Bentham (1748–1832) Bentham explicated Beccaria’s theory of punishment, tying Beccaria’s penal principles—of deterrence, proportionality, and certainty—to the notion of utility. Bentham’s theory was based on a hedonistic conception of mankind. In his words, “Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do.”11 From the sovereignty of the masters of pain and pleasure Bentham extracts the principle of utility, according to which “it is the greatest happiness of the greatest number that is the measure of right and wrong.”12 Put differently, for Bentham only happiness has intrinsic value. In Bentham’s view, all human activity can be conceptualized as the self-interested furthering of happiness and pleasure as well as the avoidance of pain. In light of their desires to further pleasure and avoid pain, people calculate the pleasures and pains associated with any course of action before deciding whether to engage in it: “Pain and pleasure . . . govern us in all we do, in all we say, in all we think. Men calculate, some with less exactness, indeed, some with more: but all men calculate. I would not say, that even a madman does not calculate.”13 All this applies to the criminal domain. Criminal punishment, for Bentham, is a specific category of pain, deriving from a criminal act, and the “profit of the crime is the force which urges man to delinquency.” If the benefit derived from the crime is greater than the punishment, the crime will be committed, and vice versa. The fact that for Bentham crime commission is a reflection of the utilitarian tendencies implies the attribution of rationality both in choosing and in avoiding criminal activity. And since for Bentham punishment is a category of pain, it should only be imposed where it results in greater overall happiness.   Williams (n. 9).   Jeremy Bentham, A Fragment on Government and an Introduction to the Principles of Morals and 12 13 Legislation (1948), 298.   Bentham (n. 11).   Bentham (n. 11). 10 11

economic analysis of criminal law    45 After laying down these foundations, Bentham went on thoroughly to examine how individuals would behave in the face of criminal law incentives and evaluated these results in light of the principle of utility. Bentham’s work contains a detailed specification of the translation of the principle of utility into the criminal sphere as well as into guidelines for efficient punishment. Similar to the utilitarian theory in ethics, his utilitarian theory of criminal punishment justifies imposition of punishment only to produce desirable consequences, specifically deterring the offender from committing similar acts in the future (individual deterrence) and deterring other potential offenders from engaging in such behaviors (general deterrence).

4.  Gary Becker Bentham’s application of utilitarian logic to crime and punishment remained undeveloped until the late 1960s when interest in the economic analysis of crim­ inal law ignited, following Becker’s seminal writing on crime and law enforcement. Unlike Bentham and his fellow utilitarian thinkers, who emphasized the hedonistic conceptualization of the human subject, with the underlying notions of pain and pleasure, Becker and his followers placed the neoclassical economic notions of preferences and choice at the center of their analysis.14 In his pioneering work Crime and Punishment: An Economic Approach,15 Becker makes the following claim: “A useful theory of criminal behavior can dispense with special theories of anomie, psychological inadequacies, or inheritance of special traits and simply extend the economist’s usual analysis of choice.”16 Becker applies basic economic theory and cost–benefit analysis to answer the following questions:  “how many resources and how much punishment should be used to enforce different kinds of legislation? Put equivalently, although more strangely, how many offenses should be permitted and how many offenders should go unpunished.”17 As mentioned previously, this study on the economics of crime was the first systematic attempt to apply the tools of economic rational choice theory and cost–benefit analysis in the legal realm. Becker shows that the volume of crime reflects the interaction between individuals and law enforcement. Starting with the perspective of the individual—of the potential offender—the model’s central underlying premise, following economic rational choice theory, is that a person commits a crime if the expected utility from it outweighs the expected cost of the crime and any alternative utility from using his time and resources on other legal or illegal activities. In other words, claims 14   Alon Harel, “Economic Analysis of Criminal Law: A Survey,” in Alon Harel and Keith N. Hylton (eds.), Research Handbook on the Economics of Criminal Law (2012), 10. 15   Gary S. Becker, “Crime and Punishment: An Economic Approach,” (1968) 76 Journal of Political 16 17 Economy 169.   Becker (n. 15) 170.   Becker (n. 15).

46   talia fisher Becker, people engage in criminal activity not because their basic motivations vary from those of law abiding individuals but, rather, because of their differential costs and benefits. To illustrate Becker’s point here, assume all potential offenders have a benefit from engaging in the criminal activity (b), which includes the material and immaterial benefits of the crime. The offender faces costs from law enforcement activities, which are a function of the severity of punishment (c) and the probability of its imposition (p). Under these conditions, the individual’s net expected returns from crime are: b – pc. The potential offender’s decision to commit a crime is premised upon the following conditional: (b − pc) > 0 According to standard differentiation, the criminal activity will rise as b rises, and fall as p or c rises. The social planner can thus reduce crime by enhancing the probability of imposing punishment (apprehending and convicting the offender), by enhancing the scope of punishment (imposing a greater fine or a lengthier sentence), or by reducing the benefits of the criminal activity. Put differently, the amount of crime in society is determined not only by the rationality and preferences of potential offenders, but also by the decisions of the social planner— including how much to expend on apprehension and conviction and how high to set punishments for different crimes (as well as how much to invest in education, job training, and transportation for the enhancement of legal employment opportunities). On the basis of these underlying assumptions, Becker constructed an economic theory of optimal enforcement, arguing that criminal law, enforcement, and punishment should be structured so as to minimize the net costs of crime and crime prevention. These costs include the net harm caused by the criminal activity (which can be described as the harm to society minus the benefit to the criminal), the costs of apprehension and conviction, as well as the costs of punishment. If the net harm caused by the criminal activity does not outweigh the overall sum of the costs of apprehension and punishment, the social planner should not criminalize the activity. In addition to the notion of an optimal level of criminal activity, Becker also introduced the idea—mentioned earlier in passing—that apprehension and conviction efforts and criminal sanctions are substitutes in law enforcement. The social planner, he argued, can thus economize on law enforcement costs by reducing the probability of apprehension and conviction while increasing the punishment. The social planner, in other words, can reduce crime-fighting costs, while keeping the expected punishment unchanged, by offsetting a cut in expenditures on apprehending offenders with a sufficient increase in the punishment of those convicted. The implication of Becker’s argument is that optimal sanctions are maximal in severity. This well-known facet of Becker’s model was subsequently challenged, as

economic analysis of criminal law    47 will be discussed later. But, Becker’s writing continues to delineate the contours of the entire field of economic analysis of criminal law.18

5.  Richard Posner Critics challenged Becker’s pioneering work, claiming that his model fails to explain central attributes of criminal law—for example, the role of mens rea.19 Following Becker’s writings, economic analysis of criminal law expanded significantly, offering a wide variety of perspectives on the criminal arena—including analyses of the tort/criminal distinction, the comparative properties of fines versus imprisonment, general and marginal deterrence, and the certainty–severity tradeoff.20 Another important milestone in the history of the economic analysis of criminal law, following this line of research, is Posner’s seminal 1985 article, entitled “An Economic Theory of the Criminal Law.”21 This was the first research comprehensively to address the specifics of criminal law doctrine and its key elements of actus reus and mens rea. Posner analyzes the rules regulating multiple-offender laws, attempt and conspiracy, special intent crimes, and insanity. According to Posner, the main function of criminal law is to prevent people from inefficiently bypassing the market.22 The underlying assumption of Posner’s analysis is that when transaction costs are low, the market  allocates goods and resources more efficiently than other mechanisms of forced exchange. Criminal acts are measures people take to bypass such market transactions. Thereby the transfers that such acts facilitate are, almost by definition, inefficient. Posner illustrates this point using the example of theft: a thief, he claims, may have a higher use value for the stolen car compared to its rightful owner, yet the social interest is to compel the thief to transact through the market mechanism. The act of theft “substitutes for an inexpensive market transaction a costly legal transaction, in which a court must measure the relative values of the automobile to the parties.”23 In addition to this inherent inefficiency, coercive acts incentivize potential victims to invest resources in precautions and potential offenders to expend resources on coercive acquisition. These measures are considered a social waste. According to Posner, the market-bypass rationale applies with respect to many of the acquisitive offenses set at the core of criminal law—such as, burglary, robbery, fraud, or extortion.24 Moreover, this rationale also   Other dimensions of the model, including those relating to the type of punishment imposed— whether imprisonment or fine—will also be further elaborated on in Section III(4). 19   Kenneth G. Dau-Schmidt, “An Economic Analysis of the Criminal Law as a Preference-Shaping Policy,” (1990) Duke LJ 1 ff. 20   David Pyle, The Economics of Crime and Law Enforcement (1983). 21   Richard A. Posner, “An Economic Theory of the Criminal Law,” (1985) 85 Columbia LR 1195. 22   Posner, (1985) 85 Columbia LR 1195. 23 24   Richard A. Posner, The Economics of Justice (1982), 68.   Posner (n. 23). 18

48   talia fisher applies to the bypassing of implicit markets, like the market for love, friendship, and trust, manifested in crimes of passion—rape or murder. Another tenet of Posner’s conceptualization of criminal law is that such bypassing of the market cannot be effectively deterred by tort law and by mechanisms of private enforcement: optimal damages would frequently exceed the offender’s ability to pay, mandating imprisonment and other forms of public enforcement. In sum, Posner views criminal law as a mechanism to induce market transactions, and argues that the central criminal law doctrines can be explained in light of this objective.

6.  Behavioral economic analysis of criminal law Behavioral law and economics is the most recent intellectual development which has emerged in the economic analysis of criminal law. Using psychological tools (both empirical and experimental), behavioral law and economics incorporates psychological insights into rational choice theory and into the economic models, and examines the assumptions underlying the “homo economicus” archetype, set at the heart of the economic analysis. The central premise is that, in reality, individuals suffer from cognitive biases and often diverge from rational behavior by displaying bounded rationality, bounded willpower, and bounded self-interest.25 For example, individuals display over-optimism when assessing their prospects or capabilities.26 The deviations from rational choice are said to be systematic and— therefore—predictable (i.e. susceptible to modeling). Providing the economic analysis of law with these behavioral insights is thereby expected to improve the quality of predictions and prescriptions about the workings of law.27 In the criminal law context more specifically, behavioral economic analysis challenges the depiction of potential criminals as rational maximizers of their benefits against a particular law enforcement background, and deals with the previously mentioned gap between rational choice theory and the decision-making processes of actual criminals, victims, and law enforcers. It identifies how the behavioral assumptions regarding bounded rationality affect deterrence:  for instance,

  Christine Jolls, “A Behavioral Approach to Law and Economics,” (1998) 50 Stanford LR 1476 ff.   Richard H. McAdams and Thomas S. Ulen, “Behavioral Criminal Law and Economics” (Nov. 11, 2008), University of Chicago Law & Economics, Olin Working Paper No. 440; University of Chicago, Public Law Working Paper No. 244; University of Illinois Law & Economics Research Paper No. LE08-035. Available at SSRN: or . Other deviations from standard economic assumptions regarding “homo economicus” which they discuss include: prospect theory, hedonic adaptation, hyperbolic discounting, and fairness preferences. 27   Nuno Garoupa, “Behavioral Economic Analysis of Crime: A Critical Review,” (2003) 15 European Journal of Law & Economics 6 ff. 25

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economic analysis of criminal law    49 similar to other decision-makers, potential criminals may also be subjected to over-optimism, which reduces the deterrent effect of punishment. If potential criminals are systematically over-optimistic—that is, if there is a gap between the actual probability of apprehension and their subjective estimation of this probability— equalizing the objectively expected punishment with the cost of crime may lead to under-deterrence. Incorporating the over-optimism bias and other deviations from the “homo economicus” depiction of decision-makers (whether potential criminals, law enforcers, or victims) into the economic model paves the way for the design of rules which would lead to optimal deterrence under “real world” conditions involving “real people.” In addition to the psychological insights informing behavioral law and economics of crime, sociological tools are also currently being employed in the traditional economic analysis with the emergence of social norm theory. Like its behavioral counterpart, social norm theory also aims at informing and enriching the “homo economicus” model underlying the economic analysis of criminal law. While traditional economic analysis of crime views preferences as exogenous and constant factors, stressing the role of choice and agency, sociological perspectives and social norm theories emphasize that one’s social envir­ onment plays a crucial role in the very shaping of preferences for engagement in criminal activity. Put differently, unlike the rationally instrumental homo economicus, the behavior of homo sociologicus is also shaped and governed by social norms—with the outcome of his choice reflecting a possible compromise between the two.28 These sociological theories also stress the interplay between social norms and the formal criminal doctrine: according to the social norm literature, the criminalization of a certain conduct and the imposition of punishment may signal to the relevant community that the conduct deserves moral condemnation, and can set in motion a process that leads to social stigmatization. Such stigmatization may affect engagement in antisocial behavior in two ways: first, by shaping opportunities and creating incentives for desirable behavior through subjecting criminals to the pain and suffering associated with a negative social stigma; secondly, by impacting the social norms of the relevant community, thereby shaping the preferences of potential offenders and enhancing their taste for the desirable behavior.29   Jon Elster, “Social Norms and Economic Theory,” (1989) 3 Journal of Economic Perspectives 102 ff.   Dau-Schmidt, (1990) Duke LJ 1 ff. Of course, the interplay between social norms and the criminal doctrine is complex and convoluted: crime is a legal concept, fully controlled by the legislature, which has absolute discretion to decide which behaviors are classified as crimes and which are not. Social norms, on the other hand, are relational, emanate from particular configurations of social expectations, and as such may be difficult to anticipate (let alone control or manipulate). It is possible, therefore, that a characteristic would be stigmatizing in one context or to a certain group but not in a different context or to a different group. 28

29

50   talia fisher

iii.  The Core Insights of the Economic Approach to Criminal Law Hereto I have briefly surveyed the intellectual development of the economic ana­ lysis of criminal law, as it unfolded from the first steps of utilitarian thinking through the classical and neoclassical approaches, and ending with the most recent trends in behavioral law and economics of crime. This long line of research in the economic analysis of crime and criminal law, which proliferated greatly following Gary Becker’s 1968 article, resulted in new insights in a rich host of topics, including the economic typology of crimes, the tort versus criminal law categorization, monetary and nonmonetary sanctions, the tradeoff between certainty and severity of punishment, the economics of criminal intent, as well as the economics of law enforcement and plea bargaining. In what follows I will address some of these core discussions in the economic analysis of criminal law.

1.  Crime as a negative externality As mentioned at the outset, according to standard economic analysis, criminal acts and prohibitions are rooted in and derive from the notion of economic efficiency. The assumption is that efficiency is a useful tool for evaluating and designing criminal rules and institutions as well as for the delineation of the borders between lawful and unlawful conduct. This does not imply that every criminal rule is efficient, nor does it imply that efficiency is the only benchmark against which one ought to evaluate the normative desirability of particular criminal rules. But, within the economic analysis domain, efficiency plays a central role in the very definition of criminal acts and prohibitions.30 Efficiency is judged in light of two alternative criteria: the Pareto optimality criterion, according to which society is said to be in an efficient state if resources are distributed among the members of that society in a way that no redistribution of resources can make any member better off without making another member worse off. According to the second, less restrictive, measure of Kaldor–Hicks efficiency, a given change would be efficient if an individual could, in principle, compensate those who lose as a result, and still remain better off. Criminal law regulates a class of inefficient acts imposing negative externalities—namely, causing adverse spill­ over effects upon third parties, which are not accommodated by the market.31 These   Posner, (1985) 85 Columbia LR 1195 ff. For critical views regarding the appropriate definition of efficiency, see “Symposium on Efficiency as a Legal Concern,” (1980) 8 Hofstra LR 485. 31  Generally speaking, a negative externality is caused whenever a decision-maker chooses a course of action without regard to its adverse impact on other parties. See Hal R. Varian, Intermediate Microeconomics (2009), 644. 30

economic analysis of criminal law    51 costs to others remain “external” to the potential offender’s cost–benefit calculus. Under the standard economic assumptions of utility maximization, in situations in which particular acts cause negative externalities, individuals may decide to engage in these acts even when the costs to others outweigh their benefits from doing so, since they do not bear these costs to others. It is clear to see why this state of affairs is inefficient: those potentially harmed by the act could be made better off, without making the person interested in engaging in the activity worse off, simply by paying him or her to refrain from engaging in the activity, and buying him off to yield to their preferences. The problem can thus be conceptualized as that of a missing market: the negative externalities associated with the conduct present a problem in terms of efficiency for lack of viable market transactions between potential criminals and their victims. The solution to this situation is a “Pigouvian tax”—namely, the creation of a “market” in which the person engaging in the externality-generating activity is charged with its external costs, in a manner which forces him or her to “internalize” these costs in his or her cost–benefit calculus. Gary Becker viewed the criminal sanction as such a “Pigouvian tax.”32 In accordance with this analysis, crimes are externality-generating acts and the justification for outlawing them is rooted in this underlying inefficiency. Imposing criminal liability and punishment (ex post) forces potential offenders to internalize the costs to others of those activities (ex ante),33 and thereby serves as a means for deterring potential offenders from engaging in these inefficient acts.34

2.  The tort–crime distinction As claimed previously, the criminal sanction serves a deterrent function through alteration of potential offenders’ cost–benefit calculus in a manner which facilitates internalization of the costs others bear due to the harm-causing activity.35 But, the   Becker, (1968) 76 Journal of Political Economy 192.   Posner offers an alternative approach to Becker’s internalization theory. According to Posner, rather than corresponding to the social harm the criminal sanction should exceed the expected gain to the offender. This would deter potential offenders by eliminating the illegal benefits. Under this approach, however, individuals would also be deterred from engaging in acts in which their gain exceeds the level of harm. See Nuno Garoupa, An Economic Analysis of Criminal Law (2003), section 2.3. 34   Of course, not all externality-generating behavior is criminalized, and the mirror-image questions may still arise with respect to victimless crimes, with respect to the criminalization of acts where the benefit to the perpetrator outweighs the costs to the victims, as well as situations where criminal­ ization is rooted not in the causing of negative externalities, but rather in abstaining from imposition of positive externalities. These issues cannot be accounted for within the confines of this chapter. For further discussion of some of these issues, see Posner, (1985) 85 Columbia LR 1195 ff. 35   Dau-Schmidt, (1990) Duke LJ 12 ff. For a critique of the deterrent function of criminal law, see Paul H. Robinson and John M. Darley, “The Role of Deterrence in the Formulation of Criminal Law Rules: At Its Worst When Doing Its Best,” (2003) 91 Georgetown LJ 950 ff. 32 33

52   talia fisher criminal law and sanction are not the sole mechanisms for such internalization of external harms and for the control of damage-causing conduct. These objectives may also be met through the tort law system. Like the criminal sanction, tort remedies can also be viewed as a form of “Pigouvian tax” and as a means for minimizing the divergence between the private and social costs associated with engagement in harmful acts. Moreover, not only are tort remedies potential substitutes for the criminal sanction, but they may actually be deemed superior to the paradigmatic criminal sanction of imprisonment. The reasons are twofold. First, whereas tort remedies involve mere transfers of wealth, imprisonment generates a social cost (i.e. a function of sentence severity).36 Secondly, the active role that the concrete victim plays in bringing the tort suit to trial and in the obtaining of remedy (in her capacity as plaintiff) is expected to reduce information costs.37 In light of the fact that tort law and tort remedies offer a substitute (at times even a superior and less costly substitute) to criminal law and incarcerating punishment, there is room to question the need for criminal law and to challenge the distinction between these two bodies of law. In the words of Shavell, “Why should society want to designate a certain set of acts as falling under a special head, that of criminal law, and then use imprisonment and other sanctions as punishments for commission of these acts?”38 One focal argument for a distinctive criminal law apparatus is rooted in conditions of insolvency and in the subsequent failure of monetary remedies, underlying tort law (but also criminal fines) to control certain kinds of harm-causing behaviors. According to Shavell, absent the threat of imprisonment potential offenders will be under-deterred from committing the activities at the core of the criminal apparatus—such as theft, murder, or rape—for the following reasons. (a) Criminality is correlated with low wealth levels. In light of the prospect of insolvency of potential offenders, the exclusive resort to monetary sanctions may not provide effective deterrence. Violators would be able to escape paying the full scope of sanctions required for deterrence. (b) When acts are intentional—planned and executed by offenders, who attempt to escape identification—the probability of detection is relatively low. In light of the lower levels of detectability, the monetary sanction which would be required for deterrence is elevated beyond the level of ex post harm. This raises the likelihood that the monetary sanction would exceed violator’s budgetary constraints. (c) The private benefits potential offenders are expected to obtain from committing the acts at the core of the criminal law are typically significant as compared

  Becker, (1968) 76 Journal of Political Economy 192 ff.  Alon Harel, “Economic Analysis of Criminal Law,” in Uriel Procaccia (ed.), The Economic Approach to Law (2012), 646 ff. (in Hebrew). 38   Steven Shavell, Foundations of Economic Analysis of Law (2004), 543 ff. 36 37

economic analysis of criminal law    53 to those associated with tort law. The elevated benefits raise the likelihood that the monetary sanction needed for effective deterrence would exceed the violator’s level of wealth. (d) The expected social harm caused by commission of the acts at the core of crime is a priori very substantial, and this also substantiates the limited efficacy of the monetary sanction to achieve deterrence.39 In addition to the concern that the solvency of defendants cannot always accommodate the harm that they inflict upon others through their actions, another reason for a criminal apparatus is rooted in enforcement costs: victims cannot always bear the costs associated with detection, proof, and the bringing of suit to trial (or may be able to bear these enforcement costs but refrain from doing so because these costs outweigh the harm borne by each individual plaintiff). The result is a reduction in the probability that those who inflict harm will be held liable for their actions. Parallel to the solvency cap, such a reduction in the probability of liability imposition also lowers the expected costs faced by potential defendants, leading to under-deterrence. Public enforcement is consequently called for.40 Lastly, another relative advantage of imprisonment vis-à-vis monetary compensation and sanctioning is rooted in the incapacitative benefits the former type of punishment provides: unlike monetary remedies or fines, imprisonment prevents the criminal from committing further wrongs for the duration of the prison term.41 For all of these reasons, the tort law apparatus and the monetary remedies it offers do not suffice for regulating the entire array of harm-causing behavior in society. It should be stressed, however, that under the economic analysis, imprisonment should remain a residual sanction:  the primary purpose of criminal punishment is to provide incentives for efficient behavior, so when the previously mentioned insolvency circumstances or incapacitative advantages do not materialize, monetary remedies or sanctions ought to be relied on.42

39   Shavell (n. 38), 546. See also A. Mitchell Polinsky and Steven Shavell (eds.), “The Theory of Public Enforcement of Law,” in A. Mitchell Polinsky and Steven Shavell, Handbook of Law and Economics, Vol. 1 (2007), 403. 40   Richard Epstein, “The Tort/Crime Distinction: A Generation Later,” (1996) 76 Boston University LR 12. 41  Murat C.  Mungan, “The Law and Economics of Fluctuating Criminal Tendencies and Incapacitation,” (2012) 72 Maryland LR 156. For discussion of the moral dimensions of the tort–crime divide, see Alvin K. Klevorick, “Legal Theory and the Economic Analysis of Torts and Crimes,” (1985) 85 Columbia LR 905 ff. 42   Becker, (1968) 76 Journal of Political Economy 193; Dau-Schmidt, (1990) Duke LJ 12. A problematic conclusion which may emerge from the solvency consideration is that wealthy defendants should be subjected to monetary fines in cases in which less affluent defendants are imprisoned. See Harel (n. 37)  646 ff. For further discussion of some of these problematic disparities, see John Lott, “Should the Wealthy be able to Buy Justice,” (1987) 95 Journal of Political Economy 1307 ff.

54   talia fisher

3.  The multiplier principle Previous sections identified the conditions justifying, from an efficiency viewpoint, the criminalization of certain activities as well as the imposition of criminal punishment— specifically imprisonment—on those engaged in these types of conduct. But, as mentioned earlier, achieving deterrence by way of imposing criminal punishment is costly, with the most notable costs relating to apprehension and imprisonment. Therefore, while it may be theoretically possible to eliminate nearly all acts of crime by imposing a harsh punishment with near certainty on criminals, such deterrence may not be optimal in light of the associated cost: enforcement is resource-consuming and may offset the advantages associated with (or the social costs saved through) crime reduction. A tradeoff thereby emerges between the costs of enforcement and the benefits of deterrence, with the resulting question being: what is the optimal level of enforcement and how should the level of punishment be set?43 The answer to this question emanates from Becker’s theory regarding the intern­ alization of harm and from the conceptualization of the criminal sanction as a “Pigouvian tax.”44 In line with the Pigouvian tradition, Becker argued that society would reduce criminal activity to the efficient level by setting the criminal punishment so that its ex ante expected value is equal to the expected harm of the crime. If the expected punishment is set at a level equal to the expected social harm, a potential offender would commit the crime only if her benefits from doing so exceeded the costs of the crime to society.45 Since criminals escape detection and conviction, the actual punishment imposed upon those who are ultimately convicted at trial would have to exceed the social costs of the criminal act for the expected value of the punishment to equal the social harm. This brings us to the “multiplier principle,” which states that the ideal penalty from a deterrence perspective equals the harm caused by the violation multiplied by 1 over the probability of punishment. For example, if a violator faces only a 25% (or 1 in 4) chance of being punished, on this view the optimal penalty should be set at four times the harm caused by the violation.46 The multiplier principle does not apply across the board, and exceptions exist, in which optimal enforcement does not mandate a multiplier of 1 over the probability of punishment. One exception relates to the potential offender’s tendency toward risk. For risk-seeking offenders, the deterrence effect of punishment will be lower than its expected value, whereas for risk-averse offenders, the deterrent effect of punishment will exceed its expected value. What follows is that for optimal deterrence the fine has to be adjusted until its discounted or inflated disutility equals the social harm of the crime.47

  Mungan, (2012) 72 Maryland LR 181 ff.   Becker, (1968) 76 Journal of Political Economy 192 ff. 45 46   Dau-Schmidt, (1990) Duke LJ 12 ff.   Dau-Schmidt, (1990) Duke LJ 12 ff. 47   Dau-Schmidt, (1990) Duke LJ 12 ff. 43

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economic analysis of criminal law    55 Another exception to the multiplier principle, requiring adjustment, relates to situations when offenders are subject to additional non-legal sanctions, above and beyond formal criminal punishment. For example, offenders may be subject to exceptionally high reputational costs upon conviction, in addition to the cost of the state-imposed sanction. In this case, too, optimal deterrence is achieved by diverging from and adjusting the multiplier principle: the social cost of the crime must be equated with the expected value of the total legal and non-legal sanctions the offender faces, not merely with the expected value of the official criminal punishment. This will usually require deducting the non-legal sanction from the official sanction that would otherwise be called for.48

4.  The probability–severity tradeoff The previous section discussed the optimal enforcement level and expected punishment, as a function of the tradeoff between the costs of enforcement and the benefit of deterrence. Another question that soon emerges relates to the optimal tradeoff between the two facets composing expected punishment and the costs of enforcement—namely, the costs of apprehension and prosecution (denoted in the probability of conviction) and the costs of punishment (denoted in sentence severity). In other words, once the expected punishment of the crime has been set, it becomes necessary to identify the optimal tradeoff between severity and probability of punishment.49 Suppose, for example, a risk-neutral offender deliberating whether to engage in an offense causing a social harm of $1,000. When the probability of punishment is 50%, the multiplier principle dictates that the criminal sanction should be set at $2,000. When the probability of punishment is lower, say, 20%, the multiplier principle dictates a sanction of $5,000. The offender would be indifferent in his choice between the two scenarios, as the expected punishment is identical. However, for the social planner, a vital question would be: which of the two scenarios is more efficient and desirable? Of course, the very positing of this query reflects a deviation from the prin­ ciple of proportionality, underlying the retributivist tradition.50 The proportionality 48   Dau-Schmidt, (1990) Duke LJ 12 ff. See Robert D. Cooter and Ariel Porat, “Should Courts Deduct Non-Legal Sanctions from Damages?,” (2001) 30 Journal of Legal Studies 401. 49   Becker, (1968) 76 Journal of Political Economy 184 ff. 50   The principle of proportionality, which prescribes the offender’s just deserts, was described by Kant as follows:  Whatever undeserved evil you inflict upon another within the people that you inflict upon yourself. If you insult him, you insult yourself; if you steal from him, you steal from yourself; if you strike him, you strike yourself; if you kill him, you kill yourself. But only the law of retribution (ius talionis) . . . can specify definitely the quality and the quantity of punishment; all other principles are fluctuating and unsuited for a sentence of pure and strict justice because extraneous considerations are mixed into them. Kant (n. 4) 140 ff.

56   talia fisher principle mandates the imposition of formulaic sanctions suited to the moral gravity of the underlying crime.51 Retributivists reject the merging of the penal dimension with the enforcement dimension, and the accompanying breach of ties between crime and punishment. Penal variability—as a function of the probability of conviction—collides head-on with these principles. But the intuitions substantiating a dichotomy between punishment magnitude and probability of conviction do not align with the general contours of the economic approach, which highlights the deterrence functions of criminal punishment. Since deterrence can be affected either by adjusting the magnitude of the punishment or by adjusting the probability of conviction, these two variables are viewed in tandem and as interchangeable under the economic analysis of criminal law. Armed with this we can return to the question of:  what is the optimal tradeoff between severity and probability of punishment? In attempting to answer this question, it is useful to divide the discussion between the cases of monetary sanctions and nonmonetary sanctions. Starting with the first category, as mentioned earlier fines are viewed as mere transfers of wealth from the offender to the state. The imposition of such monetary sanctions is considered costless. A $100 fine bears a social price tag that is equivalent to the imposition of a $500 fine. Detection and prosecution of the offender, on the other hand, are presumed to consume social resources. Raising the probability of conviction from 10% to 50% has social costs. Since every increase in the size of the fine is costless, whereas every increase in the probability of conviction increases the costs of enforcement, according to Becker, the efficient tradeoff would be one in which the sanction is set as high as possible while the probability of conviction (and the enforcement costs entailed) is set close to zero.52 Contrary to Becker, Polinsky and Shavell challenge the conception of fines as a pure case of transfer, and assert a link between the amount of the fine and the social cost embodied in its imposition. Becker’s proposition, they claim, does not hold with respect to risk-averse offenders, for whom a reduction in the probability of conviction alongside a corresponding increase in the magnitude of the fine imposes an additional cost of risk that (unlike the fine) does not benefit society.53 Turning to the category of nonmonetary sanctions—for imprisonment and other forms of nonmonetary sanctions as well—Becker assumed that increasing the expected punishment by enhancing the sentence is a priori less costly than increasing the expected punishment by way of enhancing the probability of conviction. Against the background of this assumption, the efficiency-maximizing 51   For an extensive discussion of this principle, see Thomas. E. Hill, “Kant on Wrongdoing, Desert and Punishment,” (1999) 18 Law & Philosophy 407; Michael S. Moore, Placing Blame: A General Theory of the Criminal Law (1997), 153 ff. 52   Becker, (1968) 76 Journal of Political Economy 192 ff. 53   A. Mitchell Polinsky and Steven Shavell, “The Optimal Tradeoff between the Probability and Magnitude of Fines,” (1979) 69 American Economic Review 884.

economic analysis of criminal law    57 scheme dictates the highest possible sanction coupled with a minimal probability of apprehension, even for lenient offenses. Becker advocates such a low-probability, maximal-penalties model for all types of offenses. This model, which has been depicted as “hang tax evaders with probability zero,”54 generates extensive interest. The central refutation of Becker’s low-probability, maximal-penalty model is based on the concept of “marginal deterrence” introduced by Stigler.55 According to Stigler, marginal deterrence implies that punishment should fit the crime. As he argues, “If the offender will be executed for a minor assault and for a murder, there is no marginal deterrence to murder. if the thief has his hand cut off for taking five dollars, he had just as well take $5,000.”56 Stigler’s claim is that relatively severe crimes should receive higher punishments, as compared to less severe crimes, so as to prevent offenders from substituting less serious crimes for more severe ones.57

iv. Conclusion The economic approach to criminal law can be distinguished from other theoretical perspectives on criminal law in light of the economic tenets at its base: under this approach, potential offenders are viewed not as deviant individuals with abnormal choice-making capacities, but rather as rational maximizers of their utilities, who are responsive to incentives. The central role of criminal law and punishment is to change the expected payoff of potential offenders to deter them from engaging in unwanted crime. The economic approach to criminal law, in other words, views punishment as simply a specific case of the general theory of rational choice, highlighting its deterrent function rather than retributivist notions of moral culpability.   Serge-Christophe Kolm, “A Note on Optimum Tax Evasion,” (1973) 2 Journal of Public Economics 265.   George J. Stigler, “The Optimum Enforcement of Laws,” (1970) 78 Journal of Political Economy 343. 56   Stigler, (1970) 78 Journal of Political Economy 343. 57   In addition to the injury to marginal deterrence, alternative refutations of Becker’s claim include Polinsky and Shavell’s argument regarding neglecting to take risk aversion into account (A. Mitchell Polinsky and Steven Shavell, “The Optimal Tradeoff between the Probability and Magnitude of Fines,” (1979) 69 American Economic Review 880 ff.); arguments regarding the distinctions between general and specific enforcement of law (Steven Shavell, “Specific Versus General Enforcement of Law,” (1991) 99 Journal of Political Economy 1088); arguments regarding individuals’ imperfect information as to the probability of apprehension (Lucian A. Bebchuk and Louis Kaplow, “Optimal Sanctions when Individuals are Imperfectly Informed about the Probability of Apprehension,” (1992) 21 Journal of Legal Studies 365); social resistance to optimal deterrence schemes (Cass Sunstein et al., “Do People Want Optimal Deterrence?,” (2000) 29 Journal of Legal Studies 237) as well as error costs considerations Harel (n. 37) 659. 54 55

58   talia fisher Finally, the economic analysis to criminal law adopts efficiency as the normative criterion for evaluating criminal rules and institutions.

References Bebchuk, Lucian A. and Kaplow, Louis, “Optimal Sanctions When Individuals Are Imperfectly Informed About the Probability of Apprehension,” (1992) 21 Journal of Legal Studies 365 Beccaria, Cesare, On Crimes and Punishments, and Other Writings ([1767] ed. Richard Bellamy and transl. Richard Davies, 1995) Becker, Gary S., “Crime and Punishment:  An Economic Approach,” (1968) 76 Journal of Political Economy 169 Becker, Gary S. and Landes, William M. (eds.), Essays in the Economics of Crime and Punishment (1974) Becker, Gary S. and Stigler, George J., “Law Enforcement, Malfeasance, and Compensation of Enforcers,” (1974) 3 Journal of Legal Studies 1 Bentham, Jeremy, A Fragment on Government and an Introduction to the Principles of Morals and Legislation (1948) Dau-Schmidt, Kenneth G., “An Economic Analysis of the Criminal Law as a Preference-Shaping Policy,” (1990) Duke LJ 1 Eide, Erling, “Economics of Criminal Behavior,” in Boudewijn Bouckaert and Garrett De Geest (eds.), Encyclopedia of Law and Economics (2000), 345 Garoupa, Nuno (ed.), Criminal Law and Economics (2009) Harel, Alon, “Economic Analysis of Criminal Law:  A  Survey,” in Alon Harel and Keith N. Hylton (eds.), Research Handbook on the Economics of Criminal Law (2012) Kahan, Dan M., “The Theory of Value Dilemma: A Critique of the Economic Analysis of Criminal Law,” (2004) 1 Ohio State Journal of Crim. Law 643 Levitt, Steven D. and Miles, Thomas J. (eds.), Economics of Criminal Law (2008) Polinsky, A. Mitchell and Shavell, Steven, “The Optimal Tradeoff between the Probability and Magnitude of Fines,” (1979) 69 American Economics Review 880 Polinsky, A. Mitchell, “Private versus Public Enforcement of Fines,” (1980) 9 Journal of Legal Studies 105 Posner, Richard A., Economic Analysis of Law (1977), ch. 7 Posner, Richard A., “An Economic Theory of the Criminal Law,” (1985) 85 Columbia L.R. 1195 Pyle, David, The Economics of Crime and Law Enforcement (1983) Shavell, Steven, “Criminal Law and the Optimal Use of Nonmonetary Sanctions as a Deterrent,” (1985) 85 Columbia L.R. 1232 Stigler, George, “The Optimum Enforcement of Laws,” (1970) 78 Journal of Political Economy 526

­c hapter 4

FEMINIST APPROACHES TO CRIMINAL LAW prabha kotiswaran

i.  The Feminist Project in Criminal Law The criminal law has a special place in the history of feminist struggles for law reform. Indeed, in many countries the women’s movement was inaugurated with the struggle for criminal law reform, typically on rape. Conversely, feminist legal critique has had a tremendous influence on criminal law, doctrinally, procedurally, and institutionally. Some have even claimed it “as the only academic movement of the 1980s that made an impact on criminal law.”1 Bold doctrinal law reform even in an area like rape, one of the earliest sites of feminist intervention, has however become enmeshed in the intractable stickiness of patriarchal social norms, which are hard to displace. Even so, over the few past decades the feminist project in domestic criminal law has morphed into a hugely successful intervention in the realms of international and transnational criminal law producing a set of unintended consequences that feminists themselves are increasingly perturbed by. In this chapter, I offer an overview of the feminist project in criminal law, mapping in particular its rising influence while also elaborating on the stakes involved and the

  George Fletcher, “The Fall and Rise of Criminal Theory,” (1998) 1 Buffalo Crim. LR 279 ff.

1

60   prabha kotiswaran costs and benefits of these successes. I seek to reveal various strands of the internal feminist critique of such successes, which suggest that feminists need to pause and reassess their non-reflexive resort to the state and the criminal law as a means of furthering feminist goals. Feminist legal scholarship is today an established field intervening in areas as diverse as tort, contract, constitutional, labor, international, criminal and even tax laws. Yet, the very success of feminist legal theory and activism has gone some distance toward creating a sexual division of labor of sorts in legal academia. Feminists might still seem to congregate in family law. Within criminal law, feminists might specialize in sexual offenses, occupying a feminist intellectual ghetto, as Lacey characterizes it.2 Other feminists may go a bit further to study the criminal law’s reach over women as legal subjects involved in intimate relation3 as with battered wives or where they disproportionately appear as victims. Although a feminist critique of the law of theft is as likely as the law of sexual assault to produce significant redistributive effects for women, the feminist project in criminal law bears strong path dependence in being intertwined around an axis of sex/gender/sexuality. Even being tethered to the sex/gender axis of analysis, the reach of the femin­ ist project in criminal law is extensive. One only has to consider the compulsory first-year criminal law curriculum to get a sense of likely arenas for feminist intervention. Teaching English criminal law, one can hardly fail to note early on in the law of causation, that the cases of Steel and Malcherek4are about women who were murdered because they refused the sexual advances of male defendants. Feminists have contributed to theorizing the duty of care in the context of omissions liability. Du-boid Pedain has drawn on care feminism to criticize decisions like R. v. Bland5 and argue that viewed through the lens of “care morality,” the doctor–patient duty of care might well exceed the demands of the criminal law and its “stranger morality.”6 Other feminists have interrogated the extent to which specific offenses, like homicide, rape, and grievous bodily harm reflect women’s experiences. Seizing upon the contingency of the common law and the inability of outdated statutes to deal with domestic violence, for instance, English feminists have argued that a husband be held guilty of constructive manslaughter when his severely mentally abused wife commits suicide after being physically assaulted by him. They have energetically sought to reconfigure defenses such as provocation, diminished responsibility, and self-defense in the interests of female offenders. In the few instances where they   Nicola Lacey, Unspeakable Subjects, Feminist Essays in Legal and Social Theory (1998), 99 ff.   Victoria Nourse, “The ‘Normal’ Success and Failures of Feminism and the Criminal Law” (2000), Georgetown Public Law and Legal Theory Research Paper No. 13-037, 953 ff. 4   R. v. Steel and Malcherek [1981] 1 WLR 690. 5   Airedale NHS Trust v. Bland [1993] A.C. 789. 6   Antje du Boid-Pedain, “The Duty to Preserve Life and its Limits in English Criminal Law,” in Dennis Baker and Jeremy Horder (eds.), The Sanctity of Life and the Criminal Law:  The Legacy of Glanville Williams (2013), 296–327 ff. 2 3

feminist approaches to criminal law    61 have not been solely preoccupied with defending women’s interests, feminists have joined forces with critical legal scholars. Thus, when critiquing the non-availability of the defense of consent for sadomasochistic gay men, feminists may appear to have endorsed liberal values, only also then to bear witness to the very limits of liberalism in that sadomasochistic sex embodies “an erotics of anarchy, of treason, and an inversion of all that the law and a liberal legal system stand for.”7 Feminist energy so far has not, however, been expended only on these turgid matters of first-year criminal law doctrine but has significantly contributed to a steady expansion of the remit of the criminal law, as it relates to the spheres of the family and the market. The feminist critique of the public–private divide within criminal law has led to the conceptualization of private harms such as child abuse, marital rape, date rape, homosexual rape, and domestic violence8 in terms of crime,9 leading to the creation of new offenses. As Jeannie Suk observes: Over the past forty years feminists have advocated transforming the way that the home as a legal institution is perceived and treated, particularly by the criminal justice system. With the great success of this movement, the ideas that drive the reform are no longer new or radical to legal actors, they have laid down roots in legal doctrine, theory, and practice, as intellectual and ideological forces in lawmaking, adjudication, administration, and legal culture. They are now at home in the law.10

The popularity of the harm principle in offering the major justification for criminalization has assisted feminists whose list of gendered harms warranting criminalization has steadily grown. Indeed, in the Anglo-American world, feminist legal successes are synonymous with some form of criminal law reform. Feminists have been busy in many countries although their prospects for success vary across domestic jurisdictions. In the 1990s, Canadian feminists “witnessed, often with some astonishment, the development of a new and radical feminist inspired state discourse on ‘violence against women,’ ”11 including the official embrace of feminist anti-pornography discourse. In the United States and the United Kingdom, feminists have been successful in pushing forth legislation on a range of public harms against women such as sexual harassment, pornography, prostitution, voyeurism, rape, and stalking. Feminists have also been instrumental in re-envisioning how the criminal law relates to the market by delineating   Matthew Weait and Rosemary Hunter, “Commentary on R v Brown,” in Rosemary Hunter, Clare McGlynn, and Erika Rackley (eds.), Feminist Judgments From Theory to Practice (2010), 245 ff. 8   Aya Gruber, “The Feminist War on Crime,” (2006–07) 92 Iowa LR 741 ff.; see fn. 57, domestic violence did not exist as a crime, Schneider terms violence by intimates as “woman abuse.” 9   Lacey (n. 2) 101 ff. 10   Jeannie Suk, At Home in the Law: How the Domestic Violence Revolution is Transforming Privacy (2009), 4 ff. 11   Lise Gotell, “A Critical Look at State Discourse on ‘Violence Against Women’: Some Implications for Feminist Politics and Women’s Citizenship,” in Manon Tremblay and Caroline Andrew (eds.), Women and Political Representation in Canada (1998), 39–84, 39 ff. 7

62   prabha kotiswaran the conditions under which exploitative labor conditions can be prosecuted as trafficking. Implicit in this are judgments about the types of labor that may qualify as legitimate work. More generally, feminist issues for criminal law reform can be characterized by feminist convergence (as with rape) or considerable feminist divergence as with pornography in the 1980s and with sex work and trafficking in recent years. The feminist project in criminal law also has multi-scalar reach. The province of criminal law itself has greatly expanded over the past few decades. International criminal law did not exist as a field in the 1950s12 and this dynamic area of the law is arguably still relatively new and untested. Transnational criminal law, meanwhile, has received even less attention: indeed, it is only in the past decade that it has been theorized as a distinct body of law, which ought to be subject to the rigorous scrutiny that any domestic criminal law regime undergoes.13 Interestingly, however, and perhaps as testimony to the transnational career of feminism, feminists have already left an indelible imprint on both international criminal law and transnational criminal law through their interventions on sexual violence in armed conflict and trafficking, respectively. Yet debates on criminal law in these contexts take place within the field of international law. This chapter is an effort to consolidate the common themes of feminist engagement in these arenas and to fold them back into the scholarship on criminal law, an endeavor that now appears urgent given the incredible reach of these reform efforts. This chapter will reflect on the extensive points of contact between feminists and the criminal law at the domestic, international, and transnational levels. I start with the domestic level for feminists’ most extensive and long-standing critique of the criminal law. Several of the unresolved feminist debates at the domestic level have then been transported to the international domain. There, in specialized bureaucratic spaces in foreign locales and without the pressures of democratic challenges to the lawmaking process, feminists have achieved successes that are not always easy to justify. Given the transnational nature of contemporary feminism, conceptual innovations at the international level are then borrowed back home to influence domestic law. Hence, the feminist project in criminal law can only be understood by tracing these flows of feminist legal expertise. Further, although I focus on the substantive law, feminists have been hugely invested in procedural and evidentiary reform as well as in restructuring the criminal justice system. Indeed, where the thrust of feminist lawyering has been to uncover gendered harms and rename them as crimes, reinforcements in the form of procedural law are vital for effecting a change in social norms. 12   Robert Cryer, Hákan Friman, Darryl Robinson, and Elizabeth Wilmhurst, An Introduction to International Criminal Law and Procedure (2010). 13   Neil Boister, “Transnational Criminal Law?,” (2003) 14 European Journal of International Law 953–976 ff.

feminist approaches to criminal law    63

ii.  Reforming Criminal Law at Home— Some Examples of Feminist Success 1. Rape The offenses of rape and domestic violence exemplify feminists’ most hard-won successes in criminal law reform, with feminists having intensively engaged with rape law for very many years. Across the Anglo-American world, rape law reform has generally followed a certain trajectory of liberalization: although rape in many jurisdictions can only be committed by a male against a female, non-penile pene­ tration has now been recognized thus displacing the patriarchal investment in the sanctity of the womb. Again, rape may or may not be gender-neutral as to the perpetrator, but is likely to be gender-neutral as to the victim. In addition, many jurisdictions have abolished the marital rape immunity. Where earlier a successful rape conviction required some de facto proof of the exertion of force by the defendant and active resistance by the survivor, rape laws now require the lack of affirmative consent. Consent is defined quite explicitly as in section 74 of the U.K. Sexual Offences Act 2003, where a consenting person agrees by choice, having both the freedom and capacity to make that choice. Rape shield laws are the corollary in evidentiary law to these shifts in substantive law, disallowing evidence of the sur­vivor’s past sexual history to be admitted at any stage of the trial except under certain restricted gateways. In the United States, Gruber argues that American feminists’ advocacy has strengthened state power to punish gender-based crimes in apparent lock step with the U.S.  penal system. Laws that adopt prevailing views of criminality and victimhood, such as predator laws, enjoy great popularity. Rape continues to be understood in paradigmatic terms where strangers physically attack the rape victim rather than “nonparadigmatic” rapes where victims do not suffer physical injuries, or are acquainted with defendants, or are in sexual professions.14 Moreover, reforms that seek to counter gender norms, such as rape shield and affirmative consent laws, are controversial, sporadically-implemented, and empirically unsuccessful.15 Even in jurisdictions with nuanced and liberalized rape laws, rape is under­ reported, rape attrition rates are high, and victims continue to be doubly traumatized by trial, prompting considerable feminist inquiry into the gap between the law and its implementation. Consequently, there is a burgeoning literature on “rape myth acceptance,” “victim precipitation beliefs,” and their contribution to the “justice gap.” “Rape myths” are descriptive or prescriptive beliefs about rape, its causes,   Aya Gruber, “Rape, Feminism, and the War on Crime,” (2009) 84 Washington LR 581–660, 15 594–595 ff.   Gruber, (2009) 84 Washington LR 584 ff. 14

64   prabha kotiswaran context, consequences, perpetrators, and victims that serve to deny, downplay, or justify male sexual violence against women. These views held by the general public and agents of the criminal justice system influence how individual rape allegations are disposed of.16 One powerful myth is the myth of stranger rape involving “a sudden, surprise attack by an unknown, often armed, sexual deviant. It occurs in an isolated, but public, location, and the victim sustains serious physical injury, either as a result of the violence of the perpetrator or as a consequence of her efforts to resist the attack.” Few rapes share this profile, thus rendering the majority of rapes invisible within the criminal justice system. In their study of mock jurors’ deliberations, Ellison and Munro found that while jurors are not beholden to the stranger rape myth, they replicate strong gender stereotypes and belief in conventional scripts of sex, male and female sexuality, and a seduction script based around male-dominated, adversarial, sexual interaction—the location where it took place, the consumption of alcohol, and the sexual signals exchanged. Complainants were treated harshly if they were intoxicated, as they ought to have been responsible unless the defendant spiked their drink or indulged in morally inappropriate behavior. Further, Ellison and Munro found that jurors harbored numerous assumptions regarding the instinct to fight back, the compulsion to report the incident immediately, and the inability to control one’s attendant emotions; assumptions which influenced jury deliberations, and ultimately their verdict outcomes. Expectations of force, injury, and resistance were so deeply engrained in the popular imagination that educating jurors seemed futile. In a similar vein, Gotell shows how affirmative consent standards in Canadian rape law exhibit a specific expression of neoliberal governmentality with an attendant discourse of risk and responsibility for defendants and survivors alike.17 Strangely enough, feminists respond to the justice gap by asking for more criminal law that penalizes enforcement officials for refusing to file the victim’s complaint or the further education of judges, jurors, and enforcement officials to eliminate these biases. Yet some feminists have resisted this move by asking if feminists themselves might not be making erroneous assumptions about rape myths. In a controversial article in 2013,18 Reece argues that feminists in assuming to know what “normal sex” looks like might in fact be hindering honest conversations on rape myths by setting up a divide between (their) elite opinion and the uneducated rape myths of the public. Feminists might inhabit these moments of immense uncertainty so as to assess the future direction of rape law reform. 16   Louise Ellison and Vanessa E. Munro, “A Stranger in the Bushes, or an Elephant in the Room? Critical Reflections Upon Received Rape Myth Wisdom in the Context of a Mock Jury Study,” (2010) 13 New Crim. LR 781–801, 782 ff. 17   Lise Gotell, “Rethinking Affirmative Consent in Canadian Sexual Assault Law: Neoliberal Sexual Subjects and Risky Women,” (2009) Akron LR 865–898 ff. 18   See Helen Reece, “Rape Myths: Is Elite Opinion Right and Popular Opinion Wrong?,” (2013) OJLS 1–29 ff.

feminist approaches to criminal law    65

2.  Domestic violence While rape law has become consistently refined over time, feminists have had to rename domestic violence as a special offense rather than pursue liability for grievous bodily harm. Domestic violence reforms have gone farthest in the United States both due to the influence of radical feminism in U.S. legal theory and unique factors such as a strong victims’ rights movement. Its success has meant that its “punitive, retribution-driven agenda” now constitutes “the most publicly accessible face of the women’s movement.”19 Gruber symbolizes the main protagonist of the American feminist movement thus— The zealous, well-groomed female prosecutor who throws the book at “sicko” sex offenders has replaced the 1970s bra-burner as the icon of women’s empowerment. Indeed, many regard criminal law reform as one of feminism’s greatest successes.

According to Suk, where the state was earlier loathe to interfere with the private domain of the home, it is today thought to be inadequate in preventing women’s abuse from their own family members—domestic violence law has transformed the home into a site of coercion and abuse; home is where the crime is!20 Increasingly, popular reforms in criminal court systems include “sweeping protection orders,” “specialized courts,” “special evidentiary rules,” mandatory arrests, and no-drop policies.21 Gruber has illuminated the confluence of the feminist movement and the conservative tough-on-crime victims’ rights movement focused on retribution, pointing to the conservative origins of the framing of the crime of domestic violence, and feminists’ strategies, which adopted a problematic victimization and agency rhetoric. Although the relation between domestic violence advocates and law enforcement was initially tenuous, Gruber argues that the dilemma between the aggressive prosecution of domestic violence as a form of gender subordination and the attendant costs to women’s autonomy was eventually resolved in favor of the former. Mandatory arrest and no-drop policies took root all over the country. Suk claims that the criminal protection order, the “grandmother of domestic violence law” was crucial to the criminal­ ization of domestic violence. The criminal protection order is often a condition of pretrial arrest so that presence at home becomes a proxy for domestic violence. Similarly, Suk shows how violating a protection order could result in prosecution for the serious felony crime of burglary. By obtaining a criminal protection order and making its violation a crime, the state she argues produces a criminal law practice of “state-imposed de facto divorce.” Rather than punish violence between spouses and intimate partners, their decisions to live like spouses and intimate partners are increasingly being criminalized. Gruber

  Gruber, (2009) 84 Washington LR 582 ff. quoting Dianne Martin.   Gruber, (2006–07) 92 Iowa LR 747 ff.

19 21

20

  Suk (n. 10) 6 ff.

66   prabha kotiswaran bemoans how a grassroots progressive movement transformed into an ally of conservative criminology where, in order to support domestic violence criminalization in the face of victim reluctance, reformers maintained the innocent victim/pathological offender paradigm using the very methodology that was instrumental in women’s oppression.22 Gruber lists numerous unintended consequences of domestic violence law reform, such as where domestic violence protection orders are routinely issued, often in ex parte situations, without the woman’s request and where women are arrested more frequently, including for wasting state resources by not pursuing prosecution, thus undermining their autonomy. Suk goes further to argue that state-imposed de facto divorce shifts decisional power from individual women to state actors like prosecutors. Current domestic violence policies can, as Gruber and Suk point out, also have disparate effects on racial minorities. According to Suk, arraignments for domestic violence in New  York county criminal courts by and large involve minorities living in the poorest parts of Manhattan, who are disproportionately prosecuted under these laws. Mandatory arrest and pro-prosecution policies thus reinforce systemic biases of the criminal justice system. Defendants’ right to a fair trial is compromised. But minority women are not spared either, as women at the intersection of multiple axes of subordination (race, immigrant status, income level) appear to suffer the most under mandatory policies. Whether criminalization works is inconclusive:23 of course, it sends out the symbolic message that domestic violence is serious but it entrenches the view that it is an insular rather than endemic wrong. As Suk points out, domestic violence reform has insidiously ensured criminal law control of the home alongside control-oriented approaches to crime in the public space—the home becomes an instrument for law enforcement within it but also an instrument for criminal law control. Individuals’ private arrangements in property and intimate relationships are displaced, according to Suk, and they cannot contract around the state’s mandates without risking punitive consequences. Domestic violence reform in the United States also went on to produce offshoots in tackling non-intimate violence against women through the introduction of the offense of stalking in the early to mid-1990s.

3.  Battered Woman Syndrome While feminists have vigorously lobbied for an expanded criminal law to counter the unique gendered harms women suffer, they have also addressed the vulnerabilities of women like battered women who offend by killing their partners. The two main partial defenses to murder in English criminal law are provocation   Gruber, (2006–07) 92 Iowa LR 783 ff.

22

  Gruber, (2006–07) 92 Iowa LR 807, 809 ff.

23

feminist approaches to criminal law    67 (now loss of self-control) and diminished responsibility. Provocation had its roots in male “restoration gallantry” and demanded a sudden loss of control and an almost immediate response to provocation. In the early 1990s, several cases involving battered women came up against this narrowly drawn test of provocation. The simmering frustrations and helplessness of battered wives and their lingering response meant that their vulnerable mental condition from years of abuse could, at best, be considered for the defense of diminished responsibility although Battered Woman Syndrome (BWS) was not yet a recognized medical condition. Through the persistent activism of feminists, however, courts were compelled to recognize the gender bias inherent in these partial defenses to murder. Feminists have followed court cases implicating the defense of provocation even where it involved a male defendant who killed a male friend. In the case of Morgan Smith,24 for instance, the crucial issue was whether the characteristics of the defendant could be taken into account when determining whether the defendant’s response to the provocation was reasonable. Although Morgan Smith held such characteristics to be relevant, a subsequent Privy Council decision in the case of Holley25 adopted a more objective standard leading to feminist criticism. Ever since the early 1990s and feminists’ elaboration of the “gendered morphology and ontology of provocation” (a term coined by Edwards), as well as the indifference of English law to the social realities of women’s lives, the reform of the partial defenses has had to seriously consider implications for battered women who kill. The Coroners and Justice Act 2009 is the latest such attempt and although it has rendered the response leg of the loss of self-control defense more objective, it responds to sustained feminist critique over the years. Thus, the loss of control need not be sudden as long as the response is not an act of revenge. The qualifying triggers now include an anger trigger and a fear trigger; the latter geared toward battered women. Some have criticized the micro-management of the defense of loss of self-control into which they think battered women have been shoehorned. Sexual infidelity meanwhile is explicitly excluded as a qualifying trigger demonstrating Parliament’s zero-tolerance approach toward the violent behavior of jealous men. Some allude to this move as signifying gesture politics but, while it is too soon to predict the practical effects of the 2009 law, the sexual infidelity exclusion has already been compromised in the case of Clinton.26 Even as the defense of loss of self-control was being refashioned, BWS became a recognized medical condition so that the defense of diminished responsibility can now be utilized by battered women.

  R. v. Smith (Morgan) [2000] 3 WLR 654.   Attorney-General for Jersey v. Holley [2005] UKPC 23. 26   R. v. Clinton [2012] EWCA Crim. 2. 24 25

68   prabha kotiswaran Battered women’s use of the two partial defenses to murder has not been straightforward. Even as social science literature pointed to the “learned helplessness” that domestic violence fosters, using BWS, some activists felt, reiterated a disempowered image of battered women as mentally compromised victims. Indeed, as Suk demonstrates, the subordinated status of the battered woman has influenced United States criminal law doctrine. The defense further individualized battered women’s cases rather than focusing on collective redistributive strategies. Moreover, using BWS is hardly compatible with the use of self-defense, which assumes women’s agency in the face of danger. Also, selfdefense can result in a complete acquittal whereas a successful partial defense only reduces the sentence to one for manslaughter. Hence, some feminists have called for rethinking self-defense devoid of its own gender biases. This has not happened.

4.  The transnational diffusion of feminist ideas in criminal law A striking aspect of the feminist project in criminal law is the astonishing similarity in conceptual and institutional content across domestic jurisdictions. This diffusion is made possible through human rights law and practice. The violence against women movement in particular has made possible the international export and transplantation of norms and institutional machineries. This is not to suggest a seamless translation of norms and bureaucracies into domestic jurisdictions. As Sally Merry has shown, intermediaries and elites who inhabit spaces of transnational modernity at the international venues where international human rights documents are negotiated then perform considerable intellectual labors to appropriate these ideas domestically and frame them in order to achieve local resonance. Transmission is enabled through elite norm entrepreneurs and social service providers who transplant programs conceptualized elsewhere as with domestic violence. This international reach of human rights law has been further enhanced by the globalization of legal education and the legal profession. Every year, thousands of law school students and academics from elite Anglo-American law schools travel to other parts of the world to assist with law reform while local elites transact with them in the language of transnational modernity. Thus, the Verma Committee appointed days after the infamous Delhi rape and murder profusely thanked several U.S.- and U.K.-based feminists in its report. By then, a Harvard task force was set up to advise South Asian governments on violence against women, much to the alarm of Indian feminists. Innovative ideas like command responsibility, developed in the crucible of international and transnational criminal law, were sought to be incorporated into domestic rape law as demanded by Indian feminists.

feminist approaches to criminal law    69

iii.  Feminist Interventions in International Criminal Law In the 1970s and 1980s, feminists working in international human rights sought to bring gender concerns to the center of human rights discourse. The armed conflicts in Yugoslavia and Rwanda in the early 1990s meanwhile resulted in large-scale geno­ cide, which then spurred the development of international criminal law through the creation of the ad hoc tribunals of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) to deal with genocide, war crimes, and crimes against humanity. Feminists were present in the development of international criminal law right from the very start as reports of the sexual violence that accompanied such armed conflicts came to light. Up until then, as Alison Cole has argued, not only were crimes of rape and sexual violence slipping through the cracks of international law, but there was also widespread denial as to their very existence. However, under both the ICTY and ICTR Statutes, rape was considered to be a crime against humanity. Rapes were prosecuted as torture and war crimes and addressed in the context of enslavement. In the path-breaking case of Akayesu,27 the ICTR held that genocide could be committed through acts of rape and sexual violence. Although the Akayesu decision was not consistently followed in subsequent cases, its definition of rape touched on conceptual issues that were core to domestic feminist debates on rape. The Akayesu decision defined rape as “a physical invasion of a sexual nature, committed on a person under circumstances which are coercive.” As I have already alluded to, much feminist effort has gone into expanding the definition of rape in domestic legal jurisdictions from requiring penile penetration by a man of a woman to cover instances of non-penile penetration perpetrated against both men and women. The reluctance of Akayesu to spell out the exact physical acts constituting rape was welcomed as it emphasized the violation of bodily autonomy (the effect) rather than the precise nature of the act, which reflected hetero-patriarchal assumptions of honor and shame. Also, significantly, feminists had been lobbying domestic­ ally for a consent standard in rape to obviate the need to prove physical force and resistance for a successful rape conviction. Yet Akayesu embodied the very gist, it seemed, of a feminist theory of rape as sexual subordination in that it presumed the lack of consent in coercive circumstances such as armed conflict or military presence of threatening forces on an ethnic basis. In other words, the decision recognized the inevitability of lack of consent in conditions of armed conflict such that a successful conviction for rape ought not to start with the requirement to prove lack of consent but to presume it.   Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Sept. 2, 1998.

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70   prabha kotiswaran Yet, as always, feminists were divided over how international criminal law must define rape. These differences can be traced back to how different schools of feminism understand rape. The Akayesu definition was compatible with a radical feminist understanding of rape: this is because the early radical feminist conceptualization of rape viewed patriarchal force and coercion as endemic so as to render consent a meaningless concept. As MacKinnon famously observed: force and desire are not mutually exclusive under male supremacy. So long as dominance is eroticized, they never will be. Some women eroticize dominance and submission; it beats feeling forced. Sexual intercourse may be unwanted, the woman would never have initiated it, yet no force may be present . . . If sex is normally something men do to women, the issue is less whether there was force than whether consent is a meaningful consent.28

Although some scholars adopt this formulation of rape, it has failed to gain traction in domestic law. In the international context of armed conflict, however, this understanding of rape is appealing, finding support amongst those who perceive a difference between everyday rape and wartime rape. Hence, while a consent standard is appropriate for domestic rape, a coercion-based standard as articulated in Akayesu is ideal for addressing the challenges of sexual violence in wartime. Yet, there is a feminist camp persuaded by MacKinnonite thinking, MacKinnon included, which opines that there is no difference between everyday rape and wartime rape. Hence, the Akayesu reading of rape can be imported back into domestic law and some U.S. states such as California and Illinois have indeed done so. This impulse to push forward the radical feminist conceptual apparatus, however, sits in deep tension with the strategic imperatives of feminist activism. Thus, in the process of heightening the significance of sexual violence in wartime, MacKinnon has argued for rape to be prosecuted as genocide under international criminal law.29 In arguing for the recognition of genocidal rape, however, MacKinnon has had to distinguish it from just rape in war or everyday rape; she theorizes it as being coterminous with everyday discrimination such that sex inequality itself becomes genocide and we are left wanting to punish gynocide! Also, in calling for the prosecution of genocidal rape, she ends up privileging ethnic differences and therefore rape by wartime victors rather than rape on all sides of an armed conflict. An opposing feminist view wanted to acknowledge rape on all sides of a war as equally serious. Some feminists were also uncomfortable with the unintended consequences of a broad Akayesu-type reading of rape. For one, the elimination of a defense of consent could undermine the defendant’s right to fair trial. Feminists like Karen Engle, Annelise Lottmann, and Janet Halley also disagreed with the position that treats rape as “a fate worse than death” as not only misinterpreting certain 28  Catharine A.  MacKinnon, “Feminism, Marxism, Method and the State:  Toward Feminist Jurisprudence,” (1983) 8 Signs 650 ff. 29  Catherine MacKinnon, “Rape, Genocide, and Women’s Human Rights,” (1994) 17 Harvard Women’s Law Journal 5.

feminist approaches to criminal law    71 cultural attitudes toward sex and honor but also intensifying for women the shame and loss of honor that rape implies, thus valorizing the value of rape as a weapon of war. For these feminists, the mainstream view also suggests a hierarchy of harms wherein sexual violence is worse than other forms of violence, including even the killings of these women’s male relatives. Indeed, a heightened view of rape as the worst violation meant that women who “chose” to be raped under force of circumstance by an enemy offering them a means of sustenance over death from starvation risked being labeled traitors.30 Demonstrating the seriousness of wartime rape also brings with it a severely compromised view of female sexual agency in relation to the enemy. A strictly gendered view of sexual violence additionally renders invisible women’s role in perpetrating sexual violence. Further, focusing on genocidal rape reinforces essentialist notions of ethnic difference, which can stand at complete odds with the social history of a conflict-ridden region where inter-ethnic sexual alliances were widespread. This supports nationalist narratives of conflict. As Engle argues, such a reading is also sexist—assuming that children of raped Bosnian Muslim women are automatically Serbs places a premium on Serbian sperm instead of their being born of a Bosnian Muslim woman’s womb. The momentum that feminists experienced in lobbying the ICTY and ICTR found fruition in the negotiations leading to the 1998 Rome Statute, which came into force in 2002 and established the International Criminal Court (ICC). Some feminists have welcomed the fact that the Rome Statute went further than the ad hoc tribunals by referring not only to rape but also to sexual slavery, enforced prostitution, female trafficking, forced pregnancy, and enforced sterilization as war crimes and crimes against humanity under the ICC and for finding that persecution for purposes of crimes against humanity can be committed on the basis of gender discrimination. The Rome Statute has a raft of procedural protections for victims of sexual violence in armed conflict. Yet Halley has been critical of feminist efforts to move sexual crimes up the hierarchy of crimes under international humanitarian and criminal law, to particularize and indeed exceptionalize them in feminist terms, to concentrate specific prosecutions exclusively on charges involving sexual violence and maximizing the evidentiary requirements for proof of rape by eliminating or modifying the defense of consent.31 Halley demonstrates how these moves were only intensified leading up to the Rome Statute negotiations. Feminists formed a consensus around an updated radical feminism, which she calls femin­ ist universalism and which channeled a law reform project specifically to include rape in the Rome Statute, as well as sexual slavery, forced pregnancy and steril­ ization, and sexual violence. Enslavement was expanded to include trafficking in persons, and honor and dignity were de-linked from these crimes. However, forced   Halley, (2008) 9 Melbourne Journal of International Law 105 ff.   Janet Halley, “Rape in Berlin: Reconsidering the Criminalisation of Rape in the International Law of Armed Conflict,” (2008) 9 Melbourne Journal of International Law 83 ff. 30 31

72   prabha kotiswaran maternity, forced abortion, forced marriage, forced nudity, sexual molestation, and sexual humiliation did not make it into the Rome Statute. Although feminist efforts evolved from a focus on rape to sexual violence to sexual slavery and culminated in the demand for crimes against gender violence (covering men in the position of the social woman), the crime of gender violence was not included in the Statute.32 Nor did feminist attempts to deploy international humanitarian and criminal law to hold states accountable for everyday rape during peacetime succeed. Thus, the feminist project in international criminal law has been predominantly in a winning position despite losses relating to feminists’ most expansive classificatory ambitions. Feminists have managed to shape the course of international criminal law in its early stages of development and can be relatively more assured of their influence internationally given that it encapsulates the core of international law values and is already binding on nation-states.

iv.  Feminist Interventions in Transnational Criminal Law Scholars of international criminal law often distinguish between international law in the strict sense, encompassing core crimes and transnational criminal law, which deals with crimes of international concern or treaty crimes. Whereas international criminal law consists of crimes, firmly established in customary international law and providing for individual penal responsibility for violations of international law before an international penal tribunal, transnational criminal law deals with the indirect suppression by international law through domestic penal law of crim­ inal activities that have actual or potential transboundary effects. States in the latter instance sign on to suppression conventions that obligate states to enact and enforce municipal offenses. In an article in 2003, Neil Boister called for theorizing the separate field of transnational criminal law as distinct from international crim­ inal law because, although it is in his view “the most significant existing mechanism for the globalization of substantive criminal norms,”33 it has not been subject to the level of theoretical scrutiny as have domestic criminal laws. Boister argues that transnational criminal law exhibits a democratic deficit in its formulation, lacks doctrinal coherence and a general grammar of criminal and penal policy amongst 32   Janet Halley, “Rape at Rome: Feminist Inventions in the Criminalization of Sex-Related Violence in Positive International Criminal Law,” (2009) 30 Melbourne Journal of International Law 7 ff. 33   Boister, (2003) 14 European Journal of International Law 956 ff.

feminist approaches to criminal law    73 different countries, has little human rights protection, and has weak enforcement measures. Even as Boister was naming the field of transnational criminal law into being, feminists had already successfully participated in the negotiation of a major piece of transnational criminal law; namely, the 2000 United Nations Protocol to Prevent, Suppress and Punish Trafficking Against Persons, Especially Women and Children (the UN Protocol)34 supplementing the 2000 United Nations Convention Against Transnational Organized Crime.35 Feminist efforts on the transnational issue of trafficking were not new, however; they had earlier engaged with a similar suppression treaty; namely, the 1949 UN Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others and the 1921 International Convention for the Suppression of the Traffic in Women and Children adopted by the League of Nations. None of these treaties have, however, enjoyed the popularity of the UN Protocol. The 1949 Convention, for instance, had 25 signator­ ies whereas the UN Protocol has had more than 150 signatories in the first ten years of its adoption. This section investigates the context in which feminists enjoyed phenomenal success in negotiating the UN Protocol and asks if the enforcement of the UN Protocol has furthered the rights of women and other vulnerable populations. American legal scholar Janie Chuang has detailed how differences amongst American femin­ ists on how to conceptualize prostitution and sex work resulted in the ideological capture of the negotiating positions occupied by both states and non-governmental organizations (NGOs) over the UN Protocol. These debates are animated, in particular, by the two oppositional camps of abolitionists or radical feminists, on the one hand, and sex work advocates, on the other. For abolitionist feminists, prostitution is the most extreme and crystallized form of all sexual exploitation, in turn the foundation of women’s subordination and discrimination. For sex work advocates, sex work is a plausible livelihood option for women who, despite enormous structural constraints, exercise some agency. Trafficking is defined in Art. 3 of the UN Protocol and can be disaggregated in terms of the mode of recruitment (recruitment, transportation, transfer, etc.), the means by which it is obtained (threat or use of force or other forms of coercion, etc.), and the purpose for which it is obtained; namely, exploitation. In the case of people aged 18 and over, all three elements must be proved for a trafficking conviction. The concept of consent was central to the UN Protocol negotiations, and was extraordinarily influenced by domestic Anglo-American feminist debates on sex work. The radical feminist, abolitionist camp wanted prostitution listed as an end purpose for which recruitment or transportation would automatically amount to

  G.A. Res. 25, Annex II, U.N. GAOR, 55th Sess., Supp. No. 49, at 60, U.N. Doc. A/45/49, Vol. I (2001).   Transnational Organized Crime, G.A. Res. 53/111, U.N. GAOR, 53rd Sess., 85th plen. Mtg., U.N. Doc. A/RES/53/111 (1998). 34 35

74   prabha kotiswaran trafficking even if it was with the woman’s consent. In other words, they demanded that the purpose for which the means are used should result in a finding of trafficking, irrespective of the woman’s consent. The liberal lobby meanwhile wanted to retain the possibility of migrant voluntary sex work by decoupling the means of recruitment from the end purpose. The resultant compromise achieved this decoupling with the caveat that where certain listed means—which were broadly phrased—were employed, trafficking had occurred as consent was irrelevant. In other words, where the levels of coercion as identified by the Protocol were used, consent was deemed absent. When it came to negotiations of the purpose element, namely, exploitation, prostitution was once again ambiguously listed as “exploitation of the prostitution of others.” Yet the preparatory notes to the Protocol clarified that this inclusion did not compromise states’ domestic legal treatment of prostitution. In the aftermath of the UN Protocol’s adoption, both feminist camps claimed victory for their influence over the definition of trafficking. Within five years of the adoption of the UN Protocol, however, non-governmental actors such as the Bangkok-based Global Alliance Against Traffic in Women (GAATW) conducted a multi-country survey to conclude that the “anti-trafficking framework has done little good for the trafficked person and great harm to migrants and women in the sex industry.”36 In a nutshell, despite the expansive Protocol definition of both the means and purpose of trafficking, in reality enforcement measures have been drastically confined to rescuing women who have been forced into sex work by fraud, coercion, or deceit. Specifically, despite the efforts of non-abolitionist NGOs at the UN Protocol negotiations to decouple trafficking from sex work and prostitution, and thus shake off the legacy of the 1949 UN Convention, they were unsuccessful. Not only was trafficking comprehended by states in terms of trafficking for sex work but it was also conflated with sex work itself. The sex sector has remained the primary focus of most countries’ anti-trafficking efforts. 16% of the 155 countries surveyed by the United Nations Office on Drugs and Crime (UNODC) in 2009 had passed anti-trafficking laws that were limited to sexual exploitation or covered only women and children. In the United States itself, it was not until 2009 that the State Department emphasized forced labor in its annual trafficking report. Without doubt, this emphasis on trafficking into sex work has not meant better human rights protection for sex workers; if anything, assistance is typically conditional on assisting prosecutorial efforts. Some countries in fact revised their prostitution laws to decriminalize only “victim” sex workers, not “voluntary” sex workers. Many of these anti-sex work initiatives worldwide received support from the erstwhile Bush Administration and its coalition with conservative Christian groups as well as through the extraterritorial operation of a U.S.  domestic law, namely, the Victims of Trafficking  GAATW, Collateral Damage The Impact of Anti-Trafficking Measures on Human Rights Around the World (2007), 17 ff. 36

feminist approaches to criminal law    75 and Violence Protection Act, 2000 and its practice of classifying states in terms of their anti-trafficking initiatives through the annual Trafficking in Persons Reports. The exceptionalist treatment of sex work in early anti-trafficking law meant that trafficking into labor sectors other than sex work, often referred to as “labor trafficking” received less attention than it was due. Anti-trafficking law was also effectively used against refugees, asylum seekers, and migrants, especially undocumented ones. Experts claim that the very passage of the UN Convention against Transnational Organized Crime was motivated by sovereignty and security concerns rather than the human rights of migrant and trafficked groups. With border control at the heart of the UN Protocol, both countries of origin and transit were effectively conscripted as low-cost agents of first world states of destination to control migration resulting in significant damage to human rights. The heavily gendered discourse of trafficking also disincentivized female migrants from traveling for work. As countries sign, ratify, and conform their domestic laws to the UN Protocol, the implementation of anti-trafficking law has tended to be both over-inclusive in targeting women engaged in voluntary sex work and under-inclusive in not addressing trafficking into non-sex work sectors. Two trends characterize the current phase of anti-trafficking law. First, states are increasingly inclined not to conflate trafficking with trafficking for sex work or sex work itself, adopting instead at least at a doctrinal level domestically, a broader Art. 3 definition of trafficking. This does not imply an equal allocation of resources to prosecute trafficking for sex work and into other labor sectors; it does, however, mean that as states continue to legislate domestic anti-trafficking law and make related institutional arrangements, intra-feminist contestations that plagued the UN Protocol negotiations will be re-staged at a domestic level. The second trend revolves around attempts to resolve the continued conceptual ambiguity surrounding the core definitional terms of Art. 3. In the absence of clarity around concepts such as “abuse of position of vulnerability” and “exploitation,” the scope of the UN Protocol remains unclear. The UNODC has commissioned issue papers on these core concepts, admitting its lack of data on the magnitude of the problem of trafficking and states’ uneven compliance with Protocol obligations. Significantly, where the International Labour Organization (ILO) had previously stood on the borderline of the trafficking debates having assumed a controversial position in 1998 on the “sex sector,” the ILO is now conceptualizing trafficking as a form of forced labor thereby consolidating decades of efforts to eradicate forced labour. The ILO’s increased visibility on trafficking and its proposed standard setting to supplement the Forced Labour Convention of 1930 offers feminists a renewed opportunity to rethink the unintended consequences of the preoccupation of anti-trafficking law with sex work and the implications of using a more nuanced and less carceral form of anti-trafficking law to protect a larger constituency of both trafficked men and women.

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v.  The Feminist Will to Power—Governance Feminism in Criminal Law 1.  Governance feminism elaborated Even the brief survey so far demonstrates the considerable success of feminist projects in domestic, international, and transnational criminal law. Whether at the domestic or international levels, feminists have gone from being marginal social movement actors, literally “outsiders” who had an oppositional consciousness toward state power to becoming forceful advocates for increased domestic criminal law who then also occupied a central and often vanguard role in the development of emerging fields of criminal law at the international level. Indeed, it is this feminist influence in the varied arenas of criminal law that drew some of us to chronicle feminists’ achievements as governance feminism (GF). Halley defines GF as follows: GF is, I think, an underrecognized but important fact of governance more generally in the early twenty-first century. I  mean the term to refer to the incremental but by now quite noticeable installation of feminists and feminist ideas in actual legal-institutional power. It takes many forms, and some parts of feminism participate more effectively than others; some are not players at all. Feminists by no means have won everything they want—far from it—but neither are they helpless outsiders. Rather, as feminist legal activism comes of age, it accedes to a newly mature engagement with power.37

GF successes in criminal law typically deploy a radical feminist view of violence against women overshadowing competing feminist narratives. If we were to think of radical feminism in terms of Catharine MacKinnon’s early writings, the state was viewed as patriarchal and incapable of addressing sexual subordination, the root cause of women’s inequality. How such a sophisticated feminist theory has today morphed into a decidedly liberal project calling for criminal law intervention by a neoliberal penal state, often supported by religious conservative groups, is befuddling to say the least. Numerous factors seem to be at play in this familiar “input/output” problem for feminists. In terms of the “input,” whether on rape, domestic violence, trafficking, stalking, or voyeurism, the radical feminist impulse to theorize sexual coercion as pervasive in light of its theory of sexual subordin­ ation leads feminists to reach for the sharpest legal instrument available, namely, criminal law, necessitating the intervention of the state. Bernstein characterizes this 37   Janet Halley, Prabha Kotiswaran, Hila Shamir, and Chantal Thomas, “From the International to the Local in Feminist Legal Responses to Rape, Prostitution/Sex Work, and Sex Trafficking: Four Studies in Contemporary Governance Feminism,” (2006) 29 Harvard Journal of Law & Gender 335 ff., 340.

feminist approaches to criminal law    77 vocal feminist insistence on criminalization as carceral feminism.38 The ascendance of carceral feminism also concerns dynamics within the women’s movement. Especially on issues of considerable feminist divergence like sex work and trafficking where a radical feminist point of view faces an equally structuralist but sex positive position, consensus-building results in a middle-ground liberal feminist view.39 Consensus is achieved at the cost of discursive complexity. Interestingly, a middle-ground position is not incompatible with increased criminalization because the very platform for consensus is the need to tackle the worst forms of coercion, violence, and exploitation. Once the state is implicated, the “output” is mediated by numerous factors, including the emergence of an international violence against women movement, shifts in the agenda of the American Christian Right, the rightward drift of certain feminist camps, and the crisis of the modern welfare state coupled with the emergence of a neoliberal sexual agenda. States have surprisingly been eager to embrace carceral projects much to the surprise of feminists. As Doezema notes, of all the issues raised over the past two decades by feminists, trafficking in women is the one on which even governments hostile to feminist arguments have been willing to “jump into bed” with feminists.40 States could not, however, be bothered with the niceties of feminist theorizing and are often content with the most simplistic notion of gender inequality, resulting in paternalist and protectionist policies, all while paying lip service to women’s rights and securing legitimacy. The next section deals with the repetitive quality of enforcement patterns once these hard-won victories have been achieved.

2.  Repeat patterns in criminal law reform With the law of rape, despite a structural understanding of coercion and the shift to a consent standard, reforms have played out to produce a thin notion of consent. As Nourse notes, resistance has resurfaced to resolve the normative ambivalence of force and consent so that if the victim physically resists, courts and juries feel certain that she did not consent since physical force was used to accomplish sex. A deeper understanding of coercion itself is lost. Munro confirms this pattern in the British context. The centrality of overt coercion is reasserted in distinguishing acceptable from unacceptable forms of sexual aggression, thereby identifying, “deserving” victims who have experienced “real” harm. Further, as Gruber has pointed out, some

  Elizabeth Bernstein, “Militarized Humanitarianism Meets Carceral Feminism: The Politics of Sex, Rights, and Freedom in Contemporary Anti-Trafficking Campaigns,” (2010) 36 Signs 45–71 ff. 39   See Prabha Kotiswaran, Dangerous Sex, Invisible Labor: Sex Work and the Law in India (2011) for a discussion, particularly ch. 2. 40   Jo Doezema, Sex Slaves and Discourse Masters: The Construction of Trafficking (2010), 172 ff. 38

78   prabha kotiswaran feminists’ own adoption of a prosecutorial attitude, which largely conceives of rape (and crime in general) as a product of individual criminality rather than social inequality, means that the criminal law decontextualizes rape from the wider issue of gender inequality. As state institutions adopt the most simplistic version of the feminist critique, the liberal view of violence against women prevails over a rad­ ical feminist view of coercion as pervasive. The malleability of legal concepts like coercion, consent, and exploitation can also be seen in relation to sex work and trafficking. Narrow interpretations of coercion in the context of trafficking support the state’s border control project, thus introducing a high threshold for trafficked status. Similarly, a broad understanding of exploitation renders any form of sex work for purposes of the trafficking offense as exploitative per se. Interpretations of these different concepts can produce over-inclusive and over-protectionist outcomes in individual cases where complex dynamics, both structural and interpersonal, are at play.41 Feminists’ emphasis on coercion and their use of the trope of victimhood for achieving law reform have often produced another significant casualty, namely, women’s agency. Both rape and domestic violence reforms essentialize women so that victims are portrayed as “paralyzed by fear, weak-willed, and even automaton-like.”42 Such feminist portrayals of women are amply evident in the sex work and trafficking debates. Radical feminists’ focus on eradicating questionable (if not all) sex as if it were a virus, argues Gruber, denies women sources of pleasure while the overcriminalization of sexual “coercion” has led to repressive chastity norms and morality policing.43 Ironically, then, in her view feminist reformers have utilized the very mechanism of female objectification (presumably also a target of reform) in its effort to advocate for domestic violence criminalization rather than offering a more complicated account of the constrained agency of women. Conceptual difficulties and interpretive possibilities are in turn compounded by institutional biases producing a yawning gap between hard-won feminist doctrinal victories and their impact on the ground. At several points in the criminal justice system, these reforms are watered down through the actions of enforcement personnel such as the police and prosecutors or even the dispositions of jurors. The criminal law can also generate remarkably perverse results. Literally every feminist success in criminal law is able and does inflict further harm on the very women that the law was created to benefit, often on the basis of patri­ archal norms of sexual morality. Rape law is littered with judgments as to the victims’ character. Gruber notes how prevailing gender norms restrict rape reform’s 41   Vanessa Munro, “An Unholy Trinity? Non-Consent, Coercion and Exploitation in Contemporary Legal Responses to Sexual Violence in England and Wales,” (2010) 63 Current Legal Problems 58 ff. 42   Aya Gruber, “A ‘Neo-Feminist’ Assessment of Rape and Domestic Violence Law Reform,” (2012) 43 15 Journal of Gender, Race & Justice 601 ff.   Gruber, (2009) 84 Washington LR 612.

feminist approaches to criminal law    79 expressive value so that rape shield laws are justified on the basis of protecting the right to privacy rather than rendering past sexual history irrelevant to consent. In domestic violence, battered women can be prosecuted for failing to support the state’s prosecution efforts against her male partner. An anti-sex work law that seeks to exonerate sex workers from prosecution might well be limited only to innocent sex workers tricked into sex work rather than women selling sex under severe force of circumstance. This has led feminists to ruminate over the law’s deception. For Munro, despite the progressive feel of policy rhetoric, the law when implemented reinserts hierarchies of victimhood, distracts from crucial questions about agency, constraint, and construction, and serves to insulate the law from internal critique. Surveying reforms in the areas of rape, domestic violence, and the law of self-defense, Nourse notes how reform perpetuates the notion of progress while reiterating old norms, which are in turn “resurrected in empty spaces, deliberate ambiguities, and new rhetorics.”44 She states that this is to be expected when law reform is won at the cost of deliberative ambiguity, which eventually generates high costs. Ambiguity hides discarded or unlikely norms, making it difficult to know precisely what the norm is, which produces the illusion of reform thus forestalling further reforms whereas the insidious effects of the old norms persist. This generates hypocrisy at the very least, if not perversity.

3.  A feminist legal realist view of criminal law The case for feminists to rethink the use of the criminal law is compelling. Politically, we might revive self-help strategies characteristic of second-wave feminist movements. Legally, rape law reformers might turn to, say, tort law. Feminists, however, are too deeply implicated in criminal law reform to entertain these possibilities seriously. Indeed, whether at the domestic or international level, feminists have often started out lobbying for a specific offense like rape but then escalated their demand for criminalizing all-encompassing behavior such as sexual violence and gender violence. One way to minimize feminist disappointment (which otherwise translates into demands for more criminal law) would be to entertain a nuanced legal realist understanding of the criminal law, one which is not preoccupied with an enforcement gap between law in the books and law in action. Duncan Kennedy’s idea of the tolerated residuum is illuminating here. Writing in the context of rape laws, Kennedy has proposed that the legal system will always tolerate a certain level of sexual abuse, which he terms as the tolerated residuum of abuse. This residuum depends on contestable social decisions about what abuse is and how important it is to prevent it. This in turn affects practices of abuse and social practices of both   Nourse (n. 3) 952 ff. quoting Siegel.

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80   prabha kotiswaran men and women, irrespective of whether they themselves are abusers or victims.45 This realist view of the criminal law not only expands feminists’ vision as to the distributive consequences of rule changes on a range of stakeholders but also tempers demands for increased state intervention, whose potential for producing perverse results is well known. The need to rethink criminal law is particularly striking when we consider its counterintuitive effects on markets such as sex work. States can legislate diametric­ ally opposing policy reforms on sex work ranging from increased criminalization (the United States and Sweden) to legalization (the Netherlands) but end up with similar effects on sex industries. This may be because in these domestic contexts, the unstated enforcement prerogative is different from the official law on the books or because there are huge institutional inefficiencies in translating policy into action. Such similarities in outcomes have caused some non-lawyer feminists to consider the law as irrelevant, while others have attributed these outcomes to regulatory dynamics in post-industrial economies and to the interaction between the criminal law and modes of governmentality. I have meanwhile shown that where the market is the target of criminal law intervention, a more nuanced account of the interaction between the criminal law, civil law, market practices, and informal social norms is indispensable. In the anti-trafficking debates for instance, a key question remains whether labor law is not more suitable than the criminal law.

vi.  Conclusion—Coming Back Full Circle or the Way Forward? Back in 1989, launching the feminist legal project in law, Carol Smart expressed skepticism about the criminal law given its “juridogenic” nature. She warned against being seduced by it, and in particular against MacKinnon’s totalizing theory of gender subordination that led her to criminal law reform. Not long after that, Lacey critiqued MacKinnnon and Dworkin’s view on pornography for “representing feminism as a political doctrine which is conservative, authoritarian and unconcerned with free expression”46 while being too optimistic about state politics; a strategically uncertain path. Lacey’s predicament remains with us:

  Duncan Kennedy, Sexy Dressing etc.: Essays on the Power and Politics of Cultural Identity (1993), 46 137 ff.   Lacey (n. 2) 94–95 ff. 45

feminist approaches to criminal law    81 It is a serious and recurrent question whether any specific post-liberal vision can remain intact once one has entered into liberal legal reform. The subsequent processes of interpretation and enforcement involve the imposition of liberal categories and arguments which inevitably distort analysis of the situation or phenomenon which is to be ameliorated.47

More than 25 years after Smart’s initial provocation, we have come full circle. Whereas in the 1980s feminists struggled to get states to understand the core message of femin­ ism, today it has become common sense even for states. Rather than the criminal justice system adopting a feminist agenda, as Gruber claims, feminist reformers have adopted the criminal justice system’s agenda! In this chapter, I have charted feminist contributions to the building out of an expanding architecture of criminal law at the domestic, international, and transnational legal levels, which has traveled far and wide through the human rights machinery. Feminist “success” has however come at a steep cost, including for women’s rights. If, as Nourse claims, reform is typically a “marbled” affair and the rich veins of new law cut across the “plain vanilla” of settled, conventional belief, it is little surprise that the promises of criminal law remain illusory for feminists. Feminism’s own image might be a casualty where, as Gruber reminds us, opposition to the criminal law remains the hallmark of progressive movements. Looking forward, how should feminists relate to the criminal law? Gruber proposes outright disengagement as the lonely voice of women’s empowerment will not be heard above the sound and fury of the U.S. criminal system’s othering discourse. A return to the streets is the only way out. Alternatively, she looks to policy efforts that transform economic distributions and cultural attitudes. After all, the opportunity costs of pursuing criminal law reforms are substantial in that they ignore the distributive functions of both public and private law, which undergird the system of sexual subordination. Another alternative might be to continue mapping the disparate effects of the criminal law in relation to the institutions of the market and family and for varied constituencies therein. This may mean introspecting over-cherished feminist beliefs as recent research on rape myths in the United Kingdom suggests. Feminists cannot also be oblivious to unexpected political opportunities: although deeply tragic, the brutal Delhi gang rape and murder of a young woman mobilized millions of Indian men and women alike in a way that the Indian women’s movement has failed to do. Although a critical analysis of the resultant rape law reforms is sobering given the increased role for the Indian state, the incident seems to have shifted, even if minimally, the state’s tolerated residuum of abuse. Feminists in such circumstances have no choice but to engage with the state and may have to do so in a constrained manner. The challenge is to use the expanded policy opportunities around “violence against women” while resisting the individualizing, retributive thrust of governmental agendas.48   Lacey (n. 2) 94 ff.  Lise Gotell, “The Discursive Disappearance of Sexualized Violence:  Feminist Law Reform, Judicial Resistance and Neoliberal Sexual Citizenship,” in Dorothy E.  Chunn, Susan B.  Boyd, and Hester Lessard (eds.), Feminism, Law and Social Change: (Re)action and Resistance (2007), 130 ff. 47

48

82   prabha kotiswaran In conclusion, feminists today are at a unique juncture. The cautions of an earl­ ier generation of feminists against embracing state power have been thrown to the wind as feminists have increasingly gained a foothold in the governance of sex and gender through the criminal law. Feminists’ attachment to the gendered construction of harm and a commitment to representing females notwithstanding, our crit­ ical impulses entail wielding power sensibly, including speaking out for the interests of men when needed. The recent Indian rape law reforms, for instance, criminalize trafficking but not forced labor, a condition under which many Indian men struggle. Feminists may even consider abandoning the “intellectual ghetto” of genderand sex-based crimes to, say, critiquing core preoccupations of criminal law theory or its relation to the political economy of crime. Untethering feminist scholarship from an exclusive preoccupation with women, gender, sex, and harm could well further the feminist critique of criminal law rather than the feminist project in criminal law.

References Bernstein, Elizabeth, “Militarized Humanitarianism Meets Carceral Feminism: The Politics of Sex, Rights, and Freedom in Contemporary Anti-Trafficking Campaigns,” (2010) 36 Signs: Journal of Women in Culture and Society 45 Chuang, Janie A., Rescuing Trafficking from Ideological Capture:  Prostitution Reform and Anti-Trafficking Law and Policy (2010) Doezema, Jo, Sex Slaves and Discourse Masters: The Construction of Trafficking (2010) Gallagher, Anne, “Human Rights and Human Trafficking: A Quagmire or Firm Ground? A Response to James Hathaway,” (2009) 50 Virginia Journal of International Law 789 Gruber, Aya, “The Feminist War on Crime,” (2007) 92 Iowa LR 741 Gruber, Aya, “Rape, Feminism, and the War on Crime,” (2009) 84 Washington LR 581 Gruber, Aya, “A ‘Neo-Feminist’ Assessment of Rape and Domestic Violence Law Reform,” (2012) 15 Journal of Gender Race & Justice 583 Halley, Janet, “Rape in Berlin: Reconsidering the Criminalisation of Rape in the International Law of Armed Conflict,” (2008) 9 Melbourne Journal of International Law 78 Halley, Janet, “Rape at Rome:  Feminist Inventions in the Criminalization of Sex-Related Violence in Positive International Criminal Law,” (2009) 30 Melbourne Journal of International Law 1 Hathaway, James C., “The Human Rights Quagmire of ‘Human Trafficking’, ” (2008) 49 Virginia Journal of International Law 1 Jeffreys, Sheila, The Industrial Vagina: The Political Economy of the Global Sex Trade (2009) Lacey, Nicola, Unspeakable Subjects: Feminist Essays in Legal and Social Theory (1998) MacKinnon, Catharine, “Rape, Genocide and Women’s Human Rights” (1994) 17 Harvard Women's Law Journal 5 Munro, Vanessa, “An Unholy Trinity? Non-Consent, Coercion and Exploitation in Contemporary Legal Responses to Sexual Violence in England and Wales,” (2010) 63 Current Legal Problems 45

feminist approaches to criminal law    83 Nourse, Victoria, “The ‘Normal’ Success and Failures of Feminism and the Criminal Law,” (2000) 75 Chicago-Kent LR 951 Reece, Helen, “ ‘Unpalatable Messages’? Feminist Analysis of United Kingdom Legislative Discourse on Stalking 1996–1997,” (2011) 19 Feminist Legal Studies 205 Reece, Helen, “Rape Myths: Is Elite Opinion Right and Popular Opinion Wrong?,” (2013) 33 OJLS 445 Smart, Carol, Feminism and the Power of the Law (1989)

­c hapter 5

THE TRANSITION TO MODERNITY james q. whitman

i.  Introduction: The Rise of Modern Criminal Law During the period from roughly 1750 to 1830, Western criminal law underwent an upheaval. Within a few decades, forms of criminal justice that had endured for centuries vanished. This was the period that witnessed the disappearance of the bloody public sanctions of the pre-modern world and the transition to imprisonment as the ordinary form of punishment; the abandonment of medieval criminal proced­ ure, including most famously the continental practice of judicial torture; seminal campaigns against excessive use of the death penalty; critical steps in the formation of the common law criminal trial; the move to modern forms of codification and refined dogmatic criminal theory on the continent; the flowering of the modern philosophy of criminal law that followed the publication of Cesare Beccaria’s Dei Delitti e delle Pene in 1764; and a host of reform schemes associated with figures as diverse as Beccaria, Catherine the Great, Immanuel Kant, P.  J. A.  Feuerbach, Thomas Jefferson, and Jeremy Bentham. The momentous collapse of pre-modern criminal justice and the transition to modernity has been a source of fascination for popular culture and scholarship alike. Popular culture revels in the memory of the carnivalesque cruelties of pre-modern punishment, with its public hangings, mutilations, stocks, and torture; there are few

the transition to modernity    85 European tourist destinations that do not include a torture museum; and people who know nothing else about the history of criminal law have absorbed the idea that their pre-modern ancestors were hung, quartered, flogged, tormented in iron maidens, or publicly shamed in the pillory, whereas their modern contemporaries are merely imprisoned or fined. As for scholars, the transition to modernity in criminal justice has captured the attention of some of the most glittering names in occidental social theory, among them Émile Durkheim, Max Weber, and Michel Foucault. It has also been the subject of foundational debates in technical legal history, most notably surrounding John Langbein’s 1979 monograph Torture and the Law of Proof. Inevitably there is no single interpretive tale to be told about the revolutionary changes of the decades after 1750. There is one book that carries particular authority for many contemporary readers: Foucault’s 1975 Surveiller et Punir. Careful scholars must look beyond Foucault, though. There are considerable insights in Surveiller et Punir, but it was not the work of a scholar with an intimate specialist knowledge of the history of criminal justice. Meanwhile, even specialists have left many basic technical questions unresolved. For example, we do not fully understand the history of the development of modern common law criminal procedure. With so many open questions, it is not possible to write a chapter that pretends to present a complete picture, or even incontrovertible truths. Accordingly this chapter offers simply one scholar’s suggestions about how we might understand the causes and consequences of the collapse of pre-modern criminal justice and the transition to modernity. The older literature treated the post-1750 transformation as the fruit of the campaigns of Enlightenment reformers; the newer literature often offers interpretations in the spirit of Foucault, or sometimes of Langbein. This chapter focuses on several different themes, and offers one claim that may seem paradoxical. First, this chapter emphasizes the importance of state-building in this period: the decades after 1750 were the era of critical advances in state power in the Atlantic world. These were the decades when the states of the Atlantic world decisively acquired what Weberian sociology calls the Gewaltmonopol, the exclusive right to exercise authority backed by the threat of violence. Before 1750, many non-state actors exercised forms of criminal jurisdiction over their dependents. These included in particular the Church, local nobility, and heads of households. From the second half of the eighteenth century onward, Atlantic states definitively displaced these rival sources of authority. By the mid-nineteenth century, the state was for most purposes the sole actor empowered to threaten violent punishment. But the chapter also emphasizes that as the state triumphed, it was transformed: the old practices of monarchical government that had dominated before 1750 vanished, to be replaced by new forms of governance. Before 1750, monarchical states relied heavily on the threat of the blood punishments of execution and mutilation; but they also displayed their sovereignty by routinely pardoning offenders.

86   james q. whitman In the decades after 1750, this dramatic form of two-faced princely justice, on the one hand threatening death while on the other hand promising grace, disappeared. Indeed, the campaigns of Enlightenment reformers are best understood, not as humanitarian campaigns of the modern type, but as campaigns against this old form of two-faced princely justice. It is in describing the collapse of the old form of princely justice that the chapter makes its seemingly paradoxical claim:  as the old forms of monarchical justice vanished, what replaced them were primarily old forms of Church justice. The transition to modernity was not a transition to new or unheard of forms of law. It was a de facto Christianization of secular justice. As the old forms of monarchical justice faded, the states of the Atlantic world embraced a practice of crim­ inal justice that had historically been associated with one of the great rivals to state power, the Church. The Church had long made use of imprisonment rather than blood punishment, and it had developed a complex doctrine of culpability with roots in Christian theology. As the states of the Atlantic world assumed sole authority to inflict criminal punishment after 1750, they adopted these historic Church approaches. The transition to modernity was, in that sense, a triumph of Church law over princely law.

ii.  Reckoning with the Enlightenment The older literature on the transformations after 1750 gave the credit to the Enlightenment, an age, as Eberhard Schmidt declared, of “secularization, rational­ ization, humanization and liberalization”;1 and it is certainly true that the something we can reasonably call “Enlightenment” must play some role in any convincing account. Enlightened monarchs like Catherine the Great of Russia and Joseph II of Austria were major actors, as were leading philosophes like Voltaire. Indeed, the campaign for criminal law reform was central to the very making and meaning of the Enlightenment: Enlightenment reformers understood themselves to be opponents of barbarism and cruelty, and the barbarism and cruelty they condemned was frequently barbarism and cruelty in criminal justice. It was an Enlightenment commonplace that it was time to pass beyond perceived barbarisms that included judicial torture, excessive use of the death penalty, detentions without due process of law, and other authoritarian abuses; and the mobilization of support for enlightened   Eberhard Schmidt, “Die geistesgeschichtliche Bedeutung der Aufklärung für die Entwicklung der Strafjustiz aus der Sicht des 20. Jahrhunderts,” (1958) 75 Revue Pénale Suisse 343. 1

the transition to modernity    87 reform depended on agitation about notorious cases like those of Jean Calas and the Miller Arnold.2 Nevertheless, to invoke “the Enlightenment” is to leave all too many critical details unilluminated. There is no one program that counts as “enlightened”; the period after 1750 witnessed a startlingly varied efflorescence of theories and reform proposals. Philadelphia Quakers may have believed that an enlightened system of punishment would involve imprisonment under a regime of enforced silence; but Thomas Jefferson was just as certain that an enlightened system of punishment would involve hard labor and judicially ordered mutilations. Catherine the Great and Bentham may have questioned the death penalty, but Kant was a vehement proponent. If Bentham (and Beccaria before him) were pioneers of modern deterrence reasoning, contemporaries like Kant were pioneers of modern retributivism. When it comes to criminal law, reformers gave too many answers to Kant’s question what is Enlightenment? for the category “Enlightenment” to be wholly satisfactory. Moreover, as we survey the broader period from 1750 to 1850 or so, it is clear that there were profound structural changes underway that cannot easily be described as products of any simple Enlightenment reform. This was famously the period of the decline of public punishment and the emergence of imprisonment; something more complex than Enlightenment seems manifestly to have been at work in that momentous transformation, which had roots deep in the Middle Ages and which was not complete until well into the nineteenth century. The same is true of other topics. For example, the records of the Old Bailey make it amply clear that the modern common law trial had not yet taken shape by the late 1780s.3 The subsequent decades were thus the period of the first crystallization of common law criminal procedure and the modern common law of evidence. This was not a product of the Enlightenment in any straightforward way. Basic styles of legal reasoning changed fundamentally as well. Nicola Lacey has argued that English criminal law focused on character at the beginning of this period, making a broad assessment of the life and personality of the offender; whereas by the end of the period it focused in a modern way on individual responsibility for particular criminal offenses.4 Similar observations can be made about French law:  seventeenth- and eighteenth-century legal briefs frequently painted highly sentimental, even novelistic, pictures of the course of an accused person’s life; by the nineteenth century the focus was instead on culpability for the particular

2  Voltaire, Traité sur la tolérance (1763); David M. Luebke: “Frederick the Great and the Celebrated Case of the Millers Arnold (1770–1779): A Reappraisal,” (1999) 32 Central European History 379 ff. 3   Esp. John H. Langbein, “Historical Foundations of the Law of Evidence: A View from the Ryder Sources,” (1996) 96 Columbia LR 1168 ff., and John H. Langbein, The Origins of Adversary Criminal Trial (2003). 4  Nicola Lacey, “Responsibility and Modernity in Criminal Law,” (2001) 9 Journal of Political Philosophy 249 ff.

88   james q. whitman act charged.5 In all these respects there were seismic shifts in criminal law that seem to call for deeper explanations than just “Enlightenment.” If not Enlightenment, what? Two efforts at deeper explanation, both dating to the 1970s, have been particularly influential: Foucault’s account of the transition from bloody public punishment to imprisonment, and Langbein’s polemical argument about the decline of judicial torture. Each represents, in its own way, an attack on the proposition that the transition to modernity was the product of Enlightenment as traditionally understood. It is useful to begin by reviewing each of two famous interpretations before turning to the alternatives this chapter has to offer.

iii.  Reckoning with Foucault There is no more widely read author on the transition to modernity than Michel Foucault. We all know the famous opening of Surveiller et Punir, with its dramatic evocation of the 1757 execution by quartering of Robert-François Damiens, author of a failed attempt to assassinate Louis XV. We all know Foucault’s interpretation of that nightmare scene of punishment. The application of garish and frightening punishments like public quartering, Foucault held, served a purpose in the political sociology of the ancien régime: it displayed the sovereignty of a monarchy whose authority rested on public display; crime “injured” sovereignty; and injured sovereignty was repaired through the public torment of the body of the offender, in the case of Damiens ripped into pieces before the eyes of a massed crowd of Louis’ subjects.6 Not least, we know Foucault’s interpretation of the nature and consequences of the transformation that followed. Enlightenment reformers were not motivated by a humanitarian “sensibility” of a modern kind. Instead, the aim of the Enlightenment was to punish in a “stricter and more constant” manner. Pre-Enlightenment law, Foucault argued, permitted a margin of toleration, accepting a variety of “illegalities” practiced by various social classes and orders. Enlightenment reformers sought to eliminate that margin of toleration—in particular, the margin of toleration that was permitted to the lower orders.7 The “birth of the prison” toward the end of the century reflected a profound change in the relations between the power of the state 5   David Bell, Lawyers and Citizens (1994), and my review, “From Cause Célèbre to Revolution,” (1995) 7 Yale Journal of Law and Humanities 457 ff. 6   Michel Foucault, Surveiller et punir. Naissance de la prison (1975), 52–53. 7   Foucault (n. 6) 84, 91.

the transition to modernity    89 and the people under its rule. The new prisons, of which Foucault took Bentham’s panopticon as the paradigm, focused on disciplining the soul rather than disciplining the body. Instead of exposing cruelly punished offenders to the hungry eye of the public, they exposed offenders hidden from the public to the constant gaze of prison officials. Surveiller et Punir is undoubtedly the most influential book ever published on legal history—even if Anglo-American specialists in technical legal history are often loth to cite it. It was revolutionary in its effort to offer a thoughtful histor­ ical interpretation of pre-modern blood punishments. Not least it was right, as this chapter will suggest later, to argue that there was some deep shift in the understanding of sovereignty at work in the late eighteenth-century transformation in criminal justice. Nevertheless, there are reasons why the specialists hesitate to rely on Foucault. He was not a man with deep learning in the history of criminal justice, and as we wrestle with the transition to modernity, we must begin by acknowledging the limits of his famous book. The gravest difficulty with Foucault’s argument is one that he perhaps might have acknowledged later in his career: As Pieter Spierenburg forcefully argued in response to Surveiller et Punir, and as other scholars continue to argue,8 imprisonment had a very long history before the period Foucault chose to write about.9 There was no sudden discourse shift that led to a “birth” of the prison. Solid prison history must look well beyond Surveiller et Punir. In particular, solid prison history must concern itself with the history of the Christian church. The Church had a tradition of imprisonment that rested on more than a millennium of penitential practice. Early medieval monastic manuals prescribed confinement and fasting. Especially after the Fourth Lateran Council of 1215, Church officials were prohibited from inflicting the blood punishments that were standard in the secular world. Barred from shedding blood, the Church imposed sentences of imprisonment;10 and imprisonment continued as a standard Christian punishment in the early modern period, which saw important experiments in both the Dutch Protestant and Italian Catholic worlds.11 The triumph of the “penitentiary” as a secular punishment was, as its name suggests, the triumph of what was historically a Church practice; and unsurprisingly it was often surrounded by Christian rhetoric.12 None of this made its way into the interpretation of   e.g. Guy Geltner, The Medieval Prison: A Social History (2008), 10.   Pieter Spierenburg, The Spectacle of Suffering (1984), viii–ix. 10   Classically F. A. K. Krauss, Im Kerker vor und nach Christus (1895); for modern discussion and more recent citations, see Geltner (n. 8) 9–10. 11  For Dutch experiments, see already Thorsten Sellin, Pioneering in Penology:  The Amsterdam Houses of Correction in the Sixteenth and Seventeenth Centuries (1944); for San Michele and other Italian Catholic experiments, see now Mary Gibson, The Prisons of Rome (forthcoming), ch. 1. 12   Well presented in Michael Ignatieff, A Just Measure of Pain:  The Penitentiary in the Industrial Revolution, 1750–1850 (1978). 8

9

90   james q. whitman Foucault, who thought of himself as a philosopher of the technologies of power, not a student of the mysteries of religion. Foucault’s account of pre-modern blood punishments is also vulnerable to import­ ant objections. It is certainly true that bloody public punishment featured promin­ ently throughout the pre-modern human world. Nevertheless, in practice there was a notable reluctance to inflict blood punishments in the pre-modern West; it is highly misleading to imagine that pre-modern sovereignty was displayed through routine ferocity. On the contrary, as this chapter observes throughout, what was most important about pre-modern justice was in many ways its reluctance to inflict blood punishments; and it was that reluctance to inflict punishments that troubled many Enlightenment reformers. The quartering of Damiens is a particularly misleading example. Quartering was not a typical criminal punishment; after all, an attempt to assassinate the monarch was not a typical crime. Moreover, the culture of public punishment in eighteenth-century France was more varied and sociologically complex than Foucault’s book implies. As this author has argued, pre-modern punishment was also designed to dramatize distinctions in social status that stood in a fraught relationship with princely sovereignty. Nobles and other high-status persons enjoyed significant immunities from public dishonor long before the supposed shift to a disciplinary panopticon-ization of punishment; indeed, they were often quietly imprisoned in comparative comfort.13 Just as careful history of punishment must take pre-modern Christian imprisonment into account, it must take pre-modern high-status imprisonment into account. The history of continental punishment is in large measure a history in which historically high-status treatment has gradually been extended to the entire population. Foucault can perhaps also be taxed with neglecting another important shift in the climate of punishment: the mysterious decline in the taste for violence.14 There was more at work in the decline of violent public punishment than a shift in sovereign practices. Nineteenth-century crowds no longer wanted to watch the nightmare scenes of violence that their ancestors had feasted upon. This large-scale decline in the taste for violence has been pondered by many figures, from Norbert Elias to Robert Darnton to, most recently, Steven Pinker. It touched many aspects of modern life beyond punishment, and it has no simple or obvious relationship with the problems of sovereignty or discipline. After all the objections are made, though, there remains much of deep value in Surveiller et Punir. Foucault was a gifted reader of the sources that he read. He was entirely right to interpret late eighteenth- and nineteenth-century imprisonment against the background of the blood punishments of the pre-1750 world. Most of all, he was also entirely right in detecting a transformation in the understanding of state sovereignty, as this chapter will suggest shortly.   James Q. Whitman, Harsh Justice: Criminal Punishment and the Widening Divide between America 14 and Europe (2003).   Spierenburg (n. 9) 183–199. 13

the transition to modernity    91

iv.  Reckoning with Langbein Four years after the appearance of Foucault’s book, Langbein published a much more technical, much less widely read, but no less important and challenging, monograph, Torture and the Law of Proof. Like Surveiller et Punir, Torture and the Law of Proof was an assault on the received history of the Enlightenment; but it was an assault in a different key. Foucault made the case for the non-humanitarian Enlightenment, the Enlightenment of relentless discipline. Langbein, by contrast, chose to treat the Enlightenment as fundamentally irrelevant. The sources of legal change were to be sought, not in the ideals of enlightened reformers, but in the technical needs and dilemmas of the legal profession. In particular, those needs and dilemmas occasioned the decline of one of the practices most fiercely denounced by enlightened reformers, judicial torture. Langbein, a figure whose brilliance is matched by few in the field, is an internalist legal historian:  he looks for the causes of change within the dynamics of the legal profession. This is true of his seminal work on the “lawyerization” of the common law trial,15 and it is also true of Torture and the Law of Proof, which presented the decline of judicial torture as the product of internal forces within the law of proof. Pre-modern torture, Langbein maintained, was an institutional response to a dilemma caused by the unrealistically high standards of proof of the so-called Romano-canonical system; and when it came to an end it came to an end because the law of proof changed. To understand Langbein’s argument, and indeed to understand the transition to modernity more broadly, we must know something about the system of proof the role of which he highlighted. As Langbein rightly said, the forms of pre-modern punishment were intimately linked with the forms and standards of pre-modern proof. It is important to emphasize two aspects of this pre-modern system. First, the romano-canonical system of proof revolved around the problem of the infliction of one particular class of punishments: the blood punishments of mutilation and execution. Secondly, pre-modern reasoning about the connection between punishment and proof was the product of Christian moral theology at least as much as it was the product of law. In particular, it was the product of a Christian moral theology that frowned on the shedding of blood; and it revolved around theological concepts like “moral certainty” and “suspicion.” Here we must begin by understanding the nature and use of blood punishments in pre-modern criminal justice. Before the nineteenth century, secular justice relied in principle on mutilation and execution. It is important that we not exaggerate the extent to which these sanctions were actually applied. Pre-modern criminal justice 15

  Langbein (n. 3).

92   james q. whitman showed a distinct reluctance to inflict blood punishments, especially execution, and offenders were often pardoned or otherwise spared. Students of the history of the common law know about some of the devices that were used to avoid inflicting blood punishments, such as benefit of clergy, the pious perjury, and the extensive use of transportation.16 There were other devices as well, both on the continent and in England. Even in the sixteenth century, the bloodiest of the pre-modern period, we find an unmistakable reluctance to execute.17 Still, in principle, secular justice could shed blood, and it sometimes did; it even sometimes staged horrific scenes like the public quartering of Damiens. But the decision to inflict such punishments was governed by a large body of moral theology. The place of that moral theology in the pre-modern system of punishment has often been misunderstood but, as this author has argued elsewhere, it is of great significance for understanding both the pre-modern law of proof and for understanding the transformation that took place beginning in the latter part of the eighteenth century.18 The focus of the moral theology of blood punishment was on the spiritual safety of the judge; and it reflected the same reluctance to inflict blood punishments that we find in benefit of clergy and the pious perjury. The Christian tradition deemed the infliction of blood punishments to be risky to the soul. Accordingly, it counseled that the judge attain what was called “moral certainty” before proceeding to order execution or mutilation of an offender. “Moral certainty” required proof that transcended almost any doubt. In order to achieve moral certainty, judges were required to have the testimony of two eyewitnesses, a confession, or the equivalent; and they were required to weigh the evidence before them according to highly mechanical formulae. This was the system of “legal proofs”; it famously permitted the use of torture under certain circumstances in order to obtain a confession. It is important to recognize that this highly mechanical system of proof was not primarily designed to elucidate factual mysteries. The system assumed that defendants were ordinarily guilty as charged.19 Its core purpose was not to resolve factual mysteries, which are always rare in criminal justice, but to provide judges with moral comfort, permitting them to assure themselves that they had not sinned by 16   On these devices, see J. M. Beattie, Crime and the Courts in England: 1660–1800 (1986); and for the importance of the pre-modern background to nineteenth-century developments, David Cairns, Advocacy and the Making of the Adversarial Criminal Trial, 1800–1865 (1998), 4–21; Allyson May, The Bar and the Old Bailey, 1750–1850 (2003), 13–15. 17   See the observations of Brad Gregory, Salvation at Stake: Christian Martyrdom in Early Modern Europe (1999), 90–96. 18   James Q.  Whitman, The Origins of Reasonable Doubt:  Theological Roots of the Criminal Trial (2008). 19   Bruce P. Smith, “The Presumption of Guilt and the English Law of Theft, 1750–1850,” (2005) 23 Law and History Review 133 ff.; cf. John H. Langbein, Torture and the Law of Proof (1979), at e.g. 7; Langbein, Origins of Adversary Criminal Trial (n. 3) 266.

the transition to modernity    93 involving themselves in the wrongful bloodshed of an innocent victim. That end was served by the relatively mechanical character of the system of legal proofs, which made it possible for a judge sitting in a blood case to deny his own personal agency. In the standard jargon of Augustinian moral theology, the highly formalized system of proof permitted the judge to declare to the accused, “it is the law that kills you, and not I”; it allowed him to maintain that he was, in a phrase from moral theology later embraced by Montesquieu, merely “the mouth of the law.”20 However, this demanding mechanical system of legal proofs applied only to judges who were saddled with the obligation of ordering blood punishments. As long as no blood was shed, the judge’s soul was in no danger; and it was perfectly acceptable for judges to punish offenders in cases in which full legal proof had not been obtained—in cases in which, in the technical language of moral theology, judges had attained, not “moral certainty,” but merely “suspicion.” However, in such cases judges were only permitted to order “suspicion punishments,” non-blood punishments such as fines, exile, or hard labor. Because the judge’s salvation was not at stake when he ordered suspicion punishments, there was no need for him to subject himself to any mechanical rule of proof.21 As Peter Holtappels observed in 1965,22 the link between standards of proof and forms of punishment is critical to understanding the transformation of criminal justice in the eighteenth century. Described in the language of pre-modern law, the eighteenth-century transformation was a transition from blood punishments (requiring rigorous proof) to milder suspicion punishments (requiring only more open-ended proof). The mild punishments that became normal in the eighteenth and nineteenth centuries were not something new; they were the subsidiary punishments of the past, now taking center stage. The shift to the lower standard of proof and milder punishments was the point of departure for Torture and the Law of Proof. Lower standards of proof established themselves, Langbein argued, because the centuries-old Romano-canonical system had put intolerable internal pressure on the law. The Romano-canonical requirements were too difficult to meet:  producing two eyewitnesses was an essentially impossible task, and the same was true of all other means of attaining full proof. It was only for that reason that judicial torture established itself. Acquiring a confession was the only means of satisfying the excessively stiff requirements of the medieval law of proof. Pre-modern legal officials had not used judicial torture because they were especially barbaric or unenlightened. They had used judicial torture because their 20   The system was certainly not as “mechanical” as it sometimes made out to be. Nevertheless, its highly formal character did permit judges to deny personal responsibility. See more fully my discussion in Whitman (n. 18). 21   Mirjan Damaska, “The Death of Legal Torture,” (1977) 87 Yale LJ 865 ff.; Mathias Schmoeckel, Humanität und Staatsraison (2000), 295–360. 22   Peter Holtappels, Die Entwicklungsgeschichte des Grundsatzes “in dubio pro reo” (1965), esp. 63–74.

94   james q. whitman misbegotten law of proof left them no other means of obtaining convictions of guilty offenders. Judicial torture was the perverse consequence of creating an excessively demanding law of proof. This overly demanding law of proof had already begun to break down well before the eighteenth century; it was not the decline of torture that transformed the law of proof, but the transformation of the law of proof that led to the decline of torture.23 Langbein believed there were lessons in this history for modern lawyers: excessively rigorous standards of proof were producing similarly perverse consequences in modern American law, which used plea bargaining in order to avoid the dilemmas of proof just as medieval justice used torture in order to avoid the dilemmas of proof.24 This was, and remains, an argument of breathtaking power; but like Foucault’s it leaves some questions uncomfortably lingering. In particular, as Mathias Schmoeckel has insisted, Langbein’s argument leaves too much about the chronology of the transformation of punishment unexplained. Internalist interpretations like Langbein’s often show their weakness in dating changes. Why should a system change at one point rather than another? Plausible answers typically involve some external shock, and Schmoeckel argues that some such external shock must have been at work in the eighteenth century. After all, the dilemmas of excessively high proof standards had been present for centuries; and suspicion punishments had been available as well. Why should the pre-modern system have completely broken down only when it did? The most natural answer, Schmoeckel suggests, is the one scanted by both Foucault and Langbein:  the Enlightenment.25

v.  The Value of the Weberian Approach Schmoeckel certainly succeeds in reviving the question that both Foucault and Langbein dismissed; and he is surely right that the explanation of the great transition must have something to do with a growing unwillingness to inflict blood punishments and to use torture. The most sensible reading of Langbein’s material

  John H. Langbein, Torture and the Law of Proof (new ed., 2006), 10–12.   John H. Langbein, “Torture and Plea Bargaining,” (1978) 46 University of Chicago LR 3 ff. 25  Mathias Schmoeckel (n. 21), esp. 504–506, with Langbein’s response in Torture and the Law of Proof (n. 23) xiii fn. 9; Wolfgang Sellert, Book Review in 119 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte (2002), 605 ff. (in German) does not disagree with Schmoeckel on this point. 23

24

the transition to modernity    95 is probably one that takes changing eighteenth-century sensibilities as a true independent variable: it is true that the ius commune tradition had always shown a reluctance to inflict blood punishments, imposing exacting standards of proof before execution or mutilation could take place. Nevertheless, something did change in the eighteenth century. Legal actors became markedly less willing to use, or even threaten, torture; and as a result the Romano-canonical system became unworkable. That change must have had something to do with Enlightenment reform attitudes. Nevertheless, “Enlightenment” is still not a wholly satisfying answer. Ideas emerge in particular historical contexts, and those contexts, too, need to be explained. Moreover, there remain real mysteries about what “Enlightenment” was. Schmoeckel, echoing the older literature, treats it as a movement in favor of “milder laws” that would further respect “human dignity.”26 Yet, as Foucault (and more recently Samuel Moyn) have insisted, there is good reason to be skeptical that eighteenth-century movements were really in favor of “human dignity” in the modern sense;27 and it is very far from clear that Enlightenment reformers were all in favor of mildness. Schmoeckel’s own account focuses on Frederick the Great of Prussia, whose reforms were intended to facilitate tougher punishment.28 Even if we agree that the Enlightenment mattered, we still need some richer account of what it was. In the search for a richer account, this chapter suggests that we start with the institutional history of state-building, and in particular with Weber’s histor­ ical sociology of the monopolization of violence. Weber deserves more attention than he always receives from historians of criminal law, among whom the imposing figure of Foucault has tended to command so much more attention. He was a trained legal historian; his historical sociology was built on his understanding of the development of legal institutions; and his monopoly of violence model can be used to make superb sense of the broad sweep of the history of criminal law. Weber laid the emphasis where it belongs: on the competition between monarchical states and their rivals over the authority to inflict punishment. Criminal law involves discipline and punishment by the state. That implies, as Weber observed, that a society that relies on criminal law is a society in which the state has displaced rival organizations that might claim the authority to discipline and punish. Weber’s term for such rival organizations was Herrschaftsverbände, “dominance associations,” associations whose masters assert some kind of right to rule. The Sicilian Mafia is a classic example of such a dominance association— a rival to the state claiming far-reaching authority to rule. In the past, there were many other such non-state dominance associations—in particular, clans,   Schmoeckel (n. 21) 503.   Samuel Moyn, The Last Utopia: Human Rights in History (2010). 28   See Sellert (n. 25) 607. 26 27

96   james q. whitman patriarchal households, nobles with the rule over manors, and the Church—all claiming the autonomous authority to discipline and punish their subjects and dependents. Weber understood the history of Western criminal law as a history in which the state gradually displaced these rival dominance associations, acquiring the Gewaltmonopol, the monopoly of the exercise of authority backed by the threat of violence, emblematized by the exclusive right to administer criminal punishment.29 This is an approach with obvious power for describing the general trend of the history of criminal law. Over the last several centuries, the Atlantic world has indeed been unmistakably marked by a steady process of the monopolization of legitimate violence by the state. This is particularly true of northern continental Europe, where the process has continued strong into the present day. We see the process at work on the continent in the early modern period, with state campaigns to eliminate seigneurial jurisdiction and to criminalize dueling. We still see the same process at work today in the steady pressure to eliminate the authority to exercise violence outside a small class of state officials. Thus, over the last century employers have lost the authority to physically chastise their employees; husbands have lost the authority to physically chastise their wives, and the license to kill their wives’ lovers as well; teachers have lost the authority to physically chastise their pupils; and parents are even losing the authority to physically chastise their children. Creditors, too, have lost the authority to seize the person of their debtors. The right to bear arms has been sharply curtailed in the Atlantic world, at least outside the contemporary United States, and the individual resort to violence has been limited to cases of self-defense in response to imminent threats. In all these respects what were once perfectly acceptable forms of the exercise of violence have been criminalized; we are in the presence of the master trend in the making of modern criminal law. The decades after 1750 were a critical stage in this long process. The process certainly well predates 1750. Nevertheless, in a host of ways the decisive triumphs in the vindication of the authority of the state did not come before the end of the seventeenth century; the full shift to a modern monopolization cannot be dated before the period from 1680 or so; and it is fully justifiable to think of the decades after 1750 as a period when European states finally came into their own as true sole sovereigns. In particular, it is useful to think of post-1750 European states as triumphing, after many centuries of conflict, over three classes of rivals:  the nobility, the Church, and heads of household. The transition to modernity in criminal law should be read against the background of those triumphs of state authority.

  Max Weber, Wirtschaft und Gesellschaft (5th ed., ed. Johannes Winckelmann, 1976), Part 1, 28–29 (= Teil 1, Kapitel 1, §§ 16–17). 29

the transition to modernity    97

vi.  The Monopolization of Violence (1): State and Nobility Conflicts with the nobility played an especially important role in the formation of criminal law. Perhaps the most telling sign of the comparative weakness of pre-eighteenth-century states lay in their failure completely to suppress private noble warfare—a goal that eluded monarchies until the latter part of the seventeenth century.30 Even once states succeeded in suppressing the private armies of the nobility, they could not succeed in suppressing dueling.31 Nor, importantly, could pre-eighteenth-century states fully succeed in suppressing noble control over criminal punishment. Here the great symbolically charged conflict was over haute justice, the authority to inflict the death penalty. Nobles had always had their own courts for judging their dependents, and they commonly laid claim to the authority to execute those whom they condemned—an authority symbolized, ominously, by the gallows they erected in front of their residences. Monarchies struggled for centuries to assert the exclusive right of haute justice. Nevertheless, in the seventeenth century continental nobles continued to erect their gallows.32 The sole authority to inflict the death penalty is the most symbolically important attribute of a state that has attained a monopoly on legitimate violence; the most basic right of sovereignty is the right to kill; and before the end of the seventeenth century it is by no means clear that continental states had secured that sole authority. In other critically important ways, too, the princely states of the early modern period had not succeeded in displacing noble authority. Royal courts worked to draw disputes out of the jurisdiction of seigneurial courts for many centuries, and they had certainly progressed very far by the seventeenth century; but their triumph was not yet complete.33 Even more importantly the day-to-day management of local justice was commonly in the hands of local notables: through the eighteenth century the bulk of low-stakes criminal matters was handled through the administrative authority of noble parlementaires in France and of the local squirearchy in England, rather than by royal courts; and similar things were true elsewhere.34 Indeed, in France the noble parlements continued to lay claim to control over the   Justine Firnhaber-Baker, “Seigneurial War and Royal Power in Later Medieval Southern France,” (2010) 208 Past & Present 37 ff.; Ariette Jouanna, Le devoir de Révolte (1989); Brian Sandberg, Warrior Pursuits: Noble Culture and Civil Conflict in Early Modern France (2010). 31   e.g. Robert Schneider, “Swordplay and Statemaking,” in Charles Bright and Susan Harding (eds.), 32 Statemaking and Social Movements (1984), 265–296.   Jouanna (n. 30) 30–31, 384–388. 33   Jean Gallet, “Justice Seigneuriale,” in Lucien Bély (ed.), Dictionnaire de l’Ancien Régime (1996), 714–717; H.-J. Schulze, “Grundherrschaft,” in Handwörterbuch zur deutschen Rechtsgeschichte 1, cols. 34 1824–1842.   Norma Landau, The Justices of the Peace, 1679–1760 (1984). 30

98   james q. whitman leading institutions of justice. The conflict between monarchy and nobility over the control of justice gave rise to some of the most fearsome political struggles of the period after 1750, including in particular the hard-fought years after the Maupeou coup of 1771, which began in a strong assertion of royal authority only to end in failure.35 Nor, finally, had monarchical states succeeded in establishing norms of equality before the law. When nobles were punished by the state, they claimed the right to privileged forms of punishment. To the extent the success of modern states is a success in subjecting persons of every social status to the same rule of law, the modern state had not yet begun to emerge before 1750 at the earliest.36

vii.  The Monopolization of Violence (2): State and Church The rivalry between princes and nobles was thus very much alive before the latter half of the eighteenth century. Similar things can be said of the rivalry between princely states and the Church. That rivalry is of unique historical significance. It is a fact of fundamental importance for the development of the Western legal tradition that for many centuries there were two competing, parallel systems of centralized justice, both highly sophisticated:  on the one hand, princely justice and, on the other hand, Church justice. Many of the most important and bitter legal conflicts of the later Middle Ages and after were conflicts over jurisdiction between princely courts and Church courts, and those conflicts continued, if with diminishing fury, into the early eighteenth century.37 The pre-1750 rivalry between Church and princely justice had a profound impact on the shape of Western criminal law, and it is essential to review it in some detail. The two parallel systems of criminal justice were deeply different in character. We have already reviewed one critical contrast: state and Church differed in their forms of punishment, with the state making use, at least in principle, of blood punishments, while the Church relied on imprisonment and fines. (The Church did pass sentences calling for blood punishments; but in such cases it turned the offender 36   e.g. Keith Baker, Inventing the French Revolution (1990), 139–146.   Whitman (n. 13).  David Lemmings, Law and Government in the Long Eighteenth Century:  From Consent to Command (2011), 76–77; Benoît Garnot, Justice et Société en France aux XVIe, XVIIe et XVIIIe siècles (2000), 120. 35

37

the transition to modernity    99 over to the “secular arm” for execution of the judgment.38) But the contrast in the practice of punishment was only part of what distinguished princely justice from Church justice. There were also fatefully important differences in the orientation toward proportionality; in practices of mitigation; and in doctrinal elaboration. Today we think of proportionality as a master concept in any system of criminal law, but it was not always so. Proportionality in pre-modern criminal punishment was fundamentally a concern of Church law, not princely law. Church punishments grew out of the imposition of penance, and penance was a practice of proportional punishment; it prescribed so-and-so-many days of fasting or confinement, or as the case might be so-and-so-many recitations of the Hail Mary, in retribution for a given sin. The penitential attitude perpetuated itself in the criminal justice of the Church. Sentences of imprisonment (or, as the case might be, fines) were punishments to be meted out proportionally, and Church justice became justice that sought the just measure of punishment. Princely justice was deeply different. Ordinarily there was no logic of proportionality behind the infliction of the blood sanctions of death and mutilation; to kill or disfigure an offender was to impose an absolute punishment, not a measured one. Sinners discharged their guilt by paying a proportional price; by contrast, the executed and the mutilated were subjected to a total and irrevocable change in status. The same was true of the beneficiaries of a princely pardon, who were simply spared; a pardon, too, was an absolute act not a measured one. Consequently, judges ordering blood sanctions, and princes according grace, had no need to contemplate problems of the just measure of punishment. Church and secular justice also had fatefully different approaches to mitigation. Every criminal justice system needs some means of mitigation, since all criminal prohibitions sweep too broadly. For example, no system could punish all homicides or all thefts without exception; there are always some cases that seem to call for milder treatment. If some means of mitigation is always necessary, though, different criminal justice orders can choose different means. On the one hand, mitigation can be achieved through the exercise of sovereign grace or mercy. Thus, a criminal justice system may convict all perpetrators of theft without distinctions of culpability, leaving it to the sovereign to pardon or commute the punishment of those whom the sovereign deems more deserving. The exercise of such a power of grace is, of course, an important tool for claiming and reinforcing sovereign legitimacy. Indeed, it is as symbolically important as the exercise of haute justice: if killing is a potent display of sovereignty, it is no more potent than pardoning. Pardoning is not the only means of mitigation, though. Mitigation can also be achieved before conviction, through culpability analysis: rather than convicting all perpetrators of homicide without exception, criminal justice may excuse or justify  R.  Laprat, “Bras séculier—livraison au,” in Dictionnaire du droit canonique (1935–1965), 2, 981–1060. 38

100   james q. whitman the acts of some of them, shielding them from punishment, or mitigating their punishment, and thereby making the exercise of grace superfluous. In that sense, there is a momentous functional tradeoff between the exercise of grace and the analysis of culpability, with the former much more at home in a system oriented toward the ceremonial legitimacy of the sovereign. Grace comes naturally to the monarchical form of government; the republican form will always lean more toward culpability analysis.39 In pre-modern Western criminal law, the exercise of grace and the analysis of culpability could be found to some extent in both secular and Church justice.40 Nevertheless, unsurprisingly, grace loomed larger in princely practice than in Church practice. Grace was certainly not absent in the Church. It played a fundamental role in Christian theology: in its soteriology, the Church laid immense weight on the fund of unmerited grace granted to humankind by the sovereign indulgence of God, and the papal monarchy certainly dispensed grace in many classes of cases.41 Nevertheless, in its worldly criminal law the Church spent centuries developing doctrines of mitigation through culpability analysis, in ways that set the stage for the development of modern Western criminal justice.42 The Church’s law of culpability revolved heavily around the analysis of individual intent. The religious origins of this emphasis on individual intent are easy to discern: analysis of the individual state of mind probably mattered more in the Christian tradition, which emphasized orthodoxy, than in other leading world religions, which emphasized orthopraxis. The teachings of Augustine and other late antique theologians laid great weight on the avoidance of improper emotional states such as anger and cupidity. The law of the forum internum, the “internal forum” of conscience, supervised through confession, made much of these traditions. God was capable of peering into the soul of the penitent, and the confessor was in a position to demand confidences; confession was an ideal setting for investigations of the individual state of mind.   The historical interpretation of grace deserves more discussion than this chapter can give. See esp. Douglas Hay, “Property, Authority and the Criminal Law,” in Douglas Hay, Peter Linebaugh, John G. Rule, E. P. Thompson, and Cal Winslow, Albion’s Fatal Tree: Crime and Society in Eighteenth-Century England (1975), 17–63; the critique of John H.  Langbein, “Albion’s Fatal Flaws,” (1983) 98 Past and Present 109; and my comments at Whitman (n. 13) 260 fn. 46. 40   Bernard Schnapper, “Peines Arbitraires du XIII Au XVIII Siècle (Doctrines Savantes et Usages Francais) (pt. I),” Tijdschrift voor Rechtsgeschiedenis (1973) 237 ff., 268–269 for the contrast between Church and Royal traditions, and throughout for (to my mind not always convincing) arguments about the influence of culpability analysis on secular law. The exercise of royal pardoning power certainly often took questions of culpability into account, but as one among a variety of factors. The crit­ ical transition of the nineteenth century did not involve an entirely new introduction of culpability, but the eclipse of the many other factors that had historically played a role. 41   Kirsi Salonen and Ludwig Schmugge, A Sip from the “Well of Grace”:  Medieval Texts from the Apostolic Penitentiary (2009). 42  Pihlajamäki and Korpiola, “Medieval Canon Law:  The Origins of Modern Criminal Law,” Chapter 10 in this volume. 39

the transition to modernity    101 These traditions made themselves felt in the law of the forum externum, the Church courts; and it is in the law of the forum externum that we see the development of a distinctive doctrinal tradition of criminal law within the Church.43 Every aspect of Church law, from the law of contract to the law of marriage, was marked by an emphasis on individual intent; inevitably the same was true of criminal law. As a result, our familiar modern culpability analysis, founded in the determin­ ation of individual mens rea and actus reus, can be traced back to medieval Church teachings. By contrast, grace played a much larger role in princely justice. To be sure, Church teachings on culpability influenced the theoretical writings of secular jurists from the Middle Ages, and especially from Grotius, onward.44 To some extent, Church teachings also influenced secular treatise-writers of the eighteenth century like Muyart de Vouglans and Blackstone, who presented doctrines of culpability in their discussions of the general principles of criminal law,45 or in their accounts of the law of homicide, always the focus of much Church theorizing.46 Nevertheless, if Church teachings were sometimes repeated, practice and theory differed considerably. In practice, most princely criminal law was framed on a very low level of doctrinal sophistication, featuring bald prohibitions on such offenses as theft and highway robbery.47 Princely justice did not trouble itself much about delicate problems of mens rea. If culpability analysis was weak in princely justice, however, the promise of princely grace always hovered on the horizon, at least for some number of deserving offenders. As A. M. Hespanha writes, princes sought to sustain their political authority by making themselves loved, and not just feared,48 and appeals to the king’s pardoning power were common. Those appeals left the rich pre-modern archival record most famously exploited by Natalie Davis, and they shaped the procedures and assumptions of the common law as well.49 43   See classically the treatment of Stefan Kuttner, Kanonistische Schuldlehre von Gratian bis auf die Dekretalen Gregors IX. (1935). 44   For medieval jurists, Schnapper (n. 40) 260–277; the the early modern period Hugo Grotius, De Iure Belli ac Pacis Libri Tres (comm. F. Gronovius and J. Barbeyrac, 1773), Book 2, 555–638 (ch. 20); and for his most influential follower, Samuel Pufendorf, De Jure Naturae et Gentium (comm. J. N. Hertius, J. Barbeyrac, and G. Mascovius, 1759), 3, 161–210 (= Bk. 8, ch. 4). 45   Muyart de Vouglans, Les Loix criminelles dans leur ordre naturel (1780), 1–36. 46   William Blackstone, Commentaries, Vol. 4, 176–204, in Blackstone’s Commentaries on the Laws of England (ed. Wayne Morrison, 2001), 139–160. 47   When authors like Muyart or Blackstone discussed particular crimes they had to work with the princely legislation that actually governed their countries. See e.g. de Vouglans (n. 45)  303–304 on highway robbery, and Blackstone on the same topic (n. 46)  iv, 243, in Cavendish edition p.  192; cf. the remarks of Tanguy le Marc’hadour, “Arrestographie et Doctrine Pénal dans la France Moderne (XVIIe–XVIIIe Siècles),” in Serge Dauchy and Véronique Demars-Sion (eds.), Les Recueils d’Arrêts et Dictionnaires de Jurisprudence (XVIe–XVIIIe Siècles) (2005), 279. 48   António Hespanha, La Gracia del Derecho. Eonomia de la Cultura en la Edad Moderna (1993), 229. 49   Natalie Zemon Davis, Fiction in the Archives: Pardon Tales and their Tellers in Sixteenth-Century France (1987); and for the administration of royal grace in eighteenth-century France, Richard Mowery Andrews, Law, Magistracy and Crime in Old Regime Paris, 1735–1789 (1994), 394–408. It should be said,

102   james q. whitman The culpability analysis developed by the medieval Church would eventually fully dominate the practice of secular justice, but not until the traditions of princely grace had faded.50

viii.  The Monopolization of Violence (3): State and Household The history of the emergence of modern criminal law is also bound up with one further rivalry: the rivalry between the state and the patriarchal household. Historically much discipline and punishment has taken place within the household. Here it is important to remember that households of the past were frequently larger and more complex organizations than the families of today. The household was the main center of production in the pre-modern world. Firms were commonly organized as households; and households were in an important sense firms, engaged in production both for domestic consumption and for the market. The master of a well-to-do household exercised authority not only over his descendants and his wife or other sexual partners, but also over apprentices and slaves; and he had considerable liberty to exercise that authority through violence. Conversely, the head of a firm was understood to be, in the language of the German trad­ ition, Herr im Hause, master of a household with all the disciplinary authority of a paterfamilias. The authority of masters of the household was very considerable before 1750. In late seventeenth-century England, for example, we find masters fatally beating their apprentices—and jurors defending their right to do so.51 We find, of course, the widespread practice of slavery—though also widespread efforts to deny masters the authority to kill their slaves. Needless to say, the authority of husbands to use brutal force on their wives, and of fathers to use brutal force on their children, was universally accepted. These internal forms of household violence would also begin to vanish in the period after 1750, with striking consequences for the shape of criminal law. however, that royal pardons played a far more limited role in early modern France, where the sovereign courts acquired considerable control over the processes of mitigation, than in England. For the persistence of the orientation toward grace in common law procedure, Anat Horovitz, “The Emergence of Sentencing Hearings,” (2007) 9 Punishment & Society 271 ff. 50   cf. e.g. Jean-Marie Carbasse, Histoire du droit pénal et de la justice criminelle (2nd ed., 2006), 51 349–350.   Discussion and references in Whitman (n. 18) 175.

the transition to modernity    103

ix.  Enlightenment Reform The transition to modernity after 1750 came as Western states displaced the authority of these rival Herrschaftsverbände, making themselves by the mid-nineteenth century the sole repositories of most authority backed by the threat of violence. This transition came amid paradox, however; and it brought with it dilemmas. The states that triumphed were transformed. Atlantic states of the pre-1750 world were overwhelmingly princely states, relying on the threat of blood punishments, but routinely engaging in mitigation through pardons and other devices. Princely states did sometimes engage in bloody displays like the quartering of Damiens, but they also frequently found means of sparing offenders. These patterns of justice reflected a reluctance to inflict blood punishments that belonged to a culture of Christian moral theology that strongly discouraged the shedding of blood. Since secular justice relied on blood punishments mitigated through grace, it had little room for criminal law reasoning sounding in proportionality or culpability. Secular law convicted offenders without making many fine discriminations in culpability; and offenders pleaded for mercy on the basis of sentimental accounts of their character and the course of their lives. The criminal docket of the princely states before 1750 was inevitably limited. Many matters were left to the management of local notables, nobles, and gentry, and heads of households also had considerable authority to chastise their own dependents. The decades from 1750 onward witnessed an astoundingly rapid surge in state power over rival Herrschaftsverbände; and by 1870 the state completely occupied the field of what had come to look like modern criminal justice. But the states that had triumphed by the mid-nineteenth century were no longer the princely states of a century and a half earlier. The old system of blood punishments tempered by princely grace was gone. In its place arose something that looked much more like the historic justice of the Church, founded in imprisonment, culpability, and proportionality; while modern criminal justice systems, having displaced the jurisdiction of the old notables, were overwhelmed by their newly assumed caseloads. It is against the institutional background of the epochal shift away from trad­ itional princely justice to modern criminal law that we should read the literature of the Enlightenment. The intellectual ferment of the Enlightenment directly reflected the collapse of princely blood justice; multifarious though the reform proposals of the post-1750 period were, they were all in one degree or another responses to the same decline in tolerance for older monarchical traditions; they all belonged to the same new age of Enlightenment state-building. Here it is important to emphasize that the leading Enlightenment campaigns against blood punishments were not reform campaigns of the modern kind; Foucault was right about that. It is certainly true that Enlightenment reformers

104   james q. whitman thought of themselves as advocates for humane values in some sense. But their campaigns were not founded on modern ideas of the sanctity of human life or of the integrity of the human body. It is difficult to find an eighteenth-century figure who was prepared to argue that it was morally wrong to take a human life through execution. On the contrary, the views of Kant, whose enthusiastic defense of the death penalty puzzles and shocks his modern readers, were typical;52 and when figures like Beccaria and Catherine the Great opposed the death penalty, they did so on utilitarian grounds.53 Even mutilation continued to seem perfectly acceptable to a man like Jefferson, whose 1778 “Bill for Proportioning Crimes and Punishments” deserves to be quoted: Whosoever shall be guilty of Rape, Polygamy, or Sodomy with man or woman shall be punished, if a man, by castration, if a woman, by cutting thro’ the cartilage of her nose a hole of one half inch diameter at the least. . . . Whosoever on purpose and of malice forethought shall maim another, or shall disfigure him, by cutting out or disabling the tongue, slitting or cutting off a nose, lip or ear, branding, or otherwise, shall be maimed or disfigured in like sort: or if that cannot be for want of the same part, then as nearly as may be in some other part of at least equal value and estimation in the opinion of a jury . . .54

Jefferson’s casual acceptance of mutilation was also found in the U.S. Constitution, whose Fifth Amendment still refers to the classic blood punishments “of life and limb.” Opposition to death and mutilation is a modern phenomenon, a product of the massive decline in the taste for violence that has marked the last two centuries.55 What Enlightenment thinkers opposed was not the idea that the state should shed blood, but the idea that the state should threaten to shed blood as means of dramatizing princely legitimacy. What they opposed was the traditional form of government by haute justice and grace. That traditional form of princely government was well described by Montesquieu, whose 1748 Esprit des Lois set the fundamental terms for Enlightenment debate over criminal law. It is important to recognize that Montesquieu only set the stage for the radical programs of the Enlightenment; he himself was by no means yet ready to reject the traditional practice of princely governance. On the contrary, he declared that it was entirely natural for monarchs to seek glory through the use of the pardoning power.56 Grace, as he explained in his famous chapter on “the just proportion   Immanuel Kant, “Metaphysik der Sitten,” in W. Weischedel (ed.), Werkausgabe (1977), 8, 455.   Catherine II, Grand Instructions to the Commissioners Appointed to Frame a New Code of Laws for the Russian Empire (1768), 123–124. 54  Thomas Jefferson, “A Bill for Proportioning Crimes and Punishments in Cases Heretofore Capital,” in Julian P. Boyd (ed.), Papers of Thomas Jefferson (1950), 2, 497–498. 55   In my view Stuart Banner, The Death Penalty: An American History (2002), 88–111, exaggerates the extent to which eighteenth-century campaigns against the death penalty were true forerunners of modern campaigns. 56  Montesquieu, De l’ésprit des lois (ed. V. Goldschmidt, 1979) Part 1, 222–223 (= Bk. VI, ch. 21). 52 53

the transition to modernity    105 of punishments with crime,” was a way of reinforcing sovereignty; and when it was used well, it was used to moderate punishment practices that would otherwise create perverse incentives. However, he warned his readers, in an immensely influential passage, that grace was not always used as it should be. He began his argument with a contrast between the treatment of robbery in China and Muscovy: It is evident that, for public safety, some difference must be established in punishment. In China, robbers who engage in cruelty are cut into pieces, the others not: as result of this difference is that there are robberies there, but not murders. In Muscovy, where the penalties for robbery and murder are the same, one always murders. The dead, the saying goes, tell no tales. When there is no difference in punishment, one must create a difference through the hope of grace. In England, one does not murder; because the robbers can hope to be transported to the colonies, while the murderers cannot. Letters of remission are great resource for moderate governments. The pardoning power of the prince, applied wisely, can have admirable effects.57

Such was the “admirable” form of “moderate government” favored by Montesquieu. It was a form of government that did indeed appear “sometimes indulgent and uncertain,” as Foucault wrote;58 but it did not appear indulgent and uncertain for the reason Foucault gave. It was a mode of governance that gave the appearance of uncertainty because it relied on princely grace as a corrective to a system of law that made very few distinctions through culpability analysis.59 Unlike Chinese law, the rationality of which Montesquieu and other eighteenth-century figures admired,60 Western law did not distinguish offenders through the calibration of differentiated punishment. It could not: the legitimacy of Western princes depended too much on the ostentatious display of clemency. When more radical Enlightenment reform movements emerged in the decades after Montesquieu wrote, they assailed the traditions of clemency in a way he never did. We can catch the drift of radical Enlightenment reform in the proposals of Cesare Beccaria and Catherine the Great, the most sensational critics of the death penalty of the 1760s. Thus, Beccaria chose to end his Dei Delitti e delle Pene with a denunciation of princely grace. As he explained, it was essential that mitigation be afforded through pre-conviction legislation, not through pardons: Clemency, which has often been deemed a sufficient substitute for every other virtue in sovereigns, should be excluded in a perfect legislation, where punishments are mild, and the   Montesquieu (n. 56) 219 (= Part I, Bk. VI, ch. 16). For Muyart de Vouglans’s memorable response, 58 see n. 45, 304.   Foucault (n. 6) 82. 59   I should emphasize that a fuller account would give more attention to forms of secular mitigation exercised by judges whose roots certainly lay in the authority of the sovereign, but whose forms were not the forms of princely pardoning. My purposes in this chapter, however, are simply to sketch out the large historical trends I believe were at work. 60   Li Chen, “Law and Sensibility of Empire in the Making of Modern China, 1750–1900” (unpublished Ph.D. dissertation, Columbia University, 2009), 189–213. 57

106   james q. whitman proceedings in criminal cases regular and expeditious. This truth will seem cruel to those who live in countries where, from the absurdity of the laws and the severity of punishments, pardons and the clemency of the prince are necessary. It is indeed one of the noblest prerogatives of the throne, but, at the same time, a tacit disapprobation of the laws. Clemency is a virtue which belongs to the legislator, and not to the executor of the laws; a virtue which ought to shine in the code, and not in private judgment.61

Beccaria’s aim was not to introduce mildness for the first time into a hitherto unreservedly brutal system. His aim was to substitute a new form of rational and consistent mildness, based on techniques of good legislative government, for the old form of irrational and desultory mildness, based on the “noble prerogatives of the throne.” The “countries” that he condemned, marked by the “absurdity of the laws and the severity of punishments,” were the princely states of Europe. His determin­ ation to dispense with the traditions of princely grace underlay his famous statement of the certainty/severity tradeoff: Crimes are more effectually prevented by the certainty than the severity of punishment. Hence in a magistrate the necessity of vigilance, and in a judge of implacability, which, that it may become an useful virtue, should be joined to a mild legislation. The certainty of a small punishment will make a stronger impression than the fear of one more severe, if attended with the hopes of escaping; for it is the nature of mankind to be terrified at the approach of the smallest inevitable evil, whilst hope, the best gift of Heaven hath the power of dispelling the apprehension of a greater, especially if supported by examples of impunity. . . . 62

These were passages written in a European world in which states did commonly threaten much harsher punishment than they in fact inflicted. The fact that princely justice worked in that way is what made Beccaria’s message so radical. Beccaria’s argument against the punishment order of his time was not just an argument against its inhumanity. It was an argument against its inefficacy as a matter of statecraft; it belonged to an age of state-building. The same concerns were, of course, at the source of Beccaria’s opposition to the death penalty: he, like Catherine after him, believed that death made for a less terrifying general deterrent than lifelong penal slavery. Government by princely grace was the target of Enlightenment attacks; and the implications of those attacks were the implications that Beccaria drew: mitigation would have to be achieved through generally applicable standards of culpability, and punishment would have to be governed by proportionality, a concern that had troubled secular justice far less in the past. Humane punishment had to be equal and proportional punishment. Enlightenment reformers like Beccaria certainly did think of themselves as humane; but their conception of the “humane” was not 61   Cesare Beccaria, Essay on Crimes and Punishments (4th ed., trans. anon., 1775), ch. 46 at 175–176; Italian original in Beccaria, “Dei Delitti e delle Pene,” in Beccaria, Opere (ed. Gianni Francioni, 1984), 62 1, 127–18.   Beccaria (n. 61) ch. 27 at 98; Italian original at 83–84.

the transition to modernity    107 precisely our modern conception; it was a conception the sources of which lay in the historic traditions of the Church. Proportionality, in particular, obsessed all the Enlightenment reformers; indeed, we can read the criminal law literature of the Enlightenment as a great debate over how to make Montesquieu’s “just proportion of punishments with crime” a reality. The deterrence logic of Beccaria and Bentham seems to us today radically different from the retributivist logic of Kant; and, of course, it is true that deterrence theorists and retributivists condemned each other in the eighteenth century.63 Nevertheless, when we read them against the background of pre-modern princely justice, we can see that Beccaria and Kant were in a sense comrades in arms: they were both dedicated to substituting some form of proportionality for the seemingly random and inconsistent justice of the princes of the past. Their deep motivation was the same, because they were responding to the same institutional crisis of government by grace. The fierce Enlightenment commitment to proportionality also helps to explain some of what seems to us inhumane in Enlightenment ideas. The Jefferson who included talionic mutilation in his “Bill for Proportioning Crimes and Punishments” was a Jefferson who was determined to create a criminal law founded symbolically in eye-for-an-eye, tooth-for-a-tooth proportionality; and that marked him as an opponent of traditional princely government. The same is true of Kant: the Kant who ferociously defended the proposition that murderers must be executed was defending the most important symbolic practice of proportionality in punishment, a death for a death. (To put it a bit differently, both Jefferson and Kant were determined to transform the old absolute blood punishments of mutilation and execution into new, strictly proportional, punishments.) To insist on proportionality without pardon was to declare oneself a supporter of republican government, or at least of a thoroughly new style of monarchy; and that mattered much more to these Enlightenment reformers than eliminating the violence of execution. Along with the commitment to proportionality came a commitment to norms of individual culpability: like their Church predecessors, Enlightenment reformers began to focus on the individual state of mind in the commission of particular acts, rather than on the questions of character and dangerousness that had been the natural terrain of princely grace. Some of these reformers, like Kant and his successors, embraced the retributivism that had been the characteristic approach of Church justice. These Enlightenment retributivists could draw on a long tradition. As we have seen, jurists had been working to secularize historic Church doctrines for centuries, especially since Grotius, though their writings had not had much noticeable impact on princely lawmaking. Kant and his followers were thus able to draw from a deep well of argument—though in an age when there was a real prospect that retributivist theory might shape secular criminal legislation.   Kant (n. 52) 455, 457.

63

108   james q. whitman Other Enlightenment thinkers turned to deterrence theory rather than retributivism, of course. But here, again, it is important to note the conceptual kinship between retributivists and deterrence theorists. Both focused on the individual mind; and in that sense both were walking in the footsteps of the historic Church.

x.  Toward Modern Dilemmas How much did the agitation of the Enlightenment reformers matter for the reshaping of secular justice? It is not entirely easy to say. In some ways their influence seems obvious. The French Code pénal of 1791, and all of the new criminal codes that followed it on the continent, bore the obvious impress of Enlightenment thought. German and American lawyers alike have not yet ceased citing Kant. Nevertheless, it does seem clear that there were larger historical trends at work. The Enlightenment reformers were not the masters of the events they were involved in. To some degree they were simply riding the wave of a larger decline in the trad­ itional forms of princely sovereignty, the full consequences of which none of them were in a position to understand fully. In historical retrospect, though, we can identify some of the consequences. It is important to acknowledge that those consequences include some of the enduring dilemmas of modern criminal justice. Some of those dilemmas follow from the success of Atlantic states in acquiring their Weberian Gewaltmonopol. By the late nineteenth century the states of the Atlantic world had taken charge of an extraordinary range of matters of discipline and punishment. There were no longer local squires or parlementaires administering summary justice in localities. Instead, all criminal matters were being drawn into state courts, where they were supposed to be dealt with according to the dictates of state criminal procedure. The state had also encroached upon the authority of heads of households and firms. By the 1880s slavery and serfdom, the most complete form of household domination, had vanished in the Atlantic world. The state was encroaching on historic employer/employee relations as well, through the creation of new forms of labor law as well as new forms of criminal law such as the offense of embezzlement. The criminalization of organized labor movements in particular marked a massive intrusion of the state into what had been household relations. The result is a dilemma that haunts modern criminal justice everywhere:  the dockets are too enormous to be handled. It is not possible for the state to take jurisdiction over every matter requiring discipline or punishment, while still maintaining the high standards of procedural fairness and consistency that seem essential to

the transition to modernity    109 the modern mind. As a result, all systems need means for the summary resolution of cases, of which plea-bargaining is the most controversial and widely discussed. Providing full-dress enlightened justice has turned out to be beyond the capacity of any modern state. That dilemma is exacerbated by the immense difficulties involved in introducing the historic norms of Church justice into secular practice. The overwhelming challenge of processing all of the cases that everyday life generates is made considerably worse by the requirement that courts make a determination of individual intent. The Church had good theological reasons for focusing on individual intent; and it had good institutional means of doing so too, since it could make use of confession. Secular courts do not have it so easy. Making refined judgments of individual culpability is difficult for human beings, especially when offenses occur in confused circumstances and produce blurred memories. The difficulties in determining individual intent are particularly gross in the U.S. common law system, in which defendants rarely testify. The decline of grace has also brought with it ongoing institutional dilemmas. The old form of princely grace did, indeed, involve obnoxious forms of inconsistency and arbitrariness; and pre-modern grace served to sustain the legitimacy of a form of government the death of which no one can regret. At the same time, though, the exercise of grace spoke to a real and important human need. As modernists like Franz von Liszt and Raymond Saleilles argued at the end of the nineteenth century, the human sense of justice is not satisfied by a pure culpability approach.64 When we look upon individual offenders, we sense a need to consider more than just the particular actus reus with which they are charged. We feel the need to judge the sinner, not just the sin. As a result, modern criminal justice systems everywhere find themselves navigating a treacherous channel between their inherited Enlightenment commitment to individual culpability and the felt need to do justice tailored to the deservingness or dangerousness of particular offenders.

xi. Conclusion The decades after 1750 saw the successful assertion of the state’s monopoly over discipline and punishment by the threat of violence: that is the principal significance of the transition to modernity. But the paradox is that transition turned out in practice   Raymond Saleilles, L’individualisation de la peine. Étude de criminalité sociale (1927); Franz von Liszt, Lehrbuch des Deutschen Strafrechts (25th ed., 1927). 64

110   james q. whitman to be a transition from one form of pre-modern justice to another. What had been princely secular justice became a justice like that of the historic Church—a justice of refined concepts of culpability. Mutilation was abandoned; and sentences of execution became increasingly rare. In place of these historic blood punishments, Atlantic states embraced what had long been the Church punishment of imprisonment. This turn to imprisonment made it possible, and necessary, for criminal justice officials to recast criminal reasoning in the logic of proportionality and culpability. Meanwhile, the criminal docket of modernizing states grew exponentially, and ominously, as state officials took over the responsibility of disciplining low-status populations previously under the thumbs of locals notables and heads of patriarchal households. In short, Atlantic states after 1750 successfully displaced the authority of the Church, of local notables, and of heads of households; but they did do only at the cost of recasting themselves in the image of the Church, of local notables, and of heads of households. Therein lies the paradox of the transition to modernity, and therefrom grow some of the crucial dilemmas of modern criminal law.

References Beattie, J. M, Crime and the Courts in England: 1660–1800 (1986) Carbasse, Jean-Marie, Histoire du Droit Penal et de la Justice Criminelle (2006) Foucault, Michel, Discipline and Punish (transl. Alan Sheridan, 1977) Friedman, Lawrence, Crime and Punishment in American History (1993) Ignatieff, Michael, A Just Measure of Pain:  The Penitentiary in the Industrial Revolution, 1750–1850 (1978) Langbein, John H., Torture and the Law of Proof (new ed., 2006) Langbein, John H., The Origins of Adversary Criminal Trial (2003) Radzinowicz, Leon, A History of English Criminal Law from 1750, 5 vols. (1948–86) Schmidt, Eberhard, Einführung in die Geschichte der deutschen Strafrechtspflege (3rd ed., 1965) Spierenburg, Pieter, The Spectacle of Suffering:  Execution and the Evolution of Repression, from a Preindustrial Metropolis to the European Experience (1984) Vormbaum, Thomas, Einführung in de modern Strafrechtsgesichte (2nd ed., 2010) Whitman, James, Harsh Justice:  Criminal Punishment and the Widening Divide Between Europe and America (2003)

­c hapter 6

LAW AND LITERATURE simon stern*

i.  Introduction: The Literatures of Criminal Law True-crime stories of outlaws have been a part of popular culture in England since the Middle Ages. Tales of criminality gained increasing circulation in print through the Old Bailey Sessions Papers (1674–1913) and the “dying confessions” published in broadside form by the Ordinary of Newgate in the eighteenth century.1 The confessional broadsides were designed as warnings for their audience; though sometimes inclined to revel in the details of an offender’s crimes, these exemplary tales of condign punishment typically presented their narrators as penitent reprobates, and they *  For comments and suggestions on earlier drafts, thanks to Alan Brudner, Vincent Chiao, Lindsay Farmer, Marty Friedland, Nicola Lacey, and particularly Markus Dubber. 1   On the genre of “dying confessions,” see Daniel A. Cohen, Pillars of Salt, Monuments of Grace: New England Crime Literature and the Origins of American Popular Culture, 1674–1860 (1993); Andrea McKenzie, “From True Confessions to True Reporting? The Decline and Fall of the Ordinary’s Account,” (2005) 30 London Journal 55; Frances Dolan, True Relations:  Reading, Literature, and Evidence in Seventeenth-Century England (2013); Joy Wiltenburg, Crime and Culture in Early Modern Germany (2012), 65–87. Ruth Ahnert discusses much earlier forms of writing from within prisons in The Rise of Prison Literature in the Sixteenth Century (2013). The Old Bailey Sessions Papers (now available online, see the References) have attracted a significant amount of attention from scholars interested in their narrative implications. See e.g. Hal Gladfelder, “Criminal Trials and the Dilemmas of Narrative Realism, 1650–1750,” (1997) 20 Prose Studies 21; John E. Loftis, “Trials and the Shaping of Identity in Tom Jones,” (2002) 34 Studies in the Novel 1; Charles Kinian Cosner, Jr., “ ‘Neither Lye Nor Romance’: Narrativity in the Old Bailey Sessions Papers” (Ph.D. thesis, Vanderbilt University, 2007).

112   simon stern emphasized the inevitability of capture and conviction, resulting in execution. The eighteenth century also saw the development of more narratively complex stories that ostensibly adhered to this pattern, but treated criminality more ambiguously, as in Daniel Defoe’s Moll Flanders (1722) and John Gay’s The Beggar’s Opera (1728). This genre would flourish even more vigorously in the early nineteenth century, in the form of the “Newgate Novel” (including some of the early works of Charles Dickens and Edward Bulwer-Lytton), sparking a debate that brought the genre to a close in the late 1830s.2 These novels served as a significant source for public perceptions of crime and criminality. The eighteenth century also witnessed the emergence of new forms of literature that openly satirized the institutions and administration of criminal law. For example, Henry Fielding’s novels Joseph Andrews (1742) and Tom Jones (1749) attacked the Black Act (1723) and its capital penalties with a kind of specificity often lacking in other contemporaneous diatribes against legal institutions or lawyers.3 The novelists of the 1790s developed another literary form that challenged the culture of criminal law administration and its practices of surveillance. Exemplified by William Godwin’s Caleb Williams (1794), this genre did not target particular legal doctrines so much as the government’s widespread abuse of its prosecutorial powers, particularly in the treason trials of 1794.4 Featuring paranoid characters whose paranoia is largely justified, these stories touch on the psychological and physical dimensions of privacy, and they mark an early phase in the literature of legal reform. In that sense, they can be associated with other literary efforts that complemented broader reform movements aimed at the termination of the slave trade, the transformation of prisons, and the provision of counsel for defendants in felony cases.5

2  Keith Hollingsworth, The Newgate Novel (1963); Jan-Melissa Schramm, “ ‘The Anatomy of a Barrister’s Tongue’:  Rhetoric, Satire and the Victorian Bar in England,” (2004) 32 Victorian Literature and Culture 285; Lyn Pkyett, “The Newgate Novel,” Oxford Bibliographies Online: Victorian Literature, available at:  . For American versions of the genre, see Paul Christian Jones, Against the Gallows:  Antebellum American Writers and the Movement to Abolish Capital Punishment (2011), 65–94. 3  David Punter, “Fictional Representation of the Law in the Eighteenth Century,” (1982) 16 Eighteenth-Century Studies 47; John Allen Stevenson, “Black George and the Black Act,” (1996) 8 Eighteenth-Century Fiction 355. 4   John Barrell, Imagining the King’s Death: Figurative Treason, Fantasies of Regicide, 1793–96 (2000); Benjamin Pauley, “ ‘Far from a Consummate Lawyer’: William Godwin and the Treason Trials of the 1790s,” in Ulrich Broich et al. (eds.), Reactions to Revolutions: The 1790s and Their Aftermath (2007), 203–230; Kenneth R. Johnston, Unusual Suspects: Pitt’s Reign of Alarm and the Lost Generation of the 1790s (2013). Johnston’s very thorough bibliography is an excellent guide for further reading. 5   John Bender, Imagining the Penitentiary (1987); Jan Alber, Narrating the Prison (2007); George Boulokos, The Grateful Slave: The Emergence of Race in Eighteenth-Century British and American Culture (2008); Jonathan Grossman, The Art of Alibi:  English Law Courts and the Novel (2002); Jones (n. 2).

law and literature   113 The psychological turn in nineteenth-century fiction adds a further dimension to the forms of literary engagement with criminal law. Novelists such as George Eliot, Robert Louis Stevenson, and Henry James offered increasingly complex meditations on responsibility, and on the specification and representation of intention, which provide a context for evolving ideas about mens rea. The growing interest, among criminal lawyers, in formalizing the concept of mens rea is itself part and parcel of the culture that sponsored these intricate fictional investigations of agency, motive, and intent.6 The later nineteenth century also saw the development of two new forms that emphasized the connection between these issues and their legal manifestations: the detective story and the courtroom novel. Following the emergence of organized police forces in Britain and the United States around the 1830s, the detective story was prefigured in the mid-century by the rise of supposedly autobiographical detect­ ive memoirs.7 Recast in fictional form, the genre retained the memoirs’ emphasis on the impossibility of escaping the wages of crime. The importance of legal analysis in these plots may be gleaned from the fact that the two leading candidates for the first American detective novel—Metta Fuller Victor’s The Dead Letter (1867) and Anna Katherine Green’s The Leavenworth Case (1878)—both have lawyers as detect­ ives.8 Within a few decades, these stories were joined by a subgenre that recalled the Newgate Novels, focusing on the criminal’s point of view and the thrill of the successful crime. Among the earliest and most popular efforts were the Raffles stories (1905) by E. W. Hornung (brother-in-law of A. Conan Doyle, the creator of Sherlock Holmes).9 The courtroom novel seems to have gained in popularity after the disappearance of the Newgate Novels, which included occasional courtroom scenes but centered their plots around the crimes themselves. By contrast, in courtroom novels the trial forms the crux of the plot. Although James Fenimore Cooper’s The Ways of the Hour (1850) is often characterized as the first example of this genre, several earlier novels also use trials in this fashion, such as John Neal’s Rachel Dyer (1828), Samuel Warren’s Now and Then (1847), and Elizabeth Gaskell’s Mary Barton (1848).10 Neal’s novel deals with the Salem 6   Lisa Rodensky, The Crime in Mind: Criminal Responsibility and the Victorian Novel (2003); Susan Zieger, “ ‘How far am I Responsible?’: Women and Morphinomania in Late Nineteenth-Century Britain,” (2005) 48 Victorian Studies 59. 7  Haia Shpayer-Makov, The Ascent of the Detective:  Police Sleuths in Victorian and Edwardian England (2011), 226–297. 8   Simon Stern, “Detecting Doctrines:  The Case Method and the Detective Story,” (2011) 23 Yale Journal of Law & the Humanities 339, 370–372. 9   Literature and film in this era also sought increasingly to represent the perspective of the female criminal. See Elizabeth Carolyn Miller, Framed: The New Woman Criminal in British Culture at the Fin de Siècle (2008). 10   See Jon W. Blandford, “Known Criminals: Nineteenth-Century U.S. Crime Literature and the Epistemology of Notoriety” (Ph.D. thesis, Indiana University, 2011), 184–217 (discussing Cooper’s novel); David J. Carlson, “ ‘Another Declaration of Independence’: John Neal’s Rachel Dyer and the Assault on Precedent,” (2007) 42 Early American Literature 405; and Jonathan Grossman, “Mary

114   simon stern witchcraft trials, but the other three describe versions of the story that is most typical in this genre—that of a criminal defendant who is wrongly accused of murder and is ultimately exonerated.11 Both detective and courtroom novels create space for reflection on particular doctrines or practices of criminal law, by using them as plot devices or by showing how they may result in injustice. Indeed, the latter was ostensibly the motive for Melville Davisson Post’s unscrupulous, loophole-seeking lawyer in The Strange Schemes of Randolph Mason (1896), a collection of detective-like stories that were accompanied with citations to the cases that provided the doctrinal basis for his plots.12 Over the last century, writers have experimented further with the relations between real and imaginary crimes, narrative modes of tracing their origins and consequences, and literary devices for positioning the reader vis-à-vis the events and the investigation. Modernist fiction expanded the range of materials that could be repurposed for literary ends; thus, for example, when Theodore Dreiser’s An American Tragedy (1925) retraces the details of a 1906 murder case, at some points the narrative probes the protagonist’s thoughts directly and elsewhere it draws on the reportage of contemporaneous newspaper coverage. The publishers promoted the book with an essay contest highlighting the doctrinal puzzle that the novel poses and complicates: was the main character guilty of first-degree murder?13 A series of books published in Weimar Germany featured true-crime narratives that mined the actual case files, combining an array of visual and documentary materials in a multi-perspective form, and presenting this evidence in a way that conveyed a sense of crisis resulting from the failure of the detective’s rational powers.14 In England, the 1930s saw a resurgence of the criminal autobiography, now cast as offering an inside perspective on the scientific and institutional management of crime.15 The French surrealists experimented with representations of crime across a variety of forms including tabloid journalism, visual art, and pulp fiction, using fictional stories and actual murder cases to pose questions about state violence and media culture.16 The expansion of corporate criminal Barton’s Telltale Evidence” in Grossman (n. 5) 107–136. Scholars have discussed some of Warren’s other legally oriented fiction, such as Ten Thousand a-Year (1839–41)—see e.g. Grossman (n. 5) 102; Kieran Dolin, Fiction and the Law (2009), 73—but Now and Then has not attracted any critical attention. 11   For more examples, see Breen’s bibliography in the References, and Rob Warden (ed.), Wilkie’s Collins’s The Dead Alive: The Novel, the Case, and Wrongful Convictions (2005). 12   Stern (n. 8) 345–347. 13   The $500 prize went to a law professor, whose essay was published as a pamphlet: Albert Lévitt, “Was Clyde Griffiths Guilty of Murder in the First Degree?” (1926). Lévitt assigned Dreiser’s novel in his criminal law class, and used the novel on his final exam. The text of his rare pamphlet was reprinted, with a critical discussion, in Philip Gerber, “ ‘A Beautiful Legal Problem’: Albert Lévitt on An American Tragedy,” (1991) 27 Papers on Language and Literature 214. John Cyril Barton also discusses Lévitt’s analysis in Literary Executions: Capital Punishment and American Culture, 1820–1925 (2014), 242–245. 14   Todd Herzog, Crime Stories: Criminalistic Fantasy and the Culture of Crisis in Weimar Germany (2011). 15   Matt Houlbrook, “Fashioning an Ex-Crook Self:  Citizenship and Criminality in the Work of Netley Lucas,” (2013) 24 Twentieth Century British History 1. 16   Jonathan P. Eburne, Surrealism and the Art of Crime (2008).

law and literature   115 liability spawned a number of novels and movies that attempted to imagine the kinds of ent­ities and powers that could account for these acts.17 Truman Capote reanimated the true-crime genre again in In Cold Blood (1965), attempting a new kind of narrative proximity afforded by extensive interviews with the two men who were ultimately convicted of the murders Capote describes.18 Terrorism, and the cyber- and financial crimes of recent decades, continue to offer new prospects for these narrative inquiries.19 Academic research on law and literature began to proliferate in the 1970s. For legal scholars, a significant part of the interest in fiction and drama involves the power of literary language, its ability to absorb the reader’s attention in a way that rarely occurs with legal prose, which usually strives for more factual and affectless descriptions.20 This way of examining the legal dimensions of literary texts accepts the fictional portrayal as given—it may be riveting, confusing, or inaccurate, but whatever it has to offer is a matter of the plot and characters, and perhaps also the rhetoric that accompanies their delineation. Usually characterized as the study of “law in literature” (with corollaries such as law in film, television, etc.), this approach is concerned with what the story says explicitly, not with questions of genre, narrative structure, and technical modes of representation, which would move beyond the story to ask about the means by which it is given to us. More recently, scholars have shifted their attention to questions about the grounds of narrative—questions about the motives for narrating the story and the conditions that make a story narratable. Current scholarship along these lines examines the relations between narrative form and techniques of representation, on the one hand, and structures of legal analysis on the other. “Narrative form” is taken here to encompass not simply an Aristotelian tracing of the action from initiation to resolution, but also matters such as the use of a narrator who is internal or external   Stefan Andriopoulos, Possessed: Hypnotic Crimes, Corporate Fiction, and the Invention of Cinema (2008). 18   For a helpful discussion of Capote’s novel in relation to twentieth-century American “true crime” writing, see David Schmid, “True Crime,” in Charles J. Rzepka and Lee Horsley (eds.), A Companion to Crime Fiction (2010), 198–209. Recent research on “true crime” stories has ventured into a number of other previously overlooked contexts; see e.g. Louise McReynolds, Murder Most Russian: True Crime and Punishment in Late Imperial Russia (2013); Joy Wiltenburg, “True Crime: The Origins of Modern Sensationalism,” (2004) 109 American Historical Review 1377; Jonathan Smolin, Moroccan Noir: Police, Crime, and Politics in Popular Culture (2013), 80–123; Anneke Rautenbach, “ ‘Every Technique Known to Prose’: The Aesthetics of True-Crime in Contemporary South Africa,” (2013) 25 Current Writing 153. 19  Matthew G. Kirschenbaum, Mechanisms: New Media and the Forensic Imagination (2008); David S. Wall, “Cybercrime and the Culture of Fear: Social Science Fiction(s) and the Production of Knowledge about Cybercrime,” (2008) 11 Information, Communication, & Society 861; Margaret Scanlan, Plotting Terror: Novelists and Terrorists in Contemporary Fiction (2001); Annie McClanahan, “Future’s Shock: Plausibility, Preemption, and the Fiction of 9/11,” (2009) 17 symplokē 41. 20   Scholarship in this area rarely examines poetry. For discussions of criminal law that do, see Jonathan Goodman, Bloody Versicles:  The Rhymes of Crime (1993) and Ellen L.  O’Brien, Crime in Verse: The Poetics of Murder in the Victorian Era (2008). 17

116   simon stern to the plot, the ways in which the narrative encourages and frustrates the reader’s expectations, and the presence of features that make the story seem like a fable or a minutely fact-based account. Plot and character do not become irrelevant in this approach, but instead of limiting the focus to the content of the story, the analysis also brings in the means and conditions of narration. These inquiries usually proceed historically, by looking at the emergence of new legal modes of evaluating responsibility, consent, or harm, for example, and asking how they align with narrative methods for representing consciousness, or generic patterns for achieving closure. Rather than treating a character’s meditations, or the narrative presentation of a plot detail, as a transparent slice of reality that is significant because of what it describes or because of its evocative language, scholarship in this vein asks how narrative access is afforded or withheld, and what techniques, now so familiar as to be capable of passing without notice, are being exploited to guide the reader’s perceptions. This mode of inquiry has not yet been labeled in a fashion akin to “law in literature.” For convenience, it is characterized here as “legal aesthetics,” to convey the sense that literary methods and devices may have legal corollaries, if not precise counterparts. The significance of this approach might seem to consist in showing that modern legal concepts (e.g. “continuing acts”) and analytical structures (e.g. the distinction between objective and subjective liability) are not inevitable but are contingent products of historically specific developments. That would be an uninspiring conclusion to draw, because lawyers, ever ready to offer their own proposals for doctrinal modification, are well aware that the law is a collage of improvised and reconditioned patches for specific problems. Rather, the approach described here offers a way of illuminating the rationales at work in the creation of legal concepts and structures, allowing us to see where they came from and what assumptions, discernible from other contemporaneous sources, allowed them to make sense. The aim generally has less to do with reforming the law than with explaining the origins of the framework and premises that govern the current state of affairs, but for those interested in reform, the result is to facilitate a more informed critique (or justification) of the existing doctrine. A  fuller discussion of legal aesthetics would also include work on visual media—particularly film—but because of space constraints, I focus specifically on literature.21 In what follows, I first discuss “law in literature” (and its cognates) in more detail, and then turn to legal aesthetics. I use literary examples to   For discussions of visual media that take up issues involving criminal law, see Andriopoulos (n. 17); Samuel Y.  Edgerton, Pictures and Punishment:  Art and Criminal Prosecution during the Florentine Renaissance (1985); Katherine Fischer Taylor, In the Theater of Criminal Justice: The Palais de Justice in Second Empire Paris (1993); Cristina Vatulescu, Police Aesthetics: Literature, Film, and the Secret Police in Soviet Times (2010); Rachel Hall, Wanted: The Outlaw in American Visual Culture (2009); John Denvir, Legal Reelism: Movies as Legal Texts (1996); Nicole Hahn Rafter, Shots in the Mirror: Crime Films and Society (2000); and Richard K. Sherwin, Visualizing Law in the Age of the Digital Baroque (2011). 21

law and literature   117 show what both approaches might yield. The final section briefly discusses the suggestive possibilities opened up by recent research in cognitive literary studies.

ii.  Law in Literature, Literature in Law Literature has traditionally been seen as a useful means of thinking about criminal law insofar as fictional narratives supply richly detailed illustrations of legal dilemmas, envisioned with a depth and fullness rarely found in legal opinions. Seen in this way, the conjunction of literature and criminal law is merely one part of a network of literary engagements with legal material, in which dramatic, bizarre, or humorous ways of imagining conflicts create opportunities to speculate about the proper application of legal doctrine. Stories involving crime and punishment offer especially notable instances of such conflicts, because the details are more vivid and the stakes are higher, but in this mode of inquiry, no matter which field of law is invoked, the reason for turning to literature remains the same—namely, to provoke thought about the validity and limits of legal doctrine and practices, through concrete depictions of law’s feats, quirks, and misfires.22 Because portrayals of legal events in fiction often affect readers’ beliefs about what the law is and what it should be (either by purporting to give accurate accounts of legal doctrines and the courts, or by imagining the complexities of situations that law confronts only partially), stories of law may influence how the law is applied, and therefore may end up becoming part of law.23 Whereas literary scholarship on criminality reaches back at least as far as the “dying confessions” of the eighteenth century, legal scholarship on the literary dimensions of crime has focused largely on material from the nineteenth and twentieth centuries. One reason for this focus involves the pedagogical rationale for adding literature to the law school curriculum. It was in the mid-to-late nineteenth century that exhortatory tales of penitent criminals gave way to stories offering indictments of the legal system, through novelistic portrayals that solicit sym­pathy for the victims of unjust laws and unjust punishments. The dispute over the Newgate Novels of the 1830s arose because of the genre’s penchant for making criminality attractive; writers solved the problem by taking the narratively compelling opportunities that 22   For a recent discussion, see David Alan Sklansky, “Dick Wolf Goes to Law School: Integrating the Humanities into Courses on Criminal Law, Criminal Procedure, and Evidence,” (2012) 3 California LR 23 Circuit 55.   Richard K. Sherwin, When Law Goes Pop (2000).

118   simon stern crime offers, and reallocating to them to stories with deservedly sympathetic protagonists. Law schools usually include “law in literature” for precisely this reason: to offer an alternative perspective on the workings of the criminal law system, and to illustrate its unfair treatment of those deemed “other,” on whatever grounds are socially acceptable at the time.24 The pedagogical potential of law in literature, however, remains underexploited. When slotted into this role, literary examples are often used to pose the kinds of hypotheticals that law professors would invoke in any case, with the added benefit of providing a welcome contrast to the prose usually encountered in casebooks. In effect, this approach treats novels and plays as expressing propositional views—as praising or denouncing legal doctrines, assumptions, and institutions. The result is not only to reduce the complexity of the literary material, but also to reduce the complexity of the legal readings it accompanies. To take a familiar example, Susan Glaspell’s short story “A Jury of Her Peers” sometimes figures in the criminal law curriculum as a means of helping students to understand Battered Woman Syndrome in the law of self-defense. The story’s function, when approached in this fashion, is to reveal the limits of the law in Glaspell’s era—that is, to show why the law of self-defense needed to be modified, and how the law of evidence reflected a set of assumptions that screened out women’s knowledge and interpretive skills. Originally published in 1917, the story describes an investigation into the death of John Wright, in a lonely homestead in the Midwest—a death, as the reader comes to see, that was caused not by an unknown intruder but by John’s emotionally abused wife, Minnie. An uneven set of stitches after a series of neat ones on a half-finished quilt, the broken door of a birdcage, and a bird with a broken neck—these signs of her abuse, carrying the implication that her own life may have been threatened, are barely glimpsed by the men conducting the investigation, but are apparent to their wives, who hastily conceal the evidence. Because we apprehend all this evidence through the remaining clues (Minnie Wright, held in jail pending trial, never appears in the story), we are also left to speculate about John Wright’s brutality. When read alongside the jurisprudence on Battered Woman Syndrome, the story is often taken to show that the women, Minnie Wright’s true peers, are uniquely capable of understanding what has taken place. But given that the story depends so heavily on the interpretation of clues, this reading itself seems to miss some of the clues in the text. The women’s decision to hide the evidence suggests that the men are equally capable of noticing and correctly interpreting these details—otherwise there would be no need to conceal them. The   Winfried Fluck discusses the implications of this approach in “Fiction and Justice,” (2003) 34 New Literary History 19; see also Rob Atkinson, “What Is It Like to be Like That: The Progress of Law and Literature’s ‘Other’ Project,” (2008) 43 Studies in Law, Politics and Society 21. Some scholars use the criminal law’s treatment of the “other” to explore sociological issues rather than to address legal doctrine as such; see e.g. Vincenzo Ruggiero, Crime in Literature: Sociology of Deviance and Fiction (2003). 24

law and literature   119 women, by their thoughts and actions, are shown to be empathetic, whereas the perspectives of the men are largely withheld from us, available only to be inferred from their words—such as the sheriff ’s observation that (male) jurors tend to be sympathetic to female defendants. Although he is holding Minnie Wright as a suspect, he doubts that a jury would convict her of killing her husband, because no clear motive can be pinned on her. “[W]‌hen it comes to women,” he observes, juries are reluctant to convict without “some definite thing,” “a story” that explains the defendant’s motive.25 It is not clear, however, why it would be sufficient to discover some motive, any motive, as long as it explains the murder. One might think that in this case, the same concern that jurors normally show for female defendants would operate in Minnie Wright’s favor, once the jurors understood her desperate situ­ ation. Indeed, one of the men in the search party—Mr. Hale—is shown to be just as ready to harp on “trifles” as any of the women accompanying them, and he goes so far as to observe that “what his wife [Minnie] wanted [never] made much difference to John.”26 In short, he seems ready to acknowledge John Wright’s cruelty, and this realization might translate into sympathy for Minnie Wright. This is not the only way to make sense of Hale’s comments, but it remains a possible interpretation, given that we are shown the women’s thoughts directly and left to infer the men’s thoughts. To suggest that the men might be capable of interpreting the same clues as their wives, or might be capable of rendering the same verdict, would serve to complicate the usual reading of the story. But it is precisely because literary examples rarely yield propositional conclusions that fiction has so much to offer, when used in the classroom. Indeed, in a tale centered on the interpretation of circumstantial evidence, one might think that the story’s effect consists as much in the experience of apprehending the range of possible inferences as in the drive to reach a definite conclusion. These considerations might serve to reorient the story’s pedagogical use: instead of arguing for the viability of a particular doctrinal solution, the reader’s hesitation among various ways of understanding the clues might offer an opportunity for considering the task of a jury when required to choose among competing explanations. Because of its complexity and ability to yield meaning at several levels of ana­ lysis, fiction inevitably suggests ambiguities and offers tangible grounds for disagreement. Rather than contrasting literary ambiguity with legal clarity, we might instead ask how fiction can be used to expose legal ambiguity. Fiction, of course, abounds in techniques that solicit the reader’s interpretive efforts (e.g. through the presentation or withholding of characters’ thoughts, the manipulation of perspective, and strategic handling of background details), whereas legal opinions use devices that purport to resolve uncertainty (e.g. by quoting precedent and using   Susan Glaspell, “A Jury of Her Peers,” in Edward J. O’Brien (ed.), The Best Short Stories of 1917 26 (1918), 256, 279.   Glaspell (n. 25) 260. 25

120   simon stern string cites to demonstrate the strength of a proposition), but despite these efforts, judges often fail to make their conclusions seem inevitable. Legal and literary ambiguity take different forms, and the use of imaginative literature is hardly the only pedagogical means of revealing the complexities that legal arguments strive to conceal. The dispute between the majority and dissenting opinions in Scott v. Harris, giving contrasting accounts of a suspect’s behavior and its bearing on the use of deadly force by the police, is perhaps the most notorious recent episode in which different ways of framing the same conduct produced radically different interpretations of the events,27 but any number of cases might be mined for the same purpose. Nevertheless, any means of helping students to recognize these complexities should be fully exploited, whereas literary materials are too often simplified. Literary portrayals of legal dilemmas offer an opportunity not only to gain an alternative perspective on doctrinal matters, but also to inquire into the features these different forms of writing use to manage ambiguity and to draw the reader in. Literature in law is a less discussed variation of the law-literature enterprise. Jurists and lawyers often draw on literary materials as fodder for legal arguments. Indeed, before the emergence of law and literature as a distinctive field of research, much of the interest in literature, for lawyers and law professors, stemmed from fiction’s ability to dramatize legal dilemmas and to reinforce legal arguments with the emotional power of an individual character’s personal experience.28 Nineteenth-century manuals on advocacy, for instance, often urged lawyers to equip themselves with a storehouse of literary examples.29 Judgments from this era also quoted literary sources with some regularity.30 Similarly, nineteenth-century treatises sometimes drew extensively on literary materials to illustrate doctrinal points. An especially notable instance of this method is James Ram’s A Treatise on 27   550 U.S. 372 (2007); see also Dan M. Kahan, David A. Hoffman, and Donald Braman, “Whose Eyes Are You Going to Believe:  Scott v.  Harris and the Perils of Cognitive Illiberalism,” (2009) 122 Harvard LR 837. 28   e.g. John Henry Wigmore’s lists of “legal novels” consist primarily of novels featuring criminal law issues. John H. Wigmore, “A List of One Hundred Legal Novels,” (1908) 2 Illinois LR 574; John H. Wigmore, “A List of One Hundred Legal Novels,” (1922) 17 Illinois LR 26. 29   On the forensic value of literary fluency, see e.g. Edward W.  Cox, The Advocate:  His Training, Practice, Rights, and Duties (1852), 88, 122–123; Byron K. Elliott, The Work of the Advocate: A Practical Treatise (1888), 390–391; Henry Hardwicke, The Art of Winning Cases (1894), 264–265, 305, 425–426. The point remains a familiar one in discussions of forensic technique; for a recent example, see Michael R. Smith, Advanced Legal Writing: Theories and Strategies in Persuasive Writing (3rd ed., 2012), chs. 11–14. 30  W.  N. Osborough, Literature, Judges, and the Law (2007); “Poetry in Judicial Opinions,” (1898) 2 Law Notes 26; “Some Instances of Poetry in Judicial Opinions,” (1907) 64 Central LJ 465. Nineteenth-century fiction includes a few instances of the counterpart to this practice—i.e. the citation of legal material in literary texts. Besides Post’s lawyer-detective stories (n. 12), see Warren’s Ten Thousand a-Year (n. 10) and Dolin’s discussion of it (n. 10); and the legal opinion in ­chapter 25 of Anthony Trollope’s The Eustace Diamonds (1873), which Marco Wan discusses in “Stare Decisis, Binding Precedent, and Anthony Trollope’s The Eustace Diamonds,” in Marco Wan (ed.), Reading the Legal Case (2012), 205.

law and literature   121 Facts as Subjects of Inquiry by a Jury. In the first edition of his treatise, published in 1861, Ram cited more examples from poetry, drama, and fiction than from cases. He added a number of legal citations to the next two editions (1870, 1873), but also increased his range of literary reference. The third edition included more than a hundred literary examples and, in addition to a table of cases, featured separate tables of the authors and of the works quoted in the text. Though Ram’s treatise is unusual in this respect, his heavy use of literary material probably reflected the same considerations that typically explain why law professors use literature in the classroom. The law of evidence, in the second half of the nineteenth century, was beginning to adopt increasingly sophisticated distinctions that were consistent with the refinements of contemporaneous legal science, and the vivid and memor­ able examples that Ram found in literary sources may have seemed to offer an antidote to these abstractions. His penchant for literary rather than legal examples hints at an idea that seems to underlie many of the legal ventures in this direction, but that jurists are loathe to assert directly: namely, that literature might be a source of law. While the practice of literary quotation still has a place in judicial writing, contemporary manifestations of literature in law have also taken another form, involving the use of features borrowed from particular genres. Thus, for example, in a 2008 dissent that sought to show why the U.S. Supreme Court should have agreed to hear an appeal in a dispute over the existence of probable cause to make an arrest, Chief Justice Roberts mimicked the style of a hardboiled crime novel. By describing the arrest from the perspective of a beat cop used to the mean streets and the ways of criminals, Roberts presented the arresting officer as a seasoned observer whose inferences easily satisfied the probable-cause requirement.31 Experiments in this vein raise intriguing questions about the effects of literary allusion in the legal context. The noir genre is best known for the deceptions and double-crossings that complicate its plots, and for a sense of pervasive corruption that makes the actions of the police seem futile at best—yet presumably these are not the associations the reader is meant to draw on here, where the point is to make the officer seem reliable and effective. Legal uses of literary allusion, whether through direct quotation or generic imitation, have received little scholarly attention, and they tend to be treated as serving a merely decorative function, or as attempts to display erudition. Precisely because legal prose is so often seen as bereft of the features that draw readers to literary texts, judges’ self-conscious efforts to modulate their prose in this fashion merit more attention. “Law as literature” is the more commonly invoked rubric for scholarship that brings literary methods to bear on legal writing. While this might seem an appropriate label for the literary tendencies just described, the study of law as literature rarely considers literary and legal texts together, but instead addresses features such as   555 U.S. 964 (2008) (Roberts, C.J., dissenting from denial of certiorari).

31

122   simon stern personification, metaphor, and narrative form in legal writing, with a focus on story­ telling. To be sure, legal texts—including judicial opinions—have sometimes been treated as literary works. Rufus Griswold’s The Prose Writers of America (1846), one of the most popular and influential literary compilations of its time, included extracts by John Marshall, Joseph Story, and Daniel Webster. Writings by the same figures appear in the Cyclopedia of American Literature (1855), along with excerpts from Joseph Kent’s treatises. This conception of literature as including forensic oratory and writing is consistent with Robert Ferguson’s treatment of the interchange between law and literature in nineteenth-century America, an interchange based on shared social and educational norms that began to disappear as the century wore on.32 In contemporary work on law as literature, the animating questions involve the ways in which judges craft their opinions—particularly the narrative arc and the selective use of detail in reciting the facts—so as to make the legal analysis seem persuasive. One of the favorite themes of work in this area is that only through the frame of a plot and its orienting pressures do we attribute meaning to events, or even understand them as discrete events that have any significance in a larger structure.33 Recast in the form of advice rather than analysis, the study of law as literature yields insights for the trial lawyer, whose management of a case similarly requires skill in gauging the facts’ narrative impact. Accordingly, in the same advocacy manuals that offer literary recommendations to flavor the lawyer’s arguments, we also find literary models endorsed for their value as narrative templates. Research on law’s narrative operations has lavished a significant amount of attention on Old Chief v. United States, perhaps the only decision in which the U.S. Supreme Court has discussed the importance of narrative control to a lawyer’s hand­ ling of the case—and the limits that courts may place on that control. The defendant, charged with an offense based in part on his status as a felon, offered at trial to stipulate to the prior felony, but the prosecution opted to put the details before the jury. He was convicted, and ultimately the Supreme Court ruled that while a party may normally present its case by harnessing the “persuasive power of the concrete and particular,” in this case the defendant’s legal status was “entirely outside the natural sequence of . . . [the events bearing on] the current offense,” and, far from adding to the “descriptive richness” of the prosecution’s case, these details only created a risk of unfair prejudice.34 In another criminal dispute involving the   Robert A. Ferguson, Law and Letters in American Culture (1984).   For examples of research on some of the less commonly studied contexts for these issues, see Yasuhiko Karasawa, “From Oral Testimony to Written Records in Qing Legal Cases,” in Charlotte Furth et al., Thinking with Cases: Specialist Knowledge in Chinese Cultural History (2007), 1–24; Robert E. Hegel, “Imagined Violence: Representing Homicide in Late Imperial Crime Reports and Fiction,” (2004) 25 Zhongguo Wenzhe Yanjiu Jikan 61; Jordanna Bailkin, “The Boot and the Spleen: When Was Murder Possible in British India?,” (2006) 48 Comparative Studies in Society and History 462; Baudouin Dupret et  al. (eds.), Narratives of Truth in Islamic Law (2007); Christian Biet, “Judicial Fiction and Literary Fiction: The Example of the Factum,” (2008) 20 Law and Literature 403. 34   Old Chief v. U.S., 519 U.S. 172, 187 (1997). 32 33

law and literature   123 admissibility of evidence, the First Circuit offered a similar analysis, chastising the prosecution for presenting its case in a manner that positioned the jurors as readers of a detective story, and for seeking to exploit this strategy in order to get around the hearsay prohibition: in an effort to make the evidence of defendants’ guilt more lively and to captivate the jurors with the drama of the hunt for the solution to the crime, [prosecutors] will often organize the presentation of the evidence of guilt in the form of a narrative of the investigation. . . . [B]‌y choosing a more seductive narrative structure for the presentation of the evidence of guilt, [the prosecution attempted to] expand the scope of the relevant legitimate evidence, so as to convert prejudicial and otherwise inadmissible evidence into admissible evidence.35

It should not come as a surprise that these decisions, and many of the others in which courts have been at pains to call attention to the issues of narrative arrangement and control, turn on the admissibility and presentation of evidence.36 As noted previously, this was the context for Ram’s literary jurisprudence. However, if the legal importance of narrative is restricted to questions about the management of evidence, or even to questions about how the facts of a case are presented, we risk losing sight of the potential that narrative analysis offers. The subject of narrative perspective, for example, is rarely taken up in discussions of law and narrative, but it can help to reveal complications that might otherwise escape notice. In determining the existence of probable cause to legitimate a search, courts consider the details that were “available to the officer”37 when the search was conducted. The question may seem simple, but as studies of hindsight bias have shown, it is difficult to screen out information acquired later, such as the result of the search itself.38 Research on narrative perspective might alert us to the difficulty implicit in the inquiry about the facts “available to the officer”: available in the sense that the officer had actually observed them, or in the sense that they were capable of being observed? The usual form of inquiry overlooks this distinction, seeking only to guard against the use of information that the officer could not possibly have known. Dorrit Cohn, in an influential study of techniques for representing thought in fiction, shows how the reader may be led to distinguish between “the mind’s vague ruminations” and perceptions that have actually found “conceptual expression” in a character’s mind or speech.39 While recovering an officer’s perceptions is no easier than assessing a   U.S. v. Benitez-Avila, 570 F.3d 364, 369 (1st Cir. 2009).   In a related discussion, the Supreme Court of Canada has observed that unless the trial judge monitors the arguments carefully, the structure governing the parties’ closing summaries may allow the prosecution to exploit “the right of final address to reorient its argument, build[ing] its case on the ‘gaps’ in the address of the accused,” and “adding new elements apart from narrative coherence and rhetorical force to the evidence against the accused” (R. v. Rose, [1998] 3 SCR 262, paras. 20, 21). 37   Texas v. Brown, 460 U.S. 730, 742 (1983). 38   Simon Stern, “Constructive Knowledge, Probable Cause, and Administrative Decisionmaking,” (2007) 82 Notre Dame LR 1085, 1120–1121. 39  Dorrit Cohn, Transparent Minds:  Narrative Modes for Presenting Consciousness in Fiction (1978), 104. 35

36

124   simon stern defendant’s intentions, Cohn’s distinction at least offers a means of recognizing the problem, whereas the formulation adopted by the courts encourages us to ignore it. Similarly, courts often undertake to represent a speaker’s intentions on the basis of a retroactive reconstruction that tacitly blends disparate narrative perspectives. For example, in Bumper v. North Carolina one of the points of contention involved a search that was made to appear consensual in precisely this fashion. At trial, the court reporter rendered the dialogue between the prosecution and one of the witnesses “in the form of a narrative” that recast “the actual questions and answers . . . [as] continuous first person testimony,” effectually “put[ting] into the mouth of the witness some of the words of the attorneys.”40 The effect was to conflate the prosecution’s view of the events with that of the witness, thereby making it appear that she had permitted the police to search her home. The effort to establish a defendant’s intent may depend on similar adjustments of language and perspective. As Anne Coughlin notes, a suspect being interrogated may “offer conflicting versions concerning what she may have known, believed, intended, hoped, and feared before, during, and after the [events],” with the result that her uncertain meditations about, for example, an afghan inadvertently or semi-consciously or deliberately tossed on a radiator may support a first-degree murder charge once the details have been aligned in “a story with a coherent plot and human agents who are endowed with and act upon know­ ledge, beliefs, and intentions.”41 Offered up speculatively (again, as in Bumper, by way of response to adverse questions), this is the kind of language that a novelist would present through free indirect discourse so as to convey a sense of uncertainty about the speaker’s awareness of her intentions. Even though the speculations are elicited in response to a series of questions, they can be made to form a seemingly coherent and self-generated statement. The study of narrative technique has long figured promin­ ently in literary scholarship, and closer attention to this topic could revitalize an area of legal research that has largely been restricted to discussions of plot structure.

iii.  Legal Aesthetics Recent work on the links between law and literature has begun to put more emphasis on the ways in which structures of explanation or inquiry in one area migrate into the other. The result has been to widen the range of literary material 40   Bumper v.  North Carolina, 391 U.S. 543, 547, n.  8 (1968). On this effect, see also Peter Brooks, “Narrative Transactions—Does the Law Need a Narratology?” (2006) 18 Yale Journal of Law & the Humanities 1, 7. 41   Anne M. Coughlin, “Interrogation Stories,” (2009) 95 Virginia LR 1599, 1626.

law and literature   125 that carries legal significance: texts that do not dwell explicitly on legal issues at all might nevertheless turn out to engage with the same questions that the law considers.42 Of course, literature is hardly the only incubator from which lawyers borrow models of thought, nor is law the only source to supply imaginative writers with ideas about how conflicts arise and are negotiated. However, because of their shared interests, the cross-pollinations between these two fields have been especially productive. Lorna Hutson, for example, has looked at experiments in the enactment of probabilistic inquiry on the English stage in the sixteenth century and has discussed their use of “civic humanist plot[s]‌of . . . detection” as applications of, and contributions to, the modes of legal inquiry that would form some of the foundations of evidence law, eventually informing the concept of probable cause.43 Whereas a “law in literature” approach to murder novels might consider attitudes about murderers and the kinds of legal justifications they should be allowed to invoke, Stephen Kern has studied these novels as sources of cultural ideas about causation.44 Several books have examined the various trial-like structures that animate the plots of eighteenth- and nineteenth-century novels, showing how shifts in narrative proximity alter the reader’s faith in the possibility of any satisfying conclusion to the story—and linking these literary investigations of conduct and motive to the concerns that led to the passage of the Prisoners Counsel Act, 1836, which allowed defendants in felony cases to be represented by counsel.45 Despite their methodological differences, these studies share similar premises. In particular, they proceed from the recognition that literary techniques of representation inevitably mediate the details they disclose, and that when investigating these techniques, we achieve less by seeking to identify biographical reasons for a particular writer’s designs on the reader, than by considering the ways in which writers participate, cannily or unwittingly, in historically specific debates that these literary techniques illuminate through analogy. These might be relatively focused debates, such as those about criminal defendants’ eligibility for legal representation, or more wide-ranging debates on matters such as whether and how we can confidently assess responsibility or diagnose an actor’s intentions, yielding effects that can be discerned in technical developments in legal doctrine and that are also 42   For a helpful short example, see James Phelan, “Narratives in Contest; or, Another Twist in the Narrative Turn,” (2008) 123 Publications of the Modern Language Association of America 166. 43  Lorna Hutson, The Invention of Suspicion:  Law and Mimesis in Shakespeare and Renaissance Drama (2007), 217. 44   Stephen Kern, A Cultural History of Causality: Science, Murder Novels, and Systems of Thought (2004). 45  Alexander Welsh, Strong Representations:  Narrative and Circumstantial Evidence in England (1992); Grossman (n. 5); Jan-Melissa Schramm; Testimony and Advocacy in Victorian Law, Literature, and Theology (2000). For studies that extend this investigation to early twentieth-century fiction, see Rex Ferguson, Criminal Law and the Modernist Novel: Experience on Trial (2013); Brian Artese, Testimony on Trial: Conrad, James, and the Contest for Modernism (2012).

126   simon stern associated with narrative devices for providing access to characters’ minds. In work on criminal law, one of the forms this research has taken involves the development of mens rea analysis and its relation to the development, in nineteenth-century fiction, of new narrative and syntactic techniques for conveying the characters’ thoughts, feelings, and motives. Much of this work has focused on third-person narrative forms—in particular, the use of free indirect discourse to reveal a character’s reflections.46 Yet similar questions may arise even in fiction that does not exploit this technique, as I show here with the example of Robert Louis Stevenson’s The Strange Case of Dr. Jekyll and Mr. Hyde (1886).47 Though Stevenson’s tale is rarely used in courses on law and literature, its overtly legal features would seem to make it an appealing choice. The story includes a brutal assault on a “girl of maybe eight or ten” and a lethal attack on “an aged and beautiful gentleman,”48 a series of alternating mental states bearing on the actor’s responsibility, and a lawyer (Mr. Utterson) who helps to precipitate the events that bring the tale to a close, and who turns out to be Jekyll’s beneficiary. Most of the events are narrated retrospectively by Utterson and his friend, Dr. Lanyon, and because they cannot understand the relation between Jekyll and Hyde (whom they take to be two separate people), the question of how to understand Hyde’s actions is set as a mystery that is not resolved until the final chapter, consisting of a letter in which Jekyll/Hyde explains everything. As this summary suggests, the tale might be explored as an example of law in literature, with the aim of considering the details relating to Hyde’s liability. That is, we might ask whether Hyde is guilty of first- or second-degree murder, and whether he has a defense of diminished capacity. If instead we consider how his actions and their underlying causes are presented to us, the story affords a discussion of the conditions that make these forms of liability discernible. One of the story’s most important aspects, for an approach based on legal aesthetics, is Stevenson’s elabor­ ately scientific explanation of Jekyll’s experiments, conducted with the aid of various powders, salts, and liquids (46–47). In setting out these details, Stevenson was taking an unusual step:  several reviewers found this part needlessly explicit and insisted that the tale would have been more powerful without it.49 For Stevenson,   See Rodensky (n. 6); Brooks (n. 40); Sandra MacPherson, Harm’s Way: Tragic Responsibility and the Novel Form (2010); Paul Cobley, “The Reactionary Art of Murder: Contemporary Crime Fiction, Criticism and Verisimilitude,” (2012) 21 Language and Literature 286. For an example applying these ideas to legal concepts of causation, see Sol Azuelos-Atias, “Legal Causality and Criminal Intent in the Legal Discourse,” (2006) 19 International Journal for the Semiotics of Law 183. 47   For a discussion that examines the story along similar lines, see Nicola Lacey, “Psychologising Jekyll, Demonising Hyde:  The Strange Case of Criminal Responsibility,” (2010) 4 Crim. Law & Philosophy 109. 48   Robert Louis Stevenson, The Strange Case of Dr. Jekyll and Mr. Hyde and Other Tales (ed. Roger Luckhurst, 2008), 7, 20. It is implied that Hyde has committed other crimes as well: “his past was . . . disreputable: tales came out of the man’s cruelty, . . . of his vile life” (28). 49   Henry James and Oscar Wilde both took this view; see Marty Roth, Drunk the Night Before: An Anatomy of Intoxication (2005), 170 fn 10. 46

law and literature   127 however, the investigation of the “duality of man” (53) required this kind of specificity. The story appeared at a time when legal analysis had itself been transformed by methods learned from analytical science, particularly chemistry. Criminal law was becoming increasingly refined and precise in delineating the bases of liability, burdens of proof, and distinctions between offenses and defenses. In the course of the nineteenth century, what had once simply been “crimes,” essentially characterized by “malice,” were separated into “elements,” and the distinction between mens rea and actus reus began to acquire its now canonical form and basic significance.50 These systematic and essential distinctions, in turn, led to new distinctions that were being formulated around the time that Dr. Jekyll and Mr. Hyde was published—such as the distinction between general and specific intent.51 Dr. Jekyll, in the letter that he leaves behind, shows himself to be thoroughly a creature of such distinctions. His experiments into the organization of consciousness, he explains, were prompted by curiosity about “those provinces of good and ill which divide and compound man’s dual nature” (52), and by a fascination with “the thought of the separation of those elements” (53). He is certain that others, following in his wake, will discover more elements, more minute and specific than any he has identified: “others will outstrip me on the same lines,” he predicts, and will show that each individual in fact consists of “multifarious, incongruous, and independent denizens” (53). His letter testifies to his dual nature: riven between the first person and the third person in its narration, the letter ends with Jekyll’s name, but also speaks of Hyde as “I.” Thus, at one point Jekyll says of Hyde, “He, I say—I cannot say, I” (63), and yet in recalling his adventures in the guise of Hyde, he frequently does say “I,” and the letter even takes up an indeterminate position, seemingly external to both identities, from which Jekyll is called “he” (65). Just as Jekyll’s studies and his predictions for future progress reflect the same approach that led lawyers to break rights down into “bundles of sticks,” his account of the dual nature of human consciousness offers a parallel to the dissolution of crimes into elements, marked first and foremost by the split between mens rea and actus reus. Whether or not Stevenson had read anything by contemporary legal scientists, it is clear that his treatment of Jekyll/Hyde’s criminal behavior and intentions depends on the same analytical structures that would have guided a contemporary criminal law theorist. A  Blackstonian lawyer would have seen that Hyde’s malice was fully “demonstrated by [his] outward actions,”52 but by Stevenson’s time, the very question that Blackstone puts aside (how to “fathom the intentions of 50   On viciousness as the characteristic feature of crimes in the eighteenth century and earlier, see Guyora Binder, “The Meaning of Killing,” in Markus D. Dubber and Lindsay Farmer (eds.), Modern Histories of Crime and Punishment (2007), 88; Lacey (n. 47) 117–119. 51   R. v. Doherty (1887) 16 Cox C.C. 306 (per Stephen J.); State v. Yarborough, 18 P. 474 (Kan.1888); R. U. Singh, “History of the Defence of Drunkenness in English Criminal Law,” (1033) 49 LQR 528. 52   William Blackstone, Commentaries on the Law of England, Vol. 4 (1769), 21. Stevenson emphasizes that Hyde’s wickedness is engraved in his appearance: he inspires “loathing . . . at first sight” (7); even

128   simon stern the mind”53) had become an essential part of the inquiry.54 It is also notable that Stevenson structures the narrative so as to turn the question of responsibility into a mystery—one that we can only speculate about, on the basis of external appearances, until reading the first-person testimony that explains all. The confessional letter solves the problem of the missing mental element, and in insisting on the irreducibly dual structure that leaves both Jekyll and Hyde incomplete when either one is viewed in isolation, the letter also serves as kind of self-reflexive statement about the law, by the law. It is as if a completed offense, rather than an individual, were testifying about its own nature. Much more could be said about Stevenson’s tale, which also turns on emerging forms of forensic evidence such as handwriting analysis, and on questions of legal ethics raised by Utterson’s efforts to manage his roles as Jekyll’s friend and legal advisor. Even this short discussion, however, may suggest the complex historical links between the way Stevenson posits Jekyll’s “case” and the way criminal liability was being reconceived. While this kind of exercise requires more time than a first-year doctrinal course normally affords, it may be appropriate for an upper-level course on criminal law theory, which attempts to understand the historical conditions fostering the theoretical distinctions we now take for granted. As Stevenson’s novella shows, literature may be used not just to illustrate doctrinal points but also to inquire into their foundation.

iv.  The Future of Law and Literature Recent work in cognitive literary studies has the potential to open up new lines of inquiry in law and literature. Research in this area has led literary scholars to reconsider the ways in which narratives present acts of cognition and engage readers in such acts. Some scholars, for instance, have discussed literary texts as a testing ground for our efforts to understand the motives behind others’ behavior (usually called “mind-reading” in this research).55 Whereas in social life, we often have no way to confirm our speculations about others’ motives, narratives may disclose the characters’ motives, or may deliberately mislead us only to expose the error, or may plant suggestive clues without offering any definitive evidence.56 Particularly in the unflappable Utterson regards him with “a hitherto unknown disgust, loathing, and fear” (15); “evil was written broadly and plainly on [his] face” (55). 53   Blackstone (n. 52) 21. 54   For a fuller and more complex discussion of this point, see Lacey (n. 47) 121–123. 55   Lisa Zunshine, Why We Read Fiction: Theory of Mind and the Novel (2006), 6–9. 56   e.g. literary texts often provide “a few verbal cues . . . to suggest something more at the same time that this something remains withheld,” and this phenomenon may help us to consider “our readiness

law and literature   129 contemporary literature, even seemingly definitive statements, offered by an ostensibly omniscient narrator, are not necessarily reliable, and hence the reading experience may amount to an experiment that does not serve to instruct readers in correct or incorrect methods, but instead offers opportunities for speculative mind-reading that daily life cannot supply. Future scholarship might consider what various literary examples suggest about our efforts to assign intention in criminal law, and how these narrative experiments may have functioned, since their inception, to influence those efforts. One aspect of this research has looked at how narratives elicit our outrage against characters cast as cheaters and free-riders, and how narratives may strive to modulate our desire to see these characters punished. Blakey Vermeule notes that numerous popular literary forms—including “mysteries, detective novels, . . . thrillers, true crime, [and] exposés”—cater to our hunger for examples of bad behavior and its punishment, and she observes that subtle uses of personification can fuel this hunger.57 Personification can encourage us to perceive casual relationships where otherwise we might not, and to see events as motivated rather than random. These responses are associated with the “affect heuristic,” which has also been cited to explain why statistical predictions have less power when expressed in purely numerical terms than they do when expressed as numbers of persons (e.g. “ten percent” as against “ten out of a hundred people”).58 An obvious implication of this research is that just as personifying legal entities may be a necessary doctrinal means of making them eligible for criminal sanction (as with “corporate persons”), the repeated use of this personification in the course of a trial may have a significant influence on the determination of liability. A subtler implication is that the use of personified standards (e.g. “the reasonable person” as against “reasonableness”) may also have an effect on how the standard is applied. Vermeule, considering these issues from a literary point of view, observes that fiction need not simply gratify our desire for punishment, but may also strive to “wean us . . . off comeuppance stories” by frustrating this desire.59 One of the frequently repeated themes in research on to contend with partial representational cues in everyday, nonliterary experience.” Elaine Auyoung, “Partial Cues and Narrative Understanding in Anna Karenina,” in Lars Bernaerts et al. (eds.), Stories and Minds: Cognitive Approaches to Literary Narrative (2013), 59, 60. 57   Blakey Vermeule, “A Comeuppance Theory of Narrative and Emotions,” (2011) 32 Poetics Today 235. See also William Flesch, Comeuppance:  Costly Signalling, Altruistic Punishment, and Other Biological Components of Fiction (2007). 58  Vermeule (n. 57)  248–249, citing Paul Slovic, Melissa Finucane, Ellen Peters, and Donald G. MacGregor, “The Affect Heuristic,” in Thomas Gilovich, Dale Griffin, and Daniel Kahneman (eds.), Heuristics and Biases: The Psychology of Intuitive Judgment (2002), 397, 413–414. In the study by Slovic et al., one set of clinical forensic psychologists was told, “Patients similar to Mr. Jones are estimated to have a 10% chance of committing an act of violence to others” and a second set was told, “Of every 100 patients similar to Mr. Jones, 10 are estimated to commit an act of violence to others.” The latter were nearly twice as likely to refuse to discharge the patient (41% refused, as against 21% in the first group). Ibid. 59   Vermeule (n. 57) 252.

130   simon stern law and narrative has been that narrative learning leads us into error by making us expect to find literary coherence in real-world events, as when a jury refuses to believe the defendant who denies any responsibility for the victim’s death, despite having uttered a death threat. While literary templates are crucial devices for our perception of the world, this oft-repeated warning supposes that narrative coherence depends on a particular form, usually associated with an Aristotelian model of dramatic structure. What recent scholarship on narrative shows, however, is that numerous literary devices operating at a much less noticeable level can also guide our perceptions, and that just as literature may satisfy our expectations, it may also involve new experimental forms that have the potential to alter those expectations. As we learn more about how readers engage with narratives—not simply by surrendering to their premises but by reveling in the problems they raise and speculating about possible outcomes—we will find new ways of linking literary texts with familiar questions in criminal law, such as how to evaluate intent and what it is like to experience a reasonable doubt.

References Blaustein, Albert P., Fiction Goes to Court: Favorite Stories of Lawyers and the Law Selected by Famous Lawyers (1954) Borowitz, Albert, Blood & Ink: An International Guide to Fact-Based Crime Literature (2002) Breen, Jon L., Novel Verdicts: A Guide to Courtroom Fiction (2nd ed., 2000) Harrison, Ben, True Crime Narratives: An Annotated Bibliography (1997) Haste, Steve, Criminal Sentences: True Crime in Fiction and Drama (1997) Koessler, Maximillian, Masterpieces of Legal Fiction: 38 Classic Stories of the Law (1964) London, Ephraim (ed.), The World of Law: Law in Literature (1960) Marshburn, Joseph H. and Velie, Alan R., Blood and Knavery:  A  Collection of English Renaissance Pamphlets and Ballads of Crime and Sin (1973) Pound, Roscoe (ed.), Law in Action: An Anthology of the Law in Literature (1947) White, Terry, Justice Denoted:  The Legal Thriller in American, British, and Continental Courtroom Literature (2003) Williams, Daniel E., Pillars of Salt:  An Anthology of Early American Criminal Narratives (1994) Dying Speeches and Bloody Murders:  Crime Broadsides Collected by the Harvard Law School Library:  Old Bailey Online (searchable database of the Proceedings of the Old Bailey, London, 1674 to 1834):  The Newgate Calendar: 

­c hapter 7

PHILOSOPHY leo zaibert

i.  Introduction to the Philosophy of Law Philosophy, as is well known, is the quintessential “meta” discipline, in the sense that virtually every other discipline can be studied philosophically. Like virtually any other discipline, the criminal law, too, can profitably be approached from a philosophical perspective. But the criminal law is exceptional in that its relationship to philosophy is uniquely intimate. While there can be great biologists or historians who do not study biology or history philosophically, it is hard to imagine a criminal law scholar, or even a practitioner, who does not approach her subject— even if unawares—somehow philosophically. For, as we shall see, most fundamental discussions in the criminal law are philosophical through and through. This chapter will be divided into four sections, each focusing on a large area of philosophical activity which overlaps substantially with the criminal law. Since, in principle, the criminal law can only be set in motion when a crime has been committed, and, in principle, a crime can only be committed when someone acts (i.e. when someone does something), Section II is devoted to the relationship between the criminal law and philosophical action theory. Themes to be discussed in this first section include the surprisingly elusive notion of an action, when omissions can be taken to be actions, when merely preparatory steps to commit a crime can be taken to constitute an attempt, when actions can be taken to be voluntary, and when actions correspond to their legal descriptions.

132   leo zaibert That someone has acted in a way that has been previously described as a crime, however, is not enough to claim that a crime has been committed, in the sense that the person who acted in this way is thereby liable to punishment. As the famous Latin slogan has it: actus non facit reum, nisi mens sit rea. In other words, we need both a “guilty act” and a “guilty mind.” Section III is thus devoted to the connections between the criminal law and the philosophy of mind. The crucial question that shall occupy us is: When is a mind guilty? A person cannot justly be said to have acted with a guilty mind if she was not capable of, say, distinguishing right from wrong, or appearances from reality—if she was, for example, a child. But even if she was fully capable, she may be more or less culpable (i.e. blameworthy), depending on the mental states that accompanied her action. Assuming someone committed a crime, and that she not only was in control of her faculties, but committed it with a culpable mental state, then, in the standard case, she will be punished. But what exactly is punishment? Despite various dis­ agreements, all definitions of punishment agree that its essence is to inflict something painful or unwelcome to the criminal. Of course, the assumption is that she has done something bad herself—that is precisely why she must endure pain. Still, the fact that punishment seeks to hurt people gives us plenty of reason to inquire about its moral justification. Why exactly is the state justified in hurting people? The morality of punishment will be discussed in Section IV. Lastly, in Section V we will discuss the relationship between the criminal law and political philosophy. Even if the state is morally justified in hurting criminals, we still need to know which instances of wrongdoing merit such treatment. After all, not every bad thing that people do calls for the state to react punitively, or for the state to react at all. Even in cases in which it appears clear that the state ought to react punitively to wrongdoing, the question as to how much punishment ought to be inflicted deserves attention. As will become clear, there are conspicuous overlaps between the different themes discussed herein. The fourfold structure of the chapter does not seek to suggest any precise boundaries between these broad areas—neither in philosophy generally nor in the criminal law however narrowly construed. The section headings merely seek to highlight the conceptual proximity between the concerns of the criminal law and well-established areas of philosophical investigation. Appreciating such proximity may both facilitate the exposition of the material and the advancement of the relevant debates.

ii.  Action Theory The raison d’être of the criminal law is to punish criminals. But, as stated at the outset, a person cannot be punished unless she has (or is supposed to have) committed a crime. And a crime cannot be committed unless someone has done

philosophy   133 something—unless, that is, someone has acted. This is captured by the “act requirement,” also known as the “voluntary act requirement” of the criminal law. These rather straightforward assertions highlight the importance of the philosophical study of human action for the criminal law. But the assertions also immediately begin to adumbrate some of the complexities of the criminal law’s notion of action. The sense of “doing something” operative in the criminal law has to be quite general: crucially, criminal “doing” must include both “attempting” and “omitting.” The first problem that confronts us when discussing attempts appears to be mostly descriptive. Think of someone who wishes to detonate a bomb at a theater. The suggestion that this mere wish, unaccompanied by overt action, is already an attempt to blow up the theater is surely misguided. But what about the person who not only merely wishes to detonate a bomb, but buys some ingredients for manufacturing bombs? Or what about one who buys all such ingredients? Or one who buys all the ingredients and who also scouts the theater where she will place the bomb? What exactly should we require in order to compellingly claim that someone’s preparations amount to a legal attempt, and that this person’s actions thus fall under the purview of the state’s punitive power? These questions suggest that there may not be a fixed point in nature which neatly separates attempts from merely preparatory steps. To a certain extent, whether or not we are in the presence of an attempt is already a normative question: within some limits, different criminal law systems may decide differently when a certain behavior constitutes an attempt. As a matter of fact, this sort of imprecision holds for most other inchoate (or “incomplete” crimes, e.g. conspiracy and solicitation) crimes as well. The imprecision holds, too, for the most fundamental of questions: whether or not an event is an action. That the very term “action” is the result of a normative decision (the decision to ascribe responsibility) was a view that Hart once defended, though later in life he abandoned it.1 An easier case is that of completed attempts: when a person does everything (she thought) necessary for the completed crime.2 Imagine someone who intends to kill many innocent people, and who does everything reasonably necessary to have a bomb explode at a movie theater. Although she completes her attempt, due to some wholly unforeseeable event, the bomb somehow fails to explode. It is obvious that there is no completed crime here (the bomb did not go off, no one was injured, etc.), but it is no less obvious that there was an attempt, and, ex hypothesi, that the attempt was completed. 1  H.  L. A.  Hart, Punishment and Responsibility (2nd ed., 2008). See also H.  L. A.  Hart, “The Ascription of Responsibility and Rights,” in Gilbert Ryle and Anthony Flew (eds.), Logic and Language (1951), 171–194, especially 187 ff. 2   See R. A. Duff, Criminal Attempts (1996), 119–127; Larry Alexander “The Philosophy of Criminal Law,” in Jules Coleman and Scott Shapiro (eds.), The Oxford Handbook of Jurisprudence and Philosophy of Law (2002), 832–840; and Larry Alexander, Kimberly Kessler Ferzan, and Stephen Morse, Crime and Culpability: A Theory of Criminal Law (2009), 197–216.

134   leo zaibert Completed cases allow us to see another even more unquestionably normative problem with attempts. Consider two agents, each endeavoring to blow up a (different) theater; they both have the same intentions and in fact perform the exact same actions; but where one succeeds, the other fails. Most jurisdictions recognize a difference between the punishment for attempted and completed crimes. But why should there be any difference between these two agents’ punishments? Punishing one more leniently than the other understandably strikes many as letting moral luck run amok.3 Our moral intuitions seem to converge on the idea that at least completed attempts deserve the same punishment as completed crimes. Should uncompleted attempts be punished at all (and, if so, how sternly)? Here intuitions vary considerably, ranging from the view that only completed attempts should be punished to the view that some uncompleted attempts should be punished, albeit more leniently than completed attempts. The rationale for not punishing incomplete attempts stems from the already mentioned difficulty in fixing the exact point at which the incomplete attempt pops into existence. The rationale for punishing them, but more leniently, boils down to two interrelated arguments. First, by abandoning her project to commit a crime, the incomplete attempter thereby deserves less blame than had she gone on with it. Secondly, society should never remove incentives to desist from doing wrong—and a lesser punishment is such an incentive. The other way in which the criminal law’s conception of action is broad concerns the fact that some omissions, that is, some failures to act, constitute actions. Consider two nurses who have been for a long time planning to kill a patient in the hospital in which they work; they agree that the first nurse’s signal to the second that it is time to kill their patient would be for her to stand completely still, “doing nothing.” Obviously, “doing nothing” is not here really doing nothing: it is a very real and concrete part in the nurses’ plan to kill their patient. It is hard to accept that one of the nurses should escape punishment because she “did not do anything.” One obvious way to avoid such suggestion would be to insist that even if during the specific time of the shooting one nurse remained still, surely she participated in the planning of the murder—and this was to do something. This is true, but it highlights problems with the individuation of actions. Imagine that the nurses began planning their crime 20 years before the patient ever entered the hospital: it seems odd to say that the nurses’ action lasted 20 years. When do actions begin and end? How many other actions were included in, or overlapped with, the nurses’ action of killing their patient? Consider a different example. Someone turns the light on because she wants to read a book. How many actions has she performed? Has she   A  very useful collection of influential articles on moral luck is found in Daniel Statman (ed.), Moral Luck (1993). 3

philosophy   135 spent money on electricity? Has she bothered her partner? Has she overloaded the circuit-breakers? Are all these different actions? Joel Feinberg famously referred to a “well-known feature of our language, whereby a man’s action can be described almost as narrowly or as broadly as we please” as “the accordion effect.”4 Are these different “descriptions” different actions? If so, then it would follow that we are constantly doing an infinite number of things—not an attractive thesis. If not, we would need an account of what exactly our basic actions (which could then be infinitely re-described) are—as I will show later, such account is rather elusive. These sorts of uncertainties have led some to challenge the convenience—or the intelligibility—of considering action as a sine qua non condition of criminal liability.5 Admittedly, rigorously defining action is a perennial philosophical problem—and, like most philosophical problems, one which, in a sense, is not supposed ever to be resolved. But this should not cause skepticism about action in the crim­ inal law. First, because the fact that there are complicated cases does not entail that there are not also perfectly unproblematic cases: some cases involving omissions and attempts are indeed very murky, but many others are not. Secondly, because paradigmatic cases of action, such as when someone rapes someone else, involve neither omissions nor attempts. Even if we restricted our study to the most complicated cases, however, their complexity may not be enough reason to abandon the deep-seated intuition that to be “punished” (or, for that matter, rewarded) for something one has not done (in the broad sense just sketched) is absurd. For “punishing” people for really doing nothing is both conceptually hard to grasp, and normatively hard to accept. Consider the conceptual point first. Imagine a mother telling her daughter, “I am going to punish you”; the daughter asks “Why, what have I done?,” to which the mother replies “You have done nothing, but I am punishing you anyhow.” That this mother simply does not know what the word “punishment” means appears as the inevitable conclusion. For if she really believes that her daughter has done nothing, and yet she slaps her, she would be abusing, assaulting, or otherwise victimizing her daughter, not punishing her. As for normative implications, consider some trends in contemporary criminal law whereby phenomena the connection of which to human action is increasingly tenuous—say, so-called possession crimes—are criminalized.6 These trends are worrying because they render people liable to punishment merely for being in possession of things (say, illegal drugs) found on, for example, their property—even if without their know­ ledge and despite their reasonable vigilance. In so doing, these trends further expand the already enormous punitive power of the state. So it seems prudent to continue   Joel Feinberg, Doing and Deserving (1970), 137.  Douglas Husak, “The Alleged Act Requirement in Criminal Law,” in John Deigh and David Dolinko (eds.), The Oxford Handbook of Philosophy of Criminal Law (2011), 107–124. 6   Markus D. Dubber, Victims in the War on Crime: The Use and Abuse of Victims’ Rights (2002). 4 5

136   leo zaibert endorsing the view that, at a very minimum, criminal punishment should require an action. Be that as it may, this does not by itself shed any light on the nature of action. At least within the Anglo-American legal tradition, one specific philosophical theory of action has been particularly influential—it is, for example, expressly endorsed by the U.S. Model Penal Code7—in dictating what the criminal law should understand by “action.” This is the volitional theory of action, according to which actions are “willed bodily movements” (“acts of will” and “volitions” are synonyms). While volitionalism can be traced back for centuries, its most systematic and influential formulation is found in Austin (1869),8 and its most ambitious contemporary defense is found in Moore (1993).9 Volitionalism answers with surprising ease some of the vexing questions posed earlier. For example, when someone wishes to read a book, and thus switches the light on, bothers her partner, spends money, etc., for volitionalists there is no indetermin­ acy: these are not different actions. The only action is the person moving her body in a certain way (a movement that could then be re-described in myriad ways). The price paid for such a neat answer to the problem of action individuation is high. Most obviously, the answer generates clear problems for the volitionalist regarding some omissions (in which bodies do not move). Either volitionalists would have (implausibly) to deny that these omissions are actions, or would have to continue to offer odd ways of individuating actions (say, a nurse’s action to stand still so as to signal to her partner that it is time to kill their patient would have started a couple of decades ago when they first began planning their crime). Neither alternative seems attractive. Moreover, the phenomenological account of human action that the volitional theory of action presupposes is rather strange. Think again of someone who wants to sit on the sofa and read a book; according to volitionalists this is what happens: she has a garden-variety pro-attitude (a desire or an intention) to sit on the sofa and read a book, but, in addition, she also has a much mysterious “volition” to move her muscles in exactly the way necessary to read this book. Except for very few cases in which we focus on moving specific muscles in specific ways (say, when rehabilitating an injury), we hardly ever find ourselves willing to move muscles. Volitions, then, are either something very strange, so strange that we have never really experienced them, or else they happen to be just regular intentions. The former option is evidently unattractive. But so is the latter. For it is hard to understand why the intentional object of such allegedly garden-variety intentions has to be restricted to muscle movements.10 Moreover, if volitions are simply intentions, and all actions are preceded by volitions, then all actions are, in a sense, intended. In fact, volitionalists tend to believe that “involuntary action” is a misnomer—for if the putative action truly is involuntary, then it is a mere movement, and not an action. For them, all actions are voluntary, because all actions follow volitions. In this sense, the expression “voluntary 8   American Law Institute 1985, 1.13(9).   John Austin, Lectures on Jurisprudence (1869).   Michael S. Moore, Act and Crime: The Philosophy of Action and its Implications for Criminal Law 10 (1993).   Moore (n. 9) 113–188. 7

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philosophy   137 action” is redundant: the famous “voluntary act requirement” should be recognized as simply the “act requirement”—and one can indeed agree with this specific point without thereby endorsing volitionalism. Linking action to the presence of this or that mental state, as volitionalists do, is problematic in that the analysis of mental states has, for good reasons, traditionally belonged to a different area of the criminal law:  culpability. For example, and as we shall see in the next section, the distinction between intended and unintended action is the cornerstone of our efforts to apportion blame. But if, as some volitionalists believe, it turns out that all actions are in a sense intended (because they are all preceded by volitions, and volitions are just intentions), this would create difficulties for determining the blameworthiness of these actions. Before concluding this section, it is important to mention that in addition to requiring an action (whatever that may turn out to be) as a condition of liability, the criminal law also requires that such action must be antecedently, and statutorily, described as a crime.11 This is the actus reus requirement. Although it is plain that the actus reus and the act requirement are different, they tend to be confused, so a word about their difference is in order. It is impossible to satisfy the actus reus requirement without thereby also satisfying an act requirement, although it is perfectly possible to satisfy an act requirement without satisfying any actus reus requirement. This asymmetry highlights a normative difference between these two requirements. The wrongness of “punishing” someone who has not acted is absolutely fundamental, as we saw previously. But punishing people for something that they were not antecedently told was punishable, in contrast, is, while normally wrong, not fundamentally wrong. The latter is a political value, captured in the famous principle of legality: nulla poena sine lege. While the central importance of the principle of legality is undeniable, one could imagine thought experiments in which a person may be justly punished for an act which had not been statutorily described as a crime beforehand. No thought-experiment could, however, yield an intelligible, let alone a just, act of “punishing” someone who did not act.

iii.  Philosophy of Mind In order for someone to be liable to criminal punishment, in addition to satisfying both the act and the actus reus requirements, she needs to satisfy the mens rea requirement: her mind must be “guilty.” It is useful to break down the discussion of   Moore (n. 9) 169–238.

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138   leo zaibert the mental requirement for liability into two general topics, one primarily related to mental capacities, and the other primarily related to mental states. If a person commits a crime while she was not capable of distinguishing right from wrong, or while she was unaware of what she was doing, then she is not liable to be punished. Typical examples of people lacking basic mental capacities include children and severely handicapped people. A 5-year-old child, for example, cannot really be blamed for firing a gun and killing someone—for she simply did not know what she was doing. Similarly, if unbeknownst to a person, someone puts a drug in her coffee which severely impairs her perception of reality, she is not to blame for firing a gun and killing someone. In cases like these, the agents are not accountable, or at least not as fully accountable.12 Admittedly, there are problems with thresholds: at what age exactly does a human being acquire enough mental capacities so that she becomes a full-blown moral agent? Imagine that we settle on, say, 18 years of age. Are there not 17-year-olds who are much more mature than some 21-year-olds? Similarly, how much impairment of your senses is enough to claim that you were not competent? The law—and not just the criminal law—cannot escape running into these line-drawing problems; lines have to be drawn somewhere: for voting rights, for buying cigarettes, and also for determining when someone is a competent moral agent. But the rationale for this requirement should be perfectly clear independently of these complications. It is unjust to punish a 5-year-old child, or someone who was unaware that she had been intoxicated, for their mental capacities are either not fully developed or not fully functional. (Getting intoxicated before committing a crime in order to then defend oneself by appealing to the intoxication will not work: this would be an instance of an actio libera in causa: roughly, you were accountable when you decided to render yourself “unaccountable.”) Imagine then two full-blown moral agents, whose mental capacities are fully developed and functional, each committing identical homicides, independently from each other, but, ex hypothesi, in exactly the same circumstances, except for their own mental states. It may be unjust to punish them identically—if their mental states are different. For example, imagine that one of them intended to kill her victim, whereas the other one killed her victim negligently. Intuitively, the first killer is more blameworthy than the second. In more general terms, the intuition is that intended wrongdoing is more blameworthy than unintended wrongdoing. The force of this intuition makes it as good a candidate to a universal moral principle as any, and it has in fact undergirded virtually every penal code in history.13 The area of the criminal law which studies the mental states with which people commit crimes is known as culpability or as mens rea. In some cases we can use  Aristotle, Nicomachean Ethics (transl. H. Rackham, 1926), 1110b1 ff.   Leo Zaibert, Five Ways Patricia can Kill her Husband: A Theory of Intentionality and Blame (2005), 33–108. 12 13

philosophy   139 expressions such as “Someone is culpable” in order to indicate that she is guilty (as opposed to innocent); but in a more technical sense, when we say that someone is culpable what we mean is that she is to blame. One important characteristic of culpability is immediately obvious: culpability is the scalar property par excellence in the criminal law. The extent to which people could be accountable may sometimes be a matter of degree, although accountability is often an all-or-nothing condition, if for no other reason than as a result of the line-drawing problem just described. The law will treat a 1-year-old as if he is just as unaccountable as a 13-year-old, and an immature 19-year old as accountable as a very wise 40-year-old. Similarly, whether an event is an action or whether a given action has been statutorily defined as a crime are not matters of degree. Culpability, in contrast, is scalar to its core. While both agents who commit homicide we are discussing are culpable—in the non-comparative sense that they are not innocent, and are indeed to blame—the interesting point is that one is more culpable than the other. Different legal systems, and different legal traditions, focus on different mental states in generating scales with different degrees of blameworthiness. But there is a remarkable convergence amongst theories of culpability regarding a pair of distinctions between mental states with which agents can commit crimes. One of these distinctions we have already introduced:  that between committing crimes intendedly or unintendedly. The other distinction is that between committing a crime aware that one is committing it or unaware that one is committing it. The interplay between these two distinctions gives rise to a fourfold map of modes of culpability, that is, of the different culpable ways in which crimes can be committed which, ceteris paribus, give rise to different degrees of blame (and, eventually, to more or less severe punishments). In decreasing order of blameworthiness: (a) someone may commit a crime both intending to commit it and knowing that she is committing it; (b) knowing that she is committing it, although not intending to commit it; (c) neither intending nor knowing that she is committing it, but more or less aware that there is a (substantial) risk she may be committing it; and, finally; (d) someone may commit a crime not intending to commit it, not aware that she is committing it, and not even aware that there is any risk that she may be committing it.14 While the decreasing blameworthiness in these four modes of culpability may be essentially unproblematic, the uninitiated may wonder how a person who neither intends to commit the crime nor even knows that she is (risking) committing it could possibly be culpable. The uninitiated would in fact be in the company of many criminal law scholars who suggest that an agent who commits a crime in such  When it comes to culpability, the two main legal traditions in the West, the common law (Anglo-American) tradition and the European (German) tradition have much more in common than is often assumed. The fourfold map of culpability just sketched is no closer to, say, the fourfold Anglophone map of modes of culpability adopted by the Model Penal Code (purpose, knowledge, recklessness, and negligence) than it is to a generalized fourfold map of modes of culpability representative 14

140   leo zaibert circumstances is blameless (and thus should not be punished either). The predomin­ ant position, however, continues to be that the agent who conforms to that fourth scenario is culpable (albeit less than in any of the other scenarios). Explaining why illuminates the contours of the lower limit of culpability. Someone who neither intends to commit a crime nor knows that she is (risking) committing it may still be blameworthy if she should have known it. This would involve cases in which she failed to exercise a duty of care. It is because of her failure to know that we blame her. In cases in which we do not think that she should have known, then, indeed, there is no blame; such cases can be referred to as accidents. Contrast two agents; the first one forgets that she carries a loaded gun in her purse and when she reaches into it in order to grab her phone, she happens to pull the trigger, injuring a passerby. The second agent is writing on the board as she teaches a class when the chalk in her hand breaks and a piece flies off, injuring one of her students. (Arguendo, assume that the injuries in both cases are identical.) The second agent causing injuries to students in this way is truly a bona fide accident because, unlike the first negligent agent, we could not reasonably have expected her to behave any differently. The difference between accidents (which are by definition blameless) and those cases involving the lowest degree of blame is that in the former we do not expect the person to have known better, whereas in the latter we do. The upper limit of culpability is reached when the person intends to commit the crime (and, a fortiori, knows that she is committing it). Of course, it is possible to commit a crime in even more blameworthy ways: say, when the criminal sadistic­ ally enjoys the harm that she is inflicting, or when she chooses a particularly cruel way of committing her crime. While these factors may indeed aggravate her overall blameworthiness, from the perspective of culpability more or less narrowly construed, committing a crime intendedly is sufficient to put a criminal in the most blameworthy category. The distinction between intended and unintended wrongdoing is so central to our intuitive ways of thinking about blame that it has often been assumed, erroneously, that unintended wrongdoing is not merely less blameworthy than intended wrongdoing, but utterly blameless. Socrates seems to make this mistake in his defense: either I have not a bad influence [on Athenian youth], or it is unintentional, so that in either case your accusation is false. And if I unintentionally have a bad influence, the correct procedure in cases of such involuntary misdemeanors is not to summon the culprit before this

of the German tradition (dolus, dolus eventualis, conscious culpa (bewusste Fahrläsigkeit), and unconscious culpa). For a helpful comparison of these two traditions, see Markus D. Dubber and Tatjana Hörnle, Criminal Law: A Comparative Approach (2014) and George P. Fletcher, Rethinking Criminal Law (2000); for a comparison between these traditions and different philosophical approaches throughout history, see Zaibert (n. 13).

philosophy   141 court but to take him aside for instruction and reproof, because obviously if my eyes are opened, I shall stop doing what I do not intend to do.15

Much more recently, another famous trial gave rise to a similar mistake: foremost amongst the larger issues at stake in the Eichmann trial was the assumption current in all modern legal systems that intent to do wrong is necessary for the commission of a crime. On nothing, perhaps, has civilized jurisprudence prided itself more than on this taking into account of the subjective factor. Where this intent is absent . . . we feel that no crime has been committed.16

In addition to erroneously mapping the distinction between intended and unintended action onto the distinction between crime and no crime, Arendt errs in thinking that the importance of intent is a creature of modernity. Its importance can be traced back for millennia, and it was systematically analyzed already in ancient philosophy (as the passage from Plato’s Apology just quoted illustrates)17—an analysis that was further refined in Rome,18 and during the Middle Ages.19 These analyses of intentions and other mental states informed the work of foundational figures of modern common law (e.g. Austin;20 Bentham21), and have been the concern of jurists throughout time. Determining what exactly an intention is, how it differs from related conative states (like desires, wishes, and hopes),22 and why intentions are so central for our efforts to apportion blame23 have been, and continue to be, philosophically active research areas. Nowhere can a criminal lawyer wishing better to understand criminal culpability turn to more profitably than toward contemporary philosophy of action. Independently of the particularities of its history, criminal law systems around the world require accountability and a guilty mind in order for punishment to be inflicted. Added to the act and actus reus requirements these are the essential factors that may, in the standard case, render people liable to punishment. Admittedly, however, some cases are not standard. First, because there exist “strict liability” offenses, in which people are punished even if they do not have a guilty mind. Secondly, because sometimes people who meet all requirements sketched previously can still avail themselves of defenses which will spare them from punishment, such as “self-defense, duress, autrefois acquit, and [the variegated forms of] immunity from prosecution.”24 15   Plato, “The Apology,” in Edith Hamilton and Huntington Cairns (eds.), The Collected Dialogues (1961), 26a. 16   Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (1977), 275. 17   And in Aristotle (n. 12), passim. 18   David Daube, Roman Law: Linguistic, Social and Philosophical Aspects (1969). 19   Thomas Aquinas, Summa Theologiae (1974). 20   John Austin, Lectures on Jurisprudence (1869). 21   Jeremy Bentham, “The Principles of Morals and Legislation,” in John Bowring (ed.), The Collected Works of Jeremy Bentham, Vol. 1 (1962). 22   See G.  E. M.  Anscombe, Intention (1963), and John R.  Searle, Intentionality:  An Essay in the 23 Philosophy of Mind (1983).   Zaibert (n. 13). 24   John Gardner, Offenses and Defences: Selected Essays in the Philosophy of Criminal Law (2007), 141.

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iv. Ethics Amongst the many different definitions of punishment, Hart’s is by far the most influential. This is Hart’s version of what he calls the “standard” case of punishment: (i) It must involve pain or other consequences normally considered unpleasant. (ii) It must be for an offence against rules. (iii) It must be for an actual or supposed offender for his offence. (iv) It must be intentionally administered by human beings other than the offender. (v) It must be imposed and administered by an authority constituted by a legal system against which the offense is committed.25 Hart also recognizes that there are “many other possibilities” in which punishment can manifest itself, which he calls “sub-standard”: (a) Punishments for breaches of legal rules imposed or administered otherwise than by officials (decentralised sanctions) (b) Punishments for breaches of non-legal rules or orders (punishments in a family or school) (c) Vicarious or collective punishment of some member or social group for actions done by others without the former’s authorization, encouragement, control or permission. (d) Punishment of persons (otherwise than under (c)) who neither are in fact nor supposed to be offenders.26 While one would expect the criminal law to be concerned with “standard” punishment, the scope and reach of criminal justice systems is such that forms of “sub-standard punishments” are becoming increasingly common. The boundaries of criminal punishment now overlap with the boundaries of administrative and, above all in affluent countries, immigration law, where all sorts of evidently punitive measures against illegal immigrants are stipulatively categorized as noncriminal.27 Moreover, “sub-standard” forms of punishment are also widespread within the context of the “war on terrorism”—where people are punished secretly and without trial. (Of course, one could challenge the view that what Hart calls sub-standard punishment is really punishment; for example, it is difficult to 25   H. L. A. Hart, Punishment and Responsibility (1968), 4–5. This is also known as the Flew–Benn– Hart definition, since the three authors more or less simultaneously (but independently) developed very similar accounts. See S. I. Benn, “An Approach to the Problem of Punishment,” (1958) 33 Philosophy 325–341, and A. G. N. Flew, “The Justification of Punishment,” (1954) 29 Philosophy 291–307. 26   Hart (n. 25) 5. 27  Leo Zaibert, “Uprootedness as (Cruel and Unusual) Punishment,” (2008) 11 New Crim. LR 384–408.

philosophy   143 understand how hard treatment inflicted on persons who are not even “supposed to be offenders” could possibly qualify as punishment.28) The conceptual discussion, however, does nothing to alleviate the plight of those upon whom these treatments are inflicted. The specific aspect of Hart’s definition of punishment whereby it is supposed to involve “pain or other consequences normally considered unpleasant,” meets with virtually universal agreement. Insofar as punishment is, then, by definition, something in principle unwanted, it stands in need of moral justification. Typically, to do things to people against their will is morally impermissible—much more so when those things are meant to be painful or unpleasant. The first step in the moral justification of punishment is to suggest that by committing crimes criminals render themselves legitimate targets of this hard treatment. It seems undeniable that, because of their crimes, criminals are different from innocent people, and that inflicting hard treatment on the former is thereby at least morally different from inflicting it on the latter. But even if we recognize a difference between criminals and non-criminals, this does not entail that punishment as such is thereby justified. There are, after all, many examples of (non-criminal) laws the violation of which does not entail, or justify, punishment. For example, not paying your debts entails that your creditor can seize your property (to cover the amount that is owed), even by force. Being stripped by force of something you own can be painful and unpleasant, but what the law seeks is for creditors to be able to recuperate what is owed to them, not to make debtors suffer. Punishment, in contrast, seeks to make people suffer. This is the first watershed moment in the philosophical justification of punishment. Those who deny that the difference between criminals and non-criminals is sufficient to justify punishment (or, those who, more daringly, deny that the very distinction has much, if any, significance) are known as abolitionists. They see punishment as morally illegitimate. In spite of all that can be said against punishment and against contemporary criminal justice systems, however, the vast majority of scholars are not abolitionists. Most philosophers believe that punishment can indeed be justified, and they differ as to the particulars of such justification. An internal division amongst all those who believe that punishment is justified constitutes the second watershed moment in the philosophical justification of punishment. The two main justifications of punishment are consequentialism and retributivism, and they have been historically associated with teleological moral doctrines and deontological moral doctrines, respectively. Admittedly, the connection between retributivism and deontology, on the one hand, and that between consequentialism and teleology, on the other, ought to be qualified. The fact that someone endorses consequentialism as a justification of punishment does not entail   Leo Zaibert, Punishment and Retribution (2006), 26 ff.

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144   leo zaibert that she has to endorse a teleological comprehensive moral doctrine; and the fact that someone endorses a retributive justification of punishment does not entail that she has to endorse a deontological comprehensive moral doctrine.29 But for the purposes of sketching the main characteristics of the most important justifications of punishment, it is useful to keep in mind that retributivist sensibilities are more at home in a deontological worldview, and that consequentialist sensibilities are more at home in a teleological worldview. Consequentialist justifications of punishment are the more variegated, and, in a way, perhaps also the most widespread. These justifications focus on the painful, unpleasant, or otherwise unwanted aspects of punishment, and appeal to these characteristics in positing that punishment is itself an evil.30 The only way in which the state could be justified in inflicting this evil on criminals is if by so doing the state is likely to bring about good consequences which may outweigh punishment’s alleged intrinsic badness. For example, if by punishing a criminal we are likely to rehabilitate her, then this good result may outweigh, in the consequentialist’s eyes, the evil of punishment. Similarly for some of the other famous consequentialist concerns: deterring the criminal on trial—or the general population—from committing crimes of this sort again, incapacitating the criminal from harming others, prevention, and so on, may be seen as goods that outweigh the intrinsic badness of punishment. Retributivism, in contrast, does not look at any further consequence punishment may bring about in order to justify it: punishment, for retributivists, is morally justified by its being deserved. If someone deserves to be punished, then, in principle, inflicting such punishment is justified. Clearly, retributivism need not be opposed to any of the aims that typically mobilize consequentialists (again: rehabilitation, incapacitation, or deterrence). But they deny that these other aims, laudable as they may be, belong to the discussion of the justification of punishment—they are “a happy surplus.”31 Retributivists link the justification of punishment to its inherent justice: people getting what they deserve is just, and it is a good thing in itself. It is just to award the highest grade to a student who deserves it, or a medal to a hero who deserves it, and similarly, it is just to award punishment to whomever deserves it. Some strengths and weaknesses in each of these two justifications of punishment immediately become apparent. The main strengths of consequentialist approaches are the result of the palpable benefits which punishment would produce: it is hard not to hope for a safer world, or one with fewer criminals. Apart from the fact that the consequences consequentialists envision as resulting from punishment are not certain to obtain, the main weaknesses of consequentialism stem from the risk that focusing too much on those desired consequences may   Michael S. Moore, Placing Blame: A General Theory of the Criminal Law (1997), 155 ff. See also 30 31 Zaibert (n. 28) 175 ff.   Bentham (n. 21) 83.   Moore (n. 29) 89. 29

philosophy   145 lead to treating the criminal herself unjustly. The main strengths of retributivism are related to the respect of the defendant’s dignity as a human being: she will not be used merely as a means in order to advance this or that goal (however laudable the goal may be): she would be treated justly. But in her self-imposed indifference to the consequences of punishment, the retributivist may in fact become obsessed with one value (giving people what they deserve), at the expense of other things which are valuable too. These strengths and weaknesses, again, track some of the classical strengths and weaknesses of the comprehensive moral doctrines to which these justifications of punishment have historically been associated. Teleological moral doctrines define the right thing to do as a matter of maximizing the good: the paradigmatic example is utilitar­ ianism, which defines the right thing to do as that which maximizes utility (the good). Deontological moral doctrines do not define the right in terms of maximizing the good at all: the right and the good are, rather, independent of each other. This independence invites objections, for if actions are not assessed by attending to their consequences, then how? Teleological doctrines also have their problems. A classical objection raised against them concerns punishment directly: utilitarianism may justify scapegoating an innocent person, if so doing were the only way to avoid great disutility. A way of summarizing the strength and weaknesses of consequentialism and retributivism is to focus on the famous slogan used to distinguish them:  consequentialism is forward-looking, whereas retributivism is backward-looking. It is, of course, good to look forward, but the past also has some claims on us. Think of the famous “never forget” injunction on the wake of horrible atrocities: the injunction is in tension with consequentialism, insofar as the latter may sometimes recommend forgetting past atrocities. Similarly, while remembering the past may be a dignified display of integrity, a concern with the past may have a tendency to become obsessive and thus to cloud our vision of the future.32 The obvious pros and cons of these justifications have given rise to a very active research agenda seeking to develop “mixed” justifications of punishment, which seek to capture the best of each family of justifications while avoiding their pitfalls. An example is the burgeoning field of “transitional justice,” which seeks to combine the need to do justice to massive human rights violations (retributivism) and the need to contribute to the viability of incipient democracies (consequentialism). Independently of transitional justice, the effort has been particularly active amongst philosophers during the last 50 or 60  years, inspired by the realization that “the view that there is just one supreme value or objective (e.g. Deterrence, Retribution or Reform) in terms of which all questions about the justification of punishment are to be answered, is somehow wrong.”33 Unfortunately, however, and in spite of

  Moore (n. 29)  104–152. See also Friedrich Nietzsche, On the Genealogy of Morality (ed. Keith 33 Ansell-Pearson, 2007), 27 ff., and passim.   Hart (n. 25) 2. 32

146   leo zaibert their undeniable superficial attractiveness, efforts at mixing retributivism and consequentialism have failed. They have failed in at least two senses. First, they have failed in the sense that the concessions made to one camp remain unacceptable to the other camp. Secondly, they fail in the sense of not convincing the neutral, non-partisan observer that the best aspects of retributivism and of consequentialism have indeed been combined in a way that also succeeds in avoiding the pitfalls of each. Consider one famous example of an unsuccessful mixed justification. John Rawls suggested that the debate between retributivism and consequentialism is in fact resolved “by the time-honored device of making them apply to different situ­ations.”34 What he proposes is by now a common gambit: to ask two different questions, one of which to be answered along retributive lines, and another one along consequentialist lines. Rawls thus invites us to consider two different questions a young son, upon learning of someone’s punishment, might ask his father: (a) “Why was F put in Jail yesterday?” and (b) “Why do people put other people in jail?” And Rawls then suggests that the father would answer the first question along the lines of: “Because he [F]‌robbed the bank at B. He was duly tried and found guilty”; and the second question along the following lines: “To protect good people from bad people.”35 Moreover, Rawls suggests that each of these questions (and their respective answers) constitutes a point of view corresponding to a different branch of government: in one case the judiciary, and in the other the legislative. And then he claims that “one can say, then, that the judge and the legislator stand in different positions and look in different directions: one to the past, the other to the future,” and that “the justification of what the judge does, qua judge, sounds like the retributive view; the justification of what the (ideal) legislator does, qua legislator, sounds like the utilitarian view.”36 The main problem with mixed justifications such as Rawls’s, is that they “mix” much less than advertised. Granted, in Rawls’s solution government-as-a-whole can be seen as a system which includes both retributivist and consequentialist rationales. But each of the two branches remains remarkably unmixed: if you are a judge, you had better be a retributivist; if you are a legislator, you had better be a consequentialist. Not a very satisfying result. Despite these efforts at combining retributive and consequentialist rationales, the debate over the philosophical justification of punishment remains as alive today as it has ever been.37 Just as the criminal law needs to continue to rely on “action” even though its account remains elusive, it also needs to continue to punish, even punishment’s justification remains a contested topic.

34   John Rawls, “Two Concepts of Rules,” in Samuel Freeman (ed.), John Rawls: Collected Papers (2001), 22. 35   Rawls (n. 34) 22.    36  Rawls (n. 34) 23.    37  See Zaibert (nn. 13, 28).

philosophy   147

v.  Political Philosophy Independently of why in the end the state might be morally justified (if indeed it is) in punishing criminals, there is the further question as to what exactly should it be politically legitimate for the state to describe as a crime so as to subsequently punish. Quite obviously, there are many moral wrongs which ought not to be political wrongs—that is, wrongs which should not be made criminal. For example, betraying loved ones, whom we have led to expect our help and support, is, morally speaking, a bad thing to do. But it is very difficult to find a persuasive argument why lack of loyalty to loved ones (including here not only romantic partners, but relatives and friends) should be made criminal. In order to decide which acts ought to be criminalized we need to move beyond moral philosophy, and into political philosophy (or political morality). The most appealing contemporary principles of criminalization are inspired by the basic ideas found in John Stuart Mill’s seminal On Liberty (1977). As is well known, Mill’s major preoccupation in that book is to protect the individual from potential abuses by the state. It is perfectly obvious that the relationship between the state and the individual is asymmetrical, in the sense that, compared to the individual’s, the state’s power is immense. Surprisingly, perhaps, this asymmetry holds more or less equally—that is, it is sufficiently large—independently of whether the state under consideration is an enlightened democracy or a reactionary or otherwise ruthless tyranny. Mill, in fact, was above all focused on the ways in which the rights of individuals could be violated in enlightened democracies. His worry concerned what his work transformed into a household expression: the “tyranny of the majority,” by which he meant to capture the ways that the legitimate interests and aspirations of individuals, even in democracies, can be illegitimately drowned by those of the masses (whom the state represents). This problem, of course, does not concern only the criminal law: states can set back individuals’ legitimate interests and aspirations by favoring, say, some artistic or cultural manifestations and not others; or by (even tacitly) endorsing some lifestyles and not others.38 But nowhere can the power of government affect individuals more gravely than within the context of the criminal law. After all, in some jurisdictions individuals can, by way of criminal punishments, be subjected to physical pain, or even killed. Even in the least punitive and most humane jurisdictions, individuals are, by way of criminal punishment, stripped of their liberty, sometimes for the entirety of their lives. Criminal punishment causes more pain and suffering, and it generates more misery amongst individuals (and not only amongst the deserving criminals, but amongst their relatives and friends), than all other areas of government activity   Ronald Dworkin, A Matter of Principle (1985).

38

148   leo zaibert combined. Moreover, there exists a growing consensus amongst philosophers that criminal justice systems of even enlightened democracies routinely overcriminalize and over-punish— and that this overcriminalization affects above all the very poor and members of traditionally discriminated ethnic minorities.39 Part of an explanation—albeit clearly not a justification—for over-punishment may relate to the fact that even in enlightened democracies the widespread understanding of what punishment is supposed to be, and of what it is supposed to accomplish, is not itself very enlightened. In the United States, for example, slavery is, technically speaking, a permissible punishment: the U.S. Constitution clearly states: “neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”40 Slavery (even if conceptualized as a punishment), one would have hoped, would have by now been completely abolished in enlightened democracies. As we saw earlier, no one can seriously deny that punishment is supposed to be painful—but there obviously are many ways in which hard treatment can be painful without it being slavery. Early in On Liberty, Mill claims that his essential goal is: to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.41

It is a trite joke to point out how Mill then spends the rest of the book struggling with the many and complex qualifications needed to both make sense and justify that allegedly “very simple principle.” And there exists a very large scholarship continuing Mill’s struggles.42 For our purposes here, however, somewhat of a corollary to the spirit of what is now widely known as Mill’s “harm principle” can be stated simply. When it comes to the scope of the criminal law, that is, to the reach of the state’s punitive power, we ought to be cautious, and err on the side of prudence. One could propose an analog to the famous principle related to doubts about defendants’ guilt, in dubio pro reo, and suggest a similarly broad and simple principle of criminalization: in dubio pro libertas. This 39   See Douglas Husak, Overcriminalization: The Limits of the Criminal Law (2008) and Hyman Gross, Crime and Punishment: A Concise Moral Critique (2012). 40   Thirteenth Amendment. 41   John Stuart Mill, “On Liberty,” in J. M. Robson and Alexander Brady (eds.), Collected Works of John Stuart Mill, Vol. XVIII (1977), 223. 42   Isaiah Berlin, Four Essays on Liberty (1958); Joel Feinberg, The Moral Limits of the Criminal Law (1984, 1985, 1986, 1990), 4 vols.

philosophy   149 highlights the essential point in Mill’s position, universally known as liberalism:  an important liberal insight is that the state should remain neutral as to theories of the good. The state should not endorse what it takes to be the good life—precisely because this may restrict the liberty of those who do not agree with such a conception of a good life. This point concerns liberalism in general, but its connection to criminal law in particular is obviously important. When the liberal defends the right of a person to harm herself by, say, by using drugs, she is not thereby endorsing the view that harming oneself with drugs is a good thing—she is merely erring on the side of liberty: in dubio pro libertas. The liberal’s caution leads her to adopt a minimalist criminalization principle, and something like Mill’s harm principle is as good a starting point as any. Predicating punishment only on actions which harm (or risk harming) others prevents legislation of two types. First, it prevents legislation that would criminalize actions which only (risk) harm (to) the very agent. In this sense, liberalism is opposed to what is known as paternalism: namely, legislation that seeks to protect the individual from herself. A well-known difficulty, however, is that it is relatively easy to re-describe the intent of a piece of legislation that appears paternalistic as if it were non-paternalistic. So, while punishing competent adults for not wearing seat belts when operating motor vehicles may look like a clear case of paternalistic criminalization, it could be argued that the legislator’s intent is to protect others from the “harm,” say, of having to pay for picking up non-seat-belt-wearing bodies from the public roads in which they may land after accidents. To the extent that these sorts of re-descriptions appear contrived, the liberal will tend to reject them. A very important case study—and a timely one as well—concerns (recreational) drug use by adults.43 To the extent that such behavior does not (risk) harm to others, the liberal is likely to reject its criminalization— although opponents may, as in the example of seat belts, try to suggest that there is a rationale for criminalizing drug use which is not paternalistic. The second type of criminal legislation prevented by the liberal stance is that which predominantly seeks to uphold the values of a society. The opponent of the liberal here is the moralist (or legal moralist, as she is also known). The moralist thinks that exercising the state’s punitive power in order to teach moral lessons, or to add to the cohesion of a given community is a legitimate enterprise. Moreover, moralists may see the teaching of moral lessons as the duty of responsible states. Perhaps it is impossible for the criminal law of any moderately complex society not to sometimes say something about its values; but the liberal opposes making this a primordial function. Probably the most famous and illustrative contemporary debate between liberalism and moralism is the Hart–Devlin debate,44 into which Ronald Dworkin, amongst many others, also entered.45 At issue was whether homosexuality

  See Husak (n. 39).   See Patrick Devlin, The Enforcement of Morals (1968), and H. L. A. Hart, Law, Liberty, and Morality 45 (1969).   Ronald Dworkin, Taking Rights Seriously (1977), 240–265. 43

44

150   leo zaibert (between males) could be criminalized, simply by virtue of its alleged immorality. Devlin, representing the moralist side, argued that homosexuality (amongst men) could be legitimately punished simply by virtue of its being considered immoral by the majority of people, whereas Hart (and Dworkin), taking the liberal side, rejected this position. Liberals reject moral majoritarianism. There are contexts in which the alternatives to liberalism appear more plaus­ ible: for example, within the context that opposes liberalism to communitarianism, or within that of economic policy. There may be cases, moreover, in which a full rejection of paternalism seems naïve—individuals may need state protection from the also asymmetrical power relation between them and large corporations. Think, for example, of nutritional labels, or of health warnings on cigarettes: without these, individuals may be, to an extent, at the mercy of powerful advertising campaigns. Be that as it may, within the context of the criminal law, and in particular given the many excesses, power asymmetries, and injustices which the criminal law engenders,46 and in spite of the moralist resurgence of late (admittedly much more nuanced than Devlin’s),47 it is difficult not to endorse (something like) liberalism. The liberal not only seeks to limit the number of moral wrongs which ought to be recognized as legal wrongs. She will also seek to limit the number of legal wrongs which ought to be recognized as specifically criminal wrongs. Insofar as prison and death constitute greater infringements of individual freedom than fines, confiscations, and forced fulfillment of contractual obligations, the liberal will hesitate to favor the former. She will tend to treat punishment as the measure of last resort— and this is not to thereby take sides regarding the debate between retributivism and consequentialism. A liberal may recognize that the fact that criminals deserve punishment is an important consideration. But, ceteris paribus, and as a political stance independent of the debate between retributivism and consequentialism, the liberal would like to criminalize less rather than more. And she would also like to punish less rather than more, for much of what holds for the problem of overcriminalization holds, too, for the problem of over-punishment.48 An age-old popular position is that punishment must fit the crime: those committing particularly horrible crimes ought thereby to suffer particularly horrible punishments. The liberal may resist such simplistic conclusion, and so may the retributivist.49 The main reason why some think that the retributivist cannot accompany the liberal in being suspicious of punishment is that, historically, retributivism has been erroneously equated with the famous lex talionis, the famous “eye for an eye, tooth for a tooth.” This is partly explained by the enormous influence that Kant, who held both positions,50 has exerted. There is, however, no reason   See Gross (n. 39), and Husak (n. 39).   See Leo Zaibert, “The Moralist Strikes Back,” (2011) 14 New Crim. LR 139–161. 48 49   See Dworkin (n. 45).   See Zaibert (n. 28). 50   Immanuel Kant, The Metaphysical Elements of Justice (transl. John Ladd, 1965). 46 47

philosophy   151 why a retributivist must endorse lex talionis. All that her retributivist credentials require her to hold is that it is good when people (including criminals) get what they deserve, and that this goodness is relevant for the justification of punishment. Even a retributivist who also endorsed lex talionis may share the liberal suspicion of punishment. For she may understand that the fact that something is good does not entail that anyone has an all-thing-considered obligation to bring it about. She may also understand that moral goodness and political goodness do not always coincide.

References American Law Institute, The Model Penal Code and Commentaries: Official Draft and Revised Comments (1985) Austin, John, Lectures on Jurisprudence (1869) Bentham, Jeremy, “The Principles of Morals and Legislation,” in John Bowring (ed.), The Collected Works of Jeremy Bentham, Vol. 1, (1962) Berlin, Isaiah, Four Essays on Liberty (1958) Feinberg, Joel, Doing and Deserving (1970) Feinberg, Joel, The Moral Limits of the Criminal Law (1984, 1985, 1986, 1990), 4 vols. Hart, H. L. A., Punishment and Responsibility (1st ed., 1968; 2nd ed., 2008) Kant, Immanuel, The Metaphysical Elements of Justice (transl. John Ladd, 1965) Mill, John Stuart, “On Liberty,” in J. M. Robson and Alexander Brady (eds.), Collected Works of John Stuart Mill, Vol. XVIII (1977) Moore, Michael S., Act and Crime: The Philosophy of Action and its Implications for Criminal Law (1993) Moore, Michael S., Placing Blame: A General Theory of the Criminal Law (1997)

­c hapter 8

CRIMINAL LAW AND SOCIOLOGY galia schneebaum shai j. lavi*

i.  Introduction to Criminal Law and Sociology As a phenomenon of significant social importance, criminal law has been a continuous point of interest for sociologists. Sociology and criminal law have many potential meeting points. However, within the rich tradition of sociological analysis of law, certain aspects of criminal law have drawn more attention than others. Criminal process and punishment have traditionally stood at the center of sociological attention, whereas the relationship between sociology and substantive criminal law has remained to a large extent underexplored.1 There are two main reasons for this lacuna. Sociologists are interested in law in action rather than law in the books. Most sociologists of the criminal justice system are interested in the power and effects of the criminal justice system and not in the minute details of criminal legal doctrine. From a sociological *  We wish to thank Daniel Ohana for commenting on an earlier draft of the chapter, and Chen Shidlovsky for excellent research assistance.   As Lacey and Zedner point out “it is almost as rare to find a criminology text which concerns itself with the scope and nature of criminal law as it is to find a criminal law text which addresses 1

criminal law and sociology    153 point of view, substantive criminal law and doctrine are mere rationalizations of the exertion of power. By the same token that sociologists of religion do not focus their research on theological dogma, so too sociologists of law have not devoted their attention to the study of legal doctrine. On the other side of the divide, from a traditional legal point of view, the contribution of sociological analyses to criminal doctrine may seem equally futile. The ethical and ontological presuppositions of substantive criminal law, first and foremost, the notions of moral agency, responsibility, and free will, seem incommensurable with the epistemological and ontological presuppositions of sociology as a science of social conditions and their effects. Sociology seeks causal explanations, whereas criminal law attributes responsibility. More specifically, substantive criminal law has traditionally rejected a priori any argument for diminished responsibility due to external social factors, such as class, ethnicity, or gender. Sociologically based arguments contradict criminal law’s entrenched belief in autonomy and individual responsibility. While the division of labor between sociologists and jurists continues to dominate the academic terrain,2 two important shifts in the sociology of criminal law have complicated the relationship between these seemingly separate spheres of knowledge. First, sociologists have become growingly aware of the importance of the inner logic and dynamics of the legal sphere and its irreducibility to extra-legal sociological considerations. Secondly, both sociologists and lawyers have become growingly interested in the incorporation of sociological knowledge into substantive criminal law analysis. This changing focus may be described as a transition from an interest in the sociology of law to an interest in sociology in law. In what follows, we seek to describe both these developments in the broader context of the sociology of criminal law, to point to the contributions and limitations of the current literature, and to offer a new frame of analysis for understanding the role of sociology in criminal law. Undoubtedly, the aim of this chapter is not to provide a comprehensive account of the field of sociology of criminal law. Rather, the chapter offers a critical reflection on the common portrayal of the relationship between these two fields and offers a new approach that may be of interest both to scholars of criminal law and to sociologists. The chapter proceeds as follows: Section II provides an overview of the existing sociology of criminal law and presents the fundamental tensions between the two disciplines emphasizing attempts to reconceptualize their relationship. Section III offers sociology in criminal law as a new paradigm for a cross-fertilization of sociology and criminal law and focuses on the case of diminished responsibility of offenders criminological questions about crime.” See Nicola Lacey and Lucia Zedner, “Legal Constructions of Crime,” in Mike Maguire, Rod Morgan, and Robert Reiner (eds.), The Oxford Handbook of Criminology (2012), 159 ff. 2

  Lacey and Zedner (n. 1) 160–161 ff.

154    galia schneebaum and shai j. lavi to illustrate the new paradigm. Section IV develops the new paradigm through a close analysis of sexual abuse offences, which concern the diminished responsibility of victims.

ii.  Sociology and Criminal Law: Tensions and Possibilities 1.  Sociology of criminal law beyond reductionism Mainstream studies in sociology of criminal law observe law from an external point of view and explain law either through its social function or through its social power. Whether emphasizing social cohesion3 or social conflict,4 such accounts have positioned the phenomenon of criminal law as the object of socio­ logical inquiry5 and reflect upon criminal institutions “from the outside.” The main line of questioning posed by traditional sociolegal accounts is:  what are the social causes, effects, and functions of the criminal law system? Of course, dramatic differences exist among various writers within this tradition. One important axis of differentiating between theories is the level of sociological reductionism; namely, the extent to which scholars on one end of the spectrum understand criminal law merely as a reflection of the social order, or alternatively take seriously the semi-autonomous nature of law as a social system and consequently give greater weight to the internal logic and dynamics of the crim­ inal legal system and criminal legal doctrine. Here we wish to highlight a gradual movement in contemporary scholarship to a more nuanced and less reductionist account of criminal law. Characteristic of the reductionist analysis is the application of general social theory to the criminal law. The criminal legal system becomes yet another subject matter of sociological analysis. One school of sociologists and criminologists has addressed criminal law institutions as an important mechanism of social order, assessed their effectiveness, and offered ways to improve them.6 A different, more 3   Émile Durkheim, The Division of Labor in Society ([1893] transl. Lewis A. Coser, 1997); Martin Robertson, “The Evolution of Punishment,” in Steven Lukes and Andrew Scull (eds.), Durkheim and the Law (1983). 4   Georg Rusche and Otto Kirchheimer, Punishment and Social Structure (1939). 5   See e.g. David Garland, “Sociological Perspectives on Punishment,” (1991) 14 Crime and Justice 115 ff. 6   See e.g. Nigel Walker, Sentencing in a Rational Society (1969); James Q. Wilson, Thinking about Crime (1975).

criminal law and sociology    155 critical school, has been much more skeptical about “crime control” theories. Inspired mainly by Marxist theory, critical scholars have shown how the seemingly unbiased operation of the crime control enterprise is better understood as a form of oppression by dominant social groups over the disadvantaged, and claimed that the seemingly natural social order should be acknowledged as a web of power relations.7 Whether favorable or critical of criminal institutions, mainstream Anglo-American sociology did not pay much attention to the specific content of criminal legal norms and ignored criminal law’s internal normative structures. Guided by the apparent dichotomy between questions regarding the social effects of criminal law, and questions concerning the metaphysic of criminal justice,8 sociologists naturally concentrated on the real effects of the criminal law, and most notably its punitive effects. This approach was intensified by the traditional Marxist identification of the legal system as part of the social super-structure. In this tradition, law is a legitimizing and rationalizing mechanism and no more than a social epiphenomenon. Most notably, this line of inquiry was and to a certain extent still is guided by general sociological questions concerning the distribution of power and its conceptualization through the axes of class, gender, race, and ethnicity. The rise of Legal Realism in the first half of the twentieth century, joined by the “Law and Society” movement in the second half of the twentieth century, has greatly contributed to this line of study.9 Sociologists of the criminal justice system, as well as a growing number of criminal lawyers, have been interested in the broader sociological context in which criminal law operates. One familiar direction has been the “gap studies,” which have focused on the disparity between law on the books and law in action—that is, the gap between the letter of the law and legal enforcement.10 Another direction has been to explore the interrelationship between criminal legal norms and social norms, beliefs, and attitudes.11 For the most part, other than pointing to the obvious fact that legal norms as opposed to social norms are state-enforced, these studies did not include in-depth reflections on the exact

7   For a useful summary of Marxist approaches to criminal punishment, see Garland (n. 5) 128–134 ff.; for an account of the influence of social and political forces on the legislative process of criminalization, see W. J. Stuntz, “The Pathological Politics of Criminal Law,” (2001) 100 Michigan LR 505. 8   Lacey and Zedner (n. 1) 163 ff: “there has been relatively little intersection between the normative theorizing undertaken by lawyers in respect to criminalization and that undertaken in critical crimin­ ology and criminal justice studies.” 9   Jerome H. Skolnick, “Legacies of Legal Realism: The Sociology of Criminal Law and Criminal Justice,” (2012) 8 Annual Review of Law and Social Science 1 ff. 10   See generally Nicola Lacey and Celia Wells, Reconstructing Criminal Law:  Text and Materials (2nd ed., 1998), 62–90 ff. 11   See e.g. Paul Robinson “Criminalization Tensions: Empirical Desert, Changing Norms, and Rape Reform,” in R. A. Duff et al. (eds.), The Structures of the Criminal Law (2011).

156    galia schneebaum and shai j. lavi relationship between the two kinds of norms. We return to this question, offering a more reflective approach, in what follows. The marginalization of substantive criminal law and criminal doctrine was partially revisited by neo-Marxists writers, who questioned previous attempts to reduce law to its material basis. From the 1970s onwards, scholars in this tradition have emphasized the relative autonomy of the criminal legal system and have given more weight to the sociological significance of legal authority12 and the internal logic of the rule of law.13 These scholars have argued that the ideals of substantive and procedural criminal law are not mere rationalizations but have real effects. Moreover, they are not mere reflections of existing power relations and may, at times, come into conflict with hegemonic power, even if their ultimate purpose and effect is to sustain the oppressive apparatus of state authority and the ruling classes. Another related development, still in the 1970s, was the rise of the Critical Legal Studies (CLS) movement, which employed critical theory to deconstruct the very conceptions of criminal responsibility.14 Though these writers operated mostly within law schools, and did not see themselves as sociologists, they were inspired by neo-Marxist theory and later on by post-modern philosophy. CLS writers have challenged the internal logic of criminal law doctrine and brought it under the scrutiny of social-critical assessment. Scholars in this tradition have gone beyond the familiar Marxist argument about the discrepancy between the legal ideal of equality and freedom, and the social reality of inequality and oppression. Through a symptomatic reading of legal materials, they have located the discrepancies and the contradictions within the legal texts themselves.15

2.  From sociology of criminal law to sociology in criminal law As mentioned, most sociological research applies sociological method and theory to the study of the criminal law system. A very different approach was developed in the 1970s by Michel Foucault whose work continues to exert influence in the field. One way of understanding Foucault’s contribution is to highlight the manner in which he turned the tables on the sociology of criminal law and, more generally, on the relationship between the criminal law system and the human and social   e.g. Douglas Hay, Peter Linebaugh, and E. P. Thompson (eds.), Albion’s Fatal Tree (1975).   See esp. E. P. Thompson, Whigs and Hunters: The Origins of the Black Act (1975). 14  For a useful and reflexive overview of critical studies of criminal law, see David Nelken, “Critical Criminal Law,” (1987) 14 Journal of Law & Society 105 ff.; Alan Norrie, Crime, Reason and History: A Critical Introduction to Criminal Law (2001). 15   See among others, Mark Kelman, “Substantive Interpretation in the Criminal Law,” (1981) 33 Stanford LR 59 ff.; Bernard E. Harcourt, “The Collapse of the Harm Principle,” (1999) 90 Journal of Crim. Law & Criminology 109 ff. 12 13

criminal law and sociology    157 sciences. Rather than studying the criminal law system with human and social sciences, Foucault offered a critical analysis of the incorporation of social and human sciences into penal procedures as a new mechanism of knowledge/power, that is, a new power formation grounded in the emergence of new forms of knowledge including criminology, psychology, psychiatry, and sociology.16 Foucault’s classic, Discipline and Punish: The Birth of The Prison reaches back to the penal reform at the turn of the nineteenth century and the writings and interventions of Cesare Beccaria, Jeremy Bentham, and their French colleagues of lesser repute. Inspired by Foucault, other scholars have offered similar accounts of more recent developments in the penal legal system. They have critically examined new modes of criminal punishment and rehabilitation,17 new methods for police investigation18 and the contemporary reality of courtroom procedures, and have critic­ ally characterized the criminal legal system as a sophisticated mechanism of social management, policing,19 and governance.20 One line of this scholarship, we seek to highlight here, is interested in the way sociology, along with other human sciences, has been uncritically incorporated into the criminal justice system and has given rise to new formations of knowledge/power. With all his interest in the incorporation of the social sciences into the operation of the penal system, Foucault was highly aware of the tension between the internal logic of the law and the legal process, on the one hand, and the role of extra-legal formations of knowledge/power and their role in the penal system, on the other hand. In a telling passage, Foucault draws attention to this tension: The whole penal operation has taken on extra-juridical elements and has personnel. It will be said that there is nothing extraordinary in this, that it is part of the destiny of law to absorb little by little elements that are alien to it. But what is odd about modern criminal justice is that, although it has taken on so many extra-juridical elements, it has done so not in order to be able to define them juridically and gradually to incorporate them into the actual power to punish; on the contrary, it has done so in order to make them function within the penal operation as non-juridical elements . . . Today, criminal justice functions and justifies itself

16   Michel Foucault, Discipline and Punish:  The Birth of the Prison ([1975] transl. Alan Sheridan, 1995). For a critical appraisal of Foucault’s treatment of law, see Alan Hunt, Foucault and Law: Towards a Sociology of Law as Governance (1994). See also Mariana Valverde, “Specters of Foucault in Law and Society Scholarship,” (2010) 6 Annual Review of Law and Social Science 45 ff. 17   Malcolm Feeley and Jonathan Simon, “The New Penology: Reflections on the Emerging Strategy of Corrections and its Implications,” (1992) 30 Criminology 449. 18   Bernard H. Harcourt, Against Prediction: Punishing and Policing in an Actuarial Age (2007). 19   Markus D.  Dubber and Mariana Valverde (eds.), Police and the Liberal State (2008); Markus D.  Dubber and Mariana Valverde (eds.), The New Police Science:  The Police Power in Domestic and International Governance (2006). 20  Jonathan Simon, Governing Through Crime:  How the War on Crime Transformed American Democracy and Created a Culture of Fear (2007); David Garland, The Culture of Control—Crime and Social Order in Contemporary Society (2001); Mariana Valverde, Diseases of the Will: Alcohol and the Dilemmas of Freedom (1998).

158    galia schneebaum and shai j. lavi only by this perpetual reference to something other than itself, by this unceasing inscription in non-juridical systems.21

For Foucault, the reliance of the penal system on non-juridical elements was of key importance. Interestingly, Foucault too adopts the notion of a division of labor between the legal and the non-legal system, even as the thrust of his argument is to point to their integration. Though Foucault was more aware than any previous scholar of the importance of the human and social sciences in the criminal legal system, he nevertheless insisted on their separation. Without denying the truth of Foucault’s insight, but rather viewing it as a starting point, we can frame a new research question concerning the relationship between criminal law and sociology:  when, and under what conditions, can sociology be incorporated into the heart of the legal doctrine, not as an external, non-juridical element, but rather in the language of legal doctrine? Recently, there have been interesting attempts to integrate sociological insight into criminal law, which are worth mentioning. One direction, explored by feminist scholars, has been to integrate critical sociology into criminal law doctrine—specifically in the area of sex offences. Radical feminism developed in two waves. The first wave introduced critical gender theory and offered a blunt critique of rape law.22 The second wave relied on gender theory to offer constructive reforms of substantive criminal doctrines—mainly within pornography regulation.23 The feminist approach aspired to move beyond the sociological description of gender inequality to a normative-legal judgment that aptly recognizes gender discrimination as a legal wrong. Despite considerable efforts, however, radical feminists have had more success in non-criminal areas (sexual harassment regulation) than with criminal law reform. Another more recent direction proposes to revise existing criminal law doctrine by taking into account the socioeconomic background of the offender. These considerations, which in the past had a limited role within sentencing and no role in determining criminal responsibility, are currently under debate in scholarly literature. Richard Delgado, for example, argues that criminal law should recognize a special defense for offenders from impoverished socioeconomic backgrounds, which he refers to as the “Rotten Social Background” defense.24 He has opined that under severe conditions of socioeconomic deprivation, offenders may lack the mental capacity to commit crimes (mens rea) and, in extreme cases, should be excused from criminal responsibility. Barbara Hudson has similarly advocated adopting a   Foucault (n. 16) 22 ff.   Catharine MacKinnon, Toward A Feminist Theory of the State (1989), 171–183 ff. 23   Paul Brest and Anne Vandenberg, “Politics, Feminism and the Constitution: The Anti-Pornography Movement in Minneapolis,” (1987) 39 Stanford LR 607 ff. 24   Richard Delgado, “Rotten Social Background: Should the Criminal Law Recognize a Defence of Severe Environmental Deprivation?,” (1985) 3 Law & Inequality 9 ff. 21

22

criminal law and sociology    159 “hardship defense” for poor offenders,25 and Marie-Eve Sylvestre has reflected upon the possibilities of rethinking criminal responsibility for poor offenders, inspired by the social theory of Pierre Bourdieu.26 The proposals to admit impoverished backgrounds as a criminal defense are novel in that they try to bridge the distinct discourses of sociology and substantive criminal law. They thus fundamentally break away from traditional legal conventions, and seek to broaden the horizon of the standard liberal imagination. As yet, however, these suggested reforms have not been adopted into positive criminal law. And there is good reason for this rejection. This line of argumentation imports social theory into criminal law without resolving the inherent tension between the two disciplines and worldviews. As mentioned, substantive criminal law and sociology endorse two different visions of the human subject. While substantive criminal law commonly assumes individual autonomy and human agency, sociological knowledge stresses the structural, cultural, and economic circumstances that determine human behavior. Current theory does not account for the discrepancy between these two subjects: it offers a novel methodology without revisiting the substantive presuppositions of sociolegal theory. In what follows we offer an outline of a new sociolegal theory to accompany the new methodology of sociology in criminal law. The new theory translates sociological insights into the normative context of legal analysis and bridges the explanatory objective of social theory with the normative interest of criminal law. We proceed by exploring four paradigmatic cases in which criminal law has already incorporated sociological insight into substantive criminal doctrine. In contrast to the previously mentioned accounts, which seek to promote a normative ideal by imposing social concerns onto criminal law doctrine, our attempt is to explore the manner in which existing law already recognizes the impact of social norms on criminal responsibility. The cases are: cultural defense, provocation, Battered Woman Syndrome (BWS), and sexual abuse offenses. In all four cases, we show how sociological insight was integrated into criminal law only through the translation of descriptive sociological categories into normative categories such as cultural norms. Basic sociological categories: ethnicity, gender, and class have been translated into the legal context of cultural norms (rather than ethnic discrimination), family norms (rather than gender inequality), and the normative power of bureaucratic authority (rather than class domination). In all these cases, the social norms pertain to well-defined groups of individuals who act within prescribed social roles and within the confinement of social institutions: cultural groups, the family, and bureaucratic institutions. 25   Barbara Hudson, “Punishment, Poverty, and Responsibility: The Case for a Hardship Defence,” (1999) 8 Society & Legal Studies 583 ff. 26  Marie-Eve Sylvestre, “Rethinking Criminal Responsibility for Poor Offenders:  Choice, Monstrosity, and the Logic of Practice,” (2010) 55 McGill LJ 771 ff.

160    galia schneebaum and shai j. lavi

iii.  From Social Power to the Power of Norms: The Case of Diminished Responsibility of Offenders This section of the chapter explores novel developments in criminal law theory and doctrine in which criminal law recognizes, albeit under very limited conditions, the imprint of social conditions on human action. We seek to highlight the integration of sociological insight into criminal accountability in order to further the dialogue between sociology and criminal law. The emphasis here is on dialogue— rather than on the more common and one-sided sociological analysis of criminal law. Any such one-sided treatment would, by definition, reduce criminal law to the logic of sociological inquiry. The aim here, quite to the contrary, is to explore the way criminal law offers its own account and its own understanding of “the social,”27 which then may be compared and contrasted with more conventional sociological frameworks. However, our proposal is not to return to a “formalist” account of criminal law, one that maintains the autonomy of the legal system and its independence from other social systems. On the contrary, we are interested in the extent to which criminal law is heavily influenced by extra-legal normative and cognitive frameworks but, nevertheless, requires for their incorporation a process of translation.28 Specifically, we are interested in cases of “diminished responsibility” where the underlying impediment to full autonomy is not merely psychological but sociological. Diminished responsibility is a broad and varied legal category.29 Most commonly, it is used to preclude liability for first-degree murder, or to reduce other degrees of murder to manslaughter. Diminished responsibility is often classified as a subcategory of mental defense, self-defense, necessary evil, and loss of control, when general circumstances do not amount to a full defense. There are other, more specific, cases that are conceptually equivalent, including provocation, BWS, infanticide, and, in some jurisdictions, mercy killing. Obviously, not all cases of diminished responsibility concern social norms and many of the cases focus on mental   Shai Lavi, “ ‘Turning the Tables on Law and . . . :’ A Jurisprudential Inquiry into Contemporary Legal Theory,” (2011) 96 Cornell LR 811 ff. 28   Our approach may be compared and contrasted with Luhmann’s autopoietic system theory. For Luhmann, criminal law is cognitively open but maintains normative closure. Our model does not assume the normative closure of the legal system, but rather develops a model of normative translation. See Niklas Luhmann, Law as a Social System (2004). See also Gunther Teubner (ed.), Autopoietic Law: A New Approach to Law and Society (1988). 29   See e.g. Henry F.  Fradella, “From Insanity to Beyond Diminished Capacity:  Mental Illness and Criminal Excuse in the Post Clark Era,” (2007) 18 University of Florida Journal of Law & Public Policy 7 ff. 27

criminal law and sociology    161 defects. Our interest is in those cases in which the two work in tandem, that is, in cases in which social norms exert psychological effects. We thus focus on recent developments in criminal law doctrine in which the presumption of agency, central to criminal law, has been relaxed due to the pressure of social conditions. In these exceptional contexts, criminal law acknowledges the power of social conditions to affect freedom of will, and the agent is considered to be only partially in control of—and consequently responsible for—her actions. These situations are exceptional and highly circumscribed. Our question is when, and under which circumstances, is criminal law doctrine willing to incorporate social conditions and sociological insight into its understanding of human action? Indeed, not all social conditions or social forces are equal under the law. Let us compare and contrast the differences between the following defenses all of which appeal to the mitigating power of social forces: “My socio-economic background,” “my religion,” or “my culture” “led me to do it.” Of the three, the first has no standing under substantive criminal law. It implies a direct influence of social forces on freedom of will. The second, in contrast, can be recognized as a defense (most commonly through constitutional law) but only because it challenges the legitimacy of criminal prohibition, and precisely because it does not question freedom of will. Whereas the third, the so-called “cultural defense,” has a more ambivalent standing.30 Of the three, it may serve as a paradigm for exploring the extent to which substantive criminal law acknowledges the effect of external social forces on the freedom of the will. The latter question is of interest to us here. For social conditions and forces to be recognized under criminal law, they must be translated into a language that is commensurable with substantive criminal law. In other words, a translation of descriptive sociological categories such as ethnicity, into normative categories such as cultural norms, must take place. Our analysis shows that such recognition can occur only if two cumulative requirements are met. First, the social condition must have the character of a social norm and the power it exerts should be normative. Secondly, the social condition must have a clear psychological effect and the power it exerts should be normative, so that the action follows from an internal normative commitment rather than from an external social pressure. Criminal law, in these cases, could recognize that an internalized social norm has weakened and limited, though never quite eliminated, the individual’s free will. We explore each of these requirements in turn. Typically, social conditions, even those that may have moral implications, have no normative standing under criminal law. This is one consequence of the positivistic account of the modern state’s monopoly. The state has a monopoly not only over the legitimate use of power but, at least as importantly, aspires to exclusivity over the power to bestow legitimacy, that is, the power to declare norms as binding.   Compare Elaine M. Chiu, “Culture as Justification, Not Excuse,” (2006) 43 American Crim. LR 1317 ff. 30

162    galia schneebaum and shai j. lavi Social norms that are not state-sanctioned are, under the positivist account, legally in­valid, and those that contradict state norms constitute legal transgressions. In reality, however, this positivistic account does not exhaust criminal law’s normative horizon. Occasionally, social norms have a privileged position within the legal system even if they do not arise from within the legal system.31 The most apparent case is religion but as we shall see there are others. Religion is a case in which the legal system incorporates social norms and in which social norms may be respected by criminal law. Undoubtedly, religion is a social norm despite the fact that we tend to identify freedom of religion in the liberal tradition with an individual belief system. Nonetheless, religion makes little sense outside its social context, and it is only through the commitment of the individual to a socially recognized norm that religion is recognized by state law. While there is no “religious defense” per se, religion can be protected through constitutional law, and criminal legislation violating the constitutional right of freedom will be nullified in countries that have constitutional review. Nevertheless, religious norms are not always recognized by the state and often religious norms that violate criminal prohibitions are denied legal standing. Furthermore, legal systems widely differ in the manner in which they manage such conflicts. The point here is not that criminal law generally recognizes religious norms but, rather, that in comparison to other social forces, religious norms are more likely to receive legal protection. To the extent that they actually do, it is because they are not merely social forces but social norms, the normativity of which is recognized by the state as legitimately competing with its own. Our discussion of religious norms is only important when compared to other social conditions and forces that lack normative appeal. While the latter are not and cannot be incorporated into crim­ inal law without violating the principle of free choice and individual autonomy, the former are not merely powerful causes of behavior but are also legitimate reasons for action. Under certain circumstances they may shape the will without entirely negating it. Social norms that do not meet the standard of religious norms and that are not protected as such under the law, and specifically constitutional law, may nevertheless be recognized under substantive criminal law. One mechanism of their incorporation is by acknowledging their strong influence on the decision-making process of individuals, affecting their ability to exercise full agency over their actions. These cases are distinguishable from the common law doctrine of automatism and other cases of loss of volition in two important ways. First, these do not concern a complete loss of volition but a partial loss of control. Secondly, the reason for the loss is not physical or purely psychological, and has its origin not in the individual psyche but in strong social norms. These norms are not legally sanctioned and yet the law may take them into account. Nor are the social norms that we have in mind   Compare Sally Engle Merry, “Legal Pluralism,” (1988) 22 Law & Society Review 869 ff.

31

criminal law and sociology    163 simply empirically identifiable patterns of behavior. Only to the extent that the law recognizes them as normatively binding may these patterns serve as grounds for attributing diminished responsibility. Our study shows that there are specific circumstances under which criminal law relaxes its basic model of the autonomous subject and considers a subject who acts under social influence and consequently does not act in full autonomy. These cases are not arbitrary and not all social conditions are recognized as having the power to diminish the autonomy of the legal subject. Furthermore, not all social norms have this transformative power. One important set of cases are previously legally binding norms that have turned into social custom but have maintained some legal significance. They may be viewed as belonging to competing normative systems—competing with the state but, never­ theless, gaining certain recognition by criminal law. They compete with the state not only because they may propagate an alternative set of norms but because the alternative norms they offer are grounded not in individual consciousness or in a shapeless collective conscience, but rather in social institutions. These include family, religion, and other closely knit cultural groups and bureaucratic institutions. A telling instance is the historical common law provocation defense. There are two elements of the traditional common law defense that should be emphasized. The first, which is still central in contemporary jurisprudence, concerns the loss of control of the wrongdoer over his actions. The provocation defense offers lenient treatment to murder accusations, because the wrongdoer was not in full control of his actions, that is, because he suffered from a weakening of the will. The defense recognizes, in other words, the possibility that the wrongdoer was taken over by a strong psychological impulse leading to the criminal action. The second element, which has been mostly, but not fully, eroded under contemporary jurisprudence, concerns the grounds for the provoked reaction. Under traditional common law jurisprudence, the defense was more likely to succeed if the criminal reaction was not only psychologically reasonable but was also based in a socially acceptable, normative motivation. This requirement is most evident in the paradigmatic case of common law provocation—a husband accused of killing a rival adulterer. Historically, the husband would invite his rival to a duel, and though the duel was not legally sanctioned, the law would exonerate the husband from a murder accusation because it was clear that in protecting his honor the accused was abiding by a socially recognizable, though by no means legally sanctioned, norm. Today, emphasis is commonly given to the psychological affect32 and not to the normative justification. But the notion that a defense may require more than merely a psychological ground has not disappeared. Indeed, the recent reform of the provocation defense in the United Kingdom and 32   e.g. the Model Penal Code § 210.3 (1)(b) redefines the traditional provocation defense in terms of “extreme mental or emotional disturbance,” and yet requires that there will be a reasonable explanation or excuse for the state of mind.

164    galia schneebaum and shai j. lavi the establishment of the new “loss of control” defense rules out revenge—that is, a private seeking of justice as a legitimate ground for provocation. The following example suggests that whereas psychological distress in itself would not suffice as a defense, once it is backed by strong normative considerations, it may constitute a legally recognizable defense. Let us consider the case of BWS. Today we think of it as a psychological defense, but historically this was not the case,33 and still today it should not be construed as a purely psychological defense. The origin of this defense lies in the reluctance of courts to convict a woman, who after repeated episodes of physical abuse from her spouse, decides to kill her predator. Women suffering from this condition are acquitted for murder even though the act was premeditated manslaughter and even if the act does not qualify as self-defense. While the defense is cast in psychological terms as a mental condition, it combines social norms in similar ways to the traditional provocation defense. The killing is legally wrong, but it evokes not only empathy, but also moral understanding—if not approval. Though the law cannot endorse vigilante acts, it does not turn a morally deaf ear to a woman who believes this is the only way she can escape her perpetrator. If a battered woman is not fully accountable for her actions, this is not merely because she acted out of emotional distress. After all, legal expectations of people, even if they are under physical threat and emotional distress, is that they turn to the authorities and seek lawful protection. If the law does not have the same expectation from a battered woman, this is only because she has internalized a highly contestable, but nevertheless valid, social norm that commits her to remain in the household. This norm originates in the social system of patriarchy in which a woman was relegated to a subordinate status within the marriage and was “under oath to love, honor, and obey, and therefore obliged to do the husband’s bidding.”34 While the duty to obey the husband and patriarchal norms in general are no longer valid as legal norms, criminal law recognizes their effect as social norms that may hinder a woman from leaving an abusive spousal relationship. Acknowledging the normative pressure preventing the woman from escaping, the law recognizes her diminished responsibility. Comparing the old provocation defense and the battered woman defense is fraught with difficulties. But even if the differences outweigh the similarities, the differences themselves are revealing. The provocation defense in its historical origins was based on social norms that strengthened the accused’s will to regain his honor so much so that his will could not be expected to bow before the positive law.  Marianne Constable, “Chicago Husband-Killing and the ‘New Unwritten Law’, ” (2006) 124 Triquarterly 85 ff. 34   American Law Institute, Model Penal Code and Commentaries (1985), 343 ff. (discussing the marital exemption of rape as grounded in the superior status of the husband, and the subordinate status of the wife, within marriage). 33

criminal law and sociology    165 The modern defense has moved from offensive to defensive. The battered woman’s defense protects the offender as a victim of the circumstances and treats her with empathy and perhaps pity, whereas the provocation defense mitigated the responsibility of the offender as an aggressor. Furthermore, the force of social norms has undergone a psychological turn. From a (highly contestable) ethics of nobility, they have been rendered a psychological syndrome. As we see in the next section, the weakening of the will due to the internationalization of social norms is an import­ ant aspect of the contemporary incorporation of social norms into criminal law. To conclude this section, we return to the problem of cultural defense. It is a much less coherent category than either a religious defense, on the one hand, or a provocation or BWS defense, on the other. But to the extent that cultural defense has been recognized as a legal defense, it had to be more than a simple sociological fact about behavior patterns and had to satisfy these two conditions: (a) it should exert a normative force on the accused; and (b) it should evoke a psychological effect on the accused. A paradigm case of cultural defense is that of the Japanese woman who killed her two children after she learned that her husband had committed adultery.35 Defending her actions, her lawyers argued that she had practiced an old Japanese tradition of “oyaku-shinju,” or parent–child suicide through which she sought to purge the shame of her husband’s infidelity. Once again, the defense was not based merely on psychological distress but rather on the internalization of a social norm that rendered her actions less controllable. The defendant received a lenient sentence—five years’ probation and psychiatric counseling. It is unclear whether the court based its lenient sentencing on the cultural defense:  what is undisputed and significant is that the court seriously considered the defense and admitted evidence pertaining to it. Nonetheless, it seems that cultural defense has not taken hold in the criminal law system in the same manner as BWS. This, in all likelihood, is not a coincidence but a predictable consequence of the growing attention that contemporary criminal law pays to the plight of victims and the growing suspicion with which it judges perpetrators. Though formally the battered woman is the accused, she is conceived of first and foremost as a victim. While it is difficult to predict the relaxation of the legal presumption of full autonomy, and the expansion of the integration of internalized social norms into the criminal law, one may predict that courts are more likely to apply the diminished responsibility defense to victims (or victims-turned-accused) than to perpetrators. Indeed, if thus far our examples focus on the weakening of the autonomy of the accused, our next example— offenses of sexual abuse in authority relations (SAR offenses)—is based on the weakening of the autonomy of the victim.

  No. A-091133 (Los Angeles City Super. Ct. filed Apr. 24, 1985), cited in Spencer Sherman, “Legal Clash of Cultures,” National LJ, Aug. 5, 1985, at I. 35

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iv.  Normative Power and Diminished Responsibility of Victims: The Case of Sexual Abuse in Authority Relations The notion of individual autonomy underlies two distinct principles in modern crim­ inal law: one principle concerns criminal responsibility and pertains to the autonomy of offenders, and a second principle concerns criminal wrongdoing and pertains to the autonomy of victims. These two aspects are interconnected, but it is useful to consider them apart for our present inquiry as they engage two different questions in the theory of the criminal law. First, what are the conditions for holding a person responsible for a criminal act? Secondly, what are the criteria for proscribing certain acts as criminal wrongs? Autonomy plays an important role in both cases. In the former, autonomy is a prerequisite for holding someone criminally responsible for a criminal act. Criminal law assumes that people are generally autonomous and responsible for their actions, but this supposition can be counterbalanced by certain exceptional circumstances—for example, insanity. In the latter case, offense to autonomy is the conception of wrong­ doing underlying many criminal offenses. To sum up, the offender’s conduct must violate the autonomy of the victim in order to be considered a criminal offense; the offender should be deemed autonomous in order to be criminally responsible. Our previous discussion engages three examples in which criminal law has relaxed the presumption of autonomy with regard to offenders. Our next example—SAR offences—pertains to the autonomy of victims. In SAR offenses, the legal system diminishes the assumption of autonomy of victims in an authority relation. Thus, these offenses provide a particularly telling instance of the contemporary inception of sociological insight into substantive criminal law doctrine, and are a good opportunity to investigate the terms under which the legal system is willing to modify its traditional perception of autonomy.

1.  SAR offenses: the challenge to the traditional understanding of autonomy Autonomy is a broad concept and the meaning of autonomy varies in different discourses—social, moral, popular, and philosophical. Within criminal law, autonomy has traditionally carried a distinct meaning that has produced a specific and quite rigid understanding of “offense to autonomy.” Autonomy in criminal law is understood as a domain of self-rule and relates primarily to one’s control over one’s body and property.36 Moreover, an offense against autonomy refers to situations in   See e.g. Alan Brudner, “Agency and Welfare in the Penal Law,” in Alan Brudner, The Unity of the Common Law—Studies in Hegelian Jurisprudence (1995), 214 ff. 36

criminal law and sociology    167 which one person (the offender) invades the domain of another person (the victim) without the latter’s permission. The paradigmatic example of criminal breach of autonomy is physical violence directed against the victim’s body (criminal assault). While some non-violent invasions—such as extortion or fraud—have been recognized as traditional offenses to autonomy, they were very limited additions to paradigmatic cases. In any event—the mainstream view of autonomy in criminal law excludes the influence of social conditions, social structure, or social patterns on individual autonomy, although such conditions undeniably affect human beings’ ability to control and design their own lives. Criminalization of sex in authority relations marks an important development in this respect,37 because it takes into account the social structure of authority when considering the victim’s autonomy. We first present SAR offenses and then show how they reflect and enforce an unorthodox understanding of offense to autonomy in criminal law. We use the term “SAR offenses” to connote a cluster of new sex offenses that prohibit sexual contact in relations such as those between an employer and employee, therapist and patient, or teacher and student. The criminalization of SAR is a contemporary trend in many legal systems, including the United States, Canada, and Israel. The problem of introducing sex into professional relationships is not new and has long given rise to various forms of non-criminal regulation.38 Contemporary SAR offenses are unique among these different arrangements, however, for they criminalize sex in professional relationships as a new type of sex offense, on the assumption that such sex is often imposed—rather than freely chosen—by the subordinate. SAR offenses share a common element: they proscribe sexual contact within a certain type of relationship in which one side holds a dominant position of power over the other side in the relationship.39 Notwithstanding this imbalance of power, SAR offenses do not require an element of force or any other type of coercion traditionally recognized as offense to autonomy in the common law. A  typical SAR provision proscribes sexual contact between a doctor/employer/teacher and a patient/employee/student, if the former has abused his authority to coerce the victim into sexual submission.40 Courts have determined that proof of threats or fraud is not required for criminal charges and that “abuse of authority” is not   Within academia, scholarly accounts have from time to time contested the exclusivity of the trad­ itional categories of offense to autonomy, See e.g. Stephen Schulhofer, “Taking Sexual Autonomy Seriously—Rape, Law and Beyond,” (1992) 11 Law & Philosophy 35 ff. But in SAR offenses the challenge appears in effective legal practice, not only in theory. 38   Sex between doctors and patients is proscribed in many jurisdictions under professional codes of conduct. Sexual offers or threats within employment supervisory relations are proscribed in the United States and elsewhere as sexual harassment under anti-discrimination (civil) laws. 39   For a detailed analysis of SAR offenses and their theorization inspired by social theory of authority see Galia Schneebaum, “What is Wrong with Sex in Authority Relations? A Study in Law and Social Theory” 105 Journal of Criminal Law and Criminology (forthcoming, 2015). 40   See e.g., Wyo. Stat. Ann. § 6-2-303(a)(vi), W.S. 1977. The Wyoming Code defines as second-degree sexual assault any case where “the actor is in a position of authority over the victim and uses this position of authority to cause the victim to submit.” 37

168    galia schneebaum and shai j. lavi limited to extortion.41 Furthermore, certain SAR provisions contain categorical prohibitions of sex in these relationships and at times specify that consent by the victim is not a defense to a criminal charge.42 Thus, unlike traditional rape law, which perceive the use of force, threat of force, fraud, or incompetence as exhaustive of non-consent and offense to autonomy,43 SAR offenses proscribe sex even if the victim was not threatened or defrauded prior to the sexual act, and even if she cooperated rather than resisted the offender’s sexual initiative. Hence, SAR offences challenge the conventional understanding of offense to autonomy in criminal law. A primary question—with an answer that has the potential to illuminate wider issues in the contemporary state of affairs between criminal law and sociology—is why do subordinates submit to authority figures’ sexual requests, and what motivates criminal law’s conception of such submission as wrongful, if no coercive measures have been used to persuade victims into submission.

2.  Current SAR understandings: psychology and sociology The main assumption guiding judges, policymakers, and scholars is that subordin­ ates will sometimes submit to sexual advances by authority figures even if they lack a genuine desire to do so, and even if no threats or force have been used to coerce them into submission. Legal practitioners and scholars have been guided by the intuition that such scenarios are wrongful and deserve criminalization, but they were also aware of the misfit between SAR offenses and traditional categories of offense to autonomy in criminal law. In their attempt to explain and justify SAR criminalization, scholars and practitioners have come up with two main lines of argument. One argument focuses on the victim’s psychology. It describes the victim’s position in terms of psychological vulnerability44 and   e.g. the Israeli Penal Law proscribes the actor from having intercourse with a woman over the age of 18 within employment supervisory relations “by exploiting [his/her] authority in employment or in service.” The Israeli Supreme Court in interpreting this provision held that extortionate threats may be one (obvious) example of abuse of authority but do not exhaust the range of proscribed conduct. See DA 4790/04 State of Israel v. Ben-Chaim, IsrSC 60(1) 257 ff. 42   See e.g., Idaho Code § 18-919(a). The Idaho Code specifies that: any person acting or holding himself out as a physician, surgeon, dentist, psychotherapist, chiropractor, nurse or other medical care provider as defined in this section, who engages in an act of sexual contact with a patient or client, is guilty of sexual exploitation by a medical care provider. For the purposes of this section, consent of the patient or client receiving medical care or treatment shall not be a defense. 43   See e.g. Sanford Kadish, Stephen Schulhofer, and Carol Steiker, Criminal Law and Its Processes— Cases and Materials (2007), 336–337 ff. 44  See e.g. Stephen Schulhofer, Unwanted Sex (1998), 206–208, 227 ff.; Texas Penal Code Ann. § 22.011(b)(9) (speaking of patients within the doctor–patient relationship as “emotionally dependent”). 41

criminal law and sociology    169 understands SAR offenses as prohibiting the offender—a professional authority figure—from taking advantage of the victim’s fragile circumstances by sexually exploiting her. This line of argument is mainly prevalent in the context of therapy exploitation. A different explanation, appearing in feminist or feminist-inspired scholarship, moves from psychology to sociology. It stresses the structural imbalance of power between authority figures and their subordinates as the core issue. Feminist accounts consider the stark disparity of power between employers and employees, for example, and point to the ability of employers to pressure subordinates into unwanted sex by relying on their control over the employee’s livelihood (and without having to use threats or any other form of coercion). Radical feminists have long argued that criminal law should, normatively speaking, acknowledge the prominence of power structures in women’s lives and recognize their controlling effects over women’s autonomy. Feminist accounts thus perceive SAR criminalization as a desired and exemplary legal model, which aptly proscribes sexual abuse of power.45 The power, according to the feminists, is gender power or economic power in status-like relationships (employer–employee or teacher–student); its dramatic effects have been finally acknowledged, rather than disregarded, by criminal law.

3.  SAR offenses: abuse of authority, not power The following analysis suggests that the psychological proposition and the social inequality proposition described previously are both misguided. SAR offenses indeed break away from the traditional liberal understanding of offense to autonomy, and feminists have been correct to point this out. This deviation, however, does not reflect a full-fledged acknowledgment of social power but rather a more selective and essentially discriminating attitude. This approach specifically pays attention to social norms (rather than social power) and acknowledges their effects over victims without, however, completely elimin­ ating their autonomy. In order to understand SAR offenses, we should look into the term authority that appears in SAR provisions.46 The social structure of authority, and particularly the norm of obedience—which is prevalent in bureaucratic authority relations—is the

45   Michal Buchhandler-Raphael, “Sexual Abuse of Power,” (2010) 21 University of Florida Journal of Law and Public Policy 77 ff. 46   Certain SAR provisions use the term “authority.” Others use terms such as “trust” (“abuse of trust”), “power” (“abuse of power”), or “dependency” (“abuse of dependency”). The argument presented here is that such offenses are all guided by a similar notion of abuse of authority, whether they explicitly use that term or some other related term.

170    galia schneebaum and shai j. lavi social condition to which SAR criminalization responds. Authority most fundamentally is a position of power that allows certain institutions or people (“authority figures”) to rule other people, direct their actions, and guide them. Authority, therefore, is a social phenomenon that may carry psychological effects but cannot be conceived of in purely psychological terms. Furthermore, we should note several characteristics that designate authority as a unique type of social power. First, authority works through a routine of command and obedience, entailing a hierarchy between “the one who commands and the one who obeys.”47 Secondly, unlike other types of social power, authority does not rely on force or superiority but rather on legitimacy.48 Thus, authority is an essentially normative order:  subordinates follow authority figures because they perceive the entire authoritarian order as legitimate and binding, and not because force or economic power has been employed to coerce them into submission. It follows that although authority relations are hierarchical, this hierarchy is not equivalent to a disparity or imbalance of power. As Weber notes: We shall not speak of formal domination [i.e. authority] if a monopolistic position permits a person to exert economic power, that is, to dictate the terms of exchange to contractual partners. Taken by itself, this does not constitute authority any more than any kind of influence which is derived from some kind of superiority . . . 49

We argue that SAR offenses are concerned with authority as a normative social order, rather than with imbalance in bargaining power or gender inequality. Undoubtedly, imbalance of power does exist in the relationships covered by SAR offenses, most notably employment relations; however, criminal law does not acknowledge this imbalance of power in itself. SAR offenses should not be understood as acknow­ ledging class domination, economic inequality (even if structural), or gender domin­ ation. While SAR offenders are often males and the victims are typically females, gender is not the social category underlying SAR criminalization. Similarly, while SAR offenders typically have an economic advantage over SAR victims, economic inequality and disparity in bargaining power is not the social problem to which SAR offenses respond. Rather, SAR offences are attentive to social norms—and specific­ ally the norm of obedience that is characteristic of bureaucratic authority relations. SAR offenses engage doctors, workplace supervisors, and university professors, all of whom are bureaucratic authority figures. Weber’s groundwork study of authority illuminates the operation of bureaucratic authority in modern soci­ eties.50 However, bureaucratic authority in the Weberian sense is not limited to state bureaucracy but encompasses every position of power (an “office” in Weberian   Hannah Arendt, “What is Authority?,” in Hannah Arendt, Between Past and Future (1958), 93 ff.   Max Weber, Economy and Society: An Outline in Interpretive Sociology ([1922] ed. Guenther Roth 49 and Claus Wittich, 1978), 213 ff.   Weber (n. 48) 214 ff. 50   Weber (n. 48) 223 ff. Weber referred to bureaucracy as a modern form of authority which lies “at the root of every modern western state.” 47

48

criminal law and sociology    171 terms) which is accorded to people by virtue of their profession or place in the hierarchy of an organization. In bureaucratic institutions and arenas, people are vested with authority on the basis of professional qualifications and authority is granted to achieve professional purposes. As a form of authority, bureaucratic authority allows its holders (“officeholders”) to direct, lead, and guide others. Subordinates of bureaucratic authority figures—employees in the workplace, students at the university, or patients in the clinic or hospital—routinely follow their direction and orders. In other words, they follow a norm of obedience that is customary in bureaucratic institutions and arenas. The assumption underlying SAR offenses is that subordinates in bureaucratic authority relations—who customarily follow the instruction of authority figures in the professional sphere—might also submit to sexual requests by these figures. On a purely informational level, subordinates know that professional authority does not extend to sexual matters and that in no way are they obliged to conform to sexual requests by a doctor, a workplace supervisor, or a teacher. Nonetheless, the criminal justice system is attentive to the psychological tendency of people to succumb, to concede, and to cave in to an authoritative demand by an authority figure. Whenever the criminal justice system identifies such cases of sexual compliance in professional relations, it proscribes them as an “abuse of authority” and punishes the authority figure for sexually abusing the victim. The bureaucratic norm of obedience that leads subordinates into sexual submission is not a legal norm; it is a social norm. Bureaucratic authority is not a legal authority: people do not have a legal obligation to “obey” professional orders, unlike their legal duty—as citizens—to obey state law (the “rule of law”). Even if a legal duty of obedience in professional relations existed, this duty would surely not extend to sexual matters. SAR offenses acknowledge a social norm of obedience; this social norm is included and recognized because it is endemic to bureaucratic institutions that, as Weber points out, are indispensable to modern society.51 Moreover, the bureaucratic norm of obedience is basically a legitimate norm—or even a desired norm. After all, in the normal course of affairs, this norm allows people to follow professional guidance. However, criminal law has identified a problematic side effect of the bureaucratic norm of obedience—its diffusion and extension beyond the professional sphere, to affect non-professional matters (sex). In these cases, the criminal justice system acknowledges the social norm as influencing the subordin­ ate’s sexual submission and as leading her into unwanted sex, hence breaching her sexual autonomy. SAR offenses are a revealing example of contemporary criminal law’s attempt to acknowledge social power but accord to it specific and limited weight. This limited acknowledgement in the case of SAR means that the social norm is recognized as diminishing, rather than eliminating, the sexual autonomy of the victim.   Weber (n. 48) 224 ff.

51

172    galia schneebaum and shai j. lavi SAR is proscribed as an offense to autonomy, but not a full offense to autonomy as with rape. Accordingly, the punishment is significantly lower than that for rape.52 Criminal law acknowledges here something equivalent to diminished capacity with respect to the offender—the diminished autonomy of the victim. In that respect, a new word is introduced to capture this wrongdoing—sexual abuse—that implies consensual, yet not fully autonomous, sexual contact.

v. Conclusion The proximity between criminal law and sociology is hardly questionable as both are interested in human beings and their interactions within society. Law in itself is a social phenomenon and the specific character, culture, and function of legal institutions is continuously being studied by sociologists as well as by some legal scholars. Nonetheless, criminal law and sociology have for many years held dispar­ ate—almost opposite—perceptions of the human subject. As this chapter shows, the tension between the legally autonomous agent and the socially constructed subject is most intense where substantive criminal norms are concerned and, specific­ ally, with regard to the presumption of responsibility underlying the “general part” of the criminal code, and the assumption of autonomy underlying “true crimes.” Our study draws attention to this very tension as standing at the core of contemporary theoretical engagement of criminal law and sociology, as well as recent developments in criminal law itself. We suggest that in the final analysis substantive criminal law is neither fully alien to sociological insights nor plainly absorbs sociological data. Criminal law has not given up the ideal of autonomy but rather has revised its understanding of autonomy, to recognize, under certain circumstances, a new form of socially affected diminished autonomy. It remains to be seen whether additional criminal doctrines will factor in the influence of social norms—or perhaps have already done so—acknowledging the diminished autonomy of either offenders or victims. More fundamentally, the human subject reflected in and constituted by criminal law’s recent acknowledgment of social norms as guiding human action and interaction is emerging as a fruitful field for further investigation.

  e.g. under the Israeli Penal Law, rape is punishable by 16 years’ imprisonment, while the offense of SAR in employment supervisory relations is punishable by 3 years’ imprisonment. 52

criminal law and sociology    173

References Delgado, Richard, “Rotten Social Background:  Should the Criminal Law Recognize a Defence of Severe Environmental Deprivation?,” (1985) 3 Law & Inequality 9 Dubber, Markus D. and Valverde, Mariana (eds.), Police and the Liberal State (2008) Durkheim, Émile, The Division of Labor in Society ([1893] transl. Lewis A. Coser, 1997) Feeley, Malcolm and Simon, Jonathan, “The New Penology: Reflections on the Emerging Strategy of Corrections and its Implications,” (1992) 30 Criminology 449 Foucault, Michel, Discipline and Punish: the Birth of the Prison ([1975] transl. Alan Sheridan, 1995) Garland, David, The Culture of Control—Crime and Social Order in Contemporary Society (2001) Hay, Douglas, “Property, Authority and Criminal Law,” in Douglas Hay, Peter Linebaugh, and E. P. Thompson (eds.), Albion’s Fatal Tree (1975) Kelman, Mark, “Substantive Interpretation in the Criminal Law,” (1981) 33 Stanford LR 59 Norrie, Alan, Crime, Reason and History: A Critical Introduction to Criminal Law (2001) Rusche, Georg and Kirchheimer, Otto, Punishment and Social Structure (1939) Sylvestre, Marie-Eve, “Rethinking Criminal Responsibility for Poor Offenders:  Choice, Monstrosity, and the Logic of Practice,” (2010) 55 McGill LJ 771 Thompson, E. P., “Whigs and Hunters,” in Douglas Hay, Peter Linebaugh, and E. P. Thompson (eds.), Albion’s Fatal Tree (1975) Valverde, Mariana, Diseases of the Will: Alcohol and the Dilemmas of Freedom (1998) Wells, Celia and Quick, Oliver, Lacey, Wells and Quick: Reconstructing Criminal Law: Text and Materials (2010) Whitman, James Q., Harsh Justice: Criminal Punishment and the Widening Divide between America and Europe (2003)

­c hapter 9

CRIMINAL LAW AND TECHNOLOGY IN A DATA-DRIVEN SOCIETY mireille hildebrandt

i. Introduction This chapter takes leave of the idea that lawyers can remain immersed in legal text. It takes a stand for a careful reflection on what data-driven architectures do to some of the assumptions of modern law that are mistakenly taken for granted. Merely enacting the presumption of innocence by means of a legal code will not do in the present future. If the defaults of Big Data analytics all point in the direction of pre-crime punishment or the pre-emption of inferred criminal intent, we need to reconfigure the smart decision systems that progressively mediate the perception and cognition of law enforcement and intelligence. Architecture is politics and code is law. This chapter starts with an analysis of different conceptions of law and technology, followed by a discussion of technology and neutrality in light of the rule of law. After these explorations, a relational conception of the criminal law is developed, based on Radbruch’s antinomian conception of law, highlighting justice, legal certainty, and the instrumentality of the law. This is aligned with a pluralist understanding of technology to flesh out the implications of data-driven intelligence for the meaning of the criminal law. Special attention is given to the presumption of

criminal law and technology    175 innocence that seems to be overruled by the affordances of data-driven law enforcement. Finally, the chapter explains the need for a “presumption of innocence by design,” thus translating some of the crucial affordances of the written law into the critical infrastructures of data-driven society.

ii.  Three Ways of Conceptualizing Law and Technology Law has been conceptualized as a neutral instrument of regulation (instrumentalism), as a tool to control the government (critical conceptions), and as an instrument to constitute and limit state powers while creating a web of legitimate expectations amongst citizens (relational conceptions).1 Technology has been approached as a neutral instrument to achieve specific ends (instrumentalism), as an autonomous force that is beyond human control (autonomous conception), and as an instrument that co-constitutes the outcomes it achieves (whether or not intentional), while the same technology can evoke different outcomes depending on a host of local factors (relational or pluralist conception).2 It is important to reflect on these different conceptions because they inform how we speak and think about law and technology, how we assess the legal implications of novel technologies, and how we understand the regulation of and by technologies.

1.  Three ways of conceptualizing law Law can be understood in different manners, for instance as a neutral tool to achieve policy goals or as protection against government interventions that infringe citizens’ rights and freedoms. The problem with the first is that if law is a mere instrument, it can be replaced by another instrument that is more effect­ ive and/or more efficient. Law thus becomes interchangeable with administrative regulation, with nudging based on behavioral economics or with technoregulation. I will call this conception of law an instrumentalist view, because it reduces law to its instrumental dimensions, notably separating it from politics and morality. Positivist conceptions of law as well as regulatory paradigms in social science   cf. R. Foqué and A. C. ’t Hart, Instrumentaliteit en Rechtsbescherming (1990).  cf. Peter-Paul Verbeek, “Materializing Morality. Design Ethics and Technological Mediation,” (2006) 31 Science Technology & Human Values 361 ff. 1

2

176   mireille hildebrandt seem to adhere to this position.3 In that view, if we can deter crime by means of technologies that preempt criminal intention, we should base our decision on a cost–benefit analysis, not on the normative idea that such things should be regulated by law. The problem with the second—critical—understanding is that it separates law from governmental intervention, suggesting that government is basically policymaking and administration whereas the law is a matter of protecting against the negative implications of governmental interventions. Government, in that view, is a matter of police in the old sense of the term,4 whereas law is a matter of policing the police. This can be coined as a critical or autonomous understanding of law, because it attributes a kind of autonomy to the law that, however, reduces the legal framework to its critical dimensions. The critical conception thus separates law from the constitution of societal order and from the powers of government. This is problematic because the law depends on the authority of the state to enforce the protection it offers; effective remedies require competent courts whose judgments are implemented even when they challenge governmental actions or decisions. If the criminal law does not constitute but only limits the exercise of state power we can guess that its critical potential becomes part of a balancing act that easily trades liberty against security, especially in times of emergency. If the powers of the state are constituted by the law that in the same stroke restricts their scope, such a tradeoff is less likely. The balancing act will have to be performed within the law, instead of pitting law against security measures. This brings us to a third understanding of law, that aligns with the central tenets of constitutional democracy.5 In this conception law brings together the policy-oriented dimensions of legislation and administration with their protective dimensions, enabling a double instrumentality (aiming to achieve specific policy objectives while at the same time achieving the protection of human rights). The critical potential of law is thus seen as a dimension that is part and parcel of the legal system, just like its goal-oriented dimension. Moreover, this conception of law highlights that the legal system is not a system of legal rules but rather a system of legal relations determined by and determining legal norms.6 These relations play out at the level of the powers of the state: legislation, administration, and adjudication, 3   The regulatory paradigm sees law as a form of regulation, defined as a way to influence people’s behaviors. cf. Julia Black, “Critical Reflections on Regulation,” (2002) 27 Australian Journal of Legal Philosophy 1 ff. 4   Markus Dirk Dubber, The Police Power. Patriarchy and the Foundations of American Government (2005). 5   In this chapter I speak of “constitutional democracy,” highlighting both democratic government and the constraints of the rule of law; I avoid the use of “liberal democracy” as this would restrict the inquiry to one particular form of constitutional democracy, cf. John Kekes, The Morality of Pluralism (1993). 6  Norbert Achterberg, Die Rechtsordnung als Rechtsverhältnisordnung:  Grundlegung der Rechtsverhältnistheorie (1982).

criminal law and technology    177 thus creating effective means to participate in lawmaking and to contest the application of legal norms. Legal relations also play out on a horizontal level, between those who share jurisdiction, by establishing a reliable framework for legitimate mutual expectations. This horizontal level is, however, enabled by the vertical relationship between citizens and the state. This geometrical architecture allows deployment of the monopoly on violence to sustain legitimate expectations between citizens, as well as between citizens and the state. It protects, for instance, against fellow citizens who try to invade our privacy to steal our identity; we can call the police and trust the state to prosecute the perpetrator. Even if this does not always work, the crucial point is whether the state aims for effective protection against crime. The same geometrical architecture, moreover, also protects against the state itself when it tries to snoop on our private correspondence, mobile traffic data, or online clickstream behaviors, for instance claiming that this is necessary to protect us from trans­national cybercrime. Even if, time and again, subdivisions of the state will succumb to the temptations of secretive abuse of power, the crucial point is whether a system of checks and balances is in place to allow the contestation of such measures, and their abrogation if they are found to be in violation of the law. This view of law has been called a relational or a pluralist conception, marking the rule of law as the scaffolding of constitutional democracy. From this perspective, the law in a constitutional democracy is a historical artifact that has normative implications and cannot be taken for granted. It requires hard work to sustain its complexity, coherence, and the fragile and robust constitution of its double instrumentality. This third understanding of law is the point of departure for this chapter. A more detailed exploration will be developed later, when discussing a relational conception of the criminal law.

2.  Three ways of conceptualizing technology Like the law, technology can be understood in different ways. If we understand technology as a tool with a material component,7 it is clear that some will believe that the tool is neutral while others will hold that the tool co-constitutes what it makes or achieves.8 Still others may claim that our tools reconfigure us as human beings, enabling new ways of being in the world and ruling out others.9 It seems obvious that the use of tools is an important if not defining characteristic of the homo sapiens; a visit to any archaeological museum will show how closely our humanity and the use of tools are entwined. Some authors suggest that language developed together 7   Don Ihde, Philosophy of Technology: An Introduction (1993), 47–48 ff. Ihde understands technique as a style or method. In French and German the terms are often used in reverse: Technik or technique as a material tool, Technologie or technology as a method. 8   On means and ends, notably John Dewey, “The Logic of Judgments of Practice,” in John Dewey, Essays in Experimental Logic (1916), 335 ff. 9   Don Ihde, Technology and the Lifeworld: From Garden to Earth (1990).

178   mireille hildebrandt with the use of tools, highlighting that both our material tools and language allow to manipulate the environment, relating this to our understanding of causation.10 The type of tools co-determine the kind of society they enable. For instance, a hunting and gathering society will depend on stones and spears; an agricultural society on tools for sowing, harvesting, and storing; a larger society that extends beyond faceto-face relationships will depend on some form of written text to hold it together; and a state with far-reaching competences to rule in detail over the lives of its subjects in a shared territory may depend on the printing press to enable the kind of bureaucracy that is needed. Such societies make possible different types of human engagement, with different skills and different moral, political, and social expectations. Technologies, societies, and individuals are thus co-constitutive. Closer to home, technologies like a mobile phone may reconfigure—or rather extend—the mind of their users, changing their experience of time and space, distance and location.11 Mobile online devices (smartphones, laptops, smart glasses) disrupt the traditional identification of spatial with contextual boundaries, as they allow a person to participate in different contexts from the same location, while bringing together people and infrastructure from different locations within the same context. This seems to transform or even negate the import of territorial jurisdiction, raising difficult questions on extraterritorial jurisdiction in the era of cybercrime. Technologies are part of our sensory and cognitive resources, shaping the extent and the workings of our mind, reconfiguring the morphology and behaviors of our brains.12 Meanwhile, many people still believe that technologies are neutral tools or mere instruments to achieve a goal. I will call this the neutral or instrumentalist conception of technology which, for instance, informed the philosophy of science insofar as it understands technology as the result of applied science and pays little or no attention to its enabling and constitutive force for the evolution of science.13 The opponents of this position take technologies to have a deterministic influence on human society, attributing an autonomous force to Technology (with a capital T). Here the idea is that humans have little control over the technologies they invent, usually ending up in so-called doom scenarios that spell redemption or catastrophe due to technologies run amok, or in boom scenarios that assume that any problem will eventually be solved by inventing new technologies. I will call this the autonomous conception of technology, since it tends to view Technology as something that has an inherent tendency toward destruction or progress, as if it has a mind of its own. Continental philosophy has somehow given rise to a number of techno-pessimists, 10   Stanley H. Ambrose, “Paeleolithic Technology and Human Evolution,” (2001) 291 Science 174 8ff.; Krist Vaesen, “The Cognitive Bases of Human Tool Use,” (2012) 35 The Behavioral and Brain Sciences 203 ff. 11   Andy Clark, Natural-Born Cyborgs. Minds, Technologies, and the Future of Human Intelligence (2003). 12   Maryanne Wolf, Proust and the Squid: The Story and Science of the Reading Brain (2008). 13   cf. Ihde (n. 7).

criminal law and technology    179 warning against the end of civilization as we know it.14 Silicon Valley seems to nurture the opposite, generating what has been called Technological Solutionism.15 A third conception, which can be termed pluralist and relational, refutes the idea of an independent autonomous Technology while also ruling out the neutrality of toolmaking and usage. The focus here is on concrete technologies and their actual affordances, seeking to investigate how their integration in the web of human interaction will enable new types of actions, new types of society, and how this may reconfigure the mind of individual persons. This follows up on Kreutzberg’s famous dictum that “technology is neither good nor bad, but never neutral.”16 It is not neutral because it always impacts on the scope of our interactions, inducing or inhibiting specific patterns of behavior or even enforcing or prohibiting them.17 This means that whether, and if so to what extent, a technology is deterministic of human action is an empirical question, depending on the actual affordances of the technologies. And an affordance always depends on both sides of the equation: on the technology under scrutiny and on those who are constraint and enabled by it. So all depends on what the technology makes possible and impossible for those who engage with it. In this contribution I  will follow the pluralist and relational conception of technology.

iii.  Technology and Neutrality Under the Rule of Law In the previous section I have rejected the instrumentalist, neutral conception of technology. This has implications for the relationship between law and technology. I will investigate this relationship at two levels of analysis. First, I will explain how law as we know it is contingent upon the technological infrastructure of the printing press. This concerns the technological articulation of modern law, its mode of existence; the way it has been technologically mediated for the past five or six centuries. Secondly, I will engage with the question of how modern law should deal with the normative implications of a changing technological landscape. Can law remain 14   e.g. Martin Heidegger, The Question Concerning Technology, and Other Essays (1977). Jacques Ellul and Patrick Chastenet, Jacques Ellul on Religion, Technology, and Politics (1998). 15   Evgeny Morozov, To Save Everything, Click Here: The Folly of Technological Solutionism (2013). 16  Melvin Kranzberg, “Technology and History:  ‘Kranzberg’s Laws’, ” (1986) 27 Technology and Culture 544 ff. 17   Verbeek (n. 2). Mireille Hildebrandt, “Legal and Technological Normativity:  More (and Less) Than Twin Sisters,” (2008) 12 Techné: Journal of the Society for Philosophy and Technology 169 ff.

180   mireille hildebrandt neutral if novel technologies affect its normative impact? Or does neutrality, on the contrary, require appropriate changes in the law to compensate for a loss of protection due to transformative aspects of new technologies? These questions concern the technology neutrality of law and the—counterintuitive—fact that such neutrality may warrant technology-specific law.

1.  The technological articulation of modern law Those adhering to instrumentalist conceptions of law and technology will not be impressed by media theory or philosophy of technology and will hold that such discip­ lines are irrelevant for the study of law. However, if we acknowledge the implications of technological infrastructures such as the script and the printing press as enablers of different types of societies with different types of law, there may be much to learn from such disciplines. The rise of specific types of leadership and the beginnings of statehood correlate with the development of the script. The script allows for common standards that are fixed on matter (stone, clay, papyrus, paper) and capable of extending their reach beyond the face-to-face interaction of speech, thus stretching their scope in time and space. This relates to what Stiegler has called “tertiary retention.”18 Our understanding of the flow of time is first of all at stake in the “primary retention” that is required for the continuity of our livid experience of the present. This continuity depends on the retention of what has been experienced moments ago. Eventually, such primary retentions are reconstituted as a memory by means of a secondary retention. Both take place within the confines of an individual mind, hinging on the curious interdependence of action and perception that allows us to navigate the world. Secondary retention implies that a person can reactivate earlier perceptions, re-inscribing them into the evolving web of neuronal interconnections. With tertiary retention this inscription is externalized on a “technical support,” requiring what Stiegler calls “introjection” to bring it back into the cerebral or psychic support of living human beings.19 Tertiary retention revolutionized human society, reconfiguring mutual expectations beyond the extended here and now of primary and secondary retention. Though this obviously affected the consolidated social norms that we might call the legal dimension of pre-state societies, it is hard to underestimate the radical implications of the uptake of the printing press. Once identical copies of original text proliferated, legal codes could be enacted and taken as guiding standards for a growing bureaucracy. The same proliferation generated a need for systemization 18  Bernard Stiegler, “Die Aufklaerung in the Age of Philosophical Engineering,” in Mireille Hildebrandt, Kieron O’Hara, and Michael Waidner (eds.), The Value of Personal Data. Digital Enlightenment Forum Yearbook 2013 (2013), 29 ff. 19   Stiegler builds on Husserl, who developed the notions of primary and secondary retention, as well as the idea of introjection. cf. Edmund Husserl, Phenomenology of Internal Time Consciousness (1964). The idea of tertiary retention is Stiegler’s.

criminal law and technology    181 and interpretation. The sheer quantity of text required indexing and other forms of categorization to enable access to relevant content, while the fact that text could be read outside its local and temporal context evoked new understandings of the same text. The combined need for systemization and interpretation of legal text finally led to various types of consolidation in the form of doctrinal treatises, adages such as res judicata est, and a new type of law that is valid because enacted. This means that modern, positive law is not a free-floating invention of legal minds, but an affordance of the technological infrastructure of the printing press. Though we might take the positivity of law for granted, we should be aware that the idea of positive law itself is a recent historical artifact, that is closely connected to the pervasive operations of the printed text. After the written manuscript, the printing press was the second revolution in information and communication technologies (ICTs). To understand the implications of novel technological infrastructures that inform how we perceive and cognize our world, we need urgently to reflect on the fact that modern law is articulated in and contingent upon a particular technology. Though it is more than obvious that legal science is steeped in text and has flourished due to the continuous process of textual interpretation, the implications are not often explored. It may be that many of the characteristics of modern law, such as its relative autonomy in relation to politics and morality, derive from its association with the characteristics of the printing press era: notably the need for a class of scribes that studies, interprets, and stabilizes the meaning of the persistent flow of authoritative legal texts.20 Legal procedure, in particular the idea of procedural fairness, entails the idea that the court will suspend its judgment and hesitate before arriving at its verdict; the facts must be established in light of the relevant legal code and the meaning of the applicable code must be reiterated in light of the case at hand. Such characteristics have been detected by scholars writing on the impact of the script and the printing press, that both induce a distance between the meaning of the author and the meaning of the reader,21 and a delay between reading and deciding the meaning of text.22 Though a notion like the presumption of innocence is a moral notion, it is also connected with this distance, with the delay between the criminal charge and the conviction or the acquittal. In a society without a script or a society beyond the printing press, our current understanding of the presumption of innocence may not work, because there is no res judicata, no imposed jurisdiction, no monopoly of violence; no need to interpret a text that is fixed on matter.23 We cannot, then, take for granted that the novel ICT infrastructure will have similar affordances as that of the printing press, and as lawyers we need to consider what this means for the foundations of modern law.   Paul Koschaker, Europa und das römische Recht (1966).   Paul Ricoeur, “The Model of the Text:  Meaningful Action Considered as a Text,” (1973) 5 New Literary History 91 ff. 22   Pierre Lévy, Les Technologies de l’intelligence. L’avenir de la pensée à l’ère informatique (1990). 23   cf. H. Patrick Glenn, Legal Traditions of the World (2007), chs. 1–5. 20 21

182   mireille hildebrandt In other work I have briefly summed up some of the challenges of the transition from printing press to hyperconnected networked environments that thrive on Big Data analytics.24 The changing environment of the law challenges the linear sense of time inherent in modern law, as it is confronted with the segments and points which define the digitized interface of the Internet and the web (compare reading a book to zapping around television programs or surfing the Internet); it challenges the slow accumulation of legal texts like statutes, treaties, case law, and doctrine that need to be studied and interconnected, as lawyers are confronted with instant online access to all the sources of the law (compare handbooks with selected cases to direct access to all verdicts given; compare a printed book with a hypertext); it challenges the delay inherent in procedural safeguards embodying protection against hasty judgments, as lawyers are confronted with a series of real-time decisions taken by automated decision systems based on machine learning techniques; it challenges modern law’s ambition to achieve equal application of general legal norms to equal cases (exemplifying law’s tendency to universalization and system­ization), since that ambition is confronted with refined personalization and context­ualization made possible by advanced data-mining technologies; it challenges the care with which legal theory has constructed and sustained the theoretical legitimization and critical assessment of the positive law, since scholarly reflection is confronted with a world in which models replace theory (demanding effectiveness instead of correspondence to reality); it challenges the hermeneutical practice of law (always involved in interpreting both the facts of the case and the legal norms that should apply), since legal practice is confronted with a world in which simulation rather than interpretation turns out to be the best way to anticipate future events; it challenges the emphasis on meaning as a reference to the world outside law (semantics), since professional and scholarly interpretation are confronted with an emphasis on links and networks (syntaxis) and the actual consequences of doing things one way or another (pragmatics); and, finally, it challenges the emphasis on legal certainty, intrasystematic coherence, continuity, and stability (legal doctrine and jurisprudence), that are all confronted with a rapidly changing liquid world that seems to require permanent real-time monitoring (pattern recognition) instead of the slow construction of robust knowledge that survives the ravages of time. This level of analysis raises an important question, reiterated by Stiegler, namely the issue of what it is that we need to preserve to constitute “a new state of law, a new rule of law, founded on digital writing, [which] in fact presupposes a new age of Enlightenment(s).” Following the work of Maryanne Wolf, who researched the development of both the morphology and the behavior of the reading brain, Stiegler has proposed that: 24   Slightly adapted from Mireille Hildebrandt, “A Vision of Ambient Law,” in Roger Brownsword and Karen Yeung (eds.), Regulating Technologies (2008), 186–187 ff., applying Lévy’s findings to the operations of the law.

criminal law and technology    183 It is a question of knowing what must be preserved, within the digital brain, of that which characterised the reading brain, given that writing new circuits in the brain can erase or make illegible the old circuits.25

The habits of the mind that underlie modern law were mediated by the printing press and the reading brain. Criminal law may turn into something unrecognizable under the mediation of predictive analytics and the hyperconnectivity of social media, reconfiguring the brain as it anticipates their operations.26 This has far-reaching consequences for the mode of existence of current law. Indeed, it suggests the need for a reconfiguration and a novel mediation of the law, in order to sustain both its instrumental and its protective dimensions within the novel technological landscape. Legal scholars exploring the possibility of novel mediations of law, beyond those of the printing press, should take into account how other disciplines have researched the embodiment or inscription of norms and values into the design of technologies, notably “value sensitive design” and—closer to the law—“privacy by design.”27 From the legal perspective this has given rise to the notion of “legal protection by design,” that aims to incorporate both democratic participation and fundamental legal protection into the design of automated decision systems.28 Especially where data-mining is used to flag behaviors in the context of law enforcement and intelligence, default settings of the computational technologies should prevent the reversal of the presumption of innocence by the automation of suspicion. At the end of this chapter, in Section IV.4, we will investigate the need for a “presumption of innocence by design,” following the example of privacy and data protection by design. Before taking that path, however, we need to look into the notion of technology-neutral law that has played a major role in debates on cybercrime, copyright, and data protection.

2.  The objectives of technology-neutral law To investigate the notion of technology neutral law, as used in current debates,29 we must return to the operations of written law. This section will explain how the idea   Stiegler (n. 18), cf. Wolf (n. 12).   Mireille Hildebrandt, “Proactive Forensic Profiling:  Proactive Criminalization?,” in R.  A. Duff et al. (eds.), The Boundaries of the Criminal Law (2011), 113 ff. 27   Batya Friedman, Peter H. Kahn, Jr., and Alan Borning, “Value Sensitive Design and Information Systems,” in Kenneth Einar Himma and Herman T.  Tavani (eds.), The Handbook of Information and Computer Ethics (2008); Mary Flanagan, Daniel Howe, and Helen Nissenbaum, “Values in Design:  Theory and Practice,” in Jeroen Van den Hoven and John Weckert (eds.), Information Technology and Moral Philosophy (2007); Ann Cavoukian, Privacy by Design . . . Take the Challenge (2009), available at: . 28   Mireille Hildebrandt, “Legal Protection by Design,” (2011) Legisprudence 223 ff. 29   e.g. Bert-Jaap Koops, “Should ICT Regulation Be Technology-Neutral,” in Bert-Jaap Koops et al. (eds.), Starting Points for ICT Regulation: Deconstructing Prevalent Policy One-Liners (2006), 77 ff.; Chris 25

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184   mireille hildebrandt of technology-neutral law can be understood within a relational conception of law, if we agree that neither law nor technology are neutral. As discussed earlier, both law and technology generate specific normativities, whether or not this is intentional. The basic intuition that informs the notion of technology-neutral law is that the law should apply equally to all, thus also having the same type of legal effect irrespective of the involvement of whatever technology. Whether a person commits murder with the help of a knife or by means of a computer virus, the idea is that the legal norm “thou shalt not kill” can best be formulated without reference to the instrument used.30 Having studied the arguments that have been provided for technology-neutral law, we have detected three types of objectives which inform the idea that legislation should aim to be neutral with regard to whatever technologies it encounters.31 For this chapter, the most relevant is the compensation objective. This requires that new technologies which alter the effectiveness or the substance of legal protection warrant reconfigurations in the legal framework to reinstitute what got lost. For instance, loss of protection may be due to the intrusive and invisible nature of criminal profiling informed by artificial intelligence, which may turn the presumption of innocence inside out, creating a de facto presumption of guilt. This requires additional legislation or a reconfiguration of the legal framework to compensate for the loss of effective protection. Thus technology-neutral law sometimes requires technology-specific law to redress undesirable disruptions of existing human rights law.

iv.  Criminal Law in a Data-Driven Society Neither law nor technology are neutral instruments in the descriptive sense; however, in view of the compensation objective, constitutional democracy introduces a normative neutrality, that requires compensation in the case of adverse effects Reed, “Taking Sides on Technology Neutrality,” (2007) 4 SCRIPT-ed 263 ff.; Mireille Hildebrandt and Laura Tielemans, “Data Protection by Design and Technology Neutral Law,” (2013) Computer Law & Security Review 509 ff. In most of the literature, the notion of technologically neutral law is used interchangeable with technology-neutral law. This chapter reserves the terms for two levels of analysis; the first for an analysis of technology as co-determinate of the mode of existence of law, the second for an analysis of how modern law aims to regulate the design, availability, and usage of specific technologies.   Such a virus can e.g. cause lethal harm in a patient using a medical implant.  The innovation objective, the sustainability objective, and the compensation objective, cf. Hildebrandt and Tielemans (n. 29). 30 31

criminal law and technology    185 of novel technologies on the substance of legal protection. This section investigates what this means for the criminal law and how the advent of data-driven environments challenges the mode of existence of the criminal law. To what extent do predictive analytics and other forms of artificial intelligence erode or enhance the preconditions of criminal law in a constitutional democracy? How does the preemption of intent enabled by machine learning combined with hyperconnectivity across national borders affect the aims of justice, legal certainty, and purposiveness of the criminal law? Finally, how can we provide compensation for adverse effects of data-driven architectures on the substance of the presumption of innocence; to what extent do we need a legal obligation for private and public data controllers to ensure a “presumption of innocence by design,” similar to privacy or data protection by design?

1.  A relational conception of the criminal law A relational conception of law and a pluralist conception of technology entail a normative theory of the criminal law, aligned with the normative foundations of constitutional democracy. One of the most interesting and convincing normative theories of law is Radbruch’s antinomian understanding of the law. In his famous Legal Philosophy, Radbruch defines law as a cultural artifact that aims for justice, legal certainty, and purposiveness,32 hoping to generate fairness, trust, and welfare. The choice for this particular threefold is motivated by the wish to steer clear of a moral theory of law which would reduce legal philosophy to moral philosophy, as well as a rejection of an outright positivism that would reduce law to the decisions of legislators and courts. Rejecting positivism does not, however, imply a denial of the important role played by the positivity of the law and its complex alignment with the power to enforce. Radbruch’s emphasis on legal certainty in fact celebrates the rule of law as sound protection against the arbitrary rule of men. Similarly, rejecting a moral theory of law does not mean to deny the constitutive importance of the inner morality of the law. According to Radbruch, the law’s aim is to achieve justice as fairness and proportionality, not merely to achieve policy objectives in whatever way seems more effective. His rejection of political decisionism as the sole basis of law, however, does not deny the instrumentality of the law. The purposiveness of the law highlights its constitutive role in creating order and achieving welfare for its subjects. Instrumentality should not be confused with instrumentalism. For the criminal law, justice entails a focus on a fair attribution of punishment, where the fairness refers to the procedural justice of the fair trail, and to distributive 32   Gustav Radbruch, “Legal Philosophy,” in Emil Lask and Curt Wilk (eds.), The Legal Philosophies of Lask, Radbruch and Dabin (1950), 47 ff. On a normative theory of criminal law, see notably R. A. Duff, Punishment, Communication, and Community (2001).

186   mireille hildebrandt and proportional substantive justice. Distributive justice means that equivalent criminal offenses are punished similarly (equal treatment); proportional justice means that the measure of punishment depends on the gravity of the offense (which includes the harm it causes, the wrongness it entails, and the guilt that is implied). Distributive and proportional fairness interrelate, because ensuring equivalent punishment assumes a measure of punishment that should be provided by the measure of proportional fairness. There is, of course, no objective standard to determine this measure. This means that democratic legislation and adjudication should constitute and legitimize the standards that are applied. This relates substantive justice to the procedural values of participation, deliberation, and the contestability of governmental interventions. The fairness of the trial hinges on a set of principles such as the presumption of innocence, the independence of the court, the immediacy of the proceedings, the equality of arms between prosecution and defense, and internal and external publicity. Procedural fairness thus incorporates substantive moral values such as the right to contest the state’s decisions in a court of law whenever they have a major impact on one’s life. The fair trial also asserts the simultaneity of the constitution and the limitation of the ius puniendi; lawful punishment can—in principle—only be attributed after a fair trial. The fair trial is a precondition for fair punishment. Distributive and proportional justice as well as procedural justice is aligned with legal certainty, since it provides those who share jurisdiction with legitimate expectations of the consequences of their actions. Within the criminal law, legal certainty is even more significant than in other fields of law, because of the impact of punishment on individual lives. A relational conception of law entails that the criminal law should be as clear and as precise as possible for two reasons. First, since the law is an instrument to prevent crime, it should provide clear guidance on what a society considers to be a criminal offense; otherwise no deterrent effect can be expected. Secondly, since the law should always be goal-oriented as well as protective (creating competences and limiting their scope), those addressed by the criminal law should be aware in advance when their actions will be interpreted as liable to punishment. The first reason is focused on deterrence and prevention, the second is focused on fairness and retribution. Within a relational conception of law, these reasons are not alternative but should both inform the criminalization, the criminal investigation, and the adjudication of allegedly criminal conduct. The criminal law targets the legitimate goal of reducing and redressing crime, thus upholding the legal norm that has been violated. Criminalization should be restricted to a set of wrongs that warrant the censure of society, without unnecessary violations of human rights freedoms such as privacy or freedom of speech or religion. Some would invoke the harm principle here which, however, raises the difficult question of what is harm. Within a relational theory of law the more important question would be who decides what is harm, how this decision is prepared, and to what extent such decisions are constraint by the protection of minorities or weaker

criminal law and technology    187 voices within the constituency. The focus is thus on democratic participation in the process of criminalization, limited by the constraints of constitutional government and by effective respect for human rights. This assumes that democracy should not be understood outside the bounds of a substantive conception of the rule of law, as it may otherwise generate populism and criminalize conduct disliked by a majority or an influential minority that manages to control popular opinion.

2.  From an information society to a data-driven society The time when “Information Law” and “Law and Informatics” were niches in legal research will soon be over. The datafication and the hyperconnectivity generated by interconnected computing systems are in the process of transforming the concept of law as an autonomous discipline that reigns within the confines of the nation-state to a notion of law as a more responsive discipline that must find new ways of relating to computer science, information theory, artificial intelligence, and cybernetics. The challenge for law will be to engage with these other disciplines without either sacrificing or petrifying its identity. In this section we shall discuss the upheaval caused by the increased automation of decision-making, notably when based on machine learning. This relates to the shift from an information society, where more information is a good thing that enables better judgment, to a data-driven society that is flooded by data, where more information risks a loss of meaning. Due to the volume, speed, and immediacy of the availability of ever more data, Big Data turns into noise until computational techniques enable the retrieval of “valid, novel, potentially useful, and ultimately understandable patterns in data.”33 Note that this entails the creation of new types of knowledge, often depicted as the holy grail of Big Data,34 with the promise of added value for commerce, health care, tax fraud detection, and other forms of crime control. The bottom line is that these techniques are thought to enable the prediction of future behaviors. In this section we briefly explain the workings of “predictive analytics” and the kind of decisions it generates. In their Artificial Intelligence: A Modern Approach,35 Russell and Norvig explain the development of artificial intelligence (AI) as an interdisciplinary research domain, building on mathematics, economics, neuroscience, psychology, linguistics, computer engineering, and cybernetics. Instead of looking for ways to merely imitate the intelligence of human beings, intelligent systems are now constructed 33   This is the definition of “knowledge discovery in databases” (KDD), one of the most prominent techniques to select and, indeed, construct new knowledge and information. Usama M. Fayyad et al., Advances in Knowledge Discovery and Data Mining (1996), 41 ff. 34   cf. Viktor Mayer-Schonberger and Kenneth Cukier, Big Data: A Revolution That Will Transform How We Live, Work, and Think (2013); Mireille Hildebrandt, “Slaves to Big Data. Or Are We?,” (2013) 17 IDP. Revista de Internet, Derecho y Política. 35   Stuart Russell and Peter Norvig, Artificial Intelligence: A Modern Approach (3rd ed., 2009).

188   mireille hildebrandt to prepare and often execute decisions. Core to the current concept of AI is the notion of an intelligent agent that is capable of taking relatively autonomous decisions, depending on its perception and cognition of its environment. The emphasis on agency implies that we are not dealing with a rigid execution of rules but with systems capable of learning how to improve their performance on the basis of feedback. As these systems get to be more complex, it becomes next to impossible for a single person to foresee the repercussions of alternative architectural choices. Though humans determine the goals, artificial agents will necessarily reconfigure these goals while seeking the smartest way to achieve them. Therefore architecture—the design of the computational decision systems that run an increasing part of our life world—is politics;36 it impacts the kind of outcomes that are enabled and these are never neutral. For similar reasons, Lawrence Lessig claimed that “architecture (or computer code) is law,” referring to the regulatory potential of computational architectures.37 The most transformative AI technology is machine learning, based on knowledge discovery in databases (KDD). The idea is that the use of computerized algorithms allows for patterns-detection in very large data sets. These patterns have not necessarily been hypothesized before their “discovery.” They may have been “mined” from the data by means of advanced statistical techniques. For instance, nodal policing is increasingly based on the use of Big Data to infer what types of crime will be committed where, when, and how. By running algorithms on a massive amount of data it is possible to predict the occurrence of criminal behaviors in specific neighborhoods, at specific times. This supposedly enables the police to reconfigure and manage its presence more efficiently and effectively.38 The inferences on which all this is based do not merely confirm or falsify existing beliefs about where disturbances are most likely to occur; they may also point in new, unexpected directions. This has even led some protagonists of Big Data analytics to claim that they will diminish unjustified racial profiling or redlining. From now on, discrimination will be based on objective calculations, or so they say.39 36   Jeanette Hofmann, “Et in Arcadia Ego. From Techno-Utopia to Cybercrime,” in Helen Margetts and Christopher Hood (eds.), Paradoxes of Modernization: Unintended Consequences of Public Policy Reform (2010), referring at 90 to Mitchell Kapor (1991), available at:  . 37   Lawrence Lessig, Code Version 2.0 (2006). 38   Arie van Sluis, Peter Marks, and Victor Bekkers, “Nodal Policing in the Netherlands: Strategic and Normative Considerations on an Evolving Practice,” (2011) 5 Policing 365 ff; Somini Sengupta, “In Hot Pursuit of Numbers to Ward Off Crime,” Big Data 2013, The New  York Times, Technology, Bits Blog June 19, 2013, available at:  . 39   cf. Bernard E. Harcourt, Against Prediction: Profiling, Policing, and Punishing in an Actuarial Age (2007). Though it is not always clear whether they wish to claim objectivity, Mayer-Schonberger and Cukier do seem to overrate the objectivity achieved by the mere amount of data, see Mayer-Schonberger and Cukier (n. 34). Critical about this danah boyd and Kate Crawford, “Critical Questions for Big Data,” (2012) 15 Information, Communication & Society 662 ff.

criminal law and technology    189 Machine learning (ML) goes one step further than KDD. It integrates machine-wise pattern recognition with machine-wise responses, enabling automated decision systems to gain a measure of autonomy: A machine learns with respect to a particular task T, performance metric P, and type of experi­ ence E, if the system reliably performs its performance P at task T following experience E.40

This implies that machines have ways to perceive their environment and to anticipate—statistically—how their own subsequent behaviors will influence their ability to achieve certain goals. Depending on the architecture, machine learning may leave more or less room for independent machine interventions. Computing systems will thus develop something akin to what we call agency, while taking care of our physical and institutional surroundings, surreptitiously adapting them to our inferred preferences (or to the strategic objectives of whoever is paying for these systems). Some have compared the proactive accommodation of smart environments to the subliminal adaptations of the autonomic nervous system that sustains the homeostasis of individual persons. IBM termed one of its recent computing research projects “autonomic computing,”41 highlighting the resemblance with the autonomic nervous system of biological agents. This raises the question of the difference between autonomous action and autonomic computing. Whereas the latter produces a form of mindless agency, human autonomy stands for mindful agency, including the ability to give reasons for one’s actions. To the extent that decisions informed by predictive analytics and adaptive computing cause harm, they raise a number of questions for the criminal law. What if a doctor based her decision to perform surgery on her knowledge-management system that calculated the best treatment?42 If the patient suffers brain damage because the analytics were mistaken, should we blame the doctor, the software designer, the vendor, or the patient who decided to hide part of her health records? This type of question becomes more urgent where the software actually decides what action to undertake. This is where the notion of agency becomes pivotal: is the computer executing a set of rules that lead to foreseeable results or is the computer capable of reconfiguring its operations to achieve results that resolve problems in unforeseen ways? Within the sciences of AI, the latter would be a sign of agency and intelligence. The smarter the system, the less predictable it will be, and the more added value it will create for its human masters. As long as everything works out fine this seems 40   Tom M.  Mitchell, The Discipline of Machine Learning (2006), 1, available at:  . 41   Jeffrey O. Kephart and David M. Chess, “The Vision of Autonomic Computing,” (2003) Computer (Jan.), 41 ff. 42  Katie Hafner, “Software Programs Help Doctors Diagnose, but Can’t Replace Them,” The New  York Times, Dec. 3, 2012, available at:  .

190   mireille hildebrandt entirely beneficial but, once artificial agents take decisions that cause harm, their mindless agency challenges conventional notions of agency in the criminal law.

3.  The antinomies of the criminal law in a data-driven society Data-driven societies challenge the criminal law’s antinomian aims for justice, legal certainty, and purposiveness. This is partly due to the new types of crime that emerge with the advent of interconnected computing networks which constitute a hidden, computational layer of autonomous decision systems. In an earlier phase of digitalization, legal scholars spoke of computer crime, usually differentiated as crimes where the computer is the tool, as those where computers are the target, and as those where the computer plays an incidental role.43 Tool-crimes are, for example, ID theft and online fraud, while examples of target-crimes are the use of malware and hacking. Next to these, many existing crimes can be committed while using a computer, though other tools might have been used to commit the same crime. We can think of extorting or blackmailing a person via email or, even more mundane, hitting a person on the head with an iMac. Data-driven societies, however, thrive on interconnected computational decision systems that change the scope, the (often invisible) intrusiveness, the coerciveness, and the distribution of human action. Rather than speaking of computer crime, scholars now refer to the criminal behaviors enabled by these systems as cybercrime, highlighting the hyperconnectivity and the artificial intelligence that nourish these offenses. Cybercrime differs from ordinary crime in terms of distance (remote hacking), scale (DDOS attack, spam), speed (real-time dissemination of malware), automation (Webbots tracing and tracking vulnerabilities, DDOS attack), and interconnectivity (peer-to-peer file-sharing of malicious software, remote hacking).44 All this impacts the aim for justice, legal certainty, and the purposiveness of the criminal law. First, the aims of distributive and proportional justice are faced with disruptions in the attribution of punishment as well as the procedural safeguards that constitute the fair trial. The distance between a human action and its consequences increases exponentially if criminal offenses are committed via online applications. This has implications for the jurisdiction that determines whether an action is criminalized and decides the measure of punishment. Since the person or organization committing the offense may reside in another jurisdiction than that in which the crim­ inalized effects materialize, different standards of criminalization and punishment   Susan W. Brenner, Cybercrime Criminal Threats from Cyberspace (2010).   Mireille Hildebrandt, “Balance or Trade-Off? Online Security Technologies and Fundamental Rights,” (2013) 26 Philosophy & Technology 357 ff. 43

44

criminal law and technology    191 may apply. Equivalent distribution and proportional retribution may both be violated. The same goes for the procedural safeguards that may differ between jurisdictions, creating problems in the case of extradition or judicial cooperation. Different conceptions of fairness, incompatible investigative techniques, and contradictory standards of evidence may disturb the legitimate expectations of criminal justice that reign within a particular jurisdiction, thus also challenging the legal certainty that sustains positive law. The scale or reach of computerized decision and operations increases the impact of criminal offenses on all accounts. Together with the speed, the automation, and the interconnectivity this raises the issue of distributed responsibility. Is it still possible to attribute causality to the action of an individual person if her actions are induced and mediated by a host of interacting computing systems that transform the implications of her actions in ways that are difficult to foresee?45 To what extent will distributed AI interfere with the casting of blame to a single human node in the network of human–machine interventions? The combin­ ation of scale, speed, automation, and hyperconnectivity also impacts the distribution and proportionality of law enforcement and punishment. For some, it may become very easy to escape the reach of justice authorities, whereas others can easily be traced and tracked across various contexts and jurisdictional borders.46 Secondly, the aim of legal certainty is disrupted by the distance between an action and its consequences. This causes problems because of the lack of extraterritorial jurisdiction to enforce and because of differential criminalizations, that refer to cultural diversity as to what is considered a criminal offense. Simultaneously, cybercrime law enforcement may transform into cyber war. If states decide to enforce their criminal law on the territory of another state, without its permission, this may be qualified as an act of war, triggering retaliation and generating interstate conflicts that transform the logic of the criminal law into that of the law of war. This will further the blurring of the border between intelligence and policing, and fit the agenda of those seeking to attribute far-reaching emergency competences for law enforcement. For a citizen, it will become less clear what a police officer is allowed to do, what kind of knowledge is gained between justice authorities and intelligence services, and which of her behaviors will trigger intensified tracing and tracking. The combination of speed, automation, and interconnectivity may require faster—even real-time—responses to cybercrime. It may be more difficult to ensure the foreseeability of the measures needed to counter real-time automated remote attacks, for instance on critical infrastructure. The difficulties of coping with novel technologies capable of causing large-scale disruptions of the monopoly of violence may elicit more surreptitious surveillance. For instance, the advent of 3D printing will enable 45  Curtis E.  A. Karnow, “Liability for Distributed Artificial Intelligences,” (1996) 11 Berkeley Technology Law Journal 148 ff. 46   Jack Goldschmidt, “The Internet and the Legitimacy of Remote Cross-Border Searches,” (2001) The University of Chicago Legal Forum 103 ff.

192   mireille hildebrandt the online sharing of software to build weapons and/or drones, calling for more pervasive monitoring of the content of online communications. The call for broader competences and more pervasive surveillance will erode legal certainty as it will be more difficult to define the legal boundaries of criminal law enforcement. Certainty as to what law enforcement will do and what knowledge it may have obtained and inferred will become illusionary at some point.47 Thirdly, the purposiveness of law is increasingly lost due to the emergent behaviors of socio-technical infrastructures. The criminal law’s instrumentality in achieving the policy goal of reducing and redressing crime is eroded by the mediation of computational layers that are nested between intended objectives and actual outcomes. The instrumental character of the law as a means to prevent and deter criminal offenses assumes a measure of linearity between legal conditions (framed in legislation and case law) and legal effect. Due to the distance between the crim­ inalization of specific behaviors and their consequences in other parts of the world, it becomes difficult if not impossible to foresee the legal effect of criminalization. Similarly, due to the scale of interacting computing systems on which critical infrastructure depends, the legal effects of law meant for one context easily leak into other contexts that are connected via the computational in-between. The network effects generated by the combination of speed, automation, and interconnectivity effectively turn the environment of the law into one better described by complexity theory than systems theory, meaning that it becomes ever more difficult to guess how legal interventions reconstitute the future. Democratic participation in the process of criminalization limited by constitutional constraints and effective respect for human rights thus becomes a challenge wherever the legal effect of such criminalization is easily overruled by the transformative affordances of a changing technological landscape, or by the limited scope of national jurisdiction. The following section will highlight some of the more salient implications for substantive criminal law and law enforcement, notably the emerging architecture of a surveillance society and, for instance, its correlation with pre-crime punishment. Instead of succumbing to techno-determinism, however, the chapter will end with an argument for “legal protection by design,” to retain and reinvent the criminal law as an instrument for fairness (justice), trust and foreseeability (legal certainty), and public benefit (purposiveness).

4.  Presumption of innocence by design? Though the U.S. National Security Agency’s infiltration of private enterprise and independent standard-setting fora may not have surprised experts working in the   Matt Buchanan, “How the N.S.A. Cracked the Web,” The New Yorker Blogs, Sept. 7, 2013, available at: . 47

criminal law and technology    193 domain of computer security or international relations, the extent of its access to content and metadata has evoked outcry even amongst the most cynical advocates of human rights, rule of law, and democracy. This is obviously connected with the rise of data-driven society which enables the mining of both content and metadata, inferring a plethora of crime-related patterns that may enable preemption, prevention, or resolution of crimes. At the same time, the fact that a high-level systems administrator requires access to a mass of highly confidential classified information to keep the systems running, indicates the dependence of intelligence and law enforcement on technical experts who may have entirely unpredictable loyalties as far as data-driven intelligence goes.48 We now have to admit that we live in the midst of surveillance societies,49 that urgently require new checks and balances to survive as constitutional democracies sustaining fairness, trust, and welfare. A data-driven surveillance society threatens many of the core principles of the criminal law, especially when there is no transparency about the profiles that are inferred and matched with a person’s data points. In this final section we single out the presumption of innocence and its relation to the predictive analytics that progressively drive law enforcement, because it connects with many of the requirements of procedural, distributive, and proportional justice. The presumption incorporates the fact that the burden of proof in criminal proceedings rests on the prosecutor and demands strong evidence (beyond reasonable doubt). It entails that a person is considered innocent until proven guilty, whereas data-drive surveillance deftly lures law enforcement into the opposite direction. Notably, the presumption is also associated with the notion of equality of arms in criminal proceedings, with the right to priv­ acy as a firewall against unwarranted investigative techniques, and with the right to non-discrimination as a way to protect against prejudice and unfair bias. Surveillance society easily crosses the border that should protect individual persons who wish to reinvent themselves in spite of all the statistics that pin them to their past behaviors. One pivotal example of the reach of data-driven surveillance concerns the advances made in neuroscience. On the one hand, mechanistic interpretations of the correlations between brain behaviors and proneness to criminal intent may erode our notions of human autonomy, guilt, blameworthiness, and accountability. Such mechanistic interpretations have already—on the basis of mere correlations— evoked a salient discussion on the meaning of free will within the criminal law.50 On the other hand, similar research may be used to detect liars and outliers in the context of criminal intelligence, aiming to preempt crime rather than respond after 48   Joe Davidson, “NSA to Cut 90 Percent of Systems Administrators,” Washington Post, Federal Eye, Aug. 13, 2013, available at:  . 49   David Lyon, Surveillance Studies: An Overview (2007). 50   e.g. Stephen J.  Morse, “Brain Overclaim Syndrome and Criminal Responsibility:  A  Diagnostic Note,” (2006) 3 Ohio State Journal of Crim. Law 397 ff. Against overly skeptical accounts of human autonomy, Antonio R. Damasio, Self Comes to Mind: Constructing the Conscious Brain (2011).

194   mireille hildebrandt the fact. In both cases, neuroscience is taken to enable new methods to manipulate people into certain types of behaviors, based on predictions of how their brain states will correlate with external stimuli and their own behaviors. Obviously, the privacy implications of such usage are gross. One might even wonder what privacy could mean in an era where nervous systems can be connected directly to computer interfaces and to the nervous system of another person.51 The most problematic issue here is not merely the fact that interesting patterns are mined which correl­ ate brain behaviors or morphology with human mind and society, thus enabling manipulation of human action. The real problem resides in the naïve interpretation of such patterns in terms of, for instance, evolutionary metaphors,52 or a new type of mechanics that defies causality while displaying an unsubstantiated belief in statistical correlations.53 Typically, an ingenuous “belief ” and a somewhat naïve misrepresentation of the findings of neuroscientific research tempt policymakers to build data-driven infrastructures supposedly capable of forecasting who will engage in criminal—or undesirable—behaviors. The lure of gaining access to thoughts, intentions, and dispositions may induce vast public–private surveillance networks to capture the data points that correlate with high-risk behaviors. Such systems will not necessarily be restricted to criminal offenses, as information-driven governments will seek to employ them for risk-based health care, criminal policy, social security allocation, employment programs, and all types of sophisticated nudging operations. Coupled with the naïve idea that neuroscience has already proven that free will is an illusion, the borders between criminal law enforcement and the preemption of undesirable behaviors will be further destabilized, creating leeway to foster what has been called “pre-crime punishment.”54 Since the proliferation of personal data-processing systems, researchers on the cusp of law, human–machine interaction, and computer science have been working on privacy by design. Convinced of the normative impact of interconnected semi-autonomous computing systems on the substance of human rights, they have aligned with research into value-sensitive design and argued that privacy must be an affordance of the infrastructures on which we depend. Trying to regulate such systems after their consolidation will not work. According to many privacy advocates, the opacity of individual persons that is core to privacy must be built into the so-called “backend” of these systems as they are designed. The focus on privacy is understandable, but surveillance is not only about prying into the private sphere. As argued previously, data-driven surveillance challenges the foundations of the   K. Warwick et al., “Thought Communication and Control: A First Step Using Radiotelegraphy,” (2004) 3 Communications, IEE Proceedings 185 ff. 52  Bernd Carsten Stahl, “Evolution as Metaphor:  A  Critical Review of the Use of Evolutionary Concepts in Information Systems and e-Commerce,” in Ned Kock (ed.), Evolutionary Psychology and Information Systems Research (2010), 357 ff. 53   Kate Crawford, “Think Again: Big Data,” (2013) Foreign Policy, May 9. 54   Hildebrandt (n. 44). 51

criminal law and technology    195 presumption of innocence by suggesting precognition of criminal intent. Even if internal criticism demonstrates that crucial assumptions of criminal profiling are invalid,55 law enforcement and criminal intelligence have already embraced the assumed benefits of Big Data and will increasingly base their criminal justice policy on the outcomes of computational risk assessments. The logic of these policies goes against the grain of the presumption of innocence. If criminal law does not reinvent itself the presumption of innocence will turn into a relic of outdated—bookish— Enlightenment thought. True to the pluralist conception of technology and the relational conception of law, we should acknowledge that the extent to which data-driven surveillance societies will erode the presumption of innocence ultimately depends on the design of the surveillance infrastructures. Though it may appear to be a mission impossible, the antinomian aims of the criminal law require a surveillance architecture that sustains the presumption of innocence. Next to privacy and nondiscrimination by design, we will need a presumption of innocence by design. This will depend on collaboration between criminal law scholars and practitioners, requirements engineering, human–machine interfacing experts, and those involved in technology impact assessment. Key features of surveillance systems that operationalize the presumption of innocence will be the transparency of the architecture (to know what type of data are observed and inferred how, where, and for how long), access to the algorithms that claim to predict criminal intent (to enable peer review of the mechanics involved), software verification (to make sure that knowledge of these systems does not depend on the benevolence of the system owners willing to share their code), and, finally, ICT citizens’ platforms that allow citizens to foresee how their behaviors could match with criminal profiles (to empower individuals in the face of anonymous data processing by secret services or private enterprises forced to share their data with criminal or foreign intelligence). These types of “legal protection by design” should ensure an effective capability to contest allegations based on data-driven criminal profiling. This should reinvent procedural, distributive, and proportional criminal justice, by opening the black box of data-driven applications and achieving their contestability in a court of law; it should re-inscribe legal certainty into the hybrid socio-technical systems, by giving people control over the consequences of their interactions; and it should re-enable the purposiveness and instrumentality of the criminal law in the face of shifting interactions between inferred “present futures” and their own future present.56   Harcourt (n. 39).   Elena Esposito, The Future of Futures: The Time of Money in Financing and Society (2011). More specifically in relation to the law, Elena Esposito, “Digital Prophecies and Web Intelligence,” in Mireille Hildebrandt and Katja de Vries (eds.), Privacy, Due Process and the Computational Turn: The Philosophy of Law Meets the Philosophy of Technology (2013), 121 ff. 55

56

196   mireille hildebrandt

v.  Concluding Observations In this chapter we have looked into the relationships between law and technology, highlighting the transformations of the criminal law in the face of a data-driven society. Instead of embarking on a straightforward discussion of cybercrime and law enforcement in cyberspace, this chapter devoted considerable attention to the assumptions that inform lawyers’ understanding of both law and technology. Depending on such assumptions, different types of relationships between legal norms, legal relations, and legal systems and technological devices and infrastructures can be configured in different ways. In times of disruptive technological transformations, it is crucial to reflect on the meaning of both law and technology in relation to notably self, mind, and society. Legal systems and technological infrastructures mediate between individual minds and societal institutions, co-constituting patterns of interaction and consolidating complex mutual expect­ ations between citizens, government agencies, and other organizations. This chapter has highlighted that modern law itself has been mediated by ICTs, such as the printing press, while at the same time the hyperconnectivity and AI of current ICT infrastructures may limit or reinvent the substance of legal protection. This has major implications for the normative force of the criminal law, notably for its aim to achieve procedural, distributive, and proportional justice, legal certainty, and for its aim to contribute to specific policy goals such as a reduction of cybercrime. The chapter ends with an argument for a “presumption of innocence by design” that should inform the architecture of the data-driven surveillance state, precisely because we cannot take for granted that the novel technological landscape will afford the same rights and freedoms as earlier ones.

References Brenner, Susan W., Law in an Era of “Smart” Technology (2007) Brownsword, Roger, Rights, Regulation and the Technological Revolution (2008) Cohen, Julie E., Configuring the Networked Self: Law, Code, and the Play of Everyday Practice (2012), esp. ch. 7 on “Piracy,” “Security,” and Architectures of Control Harcourt, Bernard E., Against Prediction: Profiling, Policing, and Punishing in an Actuarial Age (2007) Hildebrandt, Mireille, “Proactive Forensic Profiling: Proactive Criminalization?,” in R. A. Duff et al. (eds.), The Boundaries of the Criminal Law (2010), 113 ff. Hildebrandt, Mireille and Gutwirth, Serge, Profiling the European Citizen. Cross-Disciplinary Perspectives (2008) Hildebrandt, Mireille and De Vries, Katja (eds.), Privacy, Due Process and the Computational Turn: The Philosophy of Law Meets the Philosophy of Technology (2013)

criminal law and technology    197 Karnow, Curtis E. A., Future Codes: Essays in Advanced Computer Technology and the Law (1997) Koops, Bert-Jaap and Brenner, Susan W. (eds.), Cybercrime and Jurisdiction; A Global Survey (2006) Leman-Langlois, Stéphane (ed.), Technocrime. Technology, Crime and Social Control (2008) Lessig, Lawrence, Code Version 2.0 (2006) Lyon, David, Surveillance after September 11 (2003) Verbeek, Peter-Paul, Moralizing Technology:  Understanding and Designing the Morality of Things (2011) Vincent, Nicole A., Neuroscience and Legal Responsibility (2013) Wright, David et al., “Sorting Out Smart Surveillance,” (2010) 26 Computer Law & Security Review 343

part ii

SYSTEMS AND MODELS

­c hapter 10

MEDIEVAL CANON LAW: THE ORIGINS OF MODERN CRIMINAL LAW heikki pihlajamäki mia korpiola

i.  Introduction: The Twelfth-Century Reform of Canon Law The twelfth-century development of law was revolutionary. Starting in Bologna, the Corpus iuris civilis became an object of systematic academic research and teaching for the first time in history. Within a century, Roman law in its scholarly, medieval form spread to France, Spain, and England, and in succeeding centuries to other parts of Europe. Canon law also developed, helping to build up the structure of the Catholic Church, “the first modern state.” From the time of Pope Gregory VII (papacy 1073–1085), the popes had established themselves as not only supreme rulers of the Church de iure but increasingly de facto as well. The Gregorian Reform had drastic consequences for the law, strengthening the position of the pope radically compared to the situation before the mid-eleventh century. The pope, with the help of his legal experts, acquired the sole right to define ecclesiastical doctrine and determine matters of worship. He could levy

202    heikki pihlajamäki and mia korpiola taxes, make laws, and punish crimes. The pope became the supreme judge of Christendom, since all legal matters and decisions of ecclesiastical courts could be referred to him for appeal. In sum, he had full authority and power (plenitudo auctoritatis; plenitudo potestatis).1 The growth of Roman law from the late tenth century onward was also instrumental to the development of canon law. The writings of legists, studying Roman law, served as examples for canonists, who incorporated much of their scholarship into ecclesiastical law. According to a common saying, the Church lived by Roman law (ecclesia vivit lege Romana).2 Canon law did not, however, live merely by inherited normative materials, the ius antiquum. In the twelfth and thirteenth centuries, church law became perhaps the most dynamic legal body of the medieval world. The papal chancery in Rome started producing impressive numbers of decretals, or papal letters answering particular legal problems from all over Europe. Their legal validity often stretched beyond the original case. As decades passed, the sheer mass of this new legal material, the ius novum, became difficult for professionals and others involved to master. To remedy the problem, private collections such as the Quinque compilationes antiquae were issued in the late twelfth and early thirteenth centuries. The Liber extra, finished by the Catalan canonist Raymond of Penyafort (ca. 1175–1275) at the request of Pope Gregory IX in 1234 (papacy 1227–1241), was the first official collection. It was by far the most influential and comprehensive of all post-Gratian collections. As the flow of decretals continued, new official collections were compiled: Liber sextus (1298) and Constitutiones clementinae (1317). After the Clementines, two unofficial major decretal collections, the Extravagantes Johannis XXII (1325) and Extravagantes communes (1499) came to be included with Gratian’s Decretum or Concordia discordantium canonum (by ca. 1140) in what became known as the Corpus iuris canonici by the sixteenth century. The Decretum Gratiani was the first comprehensive compilation of the normative material produced over the centuries by the Church Fathers, synods, and popes, and was systematized to a certain degree. Gratian’s masterwork, especially its later version, also included Roman law.3 The Decretum began the classical age of canon law, which lasted until the mid-fourteenth century, a period which produced copious ecclesiastical legislation and flourishing legal scholarship. The school of decretists (commentators on Gratian’s Decretum) dominated for almost a century from the mid-twelfth century until the Liber extra. Gregory IX’s landmark compilation then became the primary interest of the new school of decretalists. From   Harold Berman, Law and Revolution: The Formation of the Legal Tradition (1983), 206 ff.   Friedrich Merzbacher, “Die Parömie ‘legista sine canonibus parum valet, canonista sine legibus nihil’, ” (1967) 13 Studia Gratiana 265 ff. 3   Anders Winroth, The Making of Gratian’s Decretum (2000). Other compilations had come before, e.g. the Decretum of Burchard of Worms (ca. 1000) and the three collections by or attributed to Ivo of Chartres (ca. 1100). 1

2

medieval canon law   203 the fourteenth century onward, leading lawyers such as Bartolus of Saxoferrato (1313–1357) and Baldus de’ Ubaldis (1327–1400) were in fact increasingly experts in both bodies of law, doctores utriusque iuris. Roman and canon law started to be referred to as ius commune, the common law of Europe. These two universally valid bodies of law remained separate but complementary, acting at least theoretic­ ally as a subsidiary body of law to local legal sources in many parts of Europe. Canon law, evolving toward increased individualization as in other scientific fields, was developed to meet the Church’s need to assume effective control over its sphere of power. Canon lawyers innovated in practically all of its areas, from the purely religious law of sacraments, tithes, and episcopal elections to more secular matters such as wills, succession, marriage, and contracts. The Church also developed a hierarchical judicial system, starting in the episcopal courts and culminating in the papacy. A common law of procedure, the ordo iudiciarius, developed in legal literature to govern the legal process in these courts. Neither did criminal law fall outside the scope of the canon lawyers’ interests. The Liber extra became the most important normative source of canonical criminal law. The last of its five books was dedicated to crime (crimen) and criminal procedure. As will be seen, the law of criminal procedure first developed to serve the interests of the Church in controlling misbehaving clergy—only later was it used for suppressing heretical movements, sexual crimes, and other criminal acts thought harmful for the Church. Since the 1980s, legal historians have discussed the emergence of criminal law in depth. The twelfth and thirteenth centuries are usually thought decisive if one considers the public nature of criminal sanctions a crucial element distinguishing them from other kinds of law.4 Indeed, public sanctions, such as the public penance of the Carolingian period, were already important in the earlier Middle Ages. Nevertheless, the Church began systematically to punish public crimes by public punishment only in the high Middle Ages when the principle ne crimina remaneant impunita (crimes shall not go unpunished) emerged. Clandestine crimes were not to be punished as crimes, but as sins in the penitential forum. As criminal law developed into an independent field, especially in 1170–1270, Bernard of Pavia (d. 1213) was a key figure. He theoretically distinguished both penance and punishment, and punishment and damages, while working many of the central papal decretals on crime and criminal procedure into the theory of canon criminal law.5 Canonists created most of the high medieval innovations, many of which still characterize modern criminal law. This chapter begins with the concepts of intentionality and individual responsibility, on which late medieval criminal was   See Dietmar Willoweit, “Programm eines Forschungsprojekts,” in Dietmar Willoweit (ed.), Die Entstehung des öffentlichen Strafrechts:  Bestandaufnahme eines europäischen Forschungsproblems (1999), 1 ff. 5   Lotte Kéry, Gottesfurcht und irdische Strafen:  Der Beitrag des mittelalterlichen Kirchenrechts zur Entstehung des öffentlichen Strafrechts (2006), 675 ff. 4

204    heikki pihlajamäki and mia korpiola increasingly built (II). We will then move on to some observations on ecclesias­ tical crimes and punishments (III). The following section deals with the procedural changes that accompanied the changes in substantive criminal law: the rise of the inquisitorial procedure alongside the traditional adversarial procedure and the statutory theory of proof, replacing the old procedure based on oaths and ordeals (IV). The impact of canonical criminal law on secular law (V) is then discussed before moving on to the developments in the Reformation period and beyond (VI).

ii.  The Concept of Crime in Medieval Canon Law and Philosophy The individual’s criminal intention and responsibility belonged to the most influential focal points in medieval criminal law. Before the change, criminal responsibility was mainly based on the consequences of a crime.6 However, the stress on individual responsibility did not develop in a vacuum, but belonged to a larger trend, inherently intertwined with the concept of sin. With the emergence of canon criminal law, the Church reserved certain crimes to be adjudicated within its own jurisdiction of the external forum ( forum externum), that is, church courts. All of the crimes belonging to them were theologically sins, but not all sins were judged in them. Sin and crime thus had to be distinguished from each other conceptually. Before the late medieval transformation of canon law, no such clear-cut conceptual distinction existed. The institution of penance was important for the changes in criminal law. Omnis utriusque sexus, Canon 21 of the Fourth Lateran Council in 1215, ordered that every Christian had to confess his or her sins at least once a year and repent and receive absolution from them. This canon was the culmination of a larger trend, the earliest attempts to establish regular confessions dating to the eighth century. It differed from earlier regulations, however, as this rule was directed toward laymen and not only clerics for the first time.7 Penance as a theological instrument developed strongly in the thirteenth century, Raymond of Penyafort and other theorists refined the concept of individual guilt. Penitential literature, the literature of the forum internum,

  As Lotte Kéry has shown (in “Inquisitio—denunciatio—exceptio:  Möglichkeiten der Verfahren seinleitung im Dekretalenrecht,” (2001) 87 ZRG, K.A. 226 ff.), the change was not abrupt, and some individualism can be seen in the earlier law as well. 7  Martin Ohst, Pflichtbeichte: Untersuchungen zum Bußwesen im Hohen und Späten Mittelalter (1995). cf. Göran Inger, Das Geständnis in der schwedischen Prozessrechtsgeschichte I: Bis zur Gründung 6

medieval canon law   205 influenced criminal law in general. It is likely that a relation existed between the law of penance and the actual canon criminal law of the external forum. Georg Dahm, for instance, assumes that canon lawyers knew penitential literature well, although they did not often cite it.8 Drafting the theoretical basis for the distinction between sin and crime is attributed to Peter Abelard (d. 1142). In the group of deadly or grave sins (peccata damnabilia et graviora), Abelard distinguished those which were criminal. For Abelard, “Some damnable sins are said to be criminal and are capable of making a person infamous or criminous if they come to the hearing of other people, but some are not in the least.” Criminal sins, he continued, “blot a man with the mole of a great fault and greatly detract from his reputation; such are consent perjury, murder [and] adultery.” These criminal sins “greatly scandalize the Church” unlike vanity, for instance.9 For Abelard, sins were simultaneously canonical crimes under the following circumstances. First, the sin had to be grave. Only deadly sins, such as greed,10 could form the basis of canonical crimes, and even then only provided it was sufficiently grave. Secondly, criminal deeds also had to be perceivable by the senses. Thought-crimes were only punished in the internal forum, not the external, because God alone was able to look into the human heart and soul. The principle that the Church was not to base its judgments on things not perceivable (de occultis ecclesia non iudicat) followed from this. Human courts, including church courts, were to draw their conclusions on the basis of outer signs alone. This had consequences for the law of proof. Thirdly, in order to be punishable at the external forum, the crime had to “scandalize the Church,” meaning harming the Church or causing scandal among believers. Despite contributing greatly to the criminal law theory and the division into sin and crime, Abelard’s conception of criminal law was otherwise particularly individualistic. If a poor woman accidentally kills her baby when trying to warm him at night, she should, according to Abelard, be punished “so that subsequently she and other women should be rendered more cautious.” In some cases, Abelard argued, even an innocent accused could be punished. When enemies using false witnesses had framed someone, and the judge could not rebut them “with plain reasons,” the judge had to accept the proof and convict. This is because “humans did not judge on the basis hidden, but manifest facts.” On the other hand, God, “the trier and examiner of the heart and soul,” alone “truly considers guilt in our intention and examines the fault in a true trial.”11 des Svea Hofgerichts 1614 (1976), 17 ff.; Winfried Trusen, “Zur Bedeutung des geistlichen Forum internum und externum für die spätmittelalterliche Gesellschaft,” (1990) 76 ZRG, K.A. 254 ff.  Georg Dahm, Das Strafrecht Italiens im ausgehenden Mittelalter:  Untersuchungen über die Beziehungen zwischen Theorie und Praxis im Strafrecht des Spätmittelalters, namentlich im XIV. 9 Jahrhundert (1931), 88 ff.   D. E. Luscombe (ed.), Peter Abelard’s Ethics (1979), 71. 10  See Peter of Capua’s definitions in Odon Lottin, Psychologie et morale aux dix-septième et 11 dix-huitième siècles 2 (1948), 496 ff.   Abelard (n. 9) 38 ff. 8

206    heikki pihlajamäki and mia korpiola These passages reveal that Abelard was still more attached to old criminal trad­ itions than to the individualized criminal law that appears in the works of decretists (commentators on Gratian’s Decretum) such as Rufinus (d. 1192), Huguccio (d. 1210), and Stephen of Tournai (1135–1203). These canonists took advantage of Abelard’s basic division into sin and crime, but they also moved further toward seeing crime and punishment from the point of view of individual guilt. The background of the canonistic criminal law doctrine is the voluntaristic supposition that, in a normal situation, the human being could freely choose whether or not to commit crimes or sins. The human being was, however, also responsible for his choices. Canon law moved toward an individualized concept of guilt in the decretist literature between Gratian’s Decretum and the Liber extra. The decretists built criminal law increasingly on the concept of guilt, using expressions such as “knowledge” (scientia), “knowingly” (sciens), and “deliber­ ation” (deliberatio) to describe the relationship between doer and deed. Another pivotal question arising in perjury was whether the intention, mens rea, should be determined in terms of the objective probability of the harmful consequence of the deed or according to the subjective conception of the doer.12 Decretists dedicated much attention to reasons excluding mens rea, generally accepting mental illness as a ground excluding criminal responsibility. Drunkenness could, for Huguccio, exclude criminal responsibility if the doer failed to understand his actions. If he only partially understood this, he was to be punished, but more leniently than someone wholly responsible. Under some circumstances, drunkenness could even be an aggravating circumstance if it regularly resulted in recklessness. For most canonists, ignorance and error also led to reduced responsibility.13 As the free will had become so vital in determining culpability in criminal law, medieval canonists expanded the grounds of non-liability to sleepers. A sleepwalker lacked the will or consciousness to commit crimes and govern his actions.14 The guilt theor­ ies also influenced the question of the criminal liability of children. The will theory required that people had to be able to understand the consequences of their actions, which children could not. Papal decretals also clearly indicated that minors—boys under 14 and girls under 12—could not be punished as harshly as adults.15 The decretists developed teachings on necessity, duress, and self-defense as well, although these were not systematically and generally formulated regarding various crimes but piecemeal. As for duress, medieval canonists held a strict attitude (“coacta voluntas est voluntas”), although some were willing to let the situation of duress affect the punishment. The canonists developed the so-called 12   Stephan Kuttner, Kanonistische Schuldlehre von Gratian bis auf die Dekretalen Gregors IX system­ atisch auf Grund der handschriftlichen Quellen dargestellt (1935); Woldemar Engelmann, Die Schuldlehre der Postglossatoren und ihre Fortentwicklung: eine historisch-dogmatische Darstellung der kriminellen Schuldlehre der italianischen Juristen des Mittelalters seit Accursius (1965). 13   Richard H. Helmholz, The Spirit of Classical Canon Law (1996), 280 ff. 14  See Nicolas Laurent-Bonne, “Dormiens comparatur furioso: Les origines canoniques de 15 l’irresponsabilité pénale du dormeur,” (2014) ZRG, K.A., 153 ff.   X 5.23.2.

medieval canon law   207 “constant man test” to assess what kind of coercion would through violence or threats objectively cause such fear in the average reasonable person as to influence his or her actions.16 One situation of necessity, stealing for hunger, was more systematically discussed than any other. Some canonists held that hunger did free theft of sinfulness, but only saved the wrongdoer from a harsh punishment. Others thought that stealing food out of genuine necessity (necessitas urgens) was guiltless because according to natural law, all goods were to be held in common in a state of necessity.17 Canon lawyers built their teaching on self-defense on the same premise as the Roman lawyers had built theirs: “the right to defense rests on natural law.” The penitence theorists defined the subjective elements of this further, and canonists then took over their teachings. According to canon law, excommunication thus threatened anyone who defended himself “with merry lightness” or “with lustful claim.”18 While the classical canonists failed to construct comprehensive theories of circumstances removing or diminishing criminal responsibility, their opinions regarding different parts of the criminal law theory clearly departed from the concept of guilt, by definition an individualized concept. The legality principle, articulated in 1801 by P.  J. A.  Ritter von Feuerbach (1775–1833) as nullum crimen sine lege, had ancient Roman legal roots, although these “few threads . . . may not establish a clear, unbroken line of development.” The prohibition of retroactive laws was known in Rome and codified in 440.19 The church father Ambrose of Milan (ca. 340–397) used this notion to exonerate Abraham of adultery with Hagar (Genesis 16). As he had committed the deed before the Law of Moses and the New Testament, both forbidding adultery, he could not be considered guilty of the crime.20 In addition, Pope Gregory IX repeated the Roman legal rule in one of his decretals, which upheld the notion of laws regulating future, not past, behavior being incorporated into the Liber extra.21 Yet, in practice, medieval and early modern judges could condemn people for crimes not included in any written law if, for example, divine or natural law prohibited the crime. Analogy could also be used, exceptions could be made, or customary law could prohibit the deed.22 This went conjointly with the hardening attitude toward criminality in the thirteenth century, as the Church, with the help of secular rulers, attempted to gain increasing control   R. H. Helmholz, Marriage Litigation in Medieval England (1974), 90 ff.   Kuttner (n. 12) 292, 334. 18   Although secular scholars did not direct their attention to the human soul, a similar movement toward the individualization of self-defense took place but at the level of outer signs (signa exteriora), Dahm (n. 8) 126 ff. Similarly with the theory of necessity (Notstandlehre), ibid., 147 ff. 19   Jerome Hall, “Nulla poena sine lege,” (1937) 47 Yale LJ 165 ff.; Codex Iustinianus 1.14.7., ed. Paul Krueger (1877), 103: “Leges et constitutiones futuris certum est dare formam negotiis, non ad facta praeterita revocari, nisi nominatim etiam de praeterito tempore adhuc pendentibus negotiis cautum sit.” 20   Hans-Ludwig Schreiber, Gesetz und Richter:  Zur geschichtlichen Entwicklung des Satzes nullum 21 22 crimen, nulla poena sine lege (1976), 18 ff.   X 1.2.13.   Schreiber (n. 20) 22 ff. 16 17

208    heikki pihlajamäki and mia korpiola over heretics and movements supposedly threatening social peace. If we can even speak of any early form of legality principle, it had limited relevance until the Enlightenment. Instead, the maxim according to which all crimes should be punished increasingly became the order of the day.23 One of the instruments ensuring the punishment of undesirable acts was the Roman legal concept of crimen extraordinarium, referring to an extraordinary crime without formally established punishment in written law or custom. In the case of crimina extraordinaria, judges determined suitable punishments by their discretionary powers (arbitrium).24 Thus, the legal doctrine authorized these arbitrary punishments. In addition, judges were allowed to take the circumstances of the crime into consideration in determining a suitable punishment. This “discretionary punishment” (poena extraordinaria) was based on mitigating and aggravating factors which resulted in more lenient or serious punishments. Punishment also depended on the practice of the court in question (stylus curiae); for example, not all jurisdictions used flogging for sexual crime.25 Related to the theories of proof, judges could also impose a more lenient poena extraordinaria on the accused if there was considerable circumstantial evidence of guilt, but full proof—such as a confession—was still lacking.26 Thus, the legal doctrine relied heavily on the discretion of the judges until the eighteenth and nineteenth centuries.

iii.  Ecclesiastical Crimes and Punishments The medieval Church claimed jurisdiction over crime because of the proximity between sin and crime (ratione peccati) and its pastoral care of souls (cura animarum). Moreover, it invoked the privilege of general jurisdiction over all criminal clerics and religions by judging them in ecclesiastical courts (privilegium clericale). At times, this benefit of clergy caused friction between the Church and lay government. Criminal clerics could be degraded if they needed to be executed, 23   See Richard M. Fraher, “The Theoretical Justification for the New Criminal Law of the High Middle Ages: ‘Rei publicae interest, ne crimina remaneant impunita’, ” (1984) University of Illinois LR 577 ff.; and “Preventing Crime in the High Middle Ages: The Medieval Lawyers’ Search for Deterrence,” in Festschrift for Brian Tierney (1989), 212 ff. 24   Massimo Meccarelli, Arbitrium: un aspetto sistematico degli ordinamenti giuridici in età di diritto 25 commune (1998), 195 ff. and 208 ff.   e.g. Helmholz (n. 13) 276 ff. 26   Meccarelli (n. 24) 211.

medieval canon law   209 for example for heresy, but often life-long imprisonment in an episcopal prison could replace execution. The fifth book of the Liber extra, dedicated to crime, listed and discussed a number of more or less ecclesiastical offenses. Some also belonged to the mixed or shared jurisdiction between secular and church courts. In addition, the third book on the clergy discussed clerical crimes, such as breaches of celibacy (X 3.2.1–3.2.10). Because of the diversity of crimes regulated by canon law, only the most important types will be discussed here. The ecclesiastical penalties for homicide were relevant in the Middle Ages,27 but they have been omitted here. Simony, that is, the sale of ecclesiastical offices, pardons, or sacraments, was one of the purely ecclesiastical crimes (crimen mere ecclesiasticum). The Church had actively condemned simony, named after Simon Magus (Acts 8:18–8:20), ever since the Gregorian Reform but with very limited success. Accusations of clerical venality increased at the end of the Middle Ages. The Fourth Lateran Council issued several canons against simony by receiving money for such things as administering the sacraments, appointment and consecration of clerics, or entry into religion. Simony, which resulted in automatic excommunication, also received much attention in the Decretals (X 5.3.1–5.3.46).28 For a Christian, apostasy meant renouncing one’s Christian faith (apostasia a fide). As even coerced baptism was considered valid, those Jews, Muslims, and pagans who returned to their “old” faith were branded as apostates. When professed monks or nuns left the religious life and absconded from their convent, they were guilty of apostasia a religione. Monastic apostates could expect disciplinary penalties (beatings, incarceration, fasting, and lesser penalties) at their superior’s discretion for running away.29 Heresy (X 5.7.1–5.7.16) was another important ecclesiastical crime. What constituted heresy was largely a theological question. When canon procedural law developed in the later twelfth and thirteenth centuries, the Church was struggling with heresy, particularly the neo-Manichean Cathar and Waldensian sects.30 In 1184, Pope Lucius III (r. 1181–1185) expressly condemned these in his bull Ad abolendam which excommunicated heretics and their abettors. Suspected heretics were also branded with infamy, and thus denied the right to hold office, make a will, inherit property, or testify in court. All their property was also to be confiscated. Secular authorities had a positive duty to combat heresy to avoid   e.g. X 5.12.7; X 5.10.3.   Canons 63–66, Constitutiones Concilii quarti Lateranensis una cum Commentariis glossatorum, ed. Antonius García y García (1981), 103 ff. 29   X 5.9.1–5.9.6; Christopher Harper-Bill, “Monastic Apostasy in late Medieval England,” (1981) 32 Journal of Ecclesiastical History 1 ff.; F. Donald Logan, Runaway Religious in Medieval England, c. 1240– 1540 (1996), esp. 9 ff. and 147 ff. On forced baptism, see Helmholz (n. 13) 224 ff. 30   e.g. Malcolm Lambert, Medieval Heresy:  Popular Movement from the Gregorian Reform to the Reformation (2002), 52 ff.; Jennifer Kolpacoff Deane, A History of Medieval Heresy and Inquisition (2011), 25 ff. 27

28

210    heikki pihlajamäki and mia korpiola such penalties themselves. The Church depended heavily on secular authorities, that is, “the secular arm” (brachium saeculare) for “duly punishing” (animadversione debita puniendus) obdurate heretics because of the clerical ban on pronouncing and carrying out capital penalties. Heretics refusing to recant or relapsing into heresy were burned. Others had to do penance, depending on the judge’s discretion (e.g. imprisonment, penitential pilgrimages, yellow crosses or badges on clothes).31 This was supplemented in 1199 by the decretal Vergentis in senium by Innocent III (papacy 1198–1216). Heresy became assimilated with lese-majesty (offending the divine majesty). Instead of adopting the heresy punishments of Roman law, the papacy used the more wide-ranging sanctions of Roman lese-majesty.32 The statutes of the Fourth Lateran Council also included canons on heresy.33 Blasphemy, closely related to heresy, was a mixed crime pertaining to both secular and ecclesiastical jurisdiction. Both powers were worried that unpunished heinous crimes such as blasphemy—“treason against God,” the Virgin Mary, and saints—would incur God’s wrath on the whole of society. Although the Bible insisted on death, fines and corporal penalties (e.g. cutting out the tongue) were usually imposed in practice.34 Similarly, sorcery and witchcraft (maleficium) were mixed crimes, related to heresy and poisoning. The Inquisition unearthed sorcery mainly in heresy cases until the fifteenth century, when the doctrine of witchcraft necessary for the large-scale early modern witch-hunts started to develop. The papal bull Summis desiderantes affectibus (1484) authorized extensive witch-hunts in Germany in response to bad harvests and calamities. Witchcraft was considered an extraordinary crime and was punished accordingly.35 Usury, money-lending including charging interest, became one of the focal points of the Church’s attention in the thirteenth and fourteenth centuries with the growth of a monetary economy and capitalism. It also encompassed all contracts or business transactions for gain, including trading for a profit. Usury had already been forbidden in the Bible (e.g. Leviticus 25:36–37), and it attracted papal attention both in the Liber extra and the Liber sextus in 1298. Usury was equated with theft and required restitution of the shameful gains (turpe lucrum). Moreover, usurers 31  For Ad abolendam, see:  . See also ibid., 66, for the prohibition of clerics to participate in “blood sentences” (sententia sanguinis), see Canon 16, Constitutiones Concilii quarti Lateranensis (n. 28), 66; Lambert (n. 30) 147 ff. and 282, 395. 32   Walter Ullmann, “The significance of Innocent III’s decretal ‘Vergentis’, ” Études d’histoire du droit canonique dédiées à Gabriel Le Bras I (1965) I, 729 ff.; Henri Maisonneuve, “Le droit romain et la doctrine inquisitoriale,” ibid., II, 929 ff.; Helmholz (n. 13) 274. 33   Canons 2–3, Constitutiones Concilii quarti Lateranensis (n. 28), 43 ff. 34   X 5.26.2; Leonard W.  Levy, Treason against God:  A  History of the Offense of Blasphemy (1981); Helmholz (n. 13) 258 ff. 35   Rainer Decker, Witchcraft & the Papacy: An Account Drawing on the Formerly Secret Records of the Roman Inquisition (transl. H. C. Erik Midelfort, 2008), 50 ff.

medieval canon law   211 were excommunicated and denied Christian burial.36 In 1311, Pope Clement V prohibited usury altogether and pronounced that any secular laws allowing it were to be disregarded on pain of excommunication. However, the interpretation of what was usurious varied, and new business practices were developed to circumvent the prohibition on interest.37 Sexual crimes (e.g. incest, adultery, crimes against nature, fornication, and violating a virgin) were mixed causes which could be adjudicated both in ecclesiastical and secular courts. Any sexual activity outside legitimate marriage was forbidden. The definitions of crimes and their penalties depended largely on the status (clerical, married, single, virgin, etc.), mutual relationship (e.g. relatives), and the sex of the partners. If both partners were married (double adultery), the crime was more severe than if only one was married (single adultery). The mode of sexual activity and the circumstances of the crime were also relevant in labeling the crime. Ecclesiastical punishments could range from various public or private forms of penance (including pilgrimages, fasting, food restrictions) to forced celibacy, imprisonment, fines, and flogging. Unnatural sexual activities (homosexuality, bestiality, masturbation, and anal intercourse) especially could be punished with death by secular officials, who also tended to use imprisonment, fines, mutilations, flogging, and shaming penalties.38

iv.  Development of Criminal Procedure ca. 1150–1300 The period of classical canon law produced significant changes both in what is now considered substantive criminal law and in criminal procedure. Without this, effect­ ive control would have been impossible. Before the mid-twelfth century, criminal charges against someone could only be brought at the personal initiative of the alleged victim or his or her relatives. They had to summon the suspect to court, produce the evidence, and sometimes even carry out the punishment. This accusatorial procedure prevailed in both ecclesiastical and secular law. In fact, criminal and civil procedures were not systematically differentiated at this stage. A crucial element in

  e.g. T. P. McLaughlin, “The Teaching of the Canonists on Usury (XII, XIII and XIV Centuries),” (1939) 1 Mediaeval Studies 81 ff. and (1940) 2, 1 ff.; John W. Baldwin, Masters, Princes and Merchants: The 37 Social Views of Peter the Chanter and His Circle 1 (1970).   X 5.5.1. 38   e.g. James A. Brundage, Sex, Law, and Christian Society (1990); Pierre J. Payer, Sex and the New Medieval Literature of Confession, 1150–1300 (2009). 36

212    heikki pihlajamäki and mia korpiola distinguishing the two was the invention of the inquisitorial procedure during the second half of the twelfth century. The old accusatorial method of prosecution needed reform because it was too clumsy to function as a tool of efficient control. For instance, according to the Pseudo-Isidorian Decretals (ca. 850), fabricated to make high ecclesiastics virtually immune from prosecution, no less than 72 accusers were needed to bring a bishop to court, if suspected of inappropriate behavior.39 For the Church, aiming at reforming and controlling its clergy, such legal rules were an obstacle. This came to mark the beginning of the inquisitorial procedure, in which either its courts of law or officials took the initiative in bringing suspected criminals to trial.40 According to some studies, the first signs of the inquisitorial procedure date to the papacy of Alexander III (r. 1159–1181) in the 1160s.41 During this period, medieval popes worried especially about two types of cler­ ical crime, which they felt needed to be suppressed: simony and nicolaitism, meaning clerical marriage and concubinage. Both seriously damaged the Church’s image and rendered it difficult to administer. However, few ordinary parishioners would risk pressing charges against miscreant churchmen, especially as they risked being sentenced to a punishment themselves unless their charges were proven. A  new procedural approach was thus clearly in order.42 Before the actual inquisitorial procedure developed, the Church knew another type of a procedure based on the suspect’s bad reputation (mala fama). The problem with this infamia procedure was, however, that the suspect could be acquitted by successfully taking a purgatory oath. Alexander III started to send delegates to the scene of a suspected crime for conducting investigations into the allegations. If these investigations certified the existence of a well-founded rumor ( fama), the suspect would be brought to court.43 The case was then examined. Only if insufficient binding evidence for the accused’s guilt could be established could a purgatory oath take place. If the suspect was found guilty, he was convicted. The practice spread and was later sanctioned in the decretals of Innocent III, the most important of them being Qualiter et quando (1206). Its argumentation shows something essential about canonist legal thinking: although canonists were often creative, this needed to be clothed in traditional arguments. Inquisitio was a term from Roman law but apart from that, neither the Corpus iuris civilis, the writings of the church fathers, nor any other usual sources offered any authoritative backup. Qualiter et quando therefore relied on Holy Scripture (Luke 16:1–2), the most authoritative of the sources. According to Genesis (18:21), on hearing the accusations against the people of Sodom and Gomorra, God investigated them in 39   Winfried Trusen, “Der Inquisitionsprozess: Seine historische Grundlagen und frühen Formen,” 40 41 (1988) 105 ZRG, Germanistische Abteilung 168 ff.   Kéry (n. 6).   Trusen (n. 39). 42 43   Lambert (n. 30), 106 ff.      Kéry (n. 6).

medieval canon law   213 person. Both passages justified the right, even giving the church courts the positive responsibility actively to investigate the crimes of clergymen.44 The principles of the inquisitorial procedure were established in the most important document of the Middle Ages regulating criminal procedure, the constitutions of the Fourth Lateran Council (1215). The inquisitorial procedure had now acquired three features alien to the adversarial procedure, which have characterized it until modern-day continental criminal procedure. First, the officials themselves initiated the procedure. Secondly, they were responsible for investigating the case and for finding the evidence. Thirdly, the inquisitorial procedure sought to unveil the material truth, “what had really happened,” not merely the procedural truth. The inquisitorial procedure spread during the thirteenth century, becoming an important tool for the Catholic Inquisition in fighting heresy. Nevertheless, the adversarial procedure always remained, at least in principle, the ordinary procedure (processus ordinarius), whereas the inquisitorial procedure was the extraordinary procedure (processus extraordinarius). In addition to the first two, a third procedural mode, the denunciatory procedure, arose, based on the Bible. An individual denounced the accused in court, which then proceeded ex officio. Unlike in the accusatorial procedure, the denouncer did not run the risk of being punished himself should the charges not be proven. Because its practical significance waned toward the early modern period, it will not be further discussed here.45 In the high Middle Ages, difficult cases were customarily solved using various ordeals: hot and cold water or hot iron ordeals and judicial duels. In all of them, the evidentiary question was given over to God to decide. John Langbein has observed that ordeals were understandable when no strong political power existed on the authority of which courts could base their decisions. Instead, God was called to help.46 Admittedly, churchmen had criticized ordeals at least from the ninth century. Many acknowledged that they could lead to false verdicts and thought it improper to ask God to intervene in mundane judicial cases.47 However, only in the twelfth and thirteenth centuries had the Church grown powerful enough to have its courts base their most difficult evidential decisions on something other than ordeals. Against this background, it is understandable that Canon 16 (Sententiam sanguinis) of the Fourth Lateran Council prohibited clergymen from participating in judicial ordeals. Strictly speaking, ordeals were not forbidden as such, but because churchmen played a key role in organizing these truly religious pageants, the prohibition 44   Canon 8, Constitutiones Concilii quarti Lateranensis (n. 28)  54–57; Kenneth Pennington, “Due Process, Community, and the Prince in the Evolution of the Ordo iudiciarius,” (1998) 9 Rivista inter­ nazionale di diritto commune 9 ff. 45   On the denunciatory procedure, see Arnd Koch, Denunciatio: Zur Geschichte eines strafprozessualen Rechtsinstituts (2006). 46   John Langbein, Torture and the Law of Proof: England and France (1977). 47   Robert Bartlett, Trial by Fire and Water: The Medieval Judicial Ordeal (1986), 81 ff.

214    heikki pihlajamäki and mia korpiola was in practice equal to banning them.48 Not surprisingly, therefore, judicial ordeals vanished practically everywhere in Europe during the thirteenth century.49 By this time, an alternative to the ordeal had also developed through the statutory theory of proof, a genuine invention of medieval canon law scholars, although the theory owed much of its terminology to Roman law. It started to develop in the eleventh century, was clearly visible in Gratian’s Decretum, and was fully matured in the Liber extra. The essence of the theory was that the law of evidence was bound by rules. Courts could not convict anyone for a serious crime without full proof, which consisted of a confession or the statements of two eyewitnesses. In less serious crimes (delicta levia), the courts could evaluate evidence freely. Medieval theory considered the confession the “queen of proofs” (regina probationum), the most reliable of them all. A whole body of legal literature developed to determine the conditions of a lawful confession. It had to be voluntary and given in court. Confessions had to be credible and not against the laws of nature, and the person had to be aware of what he or she confessed.50 With the writings of Johannes Teutonicus (d. 1245), however, the notion of the confession strengthened still further. Confession became notorium iuris, making all other evidence-taking unnecessary.51 The witness statements needed to be based on personal observations, not hearsay, and also had to be given in court, so that the judge could evaluate the credibility of the witnesses. As has been demonstrated, the evidence as such could never automatically lead to conviction, no matter how perfect. In addition, the judge needed to be personally convinced of the guilt of the accused.52 Half a proof consisted of one eyewitness statement or a sufficient amount of circumstantial evidence (indicia). Its significance was twofold. First, a half proof justified judicial torture, one of the best-known features of the ancien régime criminal procedure. If half a proof was at hand, the accused could be tortured in order to produce the confession and thus the full proof needed for a conviction. The rules regulating torture were products of legal scholarship with some regional and individual variation. The general lines were the same, however; the confession given under torture had to be repeated “voluntarily” in court lest it be worthless. Women could not normally be tortured, and neither could doctors of law.53 Judicial torture was not an invention of canon lawyers, for they were forbidden to shed blood. Ordinary ecclesiastical courts thus did not normally use judicial 49   Constitutiones Concilii quarti Lateranensis (n. 28) 66.   Bartlett (n. 47), 127 ff.   Jean-Philippe Lévy, La hiérarchie des preuves dans le droit savant du Moyen-âge depuis la renaissance du droit romain jusqu’à la fin du XIVe siècle (1939), 45 ff. 51   Mathias Schmoeckel, “Der Entwicklung der confessio als Beweismittel,” in Mathias Schmoeckel, Orazio Condorelli, and Franck Roumy (eds.), Der Einfluss der Kanonistik auf die europäische 52 Rechtskultur: Bd. 3: Straf- und Strafprozessrecht, (2012), 427 ff., 451.   Schmoeckel (n. 51). 53   Piero Fiorelli, La tortura giudiziaria nel diritto commune II (1954), 125 ff. 48 50

medieval canon law   215 torture, but the courts of the Inquisition used it and imposed death sentences on heretics. The Church also accepted torture in the secular courts. Secondly, evidence short of full proof could lead to different kinds of intermediate sentences, depending on the country and region. If the judge was personally convinced of guilt but could not sentence the accused to an ordinary punishment for lack of full proof, he might still sentence the accused to an extraordinary punishment. Instead of an ordinary punishment such as execution, a lesser punishment thus followed, such as banishment or forced labor.54 However, because some of these alternative punishments required the developed administration lacking in medieval societies, they only started to replace capital punishment on a greater scale in the early modern period.55 Medieval canon law furthermore produced several principles of criminal proced­ ure that are still important, one being the prohibition on double jeopardy, meaning that individuals cannot be tried twice for the same crime. This principle was repeatedly formulated in medieval canon law. As they often did, canonists found Biblical support for this prohibition. According to the Book of Nahum (1:9), “God does not judge twice in the same matter,” a verse which then found its way into Gratian’s Decretum, the Liber extra (X 5.1.6), and canonist procedural literature. William Durand (ca. 1230–1296), the most famous medieval proceduralist, wrote: “Note particularly of those who are accused that they cannot be accused of the same crime by anyone if they are absolved.” Roman law was cited as well; for instance, a decree of Emperor Honorius (Cod. 9.2.9).56 The canonists did not develop the rule against double jeopardy in all of its present-day details. Many exceptions were also allowed, the most important of which was that an absolution in the penitential forum did not preclude accusing the individual in the external forum as well.57 The division of labor between the secular and ecclesiastical courts, in contrast, applied the rule, although the line between the two was sometimes hard to draw and gave rise to jurisprudential disputes. Nevertheless, the prohibition on double jeopardy has been called “part of the normal habit of mind of the canonists” of the twelfth and thirteenth centuries.58 The rule was quickly adopted by the civilists and then transmitted down to the present by the writings of leading sixteenth-century criminal law scholars such as Prospero Farinacci (1554–1618) and Julius Clarus (1525–1575). Another central legal maxim of criminal procedure, the presumption of innocence, also has medieval roots. In the system of ordeals, the accused had to prove his or her innocence. This changed with the ordines iudiciarius during the twelfth century when the accused had to be summoned to court, where conviction required evidence against him being presented. Again, the fundamental argument was

55 56   Schmoeckel (n. 51).   Langbein (n. 46).   Helmholz (n. 13) 286 ff. 58   Helmholz (n. 13) 290 ff.      Helmholz (n. 13) 299.

54 57

216    heikki pihlajamäki and mia korpiola Biblical; in Genesis 3:9–12, God gives Adam a chance to respond to the charge concerning the illegal picking of the apple. If God had given the accused an opportunity to defend himself, certainly humans had to do likewise. By the thirteenth century, as Kenneth Pennington has demonstrated, canonist jurisprudence developed the presumption of innocence into a virtual right of the accused based on natural law.59 This presumption, however, was not systematically developed in medieval jurisprudence, although the canon criminal scholarship considerably influenced secular law. However, the principle survived through the early modern period to become one of the cornerstones of criminal procedure both in continental and Anglo-American law in the nineteenth century.60 The privilege of avoiding self-incrimination (nemo tenetur prodere seipsum) is yet another staple principle of modern criminal procedure with origins in the medieval ius commune. Many canonists discussed and developed this privilege, the most influential being William Durand (ca. 1230–1296) in his Speculum iudiciale. The Liber extra (X 2.20.37) stated that “No person is to be compelled to accuse himself.” The privilege of not incriminating oneself was then carried over into the early modern age by Julius Clarus and other sixteenth-century writers and also accepted in common law.61

v.  The Impact of Canon Criminal Law on Secular Law Canon criminal law considerably influenced secular substantive criminal law and procedure, both legal scholarship and legislation, from early times on. Some of the major changes involved the individualization of the responsibility of crime replacing earlier notions of collective responsibility. Legitimate revenge killing and blood feuds were restricted only to the guilty person instead of all of his kinsmen. Instead of their legal guardians, women became personally responsible for the criminal acts they committed. Similarly, masters of households in some legal cultures had   Kenneth Pennington, “Innocent Until Proven Guilty: The Origins of a Legal Maxim,” available at: . 60  Richard M. Fraher, “ ‘Ut nullus describatur reus prius quam convincatur’: Presumption of Innocence in Medieval Canon Law,” in Stephan Kuttner and Kenneth Pennington (eds.), Proceedings of the Sixth International Congress of Medieval Canon Law (1985), 493 ff. 61   R.  H. Helmholz, “The Privilege and the Ius Commune:  The Middle Ages to the Seventeenth Century,” in R.  H. Helmholz et  al. (eds.), The Privilege Against Self-Incrimination:  Its Origins and Development (1996), 17 ff. 59

medieval canon law   217 previously answered for the whole household. Some forms of collective responsibility survived, however, such as the interdict.62 The Italian judge Albertus Gandinus (d. 1310), who wrote the first major treatise on criminal law, Tractatus de maleficiis (1286–1287), can be used as an example of secular legal scholarship. Guilt, the central idea of the canonist criminal law, is reflected in his work and then transferred over to the leading authors of the later period; for instance, prominent Italian sixteenth-century criminal law scholars such as Julius Clarus and Tiberius Decianus (1509–1582), and the Frenchman Andreas Tiraquellus (1488–1558). Although he did not always follow it, one example from Gandinus will demonstrate the importance that he placed on the principle of guilt. Because canon criminal law primarily paid attention to observable deeds, intellectual preparation of crime did not lead to punishment, which still prevails today in Western law, in that “thought-crimes” are not punished.63 An attempt, however, could be punishable if it amounted to conduct. The development of the doctrine of criminal attempt followed the same tendency toward individualized guilt. Gandinus, following the thirteenth-century Bolognese legist Odofredus (d. 1265), carefully distinguished between premeditation, action, and perfection in criminal deeds. For instance, Gandinus distinguished between a case in which the result of a criminal action was either desired or not. If the harmful result was desired, but the wrongdoer was not able to achieve it, he should be punished. If the result was not desired, the accused was not to be punished. Guilt was thus decisive.64 Gandinus presented the inquisitorial or ex officio procedure as an exception to the main rule of the accusatorial. He then went on to discuss the reasons for and against the inquisitorial procedure. Convinced of its benefits, the Italian judge favored the ex officio procedure because it is “in the public interest and justice to intervene and prevent crime.”65 The inquisitorial method continued to prevail in criminal law scholarship over the accusatorial procedure throughout the medieval and early modern periods. Canon criminal law also influenced secular laws. As discussed previously, inquisition had become widespread in thirteenth-century Italian cities and in many parts of southern France (pays de droit écrit). For instance, according to the customary law (coutume) of Narbonne (1232), the courts could not act ex officio except in cases of homicide, sacrilege, robbery, and certain other cases. In the succeeding years, the list of crimes in which the courts could proceed inquisitorially was extended to almost any crime of significance.66   On the interdict, see Peter D.  Clarke, The Interdict in the Thirteenth Century:  A  Question of Collective Guilt (2007). 63   See e.g. C. M. V. Clarkson, Understanding Criminal Law (1995), 18. 64   See Albertus Gandinus, “Tractatus de maleficiis,” in Hermann Kantorowicz (ed.), Albertus de Gandinus und das Strafrecht der Scholastik 1–2 (1907–1926), 210 ff. 65   Gandinus (n. 64); Massimo Vallerani, Medieval Public Justice (2012), 228 ff. 66  Adhémar Esmein, Histoire de la procedure criminelle en France (1882); Jean-Marie Carbasse, Introduction historique au droit penal (1990), 133. 62

218    heikki pihlajamäki and mia korpiola In some other parts of France (mainly in the northern pays de droit coutumier), the change was slower, as indicated in the different ways the inquisitorial procedure broke through in various custumals, written descriptions of local customs produced by writers with varying degrees of formal legal learning. Only by the late fifteenth and early sixteenth centuries had the inquisitorial procedure finally overtaken the accusatorial procedure in the whole of France. At this time, the local custumals were royally sanctioned and homologized so that the inquisitorial procedure came to prevail everywhere. Papal law and practice certainly influenced the change, although this does not explain why the accusatorial procedure remained significantly longer in some areas than in others. The later medieval growth of royal power and the increase in professional jurists probably explains this. However, both thirteenth-century royal ordinances and customary law developed even further the extraordinary secrecy of witnesses; not only their names but even their depositions could be withheld from the accused.67 In Germany, the story is largely similar. The inquisitorial procedure was already included in the Reformation of Worms and the Constitutio Criminalis Bambergensis (1507).68 In Constitutio Criminalis Carolina, the first imperial criminal statute (1532), the accusatorial procedure still figured as the rule, the inquisitorial method seemingly playing a secondary role. The accusatorial procedure in these laws differed from the inquisitorial method in that a private individual initiated the accusatorial procedure. It was then continued ex officio.69 The practice was not, however, the same as written law. As in France, the development was far from uniform: settling even serious crimes privately was still commonplace in some regions in the sixteenth century,70 and in others both procedural forms coexisted all through the early modern period.71 The division of labor in criminal cases between ecclesiastical and secular courts varied to some extent regionally in Europe, especially for crimes of mixed jurisdiction such as sexual crime or blasphemy. This was often left to local custom or concordats.72 There were ample grounds for jurisdictional tension and disputes. One of the most controversial issues regarding the Church’s jurisdiction on criminal matters was the benefit of clergy, that clerics could only be tried in church courts for any 67   Esther Cohen, “Inquiring Once More After the Inquisitorial Procedure,” in Dietmar Willoweit (ed.), Die Entstehung des öffentlichen Strafrechts (1999), 41 ff., 56; Albert C. Shannon, “The Secrecy of Witnesses in Inquisitorial Tribunals and in Contemporary Secular Criminal Trials,” Essays in Medieval Life and Thought. Presented in Honor of Austin Patterson Evans (1955), 66 ff.; Jacques Chiffoleau, “Dire l’indicible: Remarques sur la catégorie du nefandum du XIIe au XVe siècle,” (1990) 45 Annales Économies, Sociétés, Civilisations 290 ff. See also John H. Langbein, Prosecuting Crime in the Renaissance (1973). 68   Eberhard Schmidt, Einführung in die Geschichte der deutschen Strafrechtspflege (1965), 122 ff. 69   Schmidt (n. 68); Hinrich Rüping, Grundriβ der Strafrechtsgeschichte (1981). 70   See Heiner Lück, “Sühne und Sühnegerichtsbarkeit im Kursachsen des 15. und 16. Jahrhunderts,” in Hans Schlosser and Dietmar Willoweit (eds.), Neue Wege strafrechtsgeschichtlicher Forschung (1999), 83 ff. Nevertheless, the so-called Salvatorische Klausel allowed individual princes to disregard the Carolina in their territories. 71  On Württemberg, see Helga Schnabel-Schüle, Überwachen und Strafen im Territorialstaat Bedingungen und Auswirkungen des Systems strafrechticher Sanktionen im frühneuzeitlichen 72 Württemberg (1997), 121.   e.g. Helmholz (n. 13) 258.

medieval canon law   219 crime (privilegium fori). Secular authorities had difficulty in accepting their inability to catch, judge, and punish criminal clerics. Individual cases occasionally escalated into larger scale jurisdictional disputes when secular rulers challenged the ecclesias­ tical power in order to increase theirs. In 1164, King Henry II of England (r. 1154–1189) issued 16 articles in the Constitutions of Clarendon defining the relationship between secular and ecclesiastical courts. Nevertheless, contrary to ecclesiastical law and privil­ eges, he ordered all clerics to be judged in the presence of a royal justice (art. 3). Condemned or confessed clerics were to be defrocked and submitted to secular punishment without further ecclesiastical protection. This Archbishop Thomas Becket of Canterbury (archep.  1162–1170) eventually did not accept, as it offended against the Church’s privileges. The dispute escalated, resulting in the murder of Becket in Canterbury Cathedral and finally, in 1172, the Compromise of Avranches in which the benefit of clergy was largely upheld.73 Nevertheless, to curb the risk of future jurisdictional conflicts, the Fourth Lateran Council forbade ecclesiastical judges from expanding their jurisdiction beyond what laws and customs allowed so as not to prejudice secular justice on the pretext of ecclesiastical liberty.74 Still, it did not stop smaller scale disputes over criminous clerics and jurisdictional boundaries from occasionally surfacing in various parts of the medieval Catholic world.

vi.  Heyday Passed: The Waning of Catholic Criminal Law in the Early Modern Period In the early sixteenth century, the criticism by reformers of the venality and immorality of the Catholic Church became increasingly vociferous. Pope Julius II (r. 1503–1513) was pressurized into convening the Fifth Lateran Council (1512–1517) to remedy the situation and instigate reform. The “detestable crime of simony” was especially targeted in the Council, but stricter policies on punishing blasphemy and sorcery were also imposed and the penalties for clerical incontinence repeated.75 73   R. H. Helmholz, The Oxford History of the Laws of England I: The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s (2004), 114 ff. For the text of the Constitutions, see: . 74   Canon 42, Constitutiones Concilii quarti Lateranensis (n. 28) 82. 75   Reform of the Curia and other matters, Session 9, May 5, 1514, Fifth Lateran Council (1512–1517), available at: .

220    heikki pihlajamäki and mia korpiola Nevertheless, these reform attempts came too late as the council had also to address the attacks of Martin Luther (1483–1546) whose popularity started to spread in the German lands, and then into other regions. Within a few decades of October 1517, when Luther reputedly nailed his 95 theses against selling indulgences on a Wittenberg church door, the local heretical movements had become an unstoppable schism within Western Christianity in which the reformers disputed the doctrine and authority of the Catholic Church, its laws, and traditions. The Catholic Church courts in Europe had to deal with the menace of heresy using its ordinary criminal law and procedures. Secular rulers remaining loyal to the papacy supplemented the condemnation of heretical beliefs, as did Emperor Charles V (r. 1519–1556), who issued the Edict of Worms in 1521. He accused Luther and his adherents not only of the ecclesiastical crimes of heresy and blasphemy but also of threatening public order and the common good by inciting rebellion against ecclesiastical and secular authority. The emperor also referred to Luther publicly burning the papal decretals, suggesting that he would also have degraded the secular law book if he had not feared the “worldly sword” (weltlich schwert) of secular magistrates more than papal excommunication (des babsts ban vnd pen).76 The challenge of the reformers could not be overlooked, however. The Council of Trent, the last Ecumenical Council before the First Vatican Council in 1869–1870, convened between 1545 and 1563. Its decrees condemned the Protestant heresies and defined ecclesiastical dogma on several points of the sacraments and faith. It also called for reform within the church, for example against the sale of indulgences and the lavish lifestyle of clerics. Bishops had to lead reform and impose discipline in their dioceses. The Church feared that the routine use of ecclesiastical censure would result in an inflation of excommunication and its authority. Therefore, this “spiritual sword” (gladius spiritualis) was to be sparsely and judiciously used for obdurate contumacy if fines, arrests, or confiscation of property did not help.77 The reformers had criticized breaches of clerical celibacy, and the Council of Trent addressed this problem in harsh words by the pain of suspension, severe financial penalties, and imprisonment.78 The Counter-Reformation tried to enforce moral and religious conformity in the Catholic lands. Since the printing press had been invented around 1450, the “printing revolution” led to the spread of unorthodox and heretical literature that worried the Church and lay rulers. The papacy wishing to remedy this, preventive censorship was imposed together with fines and confiscations “so that thorns do not grow up with   “Die Reichsacht gegen D. Martin Luthers ‘das Wormser Edikt’ vom 8. Mai 1521: Facsimile nach dem Original-Plakatdruck in der Lutherabteilung des Stadtbibliothek Worms” (1983), sine pagina. 77   Sessio 25, Decretum de Reformatione, Caput 3, Canones et decreta sacrosancti oecumenici Concilii Tridentini sub Paulo III., Iulio III. et Pio IV . . . cum additamentis et indicibus (1869), 177 ff. 78   Sessio 25, Decretum de Reformatione, Caput 14, Canones et decreta . . . Concilii Tridentini (n. 77) 187 ff. 76

medieval canon law   221 the good seed or poisons become mixed with medicines.”79 The fourth session of the Council of Trent in 1546 also made the printing and sale of religious texts dependent on the permission of ecclesiastical authorities on pain of excommunication and fines for any infraction. In 1559, Pope Paul IV (r. 1555–1559) promulgated the first Catholic list of forbidden books (Index Librorum Prohibitorum), works deemed to contain immorality or theological errors. Philosophical and scientific books appeared on it together with pornography.80 The twentieth edition of the Index was published in 1948, only to be abolished in 1966.81 The main new papal sources of canon law were various private collections of papal bulls (bullaria) and decisions of the Roman Rota, the highest papal court of appeal. The moral theology that prospered in the later sixteenth and seventeenth centuries was under the influence of second scholasticism and inclined toward casuistry, as did canon law even if the rise of natural law also influenced it. Petrus Mattheus (1563–1621) attempted to follow medieval models in compiling Liber septimus decretalium, a collection of papal decretals and conciliar canons from the later fifteenth century to 1590. Instead of papal authorization, the collection ironically ended up on the papal Index. By contrast, the textbook Institutiones iuris canonici (1563) by the Perugia professor Joannes Paulus Lancelotti (1522–1590), modeled on the Institutions of Justinian, became a great success. This was divided into four books, the fourth on crime. This structure was also adopted in the Codex iuris canonici in 1917. One of the most influential special works on canon criminal law was the widespread Praxis et Theorica Criminalis (1616), written by the important papal jurist and judge Farinacci. Nevertheless, the canon law on crime still largely built on medieval grounds between the Corpus iuris canonici and the Codex iuris canonici.82

vii. Conclusion Several features of modern criminal law and criminal procedure date back to the medieval canonists. These features and the concept of sin were interconnected. The canonists of the high Middle Ages labored to distinguish sin and crime from each 79   On printing books, Session 10, May 4, 1515, Fifth Lateran Council (1512–1517), available at: . 80  Sessio 4, Decretum de editione et usu sanctorum librorum, Canones et decreta . . . Concilii Tridentini (n. 77)  15 ff.; De Libris prohibitis, ibid., 234 ff.; Hubert Wolf, Index:  Der Vatikan und die 81 verbotenen Bücher (2006), 15 ff.   Wolf (n. 80) 241, 244 ff. 82   Jean Gaudemet, Les sources du droit canonique VIIIe–XXe siècle (1993), 184 ff. and 195 ff.; Constant Van de Wiel, History of Canon Law (1991), esp. 145 ff. and 161 ff.

222    heikki pihlajamäki and mia korpiola other, sins resulting in penance and crimes in punishment. The institution of penance, stressing the individual nature of sin, was pivotal for the changes in crim­ inal law. The decretists of the late twelfth century developed teachings on necessity, duress, and self-defense, although these were not yet systematically formulated teachings. Although medieval canon criminal law has modern tenets, we must also recognize the many ways in which it was a product of its own context. For instance, the maxim “let crimes not remain unpunished” ordered that, with certain restrictions, all serious crimes had to be punished regardless of whether they had been prohibited by the law. Furthermore, it is important to understand that the Church claimed jurisdiction over crime because crimes were also sins and thus pertained to its pastoral care of souls. Although the Church erected a judicial system of its own, it depended heavily on secular authorities at the same time for pronouncing and carrying out capital penalties, with which ecclesiastical authorities were forbidden to deal. The crime of heresy is a case in point: recalcitrant or recanting heretics were burned at the stake. The most important statutory source of substantive criminal law was the Liber extra (1234), the fifth book of which was dedicated to crime. The Liber extra listed a number of ecclesiastical offenses, some of them belonging to the mixed or shared jurisdiction between secular and church courts. Simony, heresy, blasphemy, usury, and sexual crimes counted among the classic ecclesiastical crimes. Medieval canon law considerably influenced not only substantive criminal law but also criminal procedure, the single most important element being the invention of the inquisitorial procedure during in the late twelfth century. The canonists developed it on the basis of the old infamia procedure, gradually extending the new procedural innovation to larger ranges of crime. The inquisitorial procedure allowed ecclesiastical authorities to initiate investigations themselves, instead of relying on accusations from below. The principles of the inquisitorial procedure were then confirmed in the constitutions of the Fourth Lateran Council of 1215. The law of proof also changed. The Lateran Council additionally prohibited churchmen from participating in the administration of ordeals. In a relatively short time, the prohibition led to the final defeat of the ordeals, against which churchmen had long voiced criticism. An alternative approach to evidence, the so-called statutory theory of proof, developed to replace ordeals. Intimately linked to this new theory was judicial torture, which could be used to extract confession under predetermined circumstances. In the early modern period, then, the inquisitorial principles came largely to dominate continental criminal procedure. Although the continental systems of criminal procedure have consciously rid themselves of their inquisitorial features in the two centuries past, other innovations of medieval canonists have remained pivotal, not only in the continental systems but also in common law. The prohibition against double jeopardy became part of the standard way of legal thinking in the twelfth and thirteenth centuries.

medieval canon law   223 Although not yet developed as systematic, all-encompassing principles, the right not to incriminate oneself and the presumption of innocence also took firm root at roughly the same time.

References Baldwin, John W., Masters, Princes and Merchants: The Social Views of Peter the Chanter and His Circle 1 (1970) Bartlett, Robert, Trial by Fire and Water: The Medieval Judicial Ordeal (1986) Berman, Herman, Law and Revolution: The Formation of the Legal Tradition (1983) Brundage, James A., Sex, Law, and Christian Society (1990) Clarke, Peter D., The Interdict in the Thirteenth Century: A Question of Collective Guilt (2007) Dahm, Georg, Das Strafrecht Italiens im ausgehenden Mittelalter: Untersuchungen über die Beziehungen zwischen Theorie und Praxis im Strafrecht des Spätmittelalters, namentlich im XIV. Jahrhundert (1931) Decker, Rainer, Witchcraft & the Papacy: An Account Drawing on the Formerly Secret Records of the Roman Inquisition (transl. H. C. Erik Midelfort, 2008) Engelmann, Woldemar, Die Schuldlehre der Postglossatoren und ihre Fortentwicklung: eine historisch-dogmatische Darstellung der kriminellen Schuldlehre der italianischen Juristen des Mittelalters seit Accursius (1965) Fiorelli, Piero, La tortura giudiziaria nel diritto commune II (1954) Fraher, Richard M., “The Theoretical Justification for the New Criminal Law of the High Middle Ages: ‘Rei publicae interest, ne crimina remaneant impunita’, ” (1984) University of Illinois LR 577 Fraher, Richard M., “ ‘Ut nullus describatur reus prius quam convincatur’: Presumption of Innocence in Medieval Canon Law,” in Stephan Kuttner and Kenneth Pennington (eds.), Proceedings of the Sixth International Congress of Medieval Canon Law (1985) Fraher, Richard M., “Preventing Crime in the High Middle Ages: The Medieval Lawyers’ Search for Deterrence,” in Festschrift for Brian Tierney (1989) Harper-Bill, Christopher, “Monastic Apostasy in late Medieval England,” (1981) 32 Journal of Ecclesiastical History 1 Helmholz, Richard H., Marriage Litigation in Medieval England (1974) Helmholz, Richard H., The Spirit of Classical Canon Law (1996) Helmholz, Richard H. et al. (eds.), The Privilege Against Self-Incrimination: Its Origins and Development (1996) Kéry, Lotte, “Inquisitio—denunciatio—exceptio:  Möglichkeiten der Verfahrenseinleitung im Dekretalenrecht,” (2001) 87 ZRG, K.A. 226 Kéry, Lotte, Gottesfurcht und irdische Strafen: Der Beitrag des mittelalterlichen Kirchenrechts zur Entstehung des öffentlichen Strafrechts (2006) Kolpacoff Deane, Jennifer, A History of Medieval Heresy and Inquisition (2011) Kuttner, Stephan, Kanonistische Schuldlehre von Gratian bis auf die Dekretalen Gregors IX systematisch auf Grund der handschriftlichen Quellen dargestellt (1935) Lambert, Malcolm, Medieval Heresy: Popular Movement from the Gregorian Reform to the Reformation (2002) Langbein, John, Torture and the Law of Proof: England and France (1977)

224    heikki pihlajamäki and mia korpiola Lévy, Jean-Philippe, La hiérarchie des preuves dans le droit savant du Moyen-âge depuis la renaissance du droit romain jusqu’à la fin du XIVe siècle (1939) Levy, Leonard W., Treason against God: A History of the Offense of Blasphemy (1981) Logan, F. Donald, Runaway Religious in Medieval England, c. 1240–1540 (1996) Luscombe, D. E. (ed.), Peter Abelard’s Ethics (1979) Meccarelli, Massimo, Arbitrium: un aspetto sistematico degli ordinamenti giuridici in età di diritto commune (1998) Ohst, Martin, Pflichtbeichte: Untersuchungen zum Bußwesen im Hohen und Späten Mittelalter (1995) Payer, Pierre J., Sex and the New Medieval Literature of Confession, 1150–1300 (2009) Rüping, Hinrich, Grundriβ der Strafrechtsgeschichte (1981) Schmidt, Eberhard, Einführung in die Geschichte der deutschen Strafrechtspflege (1965) Schmoekel, Mathias, “Der Entwicklung der confessio als Beweismittel,” in Mathias Schmoekel, Orazio Condorelli and Franck Roumy (eds.), Der Einfluss der Kanonistik auf die europäische Rechtskultur: Bd. 3: Straf- und Strafprozessrecht (2012) Trusen, Winfried “Der Inquisitionsprozess:  Seine historische Grundlagen und frühen Formen,” (1988) 105 ZRG, Germanistische Abteilung 168 Trusen, Winfried, “Zur Bedeutung des geistlichen Forum internum und externum für die spätmittelalterliche Gesellschaft,” (1990) 76 ZRG, K.A. 254 Willoweit, Ditmar (ed.), Die Entstehung des öffentlichen Strafrechts: Bestandaufnahme eines europäischen Forschungsproblems (1999) Winroth, Anders, The Making of Gratian’s Decretum (2000)

­c hapter 11

INDIGENOUS LEGAL TRADITIONS: ROOTS TO RENAISSANCE val napoleon hadley friedland*

As Indigenous peoples, we are beautiful, and we are messed up.1 This is one moment, But know that another, Shall pierce you with a sudden painful joy.2

I.  Introduction to Indigenous Law The fundamental ability of any society to deal with the universal issue of human violence and vulnerability is central to its maintenance of peace, order, stability, civility, and overall political governance. All societies experience the universality *  Thanks to Emily Snyder for her helpful comments and suggestions, as well as the many generous community participants and diligent student researchers who contributed to the Accessing Justice and Reconciliation Project, our partners, the Indigenous Bar Association and the Truth and Reconciliation Commission of Canada, and the project funder, the Ontario Law Foundation. 1   John Borrows, “Our Way,” Conference presentation, University of Saskatchewan (Mar. 23, 2012). 2   T. S. Eliot, Murder in the Cathedral (1935).

226    val napoleon and hadley friedland of the human condition, complete with the corresponding messiness, pain, and joy that are generated when human beings live together. Each society has unique collective responses to these universal issues that are expressed through its legal traditions. This is no different for Indigenous societies. What is different for Indigenous societies is that colonialism has gutted, obscured, and undermined this essential aspect of social order and good governance. Today, many Indigenous people are on an important journey, with uneven progress and ongoing challenges, to recover these legal traditions as part of their decolonization and self-determination efforts. In this chapter we hope to place this journey in context. To do so we set out four phases or eras of the major past, present, and future debates about Indigenous laws. First, as we can never capture the past of any tradition definitively, instead of speculation or guesswork, we set out a logical starting point from which to think about the roots of all Indigenous legal traditions. Secondly, we discuss both the repression of Indigenous legal traditions that occurred within early colonization and the resilience of these traditions through this dark era. Thirdly, we explore the contemporary recovery and revitalization of Indigenous laws within the limited spaces afforded to them in the larger frame of state justice systems. Finally, we describe the latest promising steps toward a renaissance or resurgence of Indigenous law, where it is treated seriously as law, not as isolated relics or artifacts of a fading past, nor merely as cultural customs or practices. It can be challenging to talk broadly about Indigenous legal traditions without grossly oversimplifying them or resorting to sweeping pan-Indigenous generalities. Indigenous societies, and thus Indigenous legal traditions, are incredibly diverse. Across Canada alone, there are 11 major linguistic groups and within these, there are 60 distinct Indigenous peoples with numerous regional dialects.3 It is simply impossible adequately to capture such diversity in the space of this chapter. For simplicity’s sake, we will examine one example of a legal concept or category that we are familiar with and one that was common in Algonquin groups across North America, including, particularly, Cree and Anishinabek societies—the wetiko (also known as windigo). The wetiko is sometimes roughly translated into “cannibal,” but, upon closer analysis, is better understood as a legal concept that describes people who are harmful or destructive to others in socially prohibited ways within these societies.4 When properly understood, the wetiko legal category shares commonalities with, or is even roughly comparable to what we currently characterize as criminal law. 3   There are 500 distinct Indigenous societies in North America. See Canada, Royal Commission on Aboriginal Peoples, Looking Forward, Looking Back 1 (1996), 12, 15–17 ff. 4   For a more in-depth discussion of this legal concept or category, see Hadley Friedland, “The Wetiko (Windigo) Legal Principles” (unpublished LLM thesis, 2009), 35–40 ff.

indigenous legal traditions   227 We will follow the wetiko example through this chapter as an illustration of the broader issues all Indigenous legal traditions have had to grapple with, in one form or another, through the different eras described herein. Similarly, as we are most familiar with Canadian history and the Canadian criminal justice system, we will primarily follow Indigenous experiences in relation to Canada throughout this chapter. We encourage the reader to consider analogous categories in other Indigenous legal traditions, as well as the corresponding similarities in the histor­ ical and present interactions between other Indigenous legal traditions and state justice systems throughout the world.

ii. Roots 1.  A logical starting point We want firmly to root any discussion about Indigenous legal traditions in a logical starting point about the past. This starting point is broad enough to cover the diversity of Indigenous societies and does not require the reader to be Indigenous or to even have any knowledge about Indigenous peoples. Prior to European contact or “effective control,”5 Indigenous peoples lived in the place that is now called Canada, in groups, for many thousands of years. We know that Indigenous peoples did not organize themselves in “state” models of governance. We know that when groups of human beings live together, they have ways to manage themselves and all their affairs.6 This task of human coordin­ ation is “the most common of common denominators in law.”7 Therefore, as a matter of logic alone, our starting point has to be that, for a very long time, all Indigenous groups had self-complete, non-state systems of social ordering that were successful enough for them to continue as societies for tens of thousands of years. It is actually discomforting, and it should be, explicitly to have to identify this as a logical starting point. However, it is important to do so because the myth of Indigenous people as lawless has too often been used as a trope by European theorist and jurists.8 These writers’ tropes have become so powerful and persuasive that they may still be   R. v. Powley [2003] SCR 207, 40 ff.   Lon Fuller describes law as “a direction of purposive human effort” consisting in “the enterprise of subjecting human conduct to the governance of rules”: Lon Fuller, The Morality of Law (1964), 130 ff. 7   Jeremy Webber, “The Grammar of Customary Law,” (2009) 54 McGill LJ 583 ff. 8   Webber (n. 7) 591 ff. 5

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228    val napoleon and hadley friedland unconsciously assumed as a priori knowledge or felt as plain common sense at this point in time. Their perpetuation imposes a continuing social reality with meanings that makes it appear normal, obvious, and therefore unquestionable. Dispensing with these very familiar, but illogical tropes does not lead us to subscribe to a utopian vision of Indigenous legal traditions of the past. However, we have no logical reason to think Indigenous laws did not work well enough for thousands of years.9 We can logically assume that Indigenous legal traditions of the past, while not paragons of perfection (and no legal order is ever perfect), were reasonable legal orders managed by intelligent and reasoning people.10 This is our logical starting point.

2.  Minimal content Some of the laws in these legal orders had to address the unavoidable reality of human violence and destructiveness, and the aching reality of human vulner­ ability, because these factors are both present in all societies. Rules and prohibitions around violence, bodily harm, and killing are part of the minimal content and some of the most characteristic provisions of any functional legal or moral order.11 If pre-contact Indigenous societies did not have such provisions, then, as H. L. A. Hart argues, they would have had social and legal orders akin to the social arrangements of a “suicide club,”12 and would have all perished long before European contact. Indeed, North America would have truly been terra nullius. Since Indigenous societies functioned and persisted for thousands of years, their legal orders logically must have included this minimal content of law. In other words, we can safely assume that all Indigenous legal orders must have had some way to address the issues of human violence and vulnerability that we now characterize as “criminal law” matters.

3. The Wetiko example Again, there is a great diversity of Indigenous groups. While all Indigenous societies logically must have had some way of addressing what we characterize as criminal law matters, each society would have had different ways of organizing and articulating   Val Napoleon, “Ayook: Gitksan Legal Order, Law, and Legal Theory” (unpublished Ph.D. dissertation, 2009). 10   Our use of “legal orders” may be understood as “the norms, rules and institutions formed by a society or group of people to ensure social stability. They usually describe what is right and how to act, and what is wrong and how not to act; and the remedies and consequences of such actions.” International Council on Human Rights, When Legal Worlds Overlap; Human Rights, State and 11 Non-State Law (2009), 19 ff.   H. L. A. Hart, The Concept of Law (2nd ed., 1994), 194 ff. 12   Hart (n. 11). 9

indigenous legal traditions   229 this category of law within their legal order. As mentioned previously, because it is impossible adequately to capture this diversity in the space of this chapter, we will study one example of such a characterization, which we will follow through the different eras of thinking about Indigenous laws: the wetiko, a concept that described people who are harmful or destructive to others in socially prohibited ways in Cree and Anishinabek societies.13 Like analogous criminal law concepts, the wetiko legal concept or category grappled with the “ordinariness of human monstrousness.”14 It triggered particular obligations, legitimate collective reasoning processes, and legal principles for determining an appropriate response to human violence and harm in particular circumstances. These principles were balanced and implemented differently based on specific facts in each circumstance, but the overriding goals were preventing harm, protecting the vulnerable, and ensuring group safety.15 While we are not suggesting that these goals were accomplished with any less heartache or any more efficacy than in any other analogous “criminal” area of law, there is enough evidence, even from the written records of early Europeans, to support the logical inference that they worked well enough in their historic political and social context. Just like people today theorize and philosophize about the causes of crime, and struggle to understand criminal behavior, Cree and Anishinabek people had theories about the causes of wetiko behavior.16 These theories were often, but not always, spiritual in nature.17 This made sense in the context of decentralized soci­ eties where there was no brutal history of oppression necessitating the wrenching of church from state, and where law was not associated with centralized, formal, and hierarchal processes, but with people, as legal agents, make necessary decisions and conducting themselves in principled and predictable ways.18 In this non-hierarchal context, respected spiritual leaders and healers often contributed meaningfully to the collaborative reasoning through resolution of difficult issues. A crucial aspect of this historic social context is that the specific principles, practices, and aspirations related to the wetiko legal category did not stand alone, just as those in the criminal law category do not stand alone in other legal traditions today. Rather, they were interconnected aspects of a “comprehensive whole,” a broader, functioning Indigenous legal tradition: (1) that was large enough to avoid conflicts of interests and which ensured accountability, (2) that had collective processes to change law as necessary with changing times and   For a more in-depth discussion of this legal concept or category, see Friedland (n. 4), 35–40 ff.   This is Ruth Landes’s description of the wetiko in her reply in Lou Marano et  al., “Windigo Psychosis: The Anatomy of an Emic-Etic Confusion [and Comments and Reply]” (1982) 23 Current 15 Anthropology 401 ff.   Friedland (n. 4) 96 ff. 16   For some examples, see Friedland (n. 4) 70–81 ff. 17   See e.g. Friedland (n. 4) 31 ff. For a good discussion of the context of these spiritual theories, see Robert Brightman, “The Windigo in the Material World,” (1988) 35 Ethnohistory 363–367 ff. 18   Lon L. Fuller, “Human Interaction and the Law,” (1969) 14 American Journal of Jurisprudence 2 ff. 13

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230    val napoleon and hadley friedland changing norms, (3) that was able to deal with internal oppressions, (4) that was legitimate and the outcomes collectively owned, and (5)  that had collective legal reasoning processes.19

The wetiko legal category and analogous categories in other Indigenous legal trad­ itions were, like criminal law today, necessarily a core aspect of the wider legal orders they were part of because they addressed the unavoidable and critical issue of human vulnerability and violence. For a very long time, these laws served as legitimate responses and processes, and were a relatively effective means to protect the vulnerable, prevent harm, and ensure group safety. This contributed in an essential way to an overall functioning social order within Indigenous societies, just as it does in every society.

iii.  Repression and Resilience 1.  Repression on a massive scale There have been devastating political and legal consequences for Indigenous societies and individuals based on illogical assumptions about an absence of law.20 There are long dark eras in every commonwealth country where Indigenous legal traditions were suppressed and delegitimized in many different ways from many different angles. It is well documented that, as initial European contact and interaction gave way to European intrusion and control, Indigenous peoples found themselves faced with a loss of territory and essential resources, catastrophic disease, forced dislocation, externally imposed disruption and compulsory replacement of governance structures and practices, oppressive educational policies, and entrenched poverty. While there is much diversity among Indigenous peoples, and there were various manifestations of and responses to these colonial factors, there was nonetheless a common experience in that Indigenous social, political, and legal orders were undermined on a massive scale, at both a practical and symbolic level. Legal traditions encompass far more than just rules for conduct. They include formal laws and informal laws, worldviews, aspirations, pedagogies, processes, and  Napoleon (n. 9)  47–48 ff., arguing it is reasonable, and crucial, to contextualize individual Indigenous legal concepts this way. 20   See e.g. James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (1995), 65 ff., and Michael Asch and Patrick Macklem, “Aboriginal Rights and Canadian Sovereignty: An Essay on R v. Sparrow,” (1991) 29 Alberta LR 507 ff. 19

indigenous legal traditions   231 practices.21 The impact of the disintegration of so many aspects of Indigenous legal traditions, consequent to colonialism, would be difficult to overestimate. From our vantage point in history, ensconced in our familiar worlds where our state legal actors, laws, and legal processes can be relied on, at least to do what they usually do, and accomplish what they usually aim to, such disintegration of the social ordering we take for granted is hard to conceive. We may question, criticize, or dislike our state laws, but there are no powerful outsiders that are so blind to their existence and necessity that they use force to sweep them away as superstitious nonsense, or even criminalize them, as was done with Indigenous laws. One can only imagine the disorientation, chaos, and fear that would result from the gradual but relentless loss of all our familiar normative signposts, from the most mundane to the most significant. For the purposes of this chapter, we focus on the impact of the state criminalizing the categories of law within Indigenous legal traditions that are analogous to criminal law and we continue with the example of the wetiko legal category. A common issue facing almost all Indigenous laws of this nature is that legal responses to human violence and vulnerability are the most likely to require, not always, but certainly in the most acute or extreme circumstances, some recourse to force. Yet laws that require or authorize the use of force were exactly the ones first criminalized by colonial states, which monopolized the legitimate use of coercive force as part of the “civilizing” project. In this way, states actively delegitimized and belittled Indigenous people’s categorization and responses to violence, harm, and group safety needs within their own societies. In Canada, within the nineteenth and early twentieth centuries, there are numerous documented court cases that led to the execution or imprisonment of Indigenous legal decision-makers who had implemented a legitimate collective legal decision to execute someone in the wetiko legal category, in cases where they had determined that there were no other means left to prevent harm or keep the rest of the group safe.22 The fact that there were other principled and preferred responses to someone in the wetiko legal category, such as healing, supervision, and temporary or permanent separation, which were required to be employed first, and which usually worked effectively to resolve most cases,23 was rarely considered by state legal decisionmakers. Although in many of these cases, Cree or Anishinabek people extensively described their collective decision-making processes and principled reasoning leading to these tragic last resort decisions, these explanations were dismissed. Indigenous peoples were often described as “child-like” and incapable of reason. Their legal decisions to employ force were reduced to, at best, an “honestly held belief,” but even this was weighted down by demeaning notions that Indigenous   Napoleon (n. 9).    22  See e.g. R. v. Machekequonabe [1897] OJ No. 98, 2 CCC 138.   See Friedland (n. 4) 96–105 ff. See also Brightman, (1988) 35 Ethnohistory 358 ff.

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232    val napoleon and hadley friedland individuals or groups were only acting under the pernicious influence of “pagan” or “superstitious belief ” or “a form of insanity to which the whole tribe is subjected,” which had to be eradicated for their own good.24 The unfortunate legal actors tasked with implementing the incapacitation of a dangerous wetiko, who were respected and trusted leaders within Indigenous groups, were not only executed or imprisoned, but also held up as examples of irrational barbarism, which no longer had any place within the state legal order.25 Similar examples to the Canadian wetiko cases abound. Let us reflect on what the analogous situation would be in current Canadian criminal law. While what is called “capital punishment” no longer exists in Canadian law, judges and juries make decisions that some people need to be incap­ acitated or removed from society. In turn, a justice bureaucracy of police, sheriffs, and prison guards implement these decisions by imprisoning people who are deemed to be guilty of heinous offenses and dangerous to society. Imagine then, if one day another society’s legal actors took the Canadian judge, the police officer, or the prison guard into custody, tried and found them guilty of an offence, say, of kidnapping or forcible confinement, and then imprisoned or otherwise punished them for their actions. What, then, if it were announced to the community at large, through word of mouth, official notices, and through social media, that these respected people—the judges, police officers, and prison guards—were backwards, superstitious, and had to be stopped from doing what they had always done? As a Canadian people, for our protection, we would now have to rely entirely on the outside legal actors who had criminalized, ridiculed, and debilitated our laws and justice system. Who would dare remain a police officer? What would we do when faced with a person suspected of committing grave harm or becoming dangerous to others? Our current legal actors would be placed in an untenable position. So would we, as ordinary Canadian citizens. Those who trusted and turned to these legal actors when in need would suddenly no longer know what or who to rely on for protection from harm. We would know that our reliable, respected legal actors were punished according to the outsiders’ rules for following the rules we knew. So whose rules should we trust? Neither would feel particularly solid or reliable. Not for nothing did Hart ask, “If there were not these rules then what point could there be for beings such as ourselves in having rules of any other kind?”26 Even if other aspects of our legal traditions were not disintegrating around us, the gutting of these core elements

24   Sidney L. Harring, “The Enforcement of the Extreme Penalty: Canadian Law and the Ojibwa-Cree Spirit World,” in Sidney L.  Harring (ed.), White Man’s Law:  Native People in Nineteenth-Century Canadian Jurisprudence (1998), 232 and 223 ff. 25   See the fictionalized demonstration of this in graphic novel form, based on a compilation of real cases, in Val Napoleon, Jim Henshaw, Ken Steacy, Janine Johnston, and Simon Roy, Mikomosis and the 26 Wetiko (2013).   Hart (n. 11) 192 ff.

indigenous legal traditions   233 related to human violence and vulnerability would shatter the foundation of the entire legal order. This is what happened, everywhere, with Indigenous societies.

2.  Resilience and perseverance Yet just as Indigenous societies have persevered, against all odds, so too the eradication of Indigenous legal traditions was never completely realized. Comprehensively denied, disregarded, and damaged through the concerted efforts and willful blindness of colonialism, they still did not wholly disappear. The legal concepts, processes, and principles are as resilient as the people who reason through them and continue, in different ways, meaningfully to practice those they still can. As James Tully explains: No matter how relentlessly domineering governors try to implant and internalize . . . role-related abilities without the active interplay of the patients, as if they are blank tablets, in behavioural modification experiments, repetitious advertising and total institutions of colonial and post-colonial discipline (such as internment camps and residential schools), they invariably fail to ‘construct’ the other all the way down. They cannot eliminate completely the interactive and open-ended freedom of and in the relationship or the room to appear to conform to the public script while thinking and acting otherwise, without reducing the relationship to one of complete immobilization.27

All Indigenous peoples have struggled with demoralization and constructed internalized shame, but no Indigenous people have ever been “constructed” all the way down. When Potlatches and Sundances were made illegal by the Canadian state, Indigenous peoples continued to practice these important political and legal processes “underground.” When entire communities realized that they had lost meaningful practices over time, they sought out other Indigenous communities to learn from and revive them. Medicine people and elders continued to help people who came to them from within their own communities, and from others, even as they hid these practices. If some legal concepts, such as the wetiko, were ridiculed, reduced to cultural remnants, fetishized oddities, individual pathology, or manifesta­tions of group hysteria by outsiders, they also continued to be widely recognized and used as the complex intellectual concepts they were when it made sense to do so within Indigenous groups.28 If certain principled responses to people within the wetiko legal category were criminalized, some legal decision-makers continued to implement others, such as healing, supervision, or separation, when doing so was possible and useful. Where there are the spaces of freedom, however limited, to

  James Tully, Public Philosophy in a New Key, Volume II: Imperialism and Civic Freedom (2008), 28 278 ff.   Friedland (n. 4) 31–32 ff. 27

234    val napoleon and hadley friedland reason through and practice with their own legal traditions, Indigenous people have continued to do so. Even through this era of forced social disintegration, dislocation, and assimilation, a lack of state recognition, or even state and outsider reprobation, did not and could not completely repress Indigenous legal traditions. As John Borrows has argued, part of the strength and resiliency of Indigenous laws derive from them having been practiced and passed down through “Elders, families, clans, and bodies within Indigenous societies.”29 Indigenous laws continued to be recorded and promulgated in various forms, including in stories, songs, practices, and customs.30 The fact that many Indigenous people continue to use the meaning-making resources within their own legal traditions is sometimes most evident in unspoken or implicit ways, in the “commonsense” or preferred responses to crimes within Indigenous communities.31 The passing down, practice, and promulgation of Indigenous laws may have been significantly damaged and disrupted through the years of near totalizing repression, yet, however differently, quietly, and unevenly, it still occurred.

iv.  Recovery and Revitalization .  The failure of state criminal justice systems There is no bright line between the phases of repression and resilience and of recovery and revitalization of Indigenous legal traditions. Dispossession, dislocation, and social disintegration continue. At a certain point, though, in almost every country with an Indigenous population, there is some recognition that the state criminal justice system has failed and is failing Indigenous peoples. All over the world, the grim statistics are similar. Indigenous peoples face substantially higher rates of incarceration than their non-Indigenous counterpoints32 and they also   John Borrows, Canada’s Indigenous Constitution (2010), 179 ff.    30  Borrows (n. 29) 139 ff.   Val Napoleon, Angela Cameron, Colette Arcand, and Dahti Scott, “Where’s the Law in Restorative Justice?,” in Yale Belanger (ed.), Aboriginal Self Government in Canada: Current Trends and Issues (3rd ed., 2008). 32   “The justice system has failed . . . Aboriginal people on a massive scale” was the opening statement of the Manitoba Justice Inquiry. See A. C. Hamilton and C. M. Sinclair, Commissioners, The Justice System and Aboriginal People:  Report of the Aboriginal Justice Inquiry of Manitoba:  . See also James C. MacPherson, “Report from the Round Table Rapporteur,” in Aboriginal People and the Justice System: National Round Table on Aboriginal Justice Issues (1993), 4 ff. 29 31

indigenous legal traditions   235 face disproportionately higher rates of violent crime, victimization, and death.33 In Canada, between 1967 and 1993, when the Royal Commission of Aboriginal People’s (RCAP) Report was written, over 30 government-commissioned justice studies had been undertaken to investigate the causes and possible solutions to this massive failure.34 Since RCAP, several more studies have been commissioned and, by all accounts, despite hundreds and hundreds of recommendations, the stat­ istics keep getting worse.35 The sheer volume of literature on this phenomenon is noteworthy. At the same time that we have statistics saying, for example, in Saskatchewan, a young Indigenous male has a better chance of going to jail than university,36 an increasing number of Indigenous people, overcoming tremendous obstacles, and again attesting to the resilience within Indigenous societies, are seeking out and achieving higher formal education. There were many extraordinary people working within their own communities, determined to provide better opportunities and build better, healthier lives for everyone within those communities. There are also professionals within the justice system who see the human faces and senseless suffering behind the statistics and genuinely seek more humane, effective, and just solutions. The confluence of the widely acknowledged failure of state criminal justice systems, an increasing cohort of strong, dedicated, and formally educated Indigenous individuals, and sincere and compassionate justice system professionals has been the opening of spaces within the state justice system to allow for some recovery and revitalization of Indigenous laws.

2.  Aboriginal justice initiatives The spaces that open within a state’s justice system for recovery or revitalization of Indigenous legal traditions are never very large. Yet they do exist. In partial response to the widely acknowledged failure of the criminal justice system related to Indigenous people, select aspects of certain Indigenous legal traditions have been adopted as pan-Indigenous “traditional” or “culturally appropriate” responses to crime, and subsumed within specific parts of the states’ criminal justice processes, almost always in the sentencing phase. Importantly, these select aspects are  For some of these statistics, see e.g. Canada, Canadian Centre for Justice Statistics, Profile Series: 18, Aboriginal Peoples in Canada (2001): , 6–7 ff. 34  Carole Blackburn, “Aboriginal Justice Inquiries, Task Forces and Commissions: An Update” [RCAP: Aboriginal Justice Inquiries Update] in MacPherson (n. 32) 15 ff. Eight of these were reviewed for the Roundtable on Justice (16–38 ff.). 35  Canada, Treasury Board of Canada Secretariat, Canada’s Performance:  Annual Report to Parliament (2004). 36   Judge Patricia Lynn and Representatives of Federation of Saskatchewan Indian Nations, Report of the Saskatchewan Indian Justice Review Committee (1992) as cited in Isobel Findley and Warren Weir, 33

236    val napoleon and hadley friedland rarely, if ever, described, recognized, argued, or used as law in these spaces. Instead the language of “values” or “practices” is used, and the overall processes are considered “alternative” or “community” justice initiatives. In Canada, the argument for the inclusion of these select aspects is not a jurisdictional one. Rather, it is explicitly ameliorative, based first on the statistics on overrepresentation of Indigenous offenders and, secondly, on the premise that this overrepresentation is the result of cultural differences between Indigenous people and the rest of Canada.37 Some of the most well known of justice initiatives that adopt select aspects of Indigenous legal traditions are Family Group Conferencing and Sentencing Circles. Family Group Conferencing emerged out of New Zealand, based on Maori and restorative justice principles and has been widely adopted and implemented in New Zealand, Australia, and Canada. These typically involve family and extended family, as well as appropriate professionals, gathering to resolve issues, most often in child welfare or young offender matters. Sentencing Circles developed in Canada, and were actually first initiated by a non-Indigenous Yukon circuit court judge, Judge Barry Stuart, in the early 1990s, who was frustrated with the criminal justice system inadequacies in relation to Indigenous individuals he often saw before him.38 They essentially involve any number of people connected to the offender and possibly the victim, gathering in a circle to discuss the offense and the offender’s circumstances, and then recommending what they consider to be an appropriate sentence to the presiding judge, who decides whether to follow the circle’s recommendation. They have since been adopted and used in several US states and in Australia. Over time, their use in Canada seems to have abated, although the reasons for this are complicated and unclear.39 In Canada there are also some well-known and long-standing adapted Aboriginal court processes, such as the Cree circuit court in northern Saskatchewan, the First Nations Court in British Columbia, the Gladue Court in Toronto, and the Tsuu T’ina Peacemaking Court in southern Alberta.40 These innovative court processes operate within the mainstream justice system, conform to Canadian criminal procedure, and apply the Criminal Code. The level of adaptation from the mainstream justice process varies greatly. The Cree court is a regular court, except that it operates entirely in Cree, with a Cree-speaking judge and lawyers. The First Nations Court and Gladue Court implement an adapted “culturally appropriate” process at “Aboriginal Justice in Saskatchewan: 2002–2021—The Benefits of Change,” in First Nations and Métis Peoples and Justice Reform, Vol. 1 (2004), 74 ff.   R. v. Gladue [1999] 1 SCR 688, 171 DLR (4th) 385 ff.   R. v. Moses [1992] 2 CNLR 116, 71 CCC (3d) 347 ff. 39  Jonathan Rudin, “Aboriginal Justice and Restorative Justice,” in Elizabeth Elliot and Robert Gordon (eds.), New Directions in Restorative Justice: Issues, Practice, Evaluation (2005). 40   For a concise summary of these and other court processes, see Karen Whonnok, “Aboriginal Courts in Canada, Fact Sheet” (2009): . 37

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indigenous legal traditions   237 the sentencing phase to understand the root causes of the criminal behavior and develop a “healing” plan that aims to address these. The Tsuu T’ina Court begins with a court process, held on the Tsuu T’ina reserve but, with a guilty plea, the judge agrees to suspend sentencing and turns cases over to a peace-making process. Peacemakers selected from the community then facilitate a structured circle process. Conditions are imposed through this process, and the offender returns to court only once these are completed, at which time the judge sentences accordingly.41 The space these justice initiatives and court processes open up for the recovery and revitalization of Indigenous laws is real. This is so even though the language of “law” is not used, the actual amount of community control is usually minimal due to a lack of resources, and indirect government control and extensive reporting requirements and processes are either state procedures or rooted in ideas of pan-Indigenous restorative justice rather than in specific Indigenous legal trad­ itions.42 Whenever Indigenous people have some input and control of the conversation over responses to crime in their communities, groups and individuals can reason with and through the intellectual legal resources from their own legal trad­ itions. This occurs at an implicit or informal level, through people referring to, reasoning through, and acting on their legal obligations, whether or not they explicitly identify them as such.43 It also occurs at a discursive level, within the debates that are generated when Indigenous people’s opinions and narratives about a particular case are brought into a public conversation about the appropriate legal response to that case.44 Even if the language of “values” or “customs” is used, rather than the language of law, the conversations and solutions generated within these spaces are the very “hard work” that continually recreates and sustains the legality and legitimacy of any law, and which is particularly relevant when legal orders are horizontal, without formalized enforcement mechanisms, as with most Indigenous legal orders.45

3.  How justice becomes just healing Call it what you will, but to the extent that the work of law is happening in these spaces, the space for recovery and revitalization is real. However, its limits have led to certain distortions about Indigenous legal traditions. Because only select aspects of certain Indigenous legal traditions are acceptable within the Canadian state, specifically those aspects that do not require the use of coercive force or enforced separ­ ation from society, a peculiar set of assumptions develop regarding Indigenous

42 43   Whonnok (n. 40).   Rudin (n. 39).   Napoleon et al. (n. 31).   Justice B. Richland, Arguing with Tradition: The Language of Law in Hopi Tribal Court (2008), 141 ff. 45   Jutta Brunnée and Stephen J. Toope, Legitimacy and Legality in International Law: An Interactional Account (2011), 355 ff. 41

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238    val napoleon and hadley friedland laws related to what we broadly understand to be criminal behavior. This narrative completely and problematically conflates “Aboriginal justice” with “restorative justice” or rallies around the singular description of justice as “healing.”46 All other aspects of Indigenous legal traditions are ignored, or described in whispers as “uncivilized” oddities or embarrassing cultural remnants. The wetiko legal concept has been relegated to these whispers for some time. It is not that healing and restorative processes are not important, or even preferable, to other responses to crime within many Indigenous legal traditions. It is just that, when we start from the logical starting point that these legal traditions once had to have dealt with the whole spectrum of harms and violence human beings inflict upon one another, it is obvious that these could not have been the only available responses. Without question, healing was the predominant and preferred response to people fitting within the wetiko legal category.47 However, in any society there will always be a small minority of human beings, whether we call them wetikos or whether we call them criminals, who are beyond healing, either at a certain time or at all. For example, no one would argue that Jeffrey Dahmer or Charles Manson would have been an appropriate candidate for healing. They are rare, but not alone. Let them be and we are, once again, faced with Hart’s suicide club. The predominant narrative of “justice as healing” is not false, but it is dangerously incomplete. It flattens the complexity of Indigenous legal traditions and raises real questions about their utility effectively to respond to the “pressing reality” of the “unprecedented levels of violence experienced within Aboriginal families and communities in the current generation.”48 It has disproportionate and chilling effects on the lives, bodily integrity, and safety of Indigenous women and children.49 Healing alone is not enough to prevent harm, protect the vulnerable, or ensure group safety in many situations, and at any rate, is a long-term process not a panacea. It is not logical or accurate to say that healing is the only legal response to crime in Indigenous legal traditions. It is more accurate to say that healing is the only legal response permitted to Indigenous groups within most states, which monopolize the use of coercive force.50 46   e.g. see the Supreme Court’s description of this in Gladue (n. 37), and R. v. Wells [2000] 1 SCR 207, 27 ff. 47   Brightman, (1988) 35 Ethnohistory 358 ff. See also Friedland (n. 4) 97 ff. 48   Mary Ellen Turpel Lafond, “Some Thoughts on Inclusion and Innovation in the Saskatchewan Justice System” (2005) 68 Saskatchewan LR 295 ff. 49   See e.g. Emma LaRocque, “Re-Examining Culturally Appropriate Models in Criminal Justice Applications,” in Michael Asch (ed.), Aboriginal and Treaty Rights in Canada: Essays on Law, Equity and Respect for Difference (1997), 75 ff. 50   The leading case affirming this is Thomas v. Norris [1992] 2 CNLR 139 (BCSC), where the British Columbia court found that any aspects of Spirit Dancing that would be contrary to the common or civil law, such as someone being forced to take part in an initiation ceremony against his or her will (as the plaintiff was in this case), was not protected as an Aboriginal right under section 35 of the Constitution (89, 90 ff.). Hence, the defendants were liable for assault and battery in the case, despite arguing that they were acting in accordance with their responsibilities, after the plaintiff ’s common law

indigenous legal traditions   239 The analogous situation in current Canadian society would be if powerful outsiders permitted us to operate parts of our criminal justice system but, regardless of the individual facts, our legal decision-makers could only apply the sentencing principle of rehabilitation. It would be indicative of the limits of the permissible space for our law in the dominant society, not of the limits of our law itself, if we found that we could not safely or successfully manage every case on those terms. There are clear cases where, based on the facts, sentencing principles other than rehabilitation need to be prioritized in order to maintain individual and community safety. There are equally clear cases, within Indigenous communities, that require responses other than or in addition to healing. Returning these cases to the mainstream criminal justice system in order to access the state monopolized resources those responses require, should not be (but often is) seen as a failure of Aboriginal justice initiatives.

4.  Idealized values as state critiques Indigenous laws are often even further reduced to oversimplified, idealized foils to critique state criminal justice systems within academic literature. This creates two major problems. First and foremost, it creates an artificial dichotomy between Indigenous and state responses to harm and violence, one that is “fraught with stereotypes, generalizations, oversimplifications and reductionism.”51 This inhibits any productive discussion examining cultural differences and similarities between legal principles that grapple with the same universal human issues. It also obscures the range of normative choices available within and across diverse legal trad­itions. Secondly, highly idealized, even romanticized, Indigenous “values,” with no grounding in current practices or real issues, are contrasted with state legal principles that are practiced imperfectly in the chaos and messiness of everyday life, unavoidably carrying the historical and political baggage of the day, and applied to real-life cases. This purely oppositional space has the unintentional impact of reducing conversations about Indigenous laws to veiled critiques of current state laws. It does not allow us the intellectual room to imagine Indigenous laws beyond a symbolic resistance to colonialism.52 Once reduced down to cultural differences or ideals, narratives of incommensurability and fragility can inhibit critical and rigorous scholarship engaging with Indigenous laws, further obscuring their presence and inadvertently perpetuating the colonial myth of an absence of Indigenous legal thought.53

wife requested their help, because of “marital and other problems” (32 ff.). The judge maintained the “supremacy of English law to the exclusion of all other” (104 ff.). 52   LaRocque (n. 49) 78 ff.   Napoleon et al. (n. 31).  Gordon Christie, “Indigenous Legal Theory:  Some Initial Considerations,” in Benjamin J. Richardson, Shin Imai, and Kent McNeil (eds.), Indigenous Peoples and the Law: Comparative and Critical Perspectives (2009), 213 ff. 51

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v.  The Renaissance .  Engaging with Indigenous laws seriously as laws The recovery and revitalization of Indigenous legal traditions is well underway, but the limited spaces for this within colonial states has led to distortions and dangers at practical, political, and intellectual levels. At this point in time, though, we are on the cusp of a new era: the renaissance or resurgence of Indigenous law, claimed, recognized, and engaged with seriously as law. On a general level, there has been increasing and sustained momentum toward a greater recognition and practical and public use of Indigenous legal traditions in Canada. This has been occurring within and across academic, legal, professional, and Indigenous communities. For example, the Canadian Bar Association recently passed a resolution to recognize and advance Indigenous legal traditions in Canada.54 This resolution was followed closely by a national Aboriginal Law section conference entitled, “Working with and within Indigenous Legal Traditions,” which focused on the various ways lawyers are currently engaging with Indigenous laws in different areas of legal practice, including criminal justice initiatives.55 The Chief Justice of the British Columbia Court of Appeal, Lance Finch, C.J., stated clearly that Canadian courts have recognized preexisting Indigenous legal orders, and recommended that every Canadian law school should have a course, not only on Aboriginal law (Canadian state law about Aboriginal issues), but also on Indigenous legal traditions themselves.56 This is a crucial recommendation. When we imagine more public, explicit, and integrated use of Indigenous legal traditions in Canada or other countries generally, there are many political, legal, practical, and institutional issues to address.57 But there are also real intellectual hurdles to overcome, as we have seen previously. Today, one of the big questions is how Indigenous laws and state laws will interact in the future, which includes questions about legitimacy, conflict of laws, harmonization efforts, and, in the criminal justice field, how legitimate responses to human violence and vulnerability that require coercive force should or will be acted on today. These and  Canadian Bar Association Resolution 13-03-M, carried by the Council of the Canadian Bar Association at the Mid-Winter Meeting held in Mont-Tremblant, QC, Feb. 16–17, 2013: . 55  Canadian Bar Association, National Aboriginal Law Conference—Working with and within Indigenous Legal Traditions, Victoria, BC, Apr. 11–12, 2013. For a description and papers, see: CBA Professional Development . 56   Continuing Legal Education Society of British Columbia Conference, “Indigenous Legal Orders and the Common-Law,” Nov. 12–13, 2012. For a description and papers related to this conference, see: . 57   Borrows (n. 29) chs. 4, 5, 7, and 8, explores many of these comprehensively. 54

indigenous legal traditions   241 more issues need to be seriously discussed and addressed. However, when they are discussed entirely in the abstract, relying on oversimplified pan-indigenous stereotypes (negative or positive), or people’s illogical assumptions about Indigenous legal traditions, rather than on grounded research about specific legal principles within specific legal traditions, they tend to operate as conversation-stoppers, and are distorting in and of themselves. How well we are able to address the real political, legal, practical, and institutional issues will depend on whether we actually address the intellectual ones, or whether we skip this step and assume we already know certain answers about the substantive content of Indigenous legal traditions. The renaissance of Indigenous legal traditions is not about a specific concrete outcome, but rather about rebuilding the intellectual resources and political space to have more symmetrical, reciprocal, and respectful conversations within and between Indigenous and state legal traditions. Recently, several North American law schools have started to develop and offer substantive courses on Indigenous legal traditions. These schools include the University of British Columbia, the University of Alberta, the University of Ottawa, Osgoode Hall, and the University of Minnesota.58 Perhaps the most innovative and ambitious academic initiative is the work toward developing a joint common law and Indigenous law degree program at the University of Victoria (Juris Indigenarum Doctor and Juris Doctor, otherwise known as the JID). This degree program would be the first of its kind in the world.59 This academic work is important for the renaissance of Indigenous laws, particularly because there are real challenges, at this point in history, to accessing, understanding, and applying Indigenous legal principles, beyond finding the political and jurisdictional space to do so.60 Indeed, even in American tribal courts, which do hold clear, if contested, jurisdiction and have for a relatively long and stable period, the actual use and application of Indigenous legal principles, as opposed to state or adapted state jurisprudence, is surprisingly sparse.61 The deeply engrained but illogical starting points about Indigenous laws and the long periods of repression in colonial states, as well as the distortions born of limited spaces openly to recover and   Professors offering these focused courses include one of the authors (Val Napoleon), at UVic, Gordon Christie and Darlene Johnston at University of British Columbia, Larry Chartrand and Sarah Morales at University of Ottawa, Andree Boisselle at Osgoode Hall, and John Borrows at University of Minnesota. 59   The first proposal for the JID program was drafted by John Borrows in September 2005, following his study of Indigenous legal traditions entitled, “Justice Within,” sponsored by the Law Commission of Canada. See Law Commission of Canada, Justice Within, Indigenous Legal Traditions, DVD (2006). See also John Borrows, “Creating an Indigenous Legal Community,” (2005) 50 McGill LJ 153 ff. 60  For a longer discussion of some of these challenges, see Hadley Friedland, “Reflective Frameworks:  Methods for Accessing, Understanding and Applying Indigenous Laws,” (2013) 11 Indigenous LJ 8–17 ff. 61   Mathew Fletcher, “Rethinking Customary Law in Tribal Court Jurisprudence” (2006), Indigenous Law and Policy Centre Occasional Paper Series. 58

242    val napoleon and hadley friedland practice Indigenous laws, have all led to deep absences within legal scholarship and serious challenges to Indigenous peoples’ own capacity to articulate, interpret, and apply Indigenous laws to contemporary issues. However, that is changing.

2.  Intellectual shifts Today there is a growing trend of legal scholarship that advocates for and has begun the robust and respectful engagement needed to work critically and usefully with Indigenous legal traditions. This type of scholarship begins by asking different questions of Indigenous legal traditions than are typically or were historically asked. Rather than focusing on broad generalities, or on using Indigenous laws as rhetorical tools to critique state legal systems, leading Indigenous scholars are starting to focus on the specifics of Indigenous laws themselves. This focus leads to the intellectual shifts from typical research questions about “Aboriginal justice” shown in Table 11.1.62 To illustrate the results of these shifts, we will focus in more detail on recent scholarly treatment of the wetiko legal concept. One of the first and clearest examples of an Indigenous legal scholar employing these shifts in his analysis is John Borrows’s treatment of a wetiko or windigo case recorded in 1838 by the Superintendent of Indian Affairs, William Jarvis, which involved an Anishinabek group which had urgently to respond to, and ultimately execute, someone who had become increasingly dangerous to himself and to others.63 Rather than staying at the level of cultural “practices” or “values” in the account, Borrows identified several transferable legal principles. For example, he identified procedural principles, such as waiting, observing, and collecting information before acting, and counseling with others Table 11.1  Analytical shifts for working with indigenous law

From

To

What is Aboriginal justice?

What are the legal concepts and categories within this Indigenous legal tradition?

What are the cultural values?

What are the legal principles?

What are the “culturally appropriate” or “traditional” dispute resolution forms?

What are the legitimate procedures for collective decision-making?

Overall shift: What are the rules? What are the answers?

What are the legal principles and legal processes for reasoning through issues?

  Friedland, (2013) 11 Indigenous LJ 29 ff.   John Borrows and Leonard Rotman, Aboriginal Legal Issues: Cases, Materials, and Commentary (2nd ed., 2003), 908–919 ff. 62 63

indigenous legal traditions   243 around the person when it is clear something is wrong. He identified legal response principles, such as helping the person who is growing harmful and, “if the that person does not respond to help and becomes an imminent threat to individuals or the community, remove them so they do not harm others.” In addition, he highlighted restorative principles that met the needs of the people closest to and most reliant on the person who had to be removed.64 He argued that it is these underlying principles, not the specific practice or outcome, that would still be familiar to Anishinabek people today, and it is worth considering how they might apply in the contemporary context.65 In treating the Anishinabek group’s historical actions seriously as legal practices, Borrows was able to look seriously beyond just bare rules or historical practices, to the underlying legal principles as well as the legitimate processes of legal reasoning, deliberation, interpretation, and application.66 This refreshing intellectual shift frees up the discussion about Indigenous laws from distracting debates that perseverate on particular historic practices, to the detriment of serious contemporary analysis. This is particularly relevant when discussing the wetiko legal concept. No one is arguing that Cree or Anishinabek communities should be able to (or would even want to) execute someone becoming a wetiko today. In fact, the adaptability of how the particular legal principle of incapacitation or removal was applied in practice is demonstrated even historically. For example, when other resources for incapacitation or removal were accessible to Indigenous groups, such as police outposts or even missionaries, Indigenous groups often preferred to access these rather than having to execute a wetiko who was at risk of causing imminent harm to others.67 This demonstrates that the underlying principle can be recognized and applied in different ways, and using the available resources, which today include access to and partnerships with state law enforcement and mental health professionals.68 Focusing on the underlying principles, rather than just practices, helps others to understand the ongoing relevance and potential usefulness of the principles related to legal categories like the wetiko for responding to contemporary issues of violence and harm.

3.  Research examples: Indigenous legal principles There is currently exciting collaborative research and work engaging with Indigenous legal traditions being carried out within and across professional, academic, and Indigenous communities. The newly created Indigenous Law Research Unit (University of Victoria, Faculty of Law), the Indigenous Bar Association (IBA) and the Truth and Reconciliation Commission (TRC) have partnered, with funding 65   Borrows and Rotman (n. 63).   Borrows and Rotman (n. 63). 67   Napoleon et al. (n. 31).   See Friedland (n. 4) 119–121 ff. 68   See Borrows’ stressing of this in Borrows (n. 29) 82–84 ff. 64

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244    val napoleon and hadley friedland from the Ontario Law Foundation, to undertake a national research project engaging with Indigenous legal traditions called the Accessing Justice and Reconciliation Project (AJR Project). The AJR project partnered with seven Indigenous communities and engaged with six distinct Indigenous legal traditions across Canada to identify responses and resolutions to harms and conflicts within Indigenous soci­ eties. From west to east, these were: Coast Salish (Snuneymuxw First Nation and Tsleil-Waututh Nation); Tsilhqot’in (Tsilhqot’en National Government); Northern Secwepemc; Cree (Aseniwuche Winewak Nation); Anishinabek (Chippewas of Nawash Unceded First Nation #27); and Mi’kmaq (Mi’kmaq Legal Services Network, Eskasoni). The fundamental premise behind the AJR Project was that legal researchers would engage with Indigenous laws seriously as laws.69 The results reveal a wide variety of principled legal responses and resolutions to harm and conflict available within each legal tradition. Both authors are involved in this project, and we want to give but one of many examples of the rich complexity that emerged out of pursuing this shift in approach to researching Indigenous laws regarding harms and conflicts. One clear finding of this project is that while there is often a strong emphasis on concepts such as healing, reconciliation, and forgiveness in many Indigenous legal traditions, they are not idealized, simple, or stand-alone responses to harms and conflicts. Every Indigenous legal tradition represented had nuanced and robust understandings of what implementation of these principles entail, and had a much broader repertoire of principled legal responses and resolutions to draw on where specific factual situations so warranted. Carrying on with our example of the wetiko legal concept, in our engagement with the Cree legal tradition, respondents in our Cree partner community made it very clear that they see healing of the offender as the predominant and preferred legal response to even extreme harms. For example, when one researcher asked about published stories in which people who became wetikos were killed, one elder, who practices traditional medicine, exclaimed:  “probably someone who didn’t know nothing and had no compassion would just go kill someone.” She went on to state emphatically that instead the proper response is to try to help and heal the person turning wetiko. She stressed that people turning wetiko should not be seen as faceless dangers, but rather, “these are our family members.”70 However, it was also made clear to researchers that while healing was a preferred response for Cree peoples, it was not implemented in isolation or blind to

69   For more on the method and outcomes of this project, see Val Napoleon and Hadley Friedland, “The Inside Job: Engaging With Indigenous Legal Traditions Through Stories,” in Tony Lucero and Dale Turner (eds.), Oxford Handbook on Indigenous Peoples’ Politics (forthcoming 2014) and Hadley Friedland and Val Napoleon, “Gathering the Threads: Developing a Methodology for Researching and Rebuilding Indigenous Legal Traditions,” (forthcoming 2014), Special Ed. 70   Draft Cree Legal Summary, AJR Project (2013) (unpublished, on file with authors), 26–27 ff.

indigenous legal traditions   245 ongoing risks of harm. When someone was waiting for or not willing to accept healing, the principle of avoidance or separation was often employed in order to keep others safe. Avoidance or temporary separations were also principled ways of de-escalating conflict and expressing disagreement. Other Cree principles guiding responses to harm and conflict more generally included acknowledging responsibility as a remedy, reintegration, learning from natural or spiritual consequences, and, historically, in published stories, incapacitation in cases of extreme and ongoing harm. Reintegration followed healing or taking responsibility. These responses were fact-specific and decisions were made based on an extensive deliberative process, which included elders, family members, experts (medicine people), and the person causing harm when possible. The same elder quoted earlier pointed out that reinte­ gration might require ongoing observation and monitoring, even for life where warranted, as in the case of someone helped from turning wetiko, as she explained that no one can be completely healed from this.71 This is just one small example of the kind of informative, nuanced, and complex response principles we saw in research results from each Indigenous legal tradition that legal researchers approached seriously as law. The research results raise many practical and philosophical questions, and that is how it should be. The important point is that the level of detail and sophistication raises different questions, and creates different conversations, whether about responses to particular cases or about the wider legal, political, and institutional issues that must be resolved, than previous ones based on illogical assumptions or on oversimplified or stereotypical pan-Indigenous values or practices related to responding to criminal behavior. It is this kind of serious and sustained engagement with Indigenous laws that is beginning to build a solid intellectual foundation for, as Navaho Court of Appeal Judge Raymond D. Austin puts it, bringing Indigenous legal traditions into their “rightful place among the world’s dispute resolution systems” in the future.72 Although people may be using new fora and methods to do so, Indigenous legal traditions are once again being publicly and explicitly recognized, explored, and understood as the intellectual and normative resources they are. We can imagine many ways in which Indigenous peoples can draw out and draw on these resources collectively to manage their affairs and deal with the range of human and social issues that are part of being strong self-governing and interdependent peoples, including the reality that the core concerns of human violence and vulnerability will always be with us, in any society. There are also many ways that Canada and   Draft Cree Legal Summary (n. 70) 26–35 ff.   Robert A.  Williams, Jr., “Foreword:  The Tribal Law Revolution in Indian Country Today,” in Raymond D. Austin, Navajo Courts and Navajo Common Law: A Tradition of Tribal Self-Governance (2009), xv ff., pointing out that this aspiration is one goal for establishing a solid foundation for the Navajo courts. 71

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246    val napoleon and hadley friedland other countries can learn from, collaborate with, and incorporate principles and practices from Indigenous legal traditions.

vi. Conclusion When we speak of criminal law matters related to Indigenous people, it is import­ ant not to underestimate the vast losses and damage from colonialism that Indigenous peoples have suffered. It is both naïve and dangerous to ignore the immense social suffering, the massive intergenerational trauma, the frightening level and intensity of violence, and the ongoing conditions of vulnerability within many Indigenous communities today. Sadly, too often acknowledgment of these realities sinks into a tired and insulting “primitivist” discourse about Indigenous people in non-Indigenous circles or, within Indigenous circles, into narratives of demoralization and despair. It is no wonder that many people, Indigenous and non-Indigenous alike, hope that Indigenous legal traditions have something positive to bring to these urgent and pressing issues. Yet these legal traditions do not survive in some pristine, untouched state, as if they were magically immune to the damages and devastation of colonialism. Searching to revive some imagined past utopia, or waiting for a future day of glorious transcendence will simply not do the job. At this point, we need robust and practical approaches to the pressing realities Indigenous people face on the ground, otherwise our work will be meaningless or, worse still, will inadvertently perpetuate the maintenance of the status quo. In this chapter, we have set out four phases or eras to describe the changing state of debate regarding Indigenous legal traditions, in order realistically to context­ualize the current challenges and potential of Indigenous laws, as applied to the universal issue of human violence and vulnerability. First, we posited not an imagined utopia or a free-for-all, but a logical starting point to talk about the roots of Indigenous legal traditions. Secondly, we acknowledged the long dark era of the almost totalizing repression of Indigenous laws, as well as their resilience through this period. Thirdly, we looked at the opportunities and distortions within the limited spaces for the recovery and revitalization of Indigenous laws in the wider frame of state justice systems. Finally, we discussed the recent movement toward a renaissance or resurgence of Indigenous legal traditions, where they are recognized and treated seriously as law. Setting out these four phases explicitly acknowledges the deeply rooted nature, as well as the strength, resiliency, and promise of Indigenous legal traditions, without

indigenous legal traditions   247 underestimating the devastating and demoralizing impacts of colonialism, the difficult present reality, and the huge amount of work required to be able to access, understand, and apply Indigenous laws constructively today. It is both a challenging and exciting time to be engaging with Indigenous legal traditions. There is much work to be done, and there is much hope.

References Aboriginal People and the Justice System: National Round Table on Aboriginal Justice Issues (1993) Austin, Raymond D., Navaho Courts and Navaho Common Law:  A  Tradition of Tribal Self-Governance (2009) Borrows, John, Canada’s Indigenous Constitution (2010) Fiddler, Chief Thomas and Stevens, James R., Killing the Shaman (1991) Friedland, Hadley and Napoleon, Val, “Gathering the Threads: Developing a Methodology for Researching and Rebuilding Indigenous Legal Traditions” (forthcoming 2014) Canadian Journal of Law and Society, Special Ed. Harring, Sidney L., “The Enforcement of the Extreme Penalty:  Canadian Law and the Ojibwa-Cree Spirit World,” in Sidney L. Harring (ed.), White Man’s Law: Native People in Nineteenth-Century Canadian Jurisprudence (1998) LaRocque, Emma, “Re-examining Culturally Appropriate Models of Criminal Justice,” in Michael Asch (ed.), Aboriginal and Treaty Rights in Canada (1997) McCaslin, Wanda D. (ed.), Justice as Healing:  Indigenous Ways:  Writing on Community Peacemaking and Restorative Justice from Native Law Centre (2005) McNamara, Luke, “The Locus of Decision-Making Authority in Circle Sentencing: The Significance of Criteria and Guideline,” (2000) 18 Windsor Yearbook of Access to Justice Napoleon, Val and Friedland, Hadley, “The Inside Job:  Engaging With Indigenous Legal Traditions Through Stories,” in Tony Lucero and Dale Turner (eds.), Oxford Handbook on Indigenous Peoples’ Politics (forthcoming 2014) Napoleon, Val, Henshaw, Jim, Steacy, Ken, Johnston, Janine, and Roy, Simon, Mikomosis and the Wetiko (2013) Richland, Justin B., Arguing with Tradition: The Language of Law in Hopi Tribal Court (2008) Ross, Rupert, Returning to the Teachings: Exploring Aboriginal Justice (1996) Sekaquaptewa, Pat, “Key Concepts in the Finding, Definition and Consideration of Custom Law in Tribal Lawmaking,” (2007–08) 32 American Indian LR 319 Stewart, Wendy, Huntley, Audrey, and Blaney, Fay, The Implications of Restorative Justice for Aboriginal Women and Children Survivors of Violence: A Comparative Overview of Five Communities in British Columbia (2001) Turpel-Lafond, Mary Ellen, “Some Thoughts on Inclusion and Innovation in the Saskatchewan Justice System,” (2005) 68 Saskatchewan LR 293 Whyte, John D., Moving Toward Justice: Legal Traditions and Aboriginal Justice (2008)

­c hapter 12

ISLAMIC CRIMINAL LAW silvia tellenbach

i.  Introduction to Islamic Criminal Law Islamic criminal law is by no means a simple and primitive law as many people in Western countries suppose and, by way of explanation, it is necessary first to give a general frame of Islamic law. The Quran is the highest ranking source of law and is regarded as the word of God revealed to mankind. However, the number of Quran verses with legal content is rather limited and only about 30 deal with criminal law. Obviously, there must be further sources of law that inform the system of Islamic criminal law. The second important source is the sunnah, the tradition of the sayings and doings of the Prophet and of what he tolerated (hadith); the sunnah was transmitted in the first centuries after the death of the Prophet. Scholars collected and classified these hadiths according to their degree of reliability and it is therefore understandable that there are often different opinions about the reliability of a hadith. These two sources form the shari‛a in its strict sense. Two other sources of law and their results are part of fiqh, the Islamic jurisprudence. The third source is the consensus of the Islamic community (umma) regarding the solution of a legal problem (idjma‛), in practice the consensus of the religious scholars at a certain time. The fourth is ana­ logy (qiyas) for Sunni Muslims and reason (‘aql) for Shi‛i Muslims. In addition, there are still supplementary methods of finding legal solutions, for instance istihsan, the method of deviating from the results of analogy by taking into account customary law and requirements of social life and social actions, istislah, the consideration of general

islamic criminal law   249 interest as far as there is no regulation by one of the hierarchically superior sources, or ‘urf, the customary law.1 Clearly, many years of studies are necessary for an expert in Islamic law to be authorized to give opinions on legal questions. In the past there were many schools of law, madhahib, in the Islamic world. Today the most important schools are the Sunnite Hanafite, Malikite, Shafi‛ite, and Hanbalite schools, and the Shi‛ite Dja‛farite. The Hanafite school spread in the regions that were part of the Ottoman Empire, but also in Afghanistan, Pakistan, and other parts of South-East Asia. The Shafi‛ite school has followers in Egypt, on the coast of East Africa, and in South-East Asia. The Malikite school is widespread in the Maghreb, in some African states south of the Sahara, for instance in Northern Nigeria and Mali, in Upper Egypt, and in some regions on the eastern border of the Arabian Peninsula. The Hanbalite school has its center in Saudi Arabia. The Shi‛i Dja‛farite school is the official school of law in the Islamic Republic of Iran, but it also has many followers in Iraq and Lebanon and a considerable number in Syria, Pakistan, India, and Afghanistan. These schools are characterized by the different degrees of importance they attach to the various sources and methods and, as a result of these differences, they often advocate different solutions to legal problems. Moreover, there are often different opinions even within the same school of law.2 Particularly in modern times, however, it is regarded as legitimate to combine elements of different schools of law, a method called talfiq. Today Islamic criminal law is only applied in a small number of countries;3 most countries of the Muslim world apply a criminal law that is directly or indirectly influenced by French law. This is the case in some countries of northern Africa as well as Lebanon, Syria, and Iran. Other countries such as Pakistan and Sudan are strongly influenced by the common law and Egyptian criminal law is a mixture of French, Italian, British, and other influences. Saudi Arabia has never adopted a criminal code (much less one influenced by Western law); there are only some laws on special topics. Today Saudi Arabian judges in criminal courts must still find most of their judgments in the books of Hanbalite scholars.4 As a rule, even those countries that currently apply Islamic criminal law have a criminal law that has

1   Mohammad Ibn Ibrahim Ibn Jubair, “Criminal Law in Islam: Basic Sources and General Principles,” in Tahir Mahmood et al. (eds.), Criminal Law in Islam and the Muslim World (1996), 42 ff.; Adel El Baradie, Gottes-Recht und Menschen-Recht. Grundlagenprobleme der islamischen Strafrechtslehre (1983), 23 ff., 47 ff. 2  On the madhahib and their differences in criminal law, see Safia M.  Safwat, “Crimes and Punishments under Various Schools of Shari’ah: A Comparative Overview,” in Tahir Mahmood et al. (eds.), Criminal Law in Islam and the Muslim World (1996), 57 ff., 63ff. 3  See in detail, Tahir Mahmood, “Criminal Law Reform in Muslim Countries:  Glimpses of Traditional and Modern Legislation,” in Tahir Mahmood et al. (eds.), Criminal Law in Islam and the Muslim World (1996), 313 ff. 4   On criminal justice in Saudi Arabia, see generally Frank E. Vogel, Islamic Law and Legal System— Studies of Saudi Arabia (2000).

250   silvia tellenbach been informed by Western law since the nineteenth century and continues to be significantly informed by Western law today. In the course of the re-Islamization that began after the Arab–Israeli war in 1967, the reintroduction of Islamic criminal law seems to have had a symbolic value compar­ able to the value of Islamic banking or the prohibition on charging interest. A number of Muslim states reintroduced Islamic criminal law at this time, the first of which was Libya which introduced four laws on hadd penalties during the period 1972 to 1974, followed during the period 1979 to 1997 when Pakistan enacted laws that inserted the Islamic hadd, qisas, and diya punishments5 into the criminal code. After the Islamic revolution, Iran enacted four laws (1982/1983) which were revised and united into one Islamic Penal Code in 1991/1996 with a new Islamic Penal Code that entered into force in June 2013.6 The penal codes of Sudan (1983, 1991), Mauretania (1983), and Yemen (1994) contain regulations of Islamic criminal law inserted into a code which, apart from these regulations, is structured like a typical Western code. The criminal codes of Afghanistan (1976) and the United Arab Emirates (1987) do not regulate the crimes punished with hadd, qisas, and diya in the criminal code; rather, they provide in a general clause that these crimes have to be punished according to Islamic law. Some of the federal states of Nigeria enacted Islamic criminal laws during the period 1999 to 2002 and in the Indonesian province Aceh, there are laws providing for the application of some ta‛zir crimes of an Islamic character such as failure to attend Friday prayers on three consecutive Fridays without a defense although Hadd and qisas punishments are explicitly excluded.7 In Malaysia, laws containing Islamic criminal law passed the parliaments of the federal states of Kelantan (1993) and Terengganu (2002) but did not enter into force for constitutional reasons.8

ii.  Structure of Islamic Criminal Law .  General remarks Islamic criminal law is not a monolithic block; it consists of three categories of crimes (in the Shi’a four categories), that stand side by side—crimes punished with   See Sections II.2 to II.4.   This new penal code replaces only the first four books of the former penal code. As at June 2013, its fifth book which deals with ta’zir punishments remains in force. 7   Michael Berry Hooker, Indonesian Syariah—Defining a National School of Islamic Law (2010), 247, 251. 8   States are not competent to enact such laws, art. 74 Constitution of Malaysia. On the bill of Kelantan, see Mohammad Hashim Kamali, “Punishment in Islamic Law: A Critique of the Hudud Bill of Kelantan, Malaysia,” (1998) 13 Arab Law Quarterly 203 ff. 5

6

islamic criminal law   251 hadd, crimes punished with qisas and diya (which form one category in Sunni but two categories in Shi‛i law), and crimes subject to ta‛zir punishments. The classification of crimes into one of these categories depends on the type of punishment that may be imposed for an offense. Hadd is a punishment fixed in the Quran or the sunnah for a limited number of crimes; qisas means the retributive punishment of retaliation in cases of homicide and bodily injury; diya is the blood-money that has to be paid for homicide and bodily injury when retaliation does not take place; and ta‛zir is the punishment for all the other crimes. Some legal principles may be applicable to all of these categories; this may be true, for instance, for the prin­ ciple that a perpetrator must be mentally sane in order to be criminally responsible and for the principle that punishment is personal. But as a rule each category is governed by its own principles which often differ from the principles of the other categories. It may happen that certain problems may be regulated in detail in one category and not even mentioned in another; therefore, Islamic criminal law cannot really be divided into a general part regulating the general principles and provisions that are binding on all crimes, and a special part dealing with single crimes. Though criminal codes of modern states that apply Islamic criminal law normally contain a general part, they always contain special norms which exempt certain categories as a whole (United Arab Emirates, Afghanistan) or in special cases (e.g. Iran) from the applicability of the provisions of the general part.

2.  Hadd a)  Crimes punished with hadd punishments Crimes punished with hadd (pl. hodood; literally, limits) punishments are the core of Islamic criminal law and protect the claims of God9 and punish their infringement. Hadd punishments are fixed punishments mostly provided for in the Quran and in some cases in the sunnah (the tradition of the Prophet). This category comprises the following crimes. • Theft (sariqa): this provision is based on Quran 5, 38—“The male thief and the female thief—cut their hands off.” As a result of a very detailed interpretation of this verse by Islamic scholars, the applicability of this provision has been severely limited as will be explained later in this section. • Highway robbery (muharabah or qat’ at-tariq): this provision is based on Quran 5, 33–34. Four punishments are specified in the Quran for those who wage war against God and strive to cause corruption on earth: crucifixion, the death penalty, amputation of the right hand and the left foot, and banishment. Given these punishments, Islamic scholars developed four modalities of crime:  frightening  Only qadhf also protects claims of humans, El Baradie (n. 1) 176 ff.

9

252   silvia tellenbach people without homicide or robbery, frightening people coupled with homicide, frightening people coupled with robbery, and frightening people coupled with homicide and robbery, but there are many different opinions about details of this crime in the various schools.10 In Shi’ite law, the judge can choose from among the four punishments the sanction that seems to him most appropriate.11 The Malikite judge can abide by the minimum penalty in each case but can also impose one of the other punishments foreseen for muharabah. The other schools have a precise correlation between offense and punishment:  whoever commits robbery and kills his victim will be crucified; whoever kills the victim without robbery will be sentenced to death; whoever steals from his victim, but does not kill him or her will undergo amputation of his right hand and his left foot; and the muharib who only troubles the security of the roads will be banished.12 • Drinking wine (shurb al-khamr): this prohibition is based on Quran 5, 90, but its penalty of 80 lashes (in the view of the Shafi‛ites only 40 lashes) is based on hadith. A salient feature of this crime is the requirement that the perpetrator be a Muslim. Most of the schools hold that not only wine but all intoxicating beverages are forbidden and, according to the Hanafites, wine is totally forbidden but other alcohol beverages are forbidden only if their consumption actually leads to drunkenness.13 • Illegal sexual intercourse (zina’): this prohibition is based on Quran 24, 2. Zina’ means all sexual intercourse outside wedlock. It exists in two forms, illegal sexual intercourse of a muhsan and illegal sexual intercourse of a non-muhsan person. In Sunni law, a person is muhsan if he or she is a free adult Muslim (except in Shafi‛ite law) and has had sexual relations in a marriage at any time in his or her life. In Shi‛i law, the notion of muhsan is more restricted: a person is only muhsan if he or she is actually married in a continuous marriage (not only a temporary one which is possible in Shi‘i law) and has the possibility to stay together with his or her spouse. If the spouse is not available, for instance because she has traveled to her parents or he is in prison, the perpetrator is not muhsan.14 The perpetrator who is not muhsan will be punished with 100 lashes, the perpetrator who is muhsan has to be stoned, a punishment that is not provided for in the Quran but is based on a hadith.15 As penetration is not possible, lesbianism is regarded as a ta‛zir crime in the sunnah, as a hadd crime only in the Shi’a, and in any case it is punished with 100 lashes.16 • (False) accusation of illegal sexual intercourse (qadhf ): this prohibition is based on Quran 24, 4–5. It consists in the accusation against a Muslim who is of age, sane, and chaste of having committed illegal sexual intercourse. Such an accusation is 11   See for details Safwat (n. 2) 74 ff.   Arts. 282, 283 IPC of 2013.   See Rudolph Peters, Crime and Punishment in Islamic Law—Theory and Practice from the Sixteenth 13 to the Twenty-First Century (2005), 58.   Safwat (n. 2) 70; Peters (n. 12) 64. 14   Arts. 226, 227 IPC of 2013; Peters (n. 12) 61. 15 16   Peters (n. 12) 60; Safwat (n. 2) 64 ff.   Safwat (n. 2) 68. 10 12

islamic criminal law   253 regarded as false if its truth cannot be proved by the means prescribed to prove zina’. The aim of the criminalization of such conduct is to stop any gossip about the sexual life of others as even rumors may have catastrophic consequences in a society that observes extremely strict rules in the field of sexual behavior. The punishment is 80 lashes. • Apostasy (irtidad), the desertion from Islam,17 based on Quran 2, 217 is regarded as a crime. It is not considered a matter of freedom of opinion or freedom of religion but as an attack against the Islamic state and society. According to Malikites, Shafi‛ites, and Hanbalites, but not Hanefites and Shi‛ites, it is to be punished with hadd. The punishment for apostasy is the death penalty, independent of the cat­ egorization. Only the Hanafite and the Shi‛ite schools of law provide the death penalty only for men whereas women have to be imprisoned and whipped until they reconvert to Islam. According to the Malikite, Shafi‛ite, and Hanbalite schools it is a duty and according to the Hanafite school it is recommended to call upon the apostate to return to Islam, before punishing him or her. If the apostate returns to Islam, the hadd penalty will lapse. According to the Shi‛i school the apostate who had been a non-Muslim before conversion to Islam has to be summoned to repent; the apostate who is born as a Muslim will be punished immediately.18 • The reason for not punishing women with the death penalty is that they are regarded as too weak actually to render damage to the Islamic state. In modern discussions a similar argument is sometimes used: an apostate who is too weak to be a danger to the Islamic state should therefore remain unpunished.19 • In the case of rebellion (baghj), based on Quran 49, 9, there is also disagreement as to whether it belongs to the category of crimes punished with hadd. Rebellion means rising against the Imam by means of force. According to the prevailing opinion of Islamic scholars, even rebellion against an unjust Imam is regarded as rebellion as the disorder which may result is considered more dangerous than the Imam’s injustice. It is, however, the unanimous opinion of the scholars that rebels have to be exhorted by a trustworthy negotiator to lay down their arms before the troops of the Imam start to fight against them and kill them.20 Hadd provisions are considered God-given; as a result—unlike the case with regard to laws enacted by a parliament—they cannot be altered or abolished. As they protect claims of God, the charge of such a crime cannot be retracted once made and no authority can grant pardon. But God is omnipotent and merciful; therefore, he does not need to insist upon the punishment of crimes against his claims. This is why it is nevertheless, in many cases, possible to avoid a hadd punishment. 17   On the notion of apostasy, see generally Abdullah Saeed and Hassan Saeed, Freedom of Religion, 18 Apostasy and Islam (2004).   Peters (n. 12) 64 ff; Safwat (n. 2) 81 ff. 19  See e.g. Sayid Mohammad Hassan Mar’ashi, Didgahha-ye nou dar hoqooq-e keifari-ye Eslam 20 ([1376] 1997), 92.   El Baradie (n. 1) 125 ff.; Safwat (n. 2) 82 ff.

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b)  Characteristic features of substantive law To impose a hadd punishment, the conduct of the perpetrator must fulfill all the elements of the crime. These elements have sometimes been interpreted by the Islamic scholars in a very detailed way, it seems with a view to limiting the applicability of hadd punishments. The clearest example of this is theft. Quran 5, 38 only speaks of a “thief,” but over the course of the centuries Islamic scholars have interpreted this notion in such a way that today many conditions have to be fulfilled to regard a person as a thief in the Quranic sense; that is to say, as a thief whose hand has to be cut off—the stolen item must qualify as an object of theft. In the case of the Quran, for example, it is presumed that the thief did not want to take the book as such but that he or she wanted to learn its content—always a recommendable action. A stolen item must be the property of another person, therefore, pork or a bottle of wine cannot be stolen as they cannot be the legal property of a Muslim. A thief must take the stolen item clandestinely and must take it out of a container (hirz) that is appropriate to protect the item against theft. Hence, items exposed to the public in a bazaar or in a shop cannot be the object of a Quranic theft. The stolen item must additionally have a considerable minimum value (nisab). Altogether, a theft punishable with a hadd penalty is never a petty crime but a theft that requires considerable criminal energy. A hadd punishment is also out of question if the thief later becomes the owner of the stolen property by purchase, by inheritance, or as a gift. A hadd punishment is also impossible if the owner of the stolen good is the state or a foundation because in this case the perpetrator might be a beneficiary of it. Finally, a thief cannot be punished with a hadd punishment if the crime was committed during a year of famine.21 A conviction to a hadd punishment requires that the perpetrator be mentally sane, of age, acting of his or her free will, and aware of the facts and the law. As a rule, crimes punishable with hadd punishments are described as crimes committed by one perpetrator who fulfills all the elements of the crime him or herself. Co-perpetration and complicity are not regulated in a general way, however, there are some rules for special cases. For instance, the circumstances under which a hadd punishment may be imposed on thieves who commit their crime together has been the subject of discussion.22 The notion of attempt does not exist in Islamic law, therefore the attempt of a crime punishable with a hadd punishment is not punishable with a hadd punishment. But following the principle that the way to the forbidden is itself forbidden, the attempt of a crime punishable with a hadd punishment may be punished as a completed crime of the ta‛zir category.23 Crimes punished with hadd punishments are always intentional crimes; unintentional crimes do not exist in this group. The perpetrator must know what he or   Art. 268 IPC of 2013 contains 14 conditions.   See later in this section.    23  See Section II.4.

21

22

islamic criminal law   255 she is doing and must know that this conduct infringes upon divine law. Though it is expected that the fundamental prohibitions of Islamic criminal law are generally known and an error is only accepted in extraordinary cases, there is a broad possibility of avoiding hadd punishments through the recognition of doubts and errors in detail. The basis of this is a famous hadith: “avert hadd punishment in case of shubha.” The existence of shubha (literally, doubt, uncertainty) is given in every case involving illegal conduct that resembles legal conduct. There are various types of shubha which can be summarized here in two groups: doubts as to the act (shubha fi l-fi‛l), for instance an error in the person or in the object of the action, and doubts as to the law (shubha fi l-dalil). In some cases, there is even a legal presumption of an error of law, for example the father who sleeps with the female slave of his son is presumed to believe that this conduct is allowed on the strength of the hadith: “you and your property belong to your father.” Hadd punishments are never imposed if there are circumstances which can be regarded as shubha.24 Furthermore, the perpetrator must have acted voluntarily. The commission of a crime under duress (ikrah) cannot be punished with a hadd punishment. Duress means a severe threat against the life or bodily integrity of the threatened person who must have believed that the threatening person was able and willing to realize the threat.25 This defense is particularly important for women who were raped; they must not be punished for illegal sexual intercourse as they acted under duress.26 Finally, a special ground for exemption from hadd punishment is repentance (tawbah). This ground plays an important role in some of the hadd crimes, primarily apostasy and highway robbery, if the robber repents before he is arrested. The perpetrator shows by his or her repentance that he or she has already been reformed and God does not need the punishment.

c)  The system of proofs The system of proofs, though a procedural element, is integrated into substantive law. There are a strictly limited number of proofs, namely confession and witness testimony. In addition, the Shi‛ites also recognize the knowledge of the judge (ilm al-qadi) as a proof in some hadd crimes27 and Malikites recognize the birth of a child out of wedlock as a proof of illegal sexual intercourse. A confession is only valid if it is made in court and the perpetrator is of age, understood the meaning of the confession, and acted of his or her free will. A confession obtained through torture does not have any legal value. If a valid confession 25   See in detail Peters (n. 12) 21 ff.; El Baradie (n. 1) 102 ff., 113 ff.   Peters (n. 12) 23.   But see the case of the Norwegian citizen Marte Deborah Dalelv who reported to the police that she had been raped. She was sentenced to 16 months’ imprisonment in the UAE in July 2013 but later pardoned, see:  .   See Art. 160 IPC of 2013. 24 26

256   silvia tellenbach is subsequently withdrawn it may no longer be taken into account against the perpetrator, and it is even recommended that a judge should suggest the possibility of the withdrawal of a confession to a defendant who has confessed to the commission of a hadd crime. The second means of proof are witnesses. Whereas in modern laws the credibility of a witness is examined after his or her testimony and the judge takes into consideration all the circumstances which are appropriate to confirm the truth of the testimony, in Islamic criminal law the testimony of a witness once it has been given has a fixed value. Therefore, the examination of the credibility of the witness takes place at an early point in the proceedings, namely before he is admitted to testify. Following the dominant opinion, a witness has to be a man—women are considered to be too much influenced by their feelings. The man has to be grown-up so that he will be able correctly to describe what he had seen and he has to be a Muslim—how can the judge place his trust in a person who denies such an obvious truth as Islam? A witness has to be honest (‘adil) in his lifestyle; classical law books contain many examples of behavior that is not regarded as worthy of an honest personality. But, as a general rule, a person was regarded as honest who avoided great sins and did his best to avoid smaller sins. Today normally the honesty of a witness is presumed as long as no one who is a party to the process objects. The proof of a crime punished with a hadd punishment normally requires two eyewitnesses—hearsay witnesses are not admitted—whose testimonies must strictly correspond, otherwise they are not accepted. No one is obliged to bear evidence; in cases of illegal sexual intercourse it is even commendable not to act as a witness.28 God conceals the sin of humans out of mercy, therefore humans should also be merciful and conceal the sins of their fellow human beings. Illegal sexual intercourse, however, can only be proved by the confession of the perpetrator or by the testimony of four honest male Muslim witnesses, although Shafi‛ites and Malikites regard one confession as sufficient. According to the Hanafites, Hanbalites, and Shi‛ites the confession must be made four times. Shi‛i law alone allows for the replacement of the testimony of one male witness by two female witnesses or the testimony of two male witnesses by four female witnesses in different cases of heterosexual illegal intercourse.29 Thus, it would seem to be virtually impossible to prove illegal sexual intercourse by means of witnesses as couples normally do not have intercourse in places where they can be observed by many people—and men who observe an illegal sexual intercourse clandestinely cannot be regarded as honest (‘adl). For Islamic scholars, the factual impossibility of proof through witnesses has always been an argument in support of the claim that the punishability of illegal sexual intercourse has only a symbolic meaning.   Peters (n. 12) 13.   Art. 199 IPC of 2013, Safwat (n. 2) 67, but see Peters (n. 12) 15.

28

29

islamic criminal law   257

d)  Remarks regarding hadd punishments As mentioned earlier, the punishments provided for hadd crimes are capital punishment, stoning, crucifixion, amputation, banishment, and whipping. These crimes are never punished with custodial sentences or fines. The most important aims of hadd punishments are special and general deterrence, which is why they are executed in public. Also, retribution is considered an aim of punishment in some hadd crimes as is shown by Quran 5:33 and 38, which speak of punishment as recompense for those crimes. Reform does not play any role here. Today Islamic scholars and governments often try to reject the reproach of cruelty of these punishment made to them by Westerners; in their opinion, a punishment prescribed by God cannot be regarded as cruel. Furthermore, they argue that the regulations providing for stoning, crucifixion, and amputation, in particular, have a merely symbolic value as the conditions for imposing them are very rarely fulfilled. In relation to whipping, they argue that it is much better to whip the perpetrator than to put him in prison as in Western countries—a person who is put in prison will be influenced by the company of bad characters and will learn how to commit further crimes, he will lose his work, and his family will be another victim of the crime as they lose their breadwinner and will have to starve. If the perpetrator is punished by whipping, the severe pain will remain in his memory much longer than the memory of prison or a fine and will deter him from the commission of further crimes in the future.30 Punishments provided for in the Quran cannot be abolished but we can observe that they are seldom applied. Crucifixion, the punishment provided for highway robbery if the victim is killed and his property taken away, is reportedly applied in rare cases in Saudi Arabia, Yemen, and in Sudan during the Numeiry regime.31 It has never been applied in the Islamic Republic of Iran during the more than 30 years of its existence, nor has it been applied in Pakistan or Libya. A considerable number of amputations were reported from Sudan during the years from September 1983 until the overthrow of the Numeiry regime in April 1985. Reported figures from Iran and Saudi Arabia show that the punishment of amputation is still applied although the number is very low; it must be assumed, however, that some cases go unreported. The same is true for stoning.32 Even if a perpetrator is not be punished with a hadd punishment, it does not mean that he or she will escape punishment altogether. He or she may be punished with a ta‛zir punishment as will be discussed later. 30   ‘Auda, ‘Abd al-Qadir, Kitab al-tashri’ al-djina’i al-islami muqaranan bi’l-qanun al-wad‛i. (n.d.), note 481. 31   In Malikite law, which informs the regulations concerning Islamic law in the Sudanese Penal Code, crucifixion does not mean crucifying a living person, rather it means the exposure of the corpse on the cross for three days after execution, art. 168 Sudanese Penal Code. 32   See Amnesty International Annual Reports.

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3.  Qisas and diya a)  Introductory remarks Punishments for crimes against life and bodily integrity already existed in the pre-Islamic period but their range of application was much broader. Regulation in the Quran brought a considerable limitation of criminal liability (2, 178–179; 4, 92; 5, 45). In pre-Islamic times the family of the victim could kill every member of the perpetrator’s family who was of equal value to his family as the victim has been to his. In Islam, the family of the victim can only kill the perpetrator himself. In pre-Islamic times it was of no importance whether the victim had been killed intentionally. In Islam, retaliation is only possible in cases of intentional homicide; unintentional homicide can only be sanctioned with blood money. Attacks against life and bodily integrity are punished by means of retaliation (qisas) and blood money (diya). The aim of these punishments is retribution. Unlike hadd crimes, homicide and bodily harm are regarded as crimes that infringe upon the claims of human beings. The perpetrator of a homicide or bodily injury is only punished if the victim is a protected person; this is the case if the victim is a member of a protected religion, namely Islam, Christianity, Judaism, or in Iran also Zoroastrianism. Atheists are not protected nor is a victim who is an apostate or an enemy soldier in war.33

b)  Characteristic features of substantive law In this category of crime questions regarding the causal link between the act of the perpetrator and its result are discussed in detail. This can be seen, for instance, in the large number of casuistic provisions about this matter in the Islamic Penal Code of Iran (arts. 492–537 IPC of 2013). Islamic criminal law differentiates between the direct cause (mubasharat) and the indirect cause (sabab): mubasharat means that the crime is carried out by the perpetrator directly (art. 494 IPC of 2013) and sabab refers to a situation in which a person kills or injures another person but does not act directly— for instance, the perpetrator digs a pit and another person falls into it (art. 506 IPC of 2013). If one or more direct causes and indirect causes coincide and have an effect on the result, the person who caused the death of the victim is responsible for the result and if they all caused the death and they are all responsible in the same way except if their contributions to the crime were different. In this case, everyone is liable according to his own contribution (art. 572 IPC of 2013). Problems of aiding and abetting, however, are not generally discussed in Islamic criminal law and have to be resolved in the category of crimes punished with ta‛zir. This is also true for attempt.

  El Baradie (n. 1) 133 ff., 137; Peters (n. 12) 38.

33

islamic criminal law   259 In contrast to crimes punished with hadd punishments, a crime in this group can be committed intentionally or unintentionally. Indeed, there is a system of three groups of crimes: intentional crimes, semi-intentional crimes, and crimes committed by mistake.34 This system is accepted by all schools except for the Malikite which does not recognize semi-intentional homicide. Islamic law proceeds from the assumption that no one can look into the heart of another person, therefore only God knows whether a perpetrator killed or wounded the victim intentionally. Humans can only judge the subjective relationship of the perpetrator to his or her crime on the basis of circumstantial evidence. A very important circumstance in this regard is the weapon used in the commission of the crime: if it is a weapon that normally has a deadly effect, the conclusion is that the perpetrator who has used such a weapon must have acted with the intention to kill; if the weapon normally does not have a deadly effect, the existence of intent must be proven by other means. Unintentional homicide in Islamic law is divided into the two categories of semi-intentional homicide and homicide committed by mistake. Semi-intentional homicide comprises cases in which the act as such is intentional but the result is not, for instance A hits B lightly, B stumbles over a stone and falls to the ground banging his head on the stone, and dies. Homicide committed by mistake denotes both an accidental and negligent way of causing the death of a person.35 It comprises cases in which neither the act nor the result is intentional, and the victim is killed as a result of the error of the perpetrator about the object or in a case of aberratio ictus, for instance if somebody shoots at what he thinks is an animal, which turns out to be a man who is killed by the shot.36 Though it is recognized that a person in general is only responsible for a crime if the person acted of his or her own free will, there is a remarkable exception here:  according to the majority of the law schools, duress does not constitute an excuse in cases of homicide. No one has the right to kill another person in order to save his or her own life. Anyone who kills another person while under constraint will be punished with retaliation and only the Hanafite school accepts duress as a defense in cases of homicide.37 The defense of shubha discussed in Section II.2.b in relation to hadd is also possible in cases of homicide and bodily injury. Another defense that plays a considerable role in such cases is self-defense. Self-defense against an attack on one’s life, property, or honor is accepted as long as it is proportionate to the attack. In the case of an attack on the life of a person, self-defense is not only a right but in the view of most of the schools even a duty as no one is allowed to throw away his or her own life.38 34   See for details, Sayed Sikandar Shah, “Homicide in Islam: Major Legal Themes,” (1999) 14 Arab 35 36 Law Quarterly 159 ff.   Shah (n. 34) 163.   El Baradie (n. 1) 142. 37 38   Peters (n. 12) 24.      See for details Peters (n. 12) 25.

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c)  Characteristic features of procedural law Intentional homicide and intentional bodily injury are proven by confession or by the testimony of two honest male Muslim witnesses. Moreover, most of the schools recognize the archaic procedure of qasamah that is applied if there is a strong suspicion (lawth) as to the identity of the perpetrator that cannot be proved by the ordin­ ary procedure, for instance if there is only one witness to the murder. In such a case, the plaintiff and his male relatives must swear 50 oaths that the defendant committed the crime. The situation is reversed according to the Hanafite school where it is the defendant and his relatives who have to swear that the defendant did not commit the crime.39 The decision whether to prosecute such a crime is up to the victim’s family in the case of homicide, and to the victim him or herself in the case of bodily harm. If the crime was committed intentionally, the blood-avengers can decide whether to execute the perpetrator, to take blood money from him, or to pardon him. The prosecution of the crime, which seems originally to be one of the most serious crimes, was completely left to the discretion of the blood-avengers. The state interfered only by means of the judge who had to permit the execution of the judgment that he40 delivered when the blood-avengers had produced the necessary proofs. Thus, the role of the judge was similar to that of an arbitrator. Only the Malikite school of law allowed the authorities to prosecute and punish the perpetrator of an intentional homicide when the blood-avengers did not demand capital punishment and the crime had shown that the perpetrator posed a danger to the interests of society.41 In modern times it has become widely accepted that the decision regarding punishment for such a severe crime cannot be left solely in the hands of private individuals. Therefore, modern Islamic criminal codes generally provide for punishment by the state if the blood-avenger waives the qisas punishment and the crime is a violation of public order and security, for example in Iran (art. 612 IPC of 1996).

d)  Remarks regarding qisas and diya punishments Retaliation in homicide cases is only possible if the crime was intentional and if the value of the victim is at least the same as the value of the perpetrator. If the value of the victim is less than the value of the perpetrator, the punishment is the payment of blood money. The value of a person depends on various factors: a free man cannot ever be sentenced to qisas when he kills a slave and, with the exception of the Hanafite school, Islamic schools of law hold that a Muslim who kills a non-Muslim can never be sentenced to qisas. Additionally, in cases of bodily injury, the injury

  Peters (n. 12) 17.   Women cannot be judges in such cases.

39

40

  Peters (n. 12) 39.

41

islamic criminal law   261 inflicted as retaliation must be exactly the same as the injury that gave grounds for the punishment. If this is not possible, only blood money is due. In the Sunni schools, the majority accepts that in the case of more than one assailant against one victim, qisas is permitted.42 Shi‛i scholars accept that more than one perpetrator may have killed the victim and allow retaliation for all of them but blood-avengers who exercise qisas against more than one perpetrator for the life of one victim have to pay blood money for each additional perpetrator (art. 373 IPC of 2013). For example, if they kill two perpetrators they have to pay half of the amount of blood money to the families of each perpetrator, and if they kill three perpetrators they have to pay two-thirds of the amount of blood money to the families of each of the three perpetrators, and so on. Blood-avengers can also renounce qisas and take blood money instead. In the case of semi-intentional homicide and merely unintentional homicide, only blood money is due. A  perpetrator has to pay the diya him or herself only when the homicide or bodily injury was intentional or semi-intentional or when the crime was proved by confession. However, in most cases blood money has to be paid by the ‘aqilah of the perpetrator—a solidarity group consisting of the male members of the perpetrator’s family and, according to some views, the agnatic male members only. This is not regarded as a violation of the principle of personality of punishment but is seen as a consequence of the dual character of blood money as both punishment and compensation. If the perpetrator does not have an ‘aqilah, the state treasury will pay the blood money. In modern times, this construction is sometimes used to establish the liability of insurers (e.g. art. 45 para. 3 Sudanese Penal Code). The diya is fixed at 100 camels or other objects of the same value. Today the value is expressed as a specific sum of money which, for instance, in Iran is adjusted every year to take account of inflation. The basis is the diya for a male Muslim and the blood money for women amounts to half of that sum.43 The blood money for non-Muslim members of protected religions (Christians and Jews) differs according to the various schools of law: Hanafites and Hanbalites grant them the same sum as for Muslims; the other schools fix sums that are less than the sum paid for Muslims.44 In Iran, the blood money for followers of non-Muslim religions protected in art. 12 of the constitution was made equal to the blood money for Muslims in 2004 (explanatory note to art. 297 of the IPC of 1991/1996). Besides blood money, Islamic law has a purely religious punishment in cases of homicide, the so-called “kaffara” which consists in the liberation of a slave or in   Mohamed S. El-Awa, Punishment in Islamic Law (1982), 78; El Baradie (n. 1) 138; but see Peters (n. 12) 28. 43   Michael Bohlander and Mohammad M. Hedayati-Kakhki, “Criminal Justice under Shari’ah in the 21st Century—An Inter-Cultural View,” (2009), 23 Arab Law Quarterly 417–436 at 433–434. 44   See for details, Bohlander and Hedayati-Kakhki (n. 43) 432 ff.; Peters (n. 12) 51. 42

262   silvia tellenbach fasting for a period of two months. The kaffara is a duty in cases of unintentional and semi-intentional homicide and Shafi‛ites and Shi‛ites also consider it a duty in cases of intentional homicide.

4.  Ta‛zir Crimes which are punished neither with hadd nor with qisas and diya can only be punished with a ta‛zir punishment. Ta‛zir is typically applied to two groups of crimes. The first group is made up of crimes for which hadd punishment exists but in the case at issue one or more of its requirements are not fulfilled, for instance the value of the stolen object was insufficient. The second group deals with conduct that is forbidden in the Quran but for which no punishment is provided as well as for conduct that contradicts general principles of Islam. This group of punishment enables the author­ ities to punish every conduct regarded as contrary to Islam at any time and in any region. In the past it was regarded more or less as an administrative matter, therefore ta‛zir punishment was only rarely discussed by scholars. The judge could impose it on a perpetrator but much more frequently it was imposed by administrative author­ ities which could punish any behavior they believed to be an infringement of Islamic principles and they were almost completely free in the choice of the punishment. In almost all modern Islamic states, however, ta‛zir crimes and punishments are regulated in a criminal code.45 The main aim of punishment in this category is the reformation of the offender which could consist, for instance, of reprimand, whipping, imprisonment, and other punishments. Amputation, however, did not exist as a ta‛zir punishment. There was only one restriction: a ta‛zir punishment must be less than a hadd punishment. Strictly speaking, this also means that capital punishment cannot be applied in the field of ta‛zir punishment, but in reality this restriction remains theoretical. Especially in the Ottoman Empire, execution for public policy reasons (qatl siyasatan) was accepted.46 A salient feature of ta‛zir punishment is its differentiation according to the social status of the perpetrator. Whereas in hadd crimes social status does not play any role, in ta‛zir punishments it is very important. As reformation of the offender is the aim of a ta‛zir punishment, it is tailored according to the supposed effect on the perpetrator. It is assumed that a reprimand communicated to the perpetrator by a representative of the judge is sufficient to punish a member of the highest social class and prevent him or her from further criminal conduct, whereas a member of the lowest class may be whipped for the same crime.47

  See also Section III.1.   On the special situation in the Ottoman Empire, where—in addition to Islamic criminal law— criminal law based on the necessities of state and order also played an important role, see generally Uriel Heyd, Studies in Old Ottoman Criminal Law (1973); Peters (n. 12) 69 ff. 47   See for details, El Baradie (n. 12) 156 ff. 45

46

islamic criminal law   263

iii.  Selected Topics of Modern Discussion .  Nulla poena sine lege principle One of the core elements of modern Western law is the nulla poena sine lege prin­ ciple according to which an act can only be punished if the crime itself and the corresponding punishment is clearly determined at the time of the act’s commission. The situation in Islamic criminal law seems to be more complicated. Nevertheless, modern Muslim scholars are of the opinion that the principle of nulla poena sine lege is also guaranteed in Islamic law. They argue with verses of the Quran, of which “We do not punish anybody without having sent a messenger before” (17, 15) and “God does not oblige a human being to do what is impossible for him or her” (65, 7) are the most famous. But there are some problems in this regard. The first concerns the applicability of hadd, qisas, and diya punishments in states that have introduced Islamic criminal law in the last few decades. The point of reference of the prohibition of retroactivity of a law is the date of the enactment of a law in the procedure provided for in the constitution of the country. This would mean that hadd, qisas, or diya punishments cannot be imposed on perpetrators who committed their crime before the law entered into force. In the opinion of Islamic scholars, however, the provisions regarding these punishments have been in force ever since they were sent down from heaven. Therefore, the provision of the Islamic Penal Code of Iran that regulates the principle of retroactivity limits its applicability to state regulations (art. 10 IPC of 2013); the principle does not apply to crimes punished with hadd, qisas, or diya. In the eyes of experts of Islamic law this is not a case of retroactivity; in the eyes of Western jurists, however, it is considered a violation of the principle of non-retroactivity of criminal provisions. The next point is the definition of crimes and the determination of punishments in the group of ta‛zir. In this category, as mentioned earlier, authorities and judges have had broad discretion in defining crimes and choosing the punishment they regard as appropriate. On the other hand, the structure of ta‛zir did not forbid the ruler from creating regulations and today even the states that apply Islamic criminal law generally have penal codes which contain crimes punished with a ta‛zir punishment. After the Islamic revolution in Iran, there were heated discussions about the codification of crimes punished with ta‛zir. It was accepted that the crimes should be described in the law but fixing of punishments remained highly controversial. One group claimed the liberty of fixing punishments as it had traditionally existed in Islamic law and another group held the opinion that it was necessary to fix a frame of punishment because many judges in the new Islamic Republic had not yet received sufficient training in Islamic law to be able to impose a ta‛zir punishment

264   silvia tellenbach in accordance with Islamic principles. It was Ayatollah Khomeini himself who decided that the criminal code should also provide for a statutory range of punishments for individual crimes.48 There are two criminal codes in the Muslim world that deserve mention owing to their special structure, namely the Afghan Penal Code of 1976 and the Code of the United Arab Emirates of 1987. Both codes claim to apply Islamic criminal law but neither expressly regulate the crimes and punishments belonging to the categories of hadd, qisas, and ta‛zir crimes. Instead, they simply provide for a general clause in art. 1 governing those categories and use the rest of the code to regulate the crimes punishable with a ta‛zir punishment. The Afghan Penal Code clearly states that it only provides for ta‛zir crimes; hodood, qisas, and diyat are imposed on perpetrators in accordance with the provisions of Islam as interpreted by the Hanafite school of law. The Penal Code of the United Arab Emirates also refers to Islamic law but does not mention any specific school. In the opinion of Islamic scholars, these regulations are sufficient to guarantee compliance with the nulla poena sine lege principle. Certainly the reference to the Hanafite school in the Afghan Penal Code is clearer than the general formulation in the criminal code of the United Arab Emirates which allows consideration of all Islamic schools of law. In the eyes of a jurist trained in continental law, however, not even the Afghan code gives sufficient consideration to the nulla poena sine lege principle. A similar problem arises from art. 167 of the Constitution of the Islamic Republic of Iran. Article 167 states that in the case of a lacuna in the written law the judge is obliged to find a solution based on authoritative sources of Islamic law and fatwas. Among Iranian scholars, the meaning of this article is frequently discussed. Apart from the question of whether the wording of a certain provision actually creates a lacuna, whether the problem was overlooked by the legislature, or whether the legislature did not want to criminalize a certain conduct for whatever reason, this regulation does not comply with arts. 36 and 169 of the Constitution according to which a sentence must be passed by a competent court on the basis of a law (art. 36) and no conduct may be regarded as a crime on the basis of a law passed after the commission of the crime (art. 169). Therefore some scholars hold the view that art. 167 is only applicable in the field of civil law, others think that it has to be limited to the interpretation of an existing law, and a third opinion holds that a principle of Islamic law has to be viewed as if it were a law enacted by parliament. Whereas scholarly interpretation tends to deny an effect of art. 167 to legalize the application of unwritten norms as a basis for punishment, there have always been some regulations in other laws that render this possible. For example, art. 289 of the Code of Criminal Procedure and art. 220 of 48   See for details, Silvia Tellenbach, “The Principle of Legality in the Iranian Constitutional and Criminal Law,” in Said Amir Arjomand and Nathan J.  Brown (eds.), The Rule of Law, Islam and Constitutional Politics in Egypt and Iran (2013), 107.

islamic criminal law   265 the new Penal Code clearly state that in case of a lacuna the judge has to base his judgment on the sources named in art. 167 of the Constitution. A similar regulation is found in art. 131 of the Constitution of Afghanistan: “In cases under consideration the courts shall apply provisions of this constitution as well as other laws. If there is no provision in the constitution or in other laws about a case, the courts shall in pursuance of Hanafite jurisprudence and, within the limits set by this constitution, rule in a way that attains justice in the best manner.” This article does not play a role in the category of crimes punished with hadd, qisas, and diya punishments as the applicability of these norms is already provided for in the general clause of art. 1 of the Penal Code, nevertheless it can serve to punish other conduct that is not described as a crime in the statutory law. Similar regulations are contained in the criminal codes of seven north Nigerian federal states, namely in Bauchi, Gombe, Jigawa, Kebbi, Sokoto, Yobe, and Zamfara. According to these regulations, every conduct not specifically mentioned in the Penal Code of the state but regarded as an offense in the Quran, sunnah, or according to the reasoning of the scholars of the Malikite school of law is declared an offense under the Penal Code of the state. The individual codes provide for punishment that may be imprisonment, a fine, or whipping.49

2.  Age of criminal responsibility In Islamic law the age of criminal responsibility is closely connected to physical maturity (bulugh). According to the Malikite and Shafi‛i schools of law, physical maturity cannot be reached before 9  years of age and according to the Hanafite and the Hanbalite schools not before 10 years of age for boys and 9 years for girls. Criminal responsibility is considered reached for both sexes at the latest at 15 years in the Hanafite, Shafi‛ite, and Hanbalite schools and at 18  years in the Malikite school.50 Therefore there is no difficulty for criminal codes seeking to apply Islamic law in accordance with one of the Sunni schools to fix the age of limited crim­ inal liability at 12 or 13 years and full criminal liability at the age of 18 as required by international standards. Shi‛i law, however, has no minimum age for criminal responsibility and fixes the maximum age at 9 lunar years for girls and 15 lunar years for boys, that is, at about 8 years and nine months for girls and 14 years and 7 months for boys. This is also the reason why Iranian authorities reject Western reproaches for having executed minors—most of them boys aged 15 to 17 years— since they are of age according to Iranian law. 49   See for details, Philip Ostien, Sharia Implementation in Northern Nigeria 1999–2006—A Sourcebook, Vol. IV: The Sharia Penal and Criminal and Criminal Procedure Codes, 17, available at: . 50   See Peters (n. 12) 21.

266   silvia tellenbach The extremely low age for criminal responsibility has been a topic of intense discussion in Iran, as it seems clear to Iranian lawyers, too, that these age limits are not in accordance with the physical and mental development of juveniles living in today’s societies. In practice, Iranian judges have reduced the punishments for young convicts by applying the mitigating ground of special circumstances in the life of the defendant (art. 22 IPC of 1991/1996).51 The new Islamic Penal Code maintains the age limit of 9 lunar years for girls and 15 lunar years for boys in principle (art. 147 IPC of 2013). Nonetheless, in the chapter on the assessment of punishment it provides a two-stage system of measures and punishments for juvenile offenders that applies in cases of crimes punishable with ta‛zir punishments: one stage applies to offenders under the age of 15 solar years; the other to offenders ages 15 to 17 solar years (arts. 88–90 IPC of 2013). In the case of crimes punished with hadd or qisas, a person under 18 years of age who does not yet understand the nature of his or her crime and its prohibition will be punished with the sanctions provided for juvenile offenders in the preceding articles. The same applies if there are doubts about the physical and mental maturity of the juvenile (art. 91 IPC of 2013). Thus, the new Iranian Penal Code maintains the bulugh at 9 respectively 15 lunar years in principle but this principle is “enveloped” in a number of related provisions that make it possible to delay the age of full criminal responsibility until 18; this strategy is often used in modern Islamic law to achieve a result that differs from the original principle.

iv. Conclusion In the category of crimes punished with ta‛zir punishments—a category that in practice comprises far more than 90% of crimes even in states such as Iran and Pakistan—Islamic criminal law exhibits a very high degree of flexibility. As a result, states that apply Islamic law can still adopt large portions of Western criminal codes or at least use Western law as a model. The dictates of international developments in criminal law can also be followed without a problem: for example, regulations on money laundering or Internet crime can be created that comply simultaneously with both international standards and the principles of Islam. Of course, a development and modification of the crimes punished with sanctions provided for in the Quran (hadd, retaliation, or blood money) is not possible in the same way but   Silvia Tellenbach, “Iran,” in Kevin Jon Heller and Markus D.  Dubber (eds.), The Handbook of Comparative Criminal Law (2011), 335 ff. 51

islamic criminal law   267 many important developments can nevertheless be noted here. For example, some rules—for example, provisions relating to slavery—have fallen into oblivion and the application of some punishments is extremely rare—for example, crucifixion. The interpretation of a crime, a centuries-long process undertaken by religious scholars, has led to a limiting effect on the applicability of hadd punishments, for example in the case of theft. The defense of shubha (doubt, uncertainty) and the system of evidence, in particular the possibility of retracting one’s confessing, has made a hadd punishment impossible in many cases. In modern times, methods such as the combination of elements of different schools, choosing minority opinions as the basis for a law, or enveloping a rule into a system of supplementary provisions, as in the case of juvenile delinquency in the new Iranian Penal Code, have made a development possible. In 2004, the blood money for Christians, Jews, and Zoroastrians was made equal to the blood money of Muslims. However, blood money for women is not yet equal to the blood money for men, although an equal amount may be paid if the parties agree to do so. Nevertheless, since 2008 Iranian third party insurance pays the same amount for women as for men when they are killed or injured in a traffic accident.52 It remains to be seen whether this problem will be discussed in the near future and be solved by means of Islamic law. A final problem to be mentioned is the death penalty: in Islam the death penalty is regarded as one of the ways by which God may put an end to the life of a human and it is fixed as a punishment for certain crimes in the Quran. In current times, Iran and Saudi Arabia belong to the group of states with the highest number of executions. That said, abolition of the death penalty is still far from being a topic of discussion in broader circles.

References Abu Zahra, Muhammad, Al- djarima wal-’uquba fi’l-fiqh al-islami (1998) ‘Auda, ‘Abd al-Qadir, Kitab al-tashri’ al-djina’i al-islami muqaranan bi’l-qanun al-wad‛i (n.d.) (English: Oudah Shaheed and Abdul Qadir, Islamic Criminal Law (2010)) Awa, Mohamed Salim El-, Punishment in Islamic Law. A Comparative Study (1982) Baradie, Adel El, Gottes-Recht und Menschen-Recht. Grundlagenprobleme der islamischen Strafrechtslehre (1983) Bassiouni, Cherif (ed.), The Islamic Criminal System (1982) Djaziri, ‘Abd al-Rahman al-, Kitab al-fiqh ‘ala l-madhahib al-’arba’a. Al-djuz’ al-khamis: al’uqubat al-shar’iya (n.d.) Ghassemi, Ghassem, Criminal Policy in Iran Following the Revolution of 1979 (2013) Heyd, Uriel, Studies in Old Ottoman Criminal Law (1973) Layish, Aharon and Warburg, Gabriel W., The Re-Instatement of Islamic Law in Sudan under Numayri: An Evaluation of a Legal Experiment in the Light of its Historical Context, Methodology, and Repercussions (2002) 52

  Irene Schneider, Der Islam und die Frauen (2011), 86.

268   silvia tellenbach Mahmood, Tahir et al., Criminal Law in Islam and the Muslim World (1996) Peters, Rudolph, Crime and Punishment in Islamic Law—Theory and Practice from the Sixteenth to the Twenty-First Century (2005) Saeed, Abdullah and Saeed, Hassan, Freedom of Religion, Apostasy and Islam (2004) Tellenbach, Silvia (transl. and introd.), Strafgesetze der Islamischen Republik Iran (1996) Wasti, Tahir, The Application of Islamic Criminal Law in Pakistan—Sharia in Practice (2009) Weimann, Gunnar J., Islamic Criminal Law in Northern Nigeria—Politics, Religion, Judicial Practice (2010)

­c hapter 13

JEWISH LAW arnold enker

i.  Preliminary Observations Several preliminary observations are in order. First, Jewish law is religious law. Its principal concern is the primary question whether the proposed act accords with God’s Will and is permitted—or perhaps even required—or violates His Will as expressed in the law and is forbidden. The question whether performance of the act, if forbidden, will result in the imposition of penal sanctions is at best secondary. Secondly, Jewish law is basically casuistic in its nature. Most assuredly, theoretical generalizations concerning the rationale and basis for rulings in particular circumstances, and matters of social policy, are important and affect the understanding of later rabbis and their interpretation of these rulings as they are recorded in the sources. But they are not necessarily determinative. In the final analysis, the rabbinic decision-maker will be concerned principally that his decision be consistent with those of the earlier sources he considers authoritative, not that it be supported by and consistent with some abstract theoretical generalization that may or may not appeal to his thinking about the subject. Such casuistry enables him to take into account any unique features of the given case that attract his attention. Any general rationalization of his decision may be just that, an after-the-fact attempt to show that it is also consistent with the sources and broader concerns. And, thirdly, as a system of religious law based on its belief in divine revelation and guidance, Jewish law does not erase from its records earlier discussions and rulings of the rabbis. Once accepted, a position remains within the system as one of its sources for possible future use. This is not to say that Jewish law always follows

270   arnold enker precedent. The very opposite is the case. Minority positions are also recorded, so that they may sometimes become the basis for a decision that deviates from the accepted majority view. Practice requires resolving disputes in order to make a ruling in the particular case. But no one position can express the whole truth. Each may have valid insights which will be useful for the resolution of some particular cases. Earlier sources and decisions are not to be lightly rejected. But they are subject to the interpretation and understanding of later generations. The earlier sources and rulings may even be reinterpreted in terms that do not reflect the actual thinking of the earlier rabbis. And the later interpretations, together with rulings based on them, may be the subject of still additional interpretations and reinterpretations in generations that follow. Jewish law, then, builds layer upon layer of interpretations and rulings that are constantly subject to the possibility of additional reworking and remodeling to suit each generation’s understanding of itself and of its faith. Ronald Dworkin’s metaphor of the chain novel, a novel in progress, in which succeeding judges add a new chapter, seems to me appropriate. In this respect, then, Jewish law has an affinity to the common law. But it also differs from the common law. Jewish law has no mediating concept of the “reasonable man.” Its treatment of the issues and of its sources is more structured. In this regard, it may be more akin to continental law. Written record of the actual practice of Jewish criminal law is sparse and spor­ adic. The books of Moses and the Prophets report a few such cases, each of which deviates somewhat from the procedural norms established in the later sources. And the same holds for the few actual cases mentioned in the Talmud. These deviations are often justified as having been necessary due to exigent circumstances. Rarely did the Jews enjoy autonomy to enforce their own norms and procedures of criminal law. The dispersion and exile imposed by the Romans following upon the destruction of the Jewish Temple in Jerusalem destroyed any such possibility for almost 2,000 years. When the modern State of Israel was established in 1948, a system of criminal law based on the English model was the practiced norm. Attempts since then to replace this system with Jewish law practices have had little success. Still, Jewish law did exercise significant influence when Israel abolished the death penalty for murder in 1955. Despite the absence of a comprehensive enforcing mechanism, the normative aspects of Jewish law, including the criminal law, were regularly practiced by Jews in their daily lives. They were guided in this regard by their belief in God and His Torah and their acceptance of the authority of the rabbis as its legitimate interpreter. Occasionally, local rabbinic courts or those established by the civic authorities exercised the power to punish violators, a result of the segregation of Jewish communities from the general population. But even then they did not apply in its entirety the pure normative criminal law recorded in the earlier books or its procedure. Even this limited practice broke down in the modern era due to

jewish law   271 the increased secularization of life and the growing integration of Jews into the general community. This is not to say that Jewish criminal law made no intellectual progress during this long period. The study of the law has been the most challenging intellectual and religious activity of Jews throughout their history, practiced widely by lay persons as well as rabbinic scholars. The Babylonian and Jerusalem Talmuds, the commentators, and even the responsa literature contain much material expanding, expounding, and developing the legal norms and concepts. While the later codes of Jewish law focused almost entirely on those parts of Jewish law that were actually practiced, Maimonides’ Code of Jewish Law was designed to encompass the entire law, including the criminal law, and will be an important source for our study. But, because the law discussed in these sources was mostly theoretical and lacked any authorized practice, the sources generally do not resolve the different views expressed in the various writings. What emerges from all these observations is that Jewish criminal law contains a broad range of scholarly opinions and disagreements, never fully resolved and rarely applied in actual practice. This will be reflected in much of our treatment of the topic.

ii.  The Dual Aspect of Jewish Criminal Law As other religions, Judaism is universal. It addresses all mankind. It sets forth standards of proper conduct binding on all persons, commonly known as the Noahide laws, since Noah, who survived the flood, is the ancestor of all mankind. These laws constitute the foundation for orderly decent society. Communities must establish courts to enforce these laws “so that the world will not be destroyed.”1 Simultaneously, Judaism differs from other religions in that it also constitutes the foundation for the establishment of a distinct nation, a holy people, dedicated to spreading the knowledge of God and sanctifying His Name in the world, to be God’s witness. This is the raison d’être of Judaism, its very foundation, expressed in God’s original revelation to Abraham to separate himself from his family and idolatrous environs and go to what was then Canaan, to teach the message of monotheism and be a blessing to other nations.  Maimonides, Mishne Torah (Code of Jewish Law, hereinafter “Maimonides, Code”), Laws Concerning Kings 10, 11. 1

272   arnold enker Several representative passages from the Bible will illustrate this point: You shall faithfully observe My commandments: I am the Lord. You shall not profane My holy Name, that I may be sanctified in the midst of the Israelite people—I the Lord who sanctify you.2

Anticipating the giving of the Torah at Mount Sinai, God charges His people: . . . you shall be to Me a kingdom of priests and a holy nation.3

Isaiah describes “the people I formed for Myself that they might declare My praise” (43, 21). He concludes his poetic description of that day when “the wolf shall dwell with the lamb, the leopard lie down with the kid,” as follows: In that day, the stock of Jesse that has remained standing shall become a standard to peoples; nations shall seek his counsel and his abode shall be honored.4

And Isaiah 2, 2–4: In the days to come, the Mount of the Lord’s house shall stand firm above the mountains and tower above the hills. And all the nations shall gaze on it with joy. And the many peoples shall go and shall say: “Come, let us go up to the Mount of the Lord, to the House of the God of Jacob, that He may instruct us in His ways and that we may walk in His paths.” For instruction shall come forth from Zion, the word of the Lord from Jerusalem. Thus He will judge among the nations and arbitrate for the many peoples. And they shall beat their swords into plowshares and their spears into pruning hooks. Nation shall not take up sword against nation; they shall never again know war.

The people of Israel are instructed to fulfill this task in several ways. A Jew’s every­ day, even ordinary, behavior is infused with religious meaning and significance. Daily prayer, his diet, blessings he recites before and after eating and whenever he encounters any of the many wonders of the world, observance of the Sabbath and the holidays, his family life, and most especially the study of the Torah, all are examples how he constantly reminds himself and others that God is the ever present source of all that exists. Much of Jewish criminal law—perhaps, most—concerns the establishment and maintenance of this religious society, laws that are binding on Jews only, so that they may accomplish this task. The Jew is also commanded to be prepared to sacrifice his greatest interests, even his life, in certain circumstances, and to resist the evil demands of tyrants. We will encounter some of these issues when we consider the defense of duress. Sanctification of God’s Name, “kiddush hashem,” is the paramount commandment; desecration of His Name is the ultimate sin. Jewish law does not demand such strictures of non-Jews. Biblical historiography recounts man’s repeated failure to fulfill the divine scheme to achieve paradise in this world. Adam and Eve were guilty of disobedience; Cain 2

  Leviticus 22, 31–32.   

  Exodus 19, 6.   

3

  11, 6, 10.

4

jewish law   273 repeated their crime when he killed his brother Abel; the generation of the great flood was corrupt; a later generation was presumptuous and sought to build a tower that could reach to the heavens. At that point God, so to speak, focused His attention on developing a people whose purpose would be to sanctify His Name, to establish and hold forth an example of holiness. Abraham is blessed so that he may be a blessing to others. He will father the Jewish people to serve this end. But he also will become the father of many nations.5 Jewish criminal law reflects this duality. It consists of two parts, the seven universal categories of Noahide laws and the 613 commandments—by the traditional count—(which include the Noahide commandments) that bind Jews. The Noahide criminal law defines the essentials of a lawful society. Its purpose is to prevent the corruption of the social order. It is therefore universal, binding on Jews and non-Jews alike. The internal Jewish criminal law defines the structure and goals of the Jewish community, to assure that this people spread knowledge of God and sanctify His Name.

iii.  The Internal Criminal Law In many respects, the internal Jewish criminal law is unlike any other. Although it contains many offenses punishable by death or flogging, it would be very rare that any of these punishments would actually be imposed and carried out. Strict procedural and evidentiary requirements render enforcement almost impossible. One can be convicted and punished only upon the direct testimony of two competent witnesses, Jewish males not related to the defendant or to each other, who are themselves innocent of all serious offenses. Any conflict between the witnesses’ testimony concerning a material matter disqualifies their testimony. Hearsay is not allowed since the witnesses must be subjected to rigorous cross-examination. Circumstantial evidence is not allowed. So, too, the defendant’s confession of guilt and his admissions, made in court or out of court, are not accepted.6 Guilt must be proven by the direct testimony of—at least—two witnesses who saw the defendant commit the crime. And the defendant cannot be punished unless he is forewarned, immediately before he commits the offense, that what he is about to do is a violation of God’s law and its relevant punishment. He must reply that he understands the

  Genesis 17, 4–6.  Aaron Kirschenbaum, Self-Incrimination in Jewish Law (1970). See Arnold Enker, “Self-Incrimination in Jewish Law: A Review Essay,” (1973) 4 Dinei Israel civ. 5

6

274   arnold enker same and that he will commit the offense nevertheless. Capital cases are tried before 23 judges; three judges suffice when flogging is the punishment. Clearly, these requirements—especially the requirement that the offender be warned in advance, immediately before he commits the crime, and that he accept such warning—make it almost impossible to convict and punish an offender. In fact, the Talmudic rabbis did not place great stress on punishment as a means to bring about compliance with the law. The Mishna describes the following observations of several rabbis who lived in the second century: A sanhedrin that effects an execution once in seven years, is branded a destructive tribunal; Rabbi Eliezer ben Azariah says: once in seventy years. Rabbi Tarfon and Rabbi Akiva say: were we members of a sanhedrin, no person would ever have been executed. Thereupon Rabbi Shimon ben Gamliel said: they, too, would have increased the number of murderers in Israel.7

Everyone seems to agree that a court acts unduly harshly if it executes the death penalty even once in seven years, hardly a prescription for strict law enforcement. Rabbi Eliezer would go further and substitute the number 70. Rabbis Akiva and Tarfon—Rabbi Akiva is one of the two or three leading rabbis of the entire Talmudic period—who lived in the second century, after judicial autonomy was lost, state that they never would have executed a defendant had they sat in judgment in the earlier period. Rabbi Shimon’s challenge to them is remarkable. Apparently he has no difficulty with the earlier expressions restricting the frequency of execution. Nor does he reject the other strict procedural requirements noted previously. But to eliminate the death penalty entirely would go too far in his opinion. A second source teaches that 40 years before the Temple was destroyed in the year A.D. 70, the Sanhedrin—the High Court—abandoned the Temple precincts and conducted its proceedings elsewhere. The courts were authorized to impose the death penalty only when the High Court sat in the Temple, itself a reflection of the religious nature and foundation of the law. When homicides increased substantially, the Sanhedrin left its Temple quarters in order to deny itself judicial competence and transferred the task to the secular civil authority. One might have expected a different response. Serious increase in the crime rate usually engenders an increasingly harsh punitive response. Apparently the rabbis thought otherwise. Their ability to influence behavior was moral, based on religious faith, not on the coercive power of the death penalty. What purpose is served, then, by these requirements, especially the prescribed prior warning? And, how is society to be protected from criminals in such a system? Religious and moral considerations likely motivated opposition to the death   Makkot 1, 10. The Mishna is a collection of statements of law, edited about the year 200 C.E. from earlier sources. 7

jewish law   275 penalty as well as interpretations that modified the methods of execution so as to inflict as little damage to the body as possible. Human beings are created in God’s image.8 A rabbinic homiletic says that killing a person detracts from His image.9 Some have suggested that it is unfair to punish a person who does not know that he is violating the law. While it may appear that the law is somewhat exaggerated in this respect—even scholars of the law must be warned and accept the warning—it may be that the requirement of advanced warning relates to the fact that the biblical penalties are both severe and mandatory. Unlike most criminal penalties in modern law, death and flogging in Jewish law are not maximum penalties, which the judge may impose in his discretion, while he also may choose to impose a lesser more moderate punishment. If the court convicts the defendant of a capital crime, it must sentence him to death. Flogging, too, is mandatory in those cases for which it is prescribed, within the limits that the defendant can safely bear. Perhaps, then, the strict procedural requirements, including prior warning, are not intended to abolish these penalties entirely. Perhaps they are designed to assure that they be imposed only when they are commensurate with the severity of the offense committed, in the most egregious cases, in which the offender acted in the most willful and deliberate manner and the evidence of guilt is as clear and certain as is possible. In this system of religious law, the measure of the offender’s willfulness may take on special meaning that goes beyond the conditions of responsibility required by modern criminal law. We already noted Judaism’s view of its purpose to sanctify God’s Name in the world. Accordingly, to desecrate His Name is a most severe offense. Deliberate, knowing, brazen violation of God’s law, in rebellion against His Will, constitutes the most severe desecration of His Name and warrants the sternest condemnation. Maimonides notes several ways in which a Jew sanctifies God’s Name, or, in their reverse, desecrates it. A person may violate the law for any of several reasons. He may steal or cheat because he is pressed for money or to live high. He may kill to be rid of a competitor, in anger, or from jealousy. He may commit sexual offenses out of lust or even love. All of these are human frailties that may cause a person to violate the law. But they do not constitute the most severe form of willfulness from a religious perspective. They violate God’s law but they do not necessarily desecrate His Name. One who violates God’s law with full knowledge that He has commanded otherwise and in openly asserted rebellion against His Will, rather than from ordin­ ary human weakness, desecrates His Name. Such willfulness is the unique mens rea required as a condition of punishment in Biblical law. Biblical criminal law is 8   Genesis 1, 26–28. See also Genesis 9, 6: “Whoever sheds the blood of man, by man shall his blood be shed, for in God’s image did He make man.” 9  For an extensive review and analysis of the subject, see Beth A.  Berkowitz, Execution and Invention: Death Penalty Discourse in Early Rabbinic and Christian Cultures (2006).

276   arnold enker religiously based. Biblical criminal law concerns Man’s relation with God, his deliberate disobedience to God’s Will. In this light it is evident that punishment in Jewish law is redemptive, not deterrent. Its primary purpose is atonement for the sin rather than to deter others from violating the law. There are, indeed, four offenses in which the Bible speaks of the punishment as deterrence. But each of these cases is an exception to the general practice: substantively—they all forbid conduct of the sort not otherwise generally punished, such as solicitation of idolatry or serious—though not necessarily criminal—disobedience of one’s parents. Procedurally, and most directly relevant to our point, the general rule of prior warning does not apply in these cases. In these four cases, punishment is indeed deterrent. In the other offenses, punishment atones for the sin. The general requirement of prior warning likely reflects this religious ground for punishment, rather than the social purpose to protect the community.

iv. The Lex Talionis: “An Eye for an Eye” 10

The expression “a life for a life, an eye for an eye, a tooth for a tooth,” etc. appears several times in the Torah. It is generally believed to denote a biblical command to inflict retaliatory punishment: to execute the killer, to destroy the eye of one who blinded another, to maim the actor who injured his fellow. Rabbinic law rejects this interpretation. It understands the law to command compensation for the injury caused. Retaliation would contradict the premises of biblical criminal law described previously. One who harms another (injures his eye, damages a limb) must make his fellow whole as best he can. The key term in the Hebrew text is “tahat,” an eye tahat an eye, an arm tahat an arm, etc., which in Hebrew often connotes “in place of ” rather than in retaliation for. For example, when Eve gives birth to her son Seth she says, “God has provided me with another offspring in place of [“tahat”] Abel, for Cain has killed him.”11 The sense here is clearly compensatory. The phrase also appears in the Bible in a civil context that is expressly compensatory. “One who kills an animal shall make restitution for it, life for [“tahat”] life.”12 The Talmudic rabbis point out that retaliation can never be exact. The pain and injury inflicted on the defendant can never be precisely the same as that which he inflicted on his victim. 10   See e.g. David Daube, “Lex Talionis,” in David Daube, Studies in Biblical Law (1969), 102–153; Arnold Enker, “Lex Talionis: The ‘Plain’ Meaning of the Text,” (1991) 2 S’vara 52. 11 12   Genesis 4, 25.   Leviticus 24, 18.

jewish law   277 And the loss of the offender’s eye will not necessarily have the same consequences to him as the loss of the eye he caused the victim.

v.  The King’s Law

13

But how is the functioning society protected from crime? For most of its history, the rabbinic scholars of Jewish law did not confront this question directly. They were satisfied to study the religious law. The religious law itself recognized a power in the religious courts to deviate from its procedural and substantive stringencies in exigent circumstances, though it limited the use of such power strictly.14 In any event, the communities’ basic need for protection was provided by the Gentile authorities under whose rule they lived. Rabbi Nissim of Gerona (Spain, fourteenth century) confronted the question directly. Before his death, Moses commanded the people to establish two legal functionaries, judges and a king.15 Rabbi Nissim explained the need for both. The judges are to decide cases according to the ideal religious law that is perfect. It causes God’s Holy Presence to dwell among the people. But it leaves open the possibility that some criminals may go free, to harm others. The king fills the need to protect society. He may enact laws that do not conform to the religious law and establish courts that enforce them. The king may institute a system of secular criminal law that he deems necessary to meet whatever problems exist in the community. Earlier sources had recognized the presence of royal power to deviate from Biblical law for the greater need of the community. But no one had gone as far as Rabbi Nissim. The earlier sources were brief, even hesitant. They mentioned specific powers, taken largely from the prophet Samuel’s speech, in which he attempted to dissuade the people from establishing a kingdom.16 God’s direct rule was preferable to that of an earthly king who might abuse his powers. Rabbi Nissim’s innovation was that he recognized the king’s plenary powers, including general criminal authority. Rabbi Nissim’s treatment of the issue was not discussed extensively in the literature, at least until the twentieth century. The Zionist aspiration to revive Jewish autonomy and its success in the establishment of the State of Israel engendered 13   Arnold Enker, “Aspects of Interaction Between the Torah Law, the King’s Law, and the Noahide Law in Jewish Criminal Law,” (1991) 12 Cardoso LR 1137. 14   Emanuel Quint and Neil Hecht, Jewish Jurisprudence (1980), 139–213. 15 16   Deuteronomy 16, 14 and 17, 14–15.   1 Samuel 8.

278   arnold enker renewed consideration of the issue. Can Jewish law become the foundation for a modern community? More particularly, can the Jewish criminal law, so widely known and studied in the academies, do the job? Many writers turned to Rabbi Nissim’s solution. While the religious law may not be up to the task, the King’s law could solve the problem.17 In this context, the “king” was not limited to a monarch but was understood to mean the established civil authority. In Jewish Biblical law, the king’s authority must be accepted by the people and have their support. Therefore, one reasoned, whatever form of civil authority the people choose enjoys the powers of the King’s law.

vi.  The Seven Noahide Laws

18

The seven laws of Noah are:  murder, theft, idolatry, blasphemy, sexual offenses (adultery, homosexuality, bestiality, and incest), eating flesh taken from a living animal, and “Laws.” First to be noted is that the list is not limited to secular harms. It includes at least two religious offenses:  idolatry and blasphemy. This reflects Judaism’s eternal battle against idolatry. To the Bible, there is an unbreakable connection between monotheism and morality; idolatry is not merely false, it corrupts. It is destructive of the social order, no less than murder. The list also includes certain sexual behaviors that are forbidden and punished in the Bible but not in today’s secular society. The fundamental distinction between the Noahide laws and the internal Jewish criminal law is between those offenses that undermine the very fabric of ordered society and offenses that violate the particular Jewish commitment to sanctify God’s Name. Non-Jewish societies are required to enforce the former. The Jewish community is required to enforce both. These seven Noahide crimes are not really seven discrete offenses but seven categories of offenses. For example, “murder” includes the unwarranted killing of a person. But it also includes the unwarranted abortion of a fetus. In Jewish law, an unborn fetus is not a full person. But a fetus is a potential person; if not a full life in being, it is a life in becoming. However, since the unborn fetus is not yet a full person, the law allows abortion in certain circumstances. The most obvious situation is when the abortion is necessary to save the mother’s life.   Others, including Israel’s Chief Rabbi Isaac Herzog, preferred to base the criminal law on the religious law with adjustments. 18   See Aaron Lichtenstein, The Seven Laws of Noah (2nd ed., 1981); Nachum Rackover, “Jewish Law and the Noahide Obligation to Preserve Social Order,” (1991) 12 Cardoso LR 1073; Suzanne Last Stone, “Sinaitic and Noahide Law: Legal Pluralism in Jewish Law,” (1991) 12 Cardoso LR 1157. 17

jewish law   279 Contemporary rabbis disagree whether abortion is permitted when the fetus has a serious degenerative disease—Tay–Sachs, for example—which will cause its death within two or three years of birth. “Theft” encompasses many crimes: robbery, kidnapping, embezzlement, fraud, even withholding a worker’s wage beyond the payment date required by law. Some modern rabbis include rape, based on the reasoning that just as it is wrong to use a woman’s money without her permission, so, too, it is also wrong to use her body without her consent. The broad range of economic crimes included in this category has been a strong argument in support of the view that the death penalty is not mandatory. The variety of these offenses warrants different penalties for each. The offense of eating flesh torn from a living animal differs from murder and theft. It does not injure or harm any particular person. It is usually understood that this is a crime because of the extreme cruelty toward the animal. A  society that countenances such behavior cannot survive. Two views have been expressed concerning the commandment of Laws. Maimonides held that this expresses the community’s duty to enforce the other six prohibitions and punish violations thereof. A lawless community, one that does not enforce these basic requirements, is itself unworthy and must be punished. He found support for this view in the biblical story of the rape of Dinah by Shechem, the son of Hamor, who was the head of his community.19 Her brothers destroyed the entire city that failed to adjudge Shechem and punish him. Nachmanides (13th-century Barcelona, Spain) thought that this seventh commandment expresses the community’s duty to establish laws beyond those covered by the other six, to promote justice and order. They do not appear to disagree substantively. Each is likely giving expression to a similar thought; law and justice are basic to the continued existence of a community. There are clear affinities between the King’s law and the Noahide law that distinguish them from the Biblical or Torah criminal law. Both are determined and administered by the civil authority rather than by religious tribunals. Both seek to prevent social harm rather than promote the religious goal to sanctify God’s Name. Both are founded on the authorities’ discretion to fix the scope of the criminal law and its enforcement, subject to certain minimum requirements to be noted shortly. Both lack the stringent procedural constraints of the Torah law, such as the requirement of two competent witnesses, direct testimony, disqualification of confessions, and, especially, prior warning. As we will see in the next paragraph, the contemporary view holds that judicial discretion in fixing punishment is the norm in both systems. A contemporary writer suggests the very plausible thesis that the Noahide law is in fact the King’s law for non-Jewish societies. Jewish law

  Genesis 34.

19

280   arnold enker commands each community to establish and protect certain minimum standards “so that the world shall not be destroyed.”20 The King’s law and the Noahide law provide the framework. Each community is commanded to establish a legal system, including both civil and criminal law, that best suits its needs. In this connection, one additional matter requires attention. All classic statements of the Noahide law assert that the penalty for violation of these laws is death. It is not clear what exactly this means. Is the death penalty mandatory, to be inflicted and executed whenever a violation occurs and no defense is available, regardless of the particular offense or of the circumstances of the case, the degree of harm caused, the actor’s intent, his brazenness and willfulness, or the general level of law obedience in the community? Or is death an available penalty, a maximum penalty, to be inflicted in extreme cases when the court, in the exercise of its discretion, deems such severity essential, but the court also may inflict a lesser penalty when it deems the lesser penalty appropriate. Jewish law has undergone development in this regard, especially in the twentieth century. Rashi (twelfth-century Troyes, France) was the leading Jewish commentator on the Bible and the Talmud. All printed editions of the Talmud contain his running commentary alongside the Talmudic text. Clearly, it was his opinion that the death penalty is mandatory. This was also the opinion expressed in a popular fourteenth-century collection of Jewish law. Rabbi Meir HaLevy Abulafia (twelfth-century Toledo, Spain) disagreed. In his commentary Yad Rama to the Talmudic tractate Sanhedrin, Rabbi Abulafia consistently rejects Rashi’s stringencies concerning the Noahide law and adopts more lenient interpretations. But this book was generally unavailable and remained unknown, even to most rabbinic scholars, until it was republished in Warsaw in 1895.21 Several leading rabbis re-examined the question during the first half of the twentieth century, ultimately reaching the conclusion that the death penalty for Noahides is not mandatory. It is a maximum penalty, available to the court to be imposed when necessary, in its discretion. Two points should be noted. The view was also expressed that the legislative authorities, too, have the power to abolish the death penalty for various offenses, particularly economic crimes, and to fix lesser punishments. Central to the reasoning that underlay this reconsideration of the issues was the recognition of the unique similarity between the Noahide law and the King’s law and their shared difference from the Torah law mentioned previously.22   Maimonides Code, Laws Concerning Kings 10, 11.   Rabbi Abraham Borenstein wrote in his approbation to this edition that there was not a single copy of the book in all of Warsaw. It is probably not accidental that two of Rabbi Borenstein’s students were among the first to re-examine the question whether death is a mandatory or a discretionary punishment. 22   It is likely that the substitution of imprisonment and fines in place of the death penalty for theft in nineteenth-century Europe furnished a background for reconsideration of the issues by these rabbis. 20 21

jewish law   281

vii.  The Scope of the King’s Law During the twentieth century, rabbis and scholars considered the question, how broad is the scope of the King’s law for the Jews. To what extent can the civil authority legislate and adjudicate citizens’ behavior according to standards and procedures that differ from the religious Torah law? Are there any limits to this power? If so, what are they? It appears that all agree that there are limits. The king’s power is designed to protect the social order. Thus, for example, the king may not punish a person for violating the Biblical laws that forbid working on the Sabbath (although, presumably, he can declare and enforce a weekly day of rest). Presumably the same applies to the dietary laws, kashrut. Some apply here the distinction, drawn from other aspects of Jewish law, between laws “between man and man” and those “between man and God.” The civil authority may act only in the former group. The latter realm is restricted to the religious authorities. Others have stated that the king’s authority is limited to matters encompassed by the seven Noahide offenses. He may enact and enforce the universal law, binding on all societies, but not the special religious law accepted by Jews to fulfill their mission to sanctify God’s Name.

viii. Homicide The Bible distinguishes between intentional homicide and inadvertent homicide. The penalty for the former is death. One who causes death inadvertently is exiled to a city of refuge. Nevertheless, as noted earlier, the deliberate killer is not executed unless he has been forewarned concerning the offense and its punishment immediately before the act. And he must accept the admonition. So, too, the deadly act must be direct. One who hires another to kill his victim, even one who binds the victim and leaves him in the presence of a predatory animal that kills him, is not executed pursuant to the mandatory Biblical law. His crime is great and he merits “death by the hand of God,” but the court is not required to execute him. These cases are dealt with under the religious court’s exigency jurisdiction to impose discretionary punishments when necessary or under the king’s discretionary authority. They may order the killer’s execution if they deem it warranted. In any event, they are admonished to punish such conduct severely in order to deter others from pursuing a similar course. The Biblical cities of refuge, to which the inadvertent killer is exiled, serve two purposes. They protect the inadvertent killer from members of the victim’s family

282   arnold enker (the redeemer of blood) who might wish to avenge his death. Exile also atones for the sin. The inadvertent killer must remain there until the death of the High Priest. In Jewish law, one who commits a serious offense inadvertently has sinned. Of course, his offense is much slighter than intentional wrongdoing. Still, he has done wrong. He should have known better; he should have been more careful. Therefore, he, too, must atone for his sin. The law generally requires that an inadvertent sinner bring a cleansing sacrifice—sometimes called a sin offering—in the temple in Jerusalem. But the taking of human life—even inadvertently—is so serious an offense in Jewish law that the sacrifice of an animal would not be commensurate; atonement requires exile to a city of refuge.23 The Talmud and later sources devote considerable attention to the different possible states of mind that might accompany a killing. Intentional homicide, when punished in the court’s discretion, is not limited to situations in which the killer seeks to cause his victim’s death. It also includes situations in which the victim’s death is certain to result. The rabbis disagree whether intent also encompasses less certain situations in which death is merely probable or highly probable. We cannot know how such theoretical debates would have been resolved in the actual cases had they been the subject of regular practice. Inadvertence, too, is a matter of degree. The more serious cases, in which the actor did not actually foresee the likelihood of death, or even its possibility, but the risk was high, are denominated “inadvertence close to intent” and the killer is not exiled. His guilt is too severe for him to be atoned in this manner. This killer is left to protect himself from those who might seek to avenge the killing.

ix. Defenses As we have seen, the Biblical–Talmudic criminal law is concerned primarily with the sinner’s relation to God, the measure of his religious guilt, and atonement for his sin. This is the system of criminal law that received the sustained attention of rabbinic scholars for two thousand years. The King’s law, concerned to protect the community from criminals, received little attention. After all, the details—both of substance and procedure—would vary depending on the particular community’s social condition and the degree and nature of its law-abidingness or lawlessness. 23   Greek law, too, required a sin offering to atone for inadvertent offenses, and this applied to inadvertent homicide as well. Jewish law did not accept the notion that an animal sacrifice could atone for the destruction of human life. See Moshe Greenberg, “The Biblical Concept of Asylum,” (1959) 78 Journal of Biblical Literature 125, 129–130.

jewish law   283 The King’s law is more akin to an enabling law, one that authorizes the civil authority to legislate and adjudicate as it deems necessary, rather than a series of specific prescriptions. And the loss of Jewish autonomy before the common era entailed the loss of the opportunity for detailed development and practical application of this system. Therefore, the classic Jewish criminal law does not provide a detailed road map on which to base a contemporary system of criminal law devoted to social protection. This picture changes when we turn to consider criminal law defenses. Here we find a greater level of detailed examination and consideration. There also appears to be less sharp a divide between Biblical Torah law and discretionary law in this context. Perhaps this is because defenses to crime raise fundamental issues concerning human responsibility and accountability in which religious and secular values share commonalities. We will examine several defenses.

1. Insanity A deranged person is not subject to the Torah’s commandments; he is exempt from performing the mitzvot. Therefore, if he does a forbidden act, he is not punished. The most commonly accepted explanation is that such a person lacks sufficient reason and understanding to be subject to the commandments and responsible for their fulfillment. The offense is not the product of his will. In this regard he is similar to one who commits an offense under duress. The sources dealing with the question what constitutes mental disease and what is the definition of insanity are scant. In the absence of authority to enforce the criminal law, consideration of the issue was for the most part theoretical.24 Also, due to the limited medical knowledge of the time, there was little if any attempt to define the concept in the abstract. It was sufficient to identify common examples of behavior that reflected mental disease. The Talmud states: Who is a deranged person? One who goes about alone at night and one who sleeps in a cemetery and one who rends his clothes.25

Some early commentators considered this list exclusive. Others state that these are merely common examples. Additional irrational behaviors can demonstrate insanity no less. Maimonides rules that an unstable person is not a competent witness, stating that this applies not only to one “who goes about naked, who destroys 24   Questions concerning insanity arise in contexts other than criminal law, e.g. legal competency in commercial and personal matters. But it is likely that the test of insanity differs somewhat for such 25 purposes.   Babylonian Talmud, Hagiga 3b.

284   arnold enker property and who throws stones, but to anyone whose mind is disturbed and invariably confused with respect to certain matters, although he speaks to the point and asks pertinent questions regarding other matters. . . . ”26 Some contend that this passage applies only to the law of evidence. Persons who suffer from occasional attacks of insanity are responsible for offenses committed when lucid. A nursing mother whose husband dies may not remarry until the child is 2 years old, for fear lest she become pregnant again and the pregnancy affect her milk adversely. If the child dies, she may remarry earlier, since the danger no longer exists. The rabbis rejected the suggestion that this woman, too, be required to wait two years, else she might kill her child in order to remarry. Confronted with a case in which a woman did just that, the Talmud replies that the woman in that instance was insane, since “it is not normal for women to suffocate their children.”27

2.  Ignorance and Mistake, of Fact and of Law28 It is sometimes said that Jewish law differs from other systems in that it recognizes ignorance of the law as a defense. This is true in part only. As we saw earlier, deliberate rebellion against God’s command is an essential element of Torah punishment. One who does not know the law cannot be said to have acted rebelliously. Still, even one who knows the law may act out of ordinary human passion or temptation. The presence or absence of rebellious motivation, not the offender’s ignorance or knowledge of the law, determines if he is punished. Moreover, one who is ignorant and violates the law in error is only partially excused. He, too, has sinned, though at a lower level of guilt. He should have examined the matter more closely.29 For the most part, mistake of law and mistake of fact are treated the same in Jewish law. The offense in both situations is inadvertent rather than deliberate and the offender is required to offer an atoning sacrifice in the Jerusalem temple. Sometimes, however, mistake of law is more grievous than mistake of fact. For example, we noted previously that one who kills another inadvertently is exiled to a city of refuge. This applies only when the homicidal act itself is inadvertent. One who hits another intentionally, thereby causing his death inadvertently, is not subject to the law of exile. His guilt is considered greater than that of the accidental killer and he does not merit the atonement and the protection afforded by exile. A  likely explanation is that his mens rea is greater than that of the person who caused accidental death. He intended to harm his victim even if he did not intend to kill him. Similarly, one who kills another intentionally because he does not know

27   Laws Concerning Evidence, 9, 9.   Babylonian Talmud, Ketubot 60b.   Arnold Enker, “Error Juris in Jewish Criminal Law,” (1994–95) 11 Journal of Law & Religion 23. 29   The study of the law is a fundamental obligation in Judaism, both for its own sake and so that one may know how to behave. 26 28

jewish law   285 that the law forbids the killing, either in general or in the specific case, is not subject to the law of exile. His guilt, too, is greater than that of the inadvertent killer. He, too, intended to harm the deceased. Presumably, in such cases, the court will impose such punishment as it deems appropriate, depending upon the nature of the mistake.30

3. Self-defense The Jewish law sources that deal with self-defense in detail focus primarily on the question when lethal force may be used. Two paradigm cases are considered in the sources. One is the case of the “pursuer,” who pursues his fellow man intending to kill him. He is killed, to prevent him from committing the crime. The second is the burglar who burrows under the householder’s residence to commit theft or robbery. The householder—others as well—is permitted to kill the burglar. Since it is plain that the householder wishes to protect his property and will resist the attempted theft, it may be presumed that the burglar is prepared to use lethal force to overcome the householder’s opposition. The burglar is therefore treated the same as a pursuer; he may be killed.31

a)  The burglar The law permitting one to kill the burglar is generally applied narrowly to the circumstances described previously. His determined purpose to achieve his unlawful ends, even by deadly means, is apparent from his means of entry into the house. Other cases, in which his readiness to kill the householder is less certain, are distinguished. Examples mentioned in the sources are when the burglar is the householder’s father; it can be assumed that the father would not kill his son. Similarly, when the burglar enters through an open door or window; it is possible that his decision to enter was taken suddenly, in light of the unexpected opportunity, and he might withdraw if confronted with opposition. In these cases, the householder should make a reasonable attempt to ascertain the burglar’s intent, if possible. Similarly, the law permitting the householder to kill the burglar does not apply before he enters the house or after he has left it.32 30   It is highly unlikely that a case would arise in which the killer did not know that the law forbids killing another. But one might readily err concerning the law applicable to the particular situation. e.g. a soldier might not know that he is forbidden to kill an enemy soldier who has surrendered. And one might readily err concerning the limits of lawful self-defense. 31   The paradigm of a burglar who burrows under the house may sound strange to us, but it should be recalled that homes were not as sturdy in the time of the Mishna as they are today. The underlying principle is clear; the burglar may be killed as long as he can be presumed to be ready to attack the householder. 32   This Biblical law concerning the burglar is sometimes cited to support contemporary legislation expanding the householder’s right to use deadly force against a would-be burglar. It should be noted, therefore, that the rabbinic exegesis restricts the scope of this law considerably.

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b)  The pursuer The Mishna states: The following are saved by [taking] their lives: one who pursues his fellow to kill him, or a male [for a sexual act] or a betrothed maiden [to rape her]. But one who pursues an animal [to do an act of bestiality], or is about to desecrate the Sabbath or commit idolatry is not saved by [taking] his life.33

All six offenses mentioned in the Mishna are capital crimes. What distinguishes the first three cases, in which the pursuer is killed in order to prevent the offense, from the second group in which he is not killed, is that commission of the first three offenses will inflict harm upon another person—death, sodomy, rape. There is no human victim who will be injured in the second group of offenses. This suggests that one may kill a pursuer only when both elements are present: he is about to commit a capital offense that will do substantial harm to another person, the pursued. Several preliminary points concerning the Jewish law of self-defense should be noted. One is not merely allowed to kill the pursuer; the law directs one to do so. The law imposes a general duty to aid the victim. Based on Biblical exegesis, the law declares that it is a mitzvah, a religious commandment, to kill the pursuer and save the pursued party’s life. A passage in the Torah instructs us, “Do not stand [idly by] on your neighbor’s blood.”34 One is also commanded to take into custody another’s lost property and attempt to return it to him; how much more so, the rabbis reasoned, is one commanded to save another’s life. One may kill the pursuer only if this is the only means to save the pursued’s life. Maimonides rules that one who kills the pursuer unnecessarily—for example, he can save the victim by injuring the attacker’s arm or leg—is guilty of a capital offense. Nevertheless, he continues, the court will not execute him. As commentators explain, his purpose was to save the pursued’s life. Others explain this limitation on the ground that he acted under the extreme stress of the circumstances. Some would distinguish in this context between the pursued himself, who cannot be expected to adhere to the strict law and use less extreme measures, since his life is in danger, and a third party whose life was not endangered and could be expected to reflect more carefully before he acts. We have seen that the law of the pursuer applies only when the pursuer seeks to commit a capital offense. We have also seen that one who commits a capital crime is not necessarily sentenced to death. The death penalty requires that certain prior conditions be satisfied: testimony of two direct witnesses, that he be warned immediately before he does the act and that he accept the warning, and that the victim’s death be a direct result of the killer’s act. Must these prior conditions be satisfied   Sanhedrin 8, 7.

33

  Leviticus 19, 16.

34

jewish law   287 with regard to a pursuer? Is the law of the pursuer limited to one who meets all the conditions for imposition of the death penalty? Surprisingly, this question has not been discussed extensively in the literature. But the sources that have considered the matter agree that such prior conditions need not be met. What is required is that the pursuer’s actions constitute a capital offense; the detailed conditions for imposing and executing the death penalty need not be present. How far may this principle be carried? What is the law concerning an innocent pursuer:  a child, an insane person, one who attempts to kill another because he mistakenly believes that he himself is under attack, one who endangers another person’s life unknowingly, one who seeks to kill another under duress? These cases raise the issue, where does the law draw the line. At what point does self-defense end and necessity begin? There is a substantial body of literature concerning the rationale that underlies the law of the pursuer and the relative significance of these two conditions. Is the law based on the pursuer’s guilt, on the interest to protect the pursued party’s life, or on some combination of these factors? The Mishna text can be read to support all these positions.35 In this regard, the rabbinic discussions remind one of the legal and philosophical debates concerning these very same issues in the contemporary law of self-defense.36

4. Duress The Bible states: You shall keep My laws and My norms, by the pursuit of which man shall live, I  am the Lord.37

Rabbinic exegesis understands this to mean that the laws were given to the Jewish people that they may live by them, not to die by them. Accordingly, the law is suspended when necessary to save life. Such a conflict between life and the obedience to the law may arise in two different settings. One such setting is when a tyrant or a criminal demands that one violate one of the laws of the Torah, under the threat of death. This is a case of duress. The other setting arises when circumstances—rather than a human demand and threat—create the danger. A person is deathly ill; he can be cured by feeding him food otherwise forbidden to eat. An accident has occurred on the Sabbath and people have been injured severely; to give them needed medical assistance entails   Haim Shapira, “The Law of the Pursuer and the Source of Self-Defense,” (2007) 16 Jewish Law Association Studies 150. 36   For an extensive review of the Jewish literature, see the chapter on the “Law of the Pursuer,” in Hanina Ben-Menahem, Arye Edrei, and Neil Hecht, Windows Onto Jewish Legal Culture, Fourteen 37 Exploratory Essays 1 (2011), 266–319.   Leviticus 18, 5. 35

288   arnold enker acts that violate the Sabbath. These are cases of necessity. In either event, a Jew should violate these laws to save the endangered person’s life. The commission of the required acts, though generally a violation of the law, is not an offense when done in order to save life, one’s own or that of another. There are three exceptions to this exemption:  idolatry, serious sexual offenses (bestiality, homosexuality, incest, and adultery), and homicide. A Jew may not violate any one of these laws, even when necessary to save life. This is so both in cases of duress and of necessity. In this section we will consider situations of duress. The law is clear. One who is ordered by a tyrant or a criminal to violate any one of these three laws, or else he will be killed, must resist to the utmost, even to martyrdom.38 Two interrelated themes underlie this ruling. One is the significance and weight accorded these offenses in Jewish law. Idolatry is the very antithesis of Judaism, a violation of its essential message and being. Ethical monotheism was the Jewish message and innovation from its very inception with Abraham. Sexual purity has always been an earmark of the Jewish religion and the life of the Jew. Its importance is stressed in the Bible as being similar to the law forbidding murder. Ordinary human reason teaches that one may not kill an innocent person in order to save one’s own life, even under duress, for “who says your blood is redder than his.” In light of their significance, these offenses require that a Jew sanctify God’s Name rather than offend against them. Evil tyrants who demand the commission of these offenses under threat of death seek to elevate their will over and above that of God. The Jew, whose very mission in this world is to remind all of God’s existence and of His Will that mankind live according to His Law—to sanctify God’s Name—is called upon to resist such tyrannical demands and demonstrate that he holds God’s Will supreme. In doing so, he sanctifies God’s Name. Maimonides’ treatment of the law concerning duress places special emphasis on the idea that the law requiring martyrdom in these three situations is based on the duty to sanctify God’s Name.39 Nevertheless, from the perspective of the criminal law, one who violates the law under duress is not punished. The law distinguishes in these three cases between the primary duty to resist the threatening demand to commit the offense and the secondary consequence of punishment in the event of violation of the primary demand. In the language of contemporary criminal law, the act is unlawful but it is excused. The actor did wrong. It was his legal duty not to yield, not to commit the crime that was demanded of him. But he will not be punished for his violation. He did not commit the crime voluntarily, willfully; he was coerced into doing what he did.   Leviticus, 5, 1–4.   Maimonides rules that in cases other than these three exceptions, a person must violate the law when threatened with death by a tyrant. He must choose life rather than martyrdom. Laws Concerning the Foundations of the Torah 5, 1. Others disagree and hold that he may martyr himself, if he so chooses. 38

39

jewish law   289

5.  Necessity (general) The duty to sanctify God’s Name does not present itself in situations of necessity. Here, circumstances create the danger, not unlawful demands. Accordingly, no duty to resist arises. Indeed, there is nothing to resist, no unlawful demand has been asserted, no unlawful threat has been presented.40 Maimonides’ statement of the law in these cases contains no mention of the duty to sanctify God’s Name. The Biblical quotations proclaiming such a duty, so extensively quoted in the preceding sections of the Code concerning duress, are absent. So, too, there is no mention here of the many references in the earlier sections to historical examples of Jewish martyrs, Biblical and post-Biblical.41 Concerning one’s primary religious obligation, the law concerning necessity is the same as that of duress. Generally, the laws are suspended when life is at stake. A Jew whose life is in danger may violate the law, if necessary, to save his life. But there is an exception for the three cardinal sins noted earlier: idolatry, sexual offenses, and homicide. Apparently, these offenses are so serious that they are not waived even when life is at stake. We saw above that Maimonides rules that one who commits one of these three sins under duress is not punished, even though he was obliged to resist, even to the point of death. Somewhat surprisingly, in cases of necessity, Maimonides rules that when one offends and violates one of these three laws under the pressure of the danger to his life, “the court should punish him as is appropriate to him.” Much has been written to explain the reason for this difference between situations of duress and necessity. The phrase “as is appropriate” also requires explication. A common explanation reasons that the offender acts involuntarily in cases of duress because the decision that he should violate the law is imposed upon him from an external source, by the will of the person who asserts the demand and the threat. In cases of necessity, there is no external will that chooses violation of the law as the means to prevent death. The actor adopts this solution through his own will. Those who espouse this explanation understand the phrase “as is appropriate” to mean, according to the varying mandatory punishments provided by the Biblical law. The difficulty with this explanation lies in its emphasis on the source of the pressure that influences the actor’s choice—external or internal—rather than the strength of its force as affecting his freedom of choice. Earlier writers reasoned that in the case of duress, the pressure is great; the choice is clear-cut; commit the offense demanded or die. Such a choice is not free. In situations of necessity, the choices are far less dichotomous. The danger arising from the circumstances may be greater or lesser. In some cases, the chosen solution, to violate the law, will be the only possible solution. In others, it may be   Compare Jerome Hall, General Principles of Criminal Law (2nd ed., 1960), 447.   Code, 5, 6–7.

40 41

290   arnold enker one of several possibilities, each of which has different prospects for success. The degree of pressure on the offender, to violate the law in order to save his life, will vary accordingly. Such circumstances do not lend themselves to a single clear-cut answer whether to punish the offender or not. Punishment in these cases should vary with the circumstances. And in some cases, when the pressure is at its greatest, the offender should not be punished at all. Those who accept this explanation understand Maimonides’ ruling that the court should punish the offender “as is appropriate to him” to refer to the court’s discretionary power to individualize the punishment. A third explanation, not necessarily inconsistent with the previous point, stresses the duty to sanctify God’s Name, present only in cases of duress and not in cases of necessity. One who risks death at the hands of a tyrant rather than succumb to his demand to violate God’s law performs the ultimate religious act of martyrdom. His motivation is pure, to honor God’s law above all else. No earthly interests or benefits influence his choice.42 Were the law to punish a violation of the law in these circumstances it would diminish the purity of the act, even if just a bit. No such consideration is present in cases of necessity, since sanctification of God’s Name is not relevant here. The law is free to punish the violator as he deserves.

6.  Necessity and homicide43 The Mishna rules that one may not kill a person in order to save another’s life. “We do not reject one life in favor of another life.”44 May one kill an innocent person in order to save several lives or to prevent the death of several persons? The Talmud records a story of one who presented the following question before Rava (3rd–4th centuries Babylonia). The ruler of his village ordered him to kill a person, else he himself will be killed. May he kill that person? Rava answered that he may not, saying, “It’s a matter of reason. Who says that your blood is redder than his? Maybe his blood is redder.”45 Ordinarily, the law is waived in order to save life. But in this case, life will not be saved. Either way, one person will die.46 These sources present situations of one-on-one and might be read to support the proposition that one may take an innocent life in order to save many lives. Other sources seem to point in the opposite direction. The Mishna rules: 42   Maimonides describes one who sanctifies God’s Name generally as one who lives according to His law for no reason other than that He has so willed, not because of fear or a desire for honor or other personal gain. Code, 5, 10. He cites the example of Joseph, who spurned his master’s wife’s advances because to yield would be to “sin before God.” Genesis 39, 9. 43   See my forthcoming article “In Re A: Severing the Conjoined Twins in Jewish Law,” (forthcoming 44 2014) 29 Journal of Law & Religion.   Ohalot 7, 6. 45 46   Babylonian Talmud, Sanhedrin 74a; id. Pesachim 25b.   Rashi, Sanhedrin 74a.

jewish law   291 [In the case of] women to whom Gentiles say, “Give us one from among you that we may defile her or else we will defile all of you,” let them rather defile all of them but do not surrender a single soul of Israel.47

One may not surrender a woman to be defiled, even to save many women from the same fate. And the following appears in the Jerusalem Talmud: [In the case of] a group to whom Gentiles say, “Give us one from among you that we may kill him or else we will kill all of you,” let them rather kill all of them but do not surrender a single soul of Israel.48

Once again, one may not surrender a person to be killed, even to save the lives of the entire group. Some have reasoned that these sources, especially the latter one, are based on the principle that life is an absolute value. Each person is an entire world unto himself and one may not measure the value of life—nor of lives—by their number. But it is also possible to understand these sources otherwise, as based on the wickedness of the demands. Both practical considerations and the moral duty to resist evil call upon the group to resist. Note the similarity of these cases to situations of duress rather than necessity. These rulings, too, may be based on the duty to sanctify God’s Name.49 Later rabbinic rulings explore the question in what circumstances may one kill someone to prevent a greater number of deaths. We will look at three such cases here. As we have seen, when a woman is in mortal danger as a result of complications in childbirth, the law permits—actually, requires—that the fetus be aborted in order to save her life. But abortion is not permitted after the fetus’s head has emerged. At this point the fetus is a life and one does not reject one life in order to save another. Suppose, however, both the child and the mother will die. May one kill this partially emerged child in order to prevent the death of the mother as well? The sources conflict. One allows killing the child, reasoning that it is better that one die rather than two. Another forbids killing the child, reasoning that two deaths are better than one killing. During the Holocaust, Jews attempted to hide from the Nazi SS troops. Such a group was hiding in an underground bunker. An infant began to cry. His cries could have alerted the soldiers to the hideout’s location, so they smothered his face with a pillow, causing his death. After the war, they turned to a rabbi and inquired if they had sinned.50 He ruled that they had not. Although the ordinary rules of self-defense did not apply, since the infant’s cries were involuntary, he was the source of the 48   Terumot 8, 12.   Terumot 8, 10.   Interestingly, Maimonides records his rulings in these two cases in the chapter of his Code that deals with the general duty to sanctify God’s Name, immediately following the rulings we discussed earlier concerning duress, thereby suggesting that he saw these cases as based on that rationale. Laws Concerning the Foundations of the Torah 5, 5. See also David Daube, Collaboration With Tyranny in Rabbinic Literature (1965). 50   Of course, punishment was out of the question. Their inquiry was if they should do acts of penance, e.g. prayer and giving to charity. 47

49

292   arnold enker danger to them. He was an “innocent pursuer,” who would die in any event. The other occupants of the bunker may therefore stifle his cries, thereby causing his death, in order to save themselves. The rabbi found support in the ruling mentioned in the preceding paragraph that permitted killing the fetus whose head has emerged on the ground that it is better that one die than that both should die. Re A51 concerned twin girls born joined to each other, sharing a single heart and set of lungs. The doctors agreed that, in this condition, both would die in several months. The single heart and lungs could not sustain them both as they grew in size. The English court ordered their surgical separation, whereby one of the twins would die immediately but the other would have a good chance to survive. The judges differed as to the grounds of their decision. One reasoned that this was a case of self-defense. One of the twins was draining her sister’s life blood. A second judge allowed the surgery on the ground of necessity, better that one of the twins should die rather than both. He distinguished the famous precedent in R. v. Dudley.52 The third judge reasoned that the doctors do not intend to kill the child who will die; their intention is to save her sister. In the course of its opinion the court noted a similar case of conjoined twins born in 1977 to Orthodox Jewish parents. The parents turned for guidance to Rabbi Moshe Feinstein, who was at the time the leading American rabbinic authority. Rabbi Feinstein allowed the surgery on the ground that one of the twins could be considered a “pursuer” of the other. Others have rejected his reasoning, since the “act” causing the danger is involuntary, but do not reject his ruling permitting the surgery. We will conclude with a case in which the rabbi approached ruled that the act was forbidden. During the first Israel–Lebanon war, Israeli troops occupied a large building in Tyre that they used as headquarters. Lebanese terrorists drove a bomb-laden truck into the building, which they exploded, causing the death of many Israeli soldiers and considerable damage to the building. The attack occurred during the lunch hour when most of those in the building were in the dining hall on the ground floor. It was believed that there were many additional soldiers still alive but trapped below the heavy debris, which could not be removed by ordin­ ary means in time to save them. Someone suggested that they bring heavy moving equipment to remove the upper layers of the debris. This would probably cause the death of any soldiers who were trapped in the upper levels of the debris, but it would hasten access to the many more soldiers believed to be trapped below. In the end, the idea was rejected as impracticable. Rabbi Shaul Yisraeli, a leading Israeli rabbi, was asked if the solution proposed would have been permitted, had it been available. He rejected the idea on the ground that it is never permitted to kill a person, even in order to save many lives.

  [2000] 4 All E.R. 961 (C.A. Civ. Div.).

51

  (1884) 14 QBD 273.

52

jewish law   293 His ruling can be supported on other grounds. In all three cases considered previously, in which killing one to prevent the death of others was permitted, the very act that caused the death of the one person also eliminated the danger to the others and saved their lives. In the Tyre case, the act that would have caused the death of soldiers trapped in the debris would not itself have saved anyone. At best it would have removed an impediment to subsequent efforts to save the others. This could serve as a reasonable distinction to determine where to draw the line between permitted necessity killings and those that are forbidden.53

x. Conclusion As we have seen, a central theme of the internal Jewish criminal law concerns the sanctification/desecration of God’s Name. This theme is present both in the laws governing the enforcement of the law and those that establish defenses to criminal liability. It reflects the Jewish nation’s perception of its place in human history, to sanctify God’s Name among the other nations of the world.

References Aptowitzer, Victor, “Observations on the Criminal Law of the Jews,” (1924–25) 15 Jewish Quarterly Review 55 Berkowitz, Beth A., Execution and Invention: Death Penalty Discourse in Early Rabbinic and Christian Culture (2006) Daube, David, Collaboration With Tyranny in Rabbinic Law (1965) Daube, David, “Lex Talionis,” in David Daube (ed.), Studies in Biblical Law (1969), 102–153 Elon, Menachem (ed.), The Principles of Jewish Law (1975), collected articles on Jewish law, including many on criminal law, from the Encyclopedia Judaica Enker, Arnold, “Aspects of Interaction Between the Torah Law, the King’s Law, and the Noahide Law in Jewish Criminal Law,” (1991) 12 Cardozo LR 1137 Enker, Arnold, “Error Juris in Jewish Criminal Law,” (1994–95) 11 Journal of Law & Religion 23 Enker, Arnold, “In Re A: Severing the Conjoined Twins in Jewish Law,” (forthcoming 2014) 29 Journal of Law & Religion Goldin, Hyman, Hebrew Criminal Law and Procedure (1952) Greenberg, Moshe, “Some Postulates of Biblical Criminal Law,” in Yehezkel Kaufmann Jubilee Volume: Studies in the Bible and Jewish Religion (1960)   The question where to draw the line is considered at length in Judith Thomson, “The Trolley Problem,” (1985) 94 Yale LJ 1394. 53

294   arnold enker Herring, Basil, Jewish Ethics and Halacha for Our Time: Sources and Commentary (1984) Jackson, Bernard S., Theft in Early Jewish Law (1972) Jackson, Bernard S., “Reflections on Biblical Criminal Law,” (1973) 24 Journal of Jewish Studies 8 Jackson, Bernard S., Wisdom Laws: A Study of the Mishpatim of Exodus (2006) Lichtenstein, Aaron, The Seven Laws of Noah (2nd ed., 1981) Mendelsohn, Samuel, The Criminal Jurisprudence of the Ancient Hebrews (2nd ed., 1968) Novack, David, The Image of the Non-Jew in Judaism: A Historical and Constrictive Study of the Noahide Laws (1983) Phillips, Anthony, Ancient Israel’s Criminal Law (1970) Rakover, Nahum, Law and the Noahides—Law as a Universal Value (1995) Rakover, Nahum, “Jewish Law and the Noahide Obligation to Preserve Social Order,” (1991) 12 Cardozo LR 1073 Schreiber, Aaron, Jewish Law and Decision-Making: A Study Through Time (1979) Walzer, Michael, Lorberbaum, Menachem, Lorberbaum, Yair, and Zohar, Noam, The Jewish Political Tradition (2000)

­c hapter 14

MARXIST AND SOVIET LAW stephen c. thaman

i.  The Marxist Critique of Law Before the Russian Revolution

1.  What is “Marxism”? “Marxism” as a political, sociological, economic, and philosophical school of thought and action originally developed from the works of Karl Marx (1818–1883) and Friedrich Engels (1820–1895), two German thinkers who, in their individual and co-authored writings, provided a foundation for the nineteenth-century socialist movement. Broadly speaking, they propagated a theory of political economy based on the writings of Adam Smith (1723–1790), David Ricardo (1772–1823), and others which claimed that capitalism, while a necessary stage of world economic development, would eventually falter due to contradictions between the forces of economic production and the social relation engendered thereby. This crisis in production would lead to the working class or proletariat spearheading a revolutionary movement to overthrow the capitalist mode of production and set up a transitional “dictatorship of the proletariat” which would eventually give way to a

296   stephen c. thaman utopian communist society where no state would be necessary and people would work according to their abilities and consume according to their needs.

2.  The place of law in general, and criminal law in particular in the writings of Marx and Engels Although Marx studied law (Engels was himself a capitalist who ran his family’s factories in England), the writings of Marx and Engels contain few insights into what the nature of law will be either in the transitional period of the “dictatorship of the proletariat” or in the future stateless communist society. Marx’s monumental work Das Kapital, however, describes in great detail the “laws” of capitalist commodity production based on the “exchange value” of commodities and their circulation and the accumulation of capital produced from the “surplus value” earned by the owners of the means of production as a result of their exploitation of the labor power of the proletariat. With respect to the criminal law, one finds very few passages from Marx and Engels referring to criminal law, or what role it would play in a socialist or communist society.

a)  The base–superstructure paradigm Many Marxist commentators refer to comments by Marx and Engels which tend to show that the forces and relations of production of society constitutes its “base” or infrastructure, and that it is this base which ultimately determines the “superstructure” of society, that is, the particular state or social institutions that arise, as well as political theories, ideologies, art and culture, etc. While mainstream Marxists saw the state itself as being part of the superstructure, and a mere reflection of the forces and relations of production of the given socioeconomic system, if not an institution designed to defend and perpetrate them, more critical voices insisted that the writings of Marx and Engels were not clear, and that some of their texts tended to show that the state was itself part of the “relations of production,” and thus the “base.”

b)  The doctrine of the “withering away” of the state under communism In key writings, Marx and Engels do talk about the fact that the nation-state, which had become the protector of the foundations of the capitalist system of production, would gradually “wither away” in the transition from the dictatorship of the proletariat to a fully developed communist society, though they also talk, in various writings, about the fact that “bourgeois law,” that is, the law which mirrored the development of private property and capitalism, would still be necessary during the transitional dictatorship of the proletariat, because the state economy would still circulate commodities and labor based on “exchange value.”

marxist and soviet law    297

3.  Law in the writings of Vladimir I. Lenin before the Russian Revolution Vladimir Ilyich Lenin (1870–1924) was the founder and leader of the majority (in Russian, Bolshevik) faction of the Russian Democratic Labor Party and eventually led the coup d’état which, in November 1917, overthrew the interim government which had ruled Russia following the abdication of Tsar Nicholas II in February 1917. Although Lenin was trained as a lawyer, he early became a professional revolutionary and political theorist whose many writings drew on those of Marx and Engels. His main treatise touching on law was State and Revolution which basically adopted the theory of the “withering away of the state” promoted by Marx and Engels as well as the notion that the transitional “dictatorship of the proletariat” would need to maintain “bourgeois” law until the final triumph of communism, when “law,” as such, would disappear with the state, and cede to mere “accounting and control.” His main addition to Marxist thought would probably be his theory of the need for a revolutionary party to “guide” the workers and peasants, due to their inherent incapacity to do so themselves. The problem Russian Marxists had, in the late nineteenth and early twentieth centuries, was to square Marx’s theory, that socialism and communism would only be possible in a country with fully developed capitalism, with the idea of a socialist revolution in the predominantly peasant society of Russia which only had a fledgling proletariat in Moscow and St. Petersburg. One could say, thus, that Lenin propounded a theory of petty bourgeois revolution, where the non-productive but educated classes (lawyers, like Lenin, intellectuals, etc.) would take over the means of production from the incipient bourgeois class and land-owners with the help of the laboring classes.

4.  Marxist approaches to criminal law before the Russian Revolution Before the Russian Revolution in 1917, and the creation of the Union of Soviet Socialist Republics (USSR), which sought originally to base its rule in Marxism, there was little Marxist writing dedicated to law in general, or criminal law in particular. An exception are the writings of Willem Bonger (1876–1940), a Dutch sociologist, whose 1905 dissertation “Criminality and Economic Conditions” was translated into English and published in 1916. Bonger argued that crime had two economic­ ally rooted sources: (a) need and deprivation suffered by the disadvantaged members of society; and (b) greed and selfishness, which were the motivating factors of

298   stephen c. thaman capitalist society. He argued that moral relations and moral restraint are only possible in communities characterized by mutual interdependence and sympathetic identification, and that capitalism’s stress on competition and greed destroyed these values. They could only be restored in a future post-capitalist social system, where those who violate the law will do so only due to mental incapacity, and would be best treated by physicians, rather than punished.1

ii.  The Development of Soviet Criminal Law Theory: Three Main Strains 1. Introduction In the early years of Soviet rule, policy vacillated between minimalist, sometimes called “nihilist” criminal law echoing the utopian Marxist idea that the state and law would wither away, and the instrumental use of criminal law, first as a weapon against the class enemy to consolidate the “revolution,” the takeover by the Communist Party of the Soviet Union (CPSU) and, secondly, through the forced industrialization of the country. Since Marx and Engels did not think socialism or communism could be established in peasant countries like Russia or China, it is perhaps inevitable that Marxism would remain an ideology and would not have practical importance in creating post-revolutionary legal systems in those countries. Marxist-infused utopian notions of criminal law were trumpeted in the early periods of both regimes when the Communist parties were primarily interested in eliminating the remnants of the small incipient bourgeoisies or the rich peasants, that is, the classes that, according to Marx and Engels, were needed to create the economic basis for a transition to communism. Because of this, the policies of the CPSU were in many respects objectively reactionary and not revolutionary. For instance, Decree No. 1 on the Courts, issued in 1917, eliminated the progressive reforms achieved by Tsar Alexander II, who had created a liberal legal system with an independent judiciary, independent prosecutor, and adversary trial by jury in 1864, and eventually replaced them with a system of courts dependent on the CPSU in which party and government officials could call in the judgments they wanted the courts to return (“telephone law”).   Jeffrie G. Murphy, “Marxism and Retribution,” (1973) 2 Philosophy and Public Affairs 217, 234–243.

1

marxist and soviet law    299 And especially under the rule of Joseph V. Stalin (1878–1953), the CPSU reintroduced an economy based on forced labor which effectively reversed Alexander II’s abolition of serfdom in 1861. Stalin was a communist revolutionary from Georgia who won out in party struggles for control of the CPSU in the late 1920s and then ruled the USSR with an iron hand through World War II until his death in 1953. “Marxist” utopianism, based on the “dictatorship of the proletariat,” quickly ceded to the instrumentalist use of criminal law by the CPSU in its dictatorship over the proletariat and peasantry which was aimed at forced industrialization and the collectivization of agriculture, which we can refer to as “Soviet” criminal law. However, “Soviet” law, to distinguish it from other totalitarian or authoritarian legal systems, did conserve some residue from its early “Marxist” roots. I will now briefly discuss the three main trends in Soviet criminal law before elucidating how these three trends affected the General Part and the Special Part of Soviet criminal codes and overall Soviet criminal policy. These three main trends are: (a) “Marxist” radical utopian minimalism; (b) “enemy criminal law” aimed at consolidating the rule of the Communist Party; and (c) the mature “socialist rule of law” aimed at industrializing the Soviet state and educating the populace to be obedient to its policies.

2.  “Marxist” radical utopian minimalism: the gradual withering away of criminal law a) Introduction After the end of the Russian Civil War, Lenin pushed what he called the “New Economic Policy” (NEP) which was, in a sense, a step backward from the radical expropriation of the capitalist classes begun in 1917, and was an implicit recognition of the fact that to rebuild the economy after the war, private enterprise was necessary. This “liberal” period of Soviet history began in 1922, continued beyond the death of Lenin in 1924, and constituted a period of great cultural productivity in painting, cinema, literature, and architecture, as well as in legal theory, with the writings of Pashukanis and others. It ended in the late 1920s as Stalin began to take over absolute control of the CPSU apparatus.

b)  The general theory of law and Marxism by Yevgeniy Pashukanis Yevgeniy B. Pashukanis (1891–1937), was the premier Soviet legal theoretician of the early USSR and his book The General Theory of Law and Marxism2 attempted  Evgeny Pashukanis, “The General Theory of Law and Marxism,” in Piers Beirne and Robert Sharlett (eds.), Pashukanis: Selected Writings on Marxism and Law (1980), 40–131. 2

300   stephen c. thaman to lay a Marxist philosophical and legal foundation for socialist law, and for its “withering away” along with the capitalist and post-capitalist state. He thus follows directly in the line of Marx, Engels, and Lenin. Just as Marx began Das Kapital with a treatise on the commodity, Pashukanis derives his theory of law from commodity exchange. Commodity exchange and the replacement of use-value by exchange-value—that is, the quantification of things according to an abstract measure, money—enables humans to interact as “equals” and “individuals,” separated from their earlier collect­ ive life-world. Indeed, law in general, as we know it, arose to protect the relationships between commodity owners and its language of rights and duties, both in the civil and criminal areas, and reflects these roots. “Only bourgeois-capitalist society creates all the conditions necessary for the legal element in social relationships to achieve its full realization.”3 Each human being became an abstract legal subject with rights and duties. According to Pashukanis, the first appearance of criminal law comes with the stamp of commodity exchange, in the form of blood money, the tradition of paying the victim or the victim’s family a certain price to atone for the crime and prevent blood revenge or feud. “A crime may be considered as a particular aspect of exchange, in which the exchange (contractual relationship) is established post factum, that is, after the intentional act of one of the parties. The ratio between the crime and the punishment is reduced to an exchange ratio.” The feud is transformed from a purely biological phenomenon into a legal institution to the extent that it is linked with the form of exchange-value.4 This state of affairs changed with the development of classes, when the ruling class sought to use the criminal law to prevail in its struggle with the lower and oppressed classes, where criminal law became a “method of merciless and harsh reprisal against ‘evil people’, ” that is, against “peasants who had fled from unbearable exploitation by landlords and the landlords” state, and against the pauperized population, vagrants, mendicants, etc. Punishment became a method of physical elimination or of instilling terror.5 Thus, when the institution of commodity exchange (and labor power is just another commodity) disappears, as a result of the communist revolution, so will bourgeois law and morality as we know it. They will be replaced in mature communism by a collective ethos epitomized by the phrase from Marx’s early works: “From each according to his capacities, to each according to his needs.” Criminal law, which had developed its basic characteristics of retribution and compensation from commodity exchange, would yield to administrative disposition of those few delinquents who challenged the harmony of a classless society.

  Pashukanis (n. 2) 44.

3

  Pashukanis (n. 2) 111–113.

4

  Pashukanis (n. 2) 115.

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marxist and soviet law    301

c)  The chief tenets of “Marxist” utopian minimalism The utopian Marxists thought that the future communist state could do without “law” or the “state” and were therefore very close to espousing an anarchist view. This “anti-criminal law” school held that there would be no crime under mature communism, because there would be no “need” among the masses and no avaristic ruling classes, thus eliminating the motivation for crime under capitalist relations of production. But before that stage was reached, there could be no talk of “guilt” or “unlawful intent” in relation to violations committed by the laboring classes because they were not responsible for the system which created the need to commit the unlawful act. Therefore there could be no “punishment” but only the administration of protective “measures.” No criminal code would be needed, nor would the administrators of the system need a legal education. Judges, guided in their broad discretion only by “revolutionary consciousness,” would merely have to determine whether a “socially dangerous act” was committed and then decide what measures would be applied. Mild administrative measures of re-education and social protection would be applied to errant proletarians and peasants, with the “punitive” repressive measures being reserved for those with evil intent—the capitalist, bourgeois class, and the surviving monarchists. Utopian Marxists rejected retribution as a goal of sanctions, as it rejected the notion of punishment in its entirety. Special deterrence and re­habilitation of the individual wrongdoer were their goals and measures which did not involve deprivation of liberty were therefore preferred. In both China and Cuba the victorious revolutionaries also cancelled all the laws of the ancien régime and flirted with the utopian approach to criminal law in the revolution’s aftermath. The Cuban leader, Fidel Castro (b. 1926), for instance, maintained that the country needed no lawyers, and that all disputes would be handled informally claiming that “revolutionary justice is not based on legal precepts, but on moral convictions.”

3.  Enemy criminal law: criminal law as a weapon against the class enemy a)  The notion of “enemy criminal law” The expression “enemy criminal law” was coined by German professor Günther Jakobs,6 and refers to a type of criminal law that has existed since time immemorial. The notion is that there are two tracks of procedure and punishments: one for those   Günther Jakobs, “Zur Theorie des Feindstrafrechts,” in Henning Rosenau and Sangyun Kim (eds.), Straftheorie und Strafgerechtigkeit (2010), 167–182. 6

302   stephen c. thaman belonging to the dominant lineage, tribe, ethnicity, “citizens,” the “good guys” and another for the “other,” the outsiders, the “enemies” whether they were brigands, highwaymen, vagrants, or freed slaves, not to speak of the eternal American problem of having one system for the rich and another for the poor, one for the white and one for the black.

b)  The chief tenets of “enemy criminal law” in the USSR Soviet law, especially in the early years, reserved its harshest measures for use against the “class enemy,” the bourgeoisie or remaining monarchists, and later against whomever it determined was “anti-Soviet.” Already in State and Revolution, Lenin set the groundwork for the dual system characteristic of “enemy criminal law”: “The dictatorship of the proletariat produces a series of restrictions of liberty in the case of the oppressors, the exploiters, the capitalists. We must crush them in order to free humanity from wage slavery; their resistance must be broken by force; it is clear that where there is suppression there is also violence, there is not liberty, no democracy.” He asserted that the “State must be democratic for the proletariat and poor and dictatorial against the bourgeoisie.” According to Lenin: “the courts should not do away with terror—to promise that would be to deceive ourselves and others—but should give it foundation and legality, clearly, honestly, without embellishments.” In § 27 of the 1922 Criminal Code a distinction was made between “crimes against the establishment of the worker and peasant’s power” and “all other crimes,” which led to sentencing aggravation for the commission of the former. Shortly before the Chinese Communist Party under the leadership of Mao Zedong (1893–1976) took control of the Chinese mainland, Mao described the “people’s dictatorship” as “democracy for the people and dictatorship over the reactionaries.” The state was clearly seen as the “instrument by which one class oppresses another.” In 1957, in his talk “On Correctly Handling Contradictions Among the People” Mao stated that: “all classes, strata and social groups that approved of, supported and participated in the endeavor to construct socialism fell under the rubric of the people, while all social forces and social groups that resisted the socialist revolution and were hostile to or undermined the construction of socialism, were the people’s enemies.” A member of the “people,” however, could become an “enemy” by committing a serious crime, such as murder, rape, or prostitution and become a “bad element.” Eventually, the class enemy was divided into the “five elements”:  landlords, rich peasants, counterrevolutionaries, bad elements, and “rightists.” Soviet-style enemy criminal law is characterized by the use of a regular system of criminal courts for workers, peasants, and the “good guys” and either “revolutionary tribunals” or administrative organs of repression for the “enemy of the people.”

marxist and soviet law    303 Decree No. 1 on the Courts in 1917 established elected revolutionary tribunals with panels of six lay judges or assessors to deal with counterrevolutionary activity, thus marking the beginning of a separate system for the regime’s enemies. The revolutionary tribunals initially asked the public to help it decide cases. There was no prosecutor or defense counsel per se involved, other than citizens who could assume these roles. The courts had no laws, only their “revolutionary conscience” to guide them. No court personnel were professional jurists. On November 21, 1917, the “Commission for the Fight Against the Counterrevolution” (CHEKA), was created to investigate cases for the revolutionary tribunals, but it was later authorized summarily to execute “enemy agents, speculators, thugs, hooligans, counterrevolutionary agitators, and German spies” and to “destroy the bourgeoisie as a class.” Its only criteria was the class to which the suspect belonged, “his origins, education, training or profession.” It acted as investigative organ, court, and executioner until abolished in December 1921. Under Stalin, the Unified State Legal Directorate (OGPU) and the People’s Commissariat of Internal Affairs (NKVD) set up tribunals that were instrumental in the Great Terror of the 1930s. The OGPU’s Special Board, established in 1924, was originally set up to facilitate campaigns against anti-Soviet elements and to silence potential opponents. They were later given the power to imprison or exile for a term of up to five years anyone considered to be “socially dangerous.” In the late 1930s, and again in the 1940s, the maximum sentence was extended to ten and then 25 years. Proceedings of the boards were not public, the accused had no right to counsel, and there was no appeal of verdicts. Most of the nearly 800,000 political prosecutions in 1937 were handled not by courts but directly by Special Boards or the notorious three-person panels (troiki). Procedures for “enemies” were also carried out in a super-expedited fashion in the normal courts. For instance, Nikolay Krylenko (1885–1938), People’s Commissar for Justice from 1931 until shortly before his death, and a prominent utopian Marxist legal reformer, was tried and convicted in a 20-minute trial before the Military Panel of the Soviet Supreme Court and executed immediately after the trial. China also set up its “People’s Tribunals” after 1950 which were to function as ad hoc courts to punish “local despots, bandits, special agents, counterrevolutionaries, and criminals who violate the laws and orders pertaining to agrarian Reform.” These tribunals could make arrests, detain subjects, impose the death penalty, and other penalties. Mass trials, accusation meetings, and “big meetings to announce the sentence” were used to dispense justice. Each forum could involve up to tens of thousands of people. In the early years, North Vietnam also used “special people’s courts” empowered to try counterrevolutionary elements, or anyone acting against agrarian reform and impose death penalties.

304   stephen c. thaman After the 1959 revolution, Cuba introduced “revolutionary tribunals” to try members of the previous regime for murder, torture, and other atrocities, but their jurisdiction was eventually extended to the crimes of alleged insurgents. Marked by summary procedures and the power to impose capital punishment, these courts were staffed by a mixed bench of professional and lay judges, with the latter composed of soldiers, civilian militia members, and representatives from the Ministry of Interior. Cuba also continues to use special “summary proceedings” in the trials of dissidents and those charged with crimes threatening state security. These trials are closed to the public, take place days after arrest and pursuant to exceedingly lax evidentiary rules with a limited right to counsel. They always result in conviction. The overwhelming penal theory behind “enemy criminal law” is a combination of special deterrence (the commitment to a concentration camp or immediate execution) with general deterrence:  the reign of terror and Stalin’s show trials were definitely designed to induce obedience in the general population.

4.  Establishment of the “socialist rule of law” under the reign of Joseph V. Stalin By the time Stalin had consolidated his power and proclaimed that socialism could be created in one country, without waiting for the victory of socialist revolutions in the more developed countries of Western Europe, the utopian theory of the “withering away” of the state propounded by Marx, Engels, Lenin, and Pashukanis was rejected in favor of the idea of a “socialist rule of law.” The main proponent of this new legal ideology was Andrey Vyshinskiy (1883– 1954). He held the positions of Minister of Justice, Prosecutor General of the USSR, and, in the end, was a diplomat involved in the negotiations surrounding the founding of the United Nations. He was also the chief prosecutor in many of the most prominent “show trials,” including that of Pashukanis. Vyshinskiy wrote: “Over the course of years an almost monopolistic position in legal science has been enjoyed by a group of persons who have turned out to be provocateurs and traitors—people who actually knew how to contrive the work of betraying our science, our state and our fatherland under the mask of defending Marxism-Leninism.” He denounced the “Trotsky–Bukharin band headed by Pashukanis, Krylenko, and a number of other traitors.” The “socialist state” was now semi-permanent and its ruling clique, the Communist Party, needed its own “rule of law” for its state, much as the capitalist classes supposedly used the “bourgeois” state to maintain its economic and political hegemony. This new “socialist law” required socialist legal education and legally trained judges, prosecutors, and criminal investigators, instead of amateurs inspired by

marxist and soviet law    305 “revolutionary consciousness.” It required criminal codes and criminal punishment. Special prevention gradually took a backseat to retribution and general deterrence. Parole was eliminated in 1938. Once Stalin and his successors accepted that their socialist rule of law was not transitory, and had to be administered by professionals, the unsuccessful prosecutions which ended in dismissals or acquittals due to the incompetence of the amateur officials became unacceptable. Acquittals were considered to be a blemish on the system and virtually disappeared.7 Indeed, the emphasis on general deterrence required that criminal trials be less exercises in ascertainment of the “material truth” of the charges, than vehicles to educate the populace in how properly to behave in the socialist community and be a productive member thereof. Thus, we have the great “show trials” conducted against the Old Bolsheviks or other “enemies of the people” of dangerous stature, and smaller “demonstration” trials conducted in factories, worker’s collectives, collective farms, etc. To ensure the trial’s educational value, however, the state had to fix the result of the trial at the outset. As was stated in § 3 of the Principles of Court Organization (1938): In applying criminal measures, the court punishes not only the criminals, but aims also at their correction and reeducation. Through its total activity the court educates the citizens of the USSR in the spirit of dedication to the homeland and to socialism, in the spirit of an exact and strict fulfillment of Soviet laws, a careful attitude toward socialist property, to labor discipline, an honest approach to state and social duty, and to heeding the rules of socialist community.

Since the purpose of trials was predominantly education of the public and repression of “socially dangerous” people, rather than the ascertainment of truth, Soviet law rejected “bourgeois” concepts such as the presumption of innocence, the privilege against self-incrimination, the right to counsel, and, in practice, even the possibility of acquittal. This Soviet criminal justice system was adopted in most part by Poland, Hungary, Czechoslovakia, East Germany, Bulgaria, and Romania after World War II. Although all these countries quickly “de-Sovietized” after the “velvet” revolutions of 1989. Soviet criminal law (and procedure) begin to “wither away” however, to be replaced by more conventional democratic rule of law forms with the ascendancy of Mikhail Gorbachev (b. 1931) to the post of General Secretary of the CPUSSR in 1985 and his “restructuring” or perestroika of Soviet society, until the Soviet state itself withered away in December 1991. After the Cultural Revolution and the death of Mao Zedong, a turn to “socialist legality” finally began in China under the leadership of Deng Xiaoping (1904–1997) as the country, while maintaining the Communist Party dictatorship in the political   Peter H. Solomon, Jr., Soviet Criminal Justice Under Stalin (1996), 371.

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306   stephen c. thaman realms, gradually began moving to a market economy. The first Penal Code and Code of Criminal Procedure were finally enacted in 1979.

iii.  General Principles of Soviet Criminal Law (The General Part) 1. Introduction In this section I  will discuss the general principles of Soviet criminal law which distinguish it from Western criminal law systems, whether of civil law or common law heritage. Tsarist Russia was clearly in the civil law realm and today’s Russian Federation, though firmly back in civil law tradition, has, like many other countries reforming their criminal justice systems, moved closer to the common law in adopting adversarial procedure, plea bargaining, and, in Russia’s case, a reintroduction of jury trial. I will, however, note where Soviet principles continue to play a role in Russian criminal law today. As I discuss Soviet criminal law legislation and practice from 1917 through 1991 I will trace the rise and fall of principles that derive from utopian Marxist thought, the crude strains of enemy criminal law, or the instrumentalist Stalinist “socialist rule of law.” In the last analysis, it is the amalgam of these three ideological approaches that constitutes “Soviet criminal law.” The death penalty, not only for murder (as in the United States) but for a wide swath of crimes against the socialist state and way of life, was also a part of socialist criminal law. Although most Western European countries had abolished the death penalty by the early 1980s, every socialist country maintained it until the German Democratic Republic abolished it in 1987, with the rest of the Southern and Eastern European members of the socialist bloc following suit after 1989, and most of the post-Soviet republics falling into line in the last 20 years. The remaining socialist countries—North Korea, China, Vietnam, and Cuba—all still use the death penalty. Throughout this section, and the following section dealing with the Special Part, I will refer, primarily, to the following important pieces of legislation: (a) the Guiding Principles of the Criminal Law of the Russian Soviet Federated Soviet Republic (RSFSR) of 1919 (Principles (1919));8 (b) the Criminal Code of the RSFSR

  Decree of the People’s Commissariat of Justice, Dec. 12, 1919, SU (1919), No. 66, item 590.

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marxist and soviet law    307 of 1922 (CC (1922));9 (c) the Principles for Criminal Law Legislation of the USSR and Union Republics of 1924 (Principles (1924));10 (d)  the Criminal Code of the RSFSR of 1926 (CC (1926));11 (e) the Principles of Criminal Law Legislation of the USSR of 1958 (Principles (1958));12 and (f) the Criminal Code of the RSFSR of 1960 (CC (1960)).13 However, the aforementioned codes, were supplemented, especially during Stalin’s rule, by ad hoc laws, resolutions of the Supreme Court and other government bodies, and even secret regulations issued by government or party organs. For Stalin, the codes were the “conduct rules” for educating the people and deterring crime, the secret directives were the “decision rules” for administering them.

2.  Goals of the criminal law The Principles (1919), consisting of only 27 paragraphs, constituted the first attempt to lay out a General Part of criminal law after two years without codes, with judges relying on “revolutionary consciousness” to suppress anti-regime forces. § 3 Principles (1919) pronounced that the task of Soviet criminal law was “to protect, through repression, the system of social relations which corresponds to the interests of the workers as the dominant class in the transition from capitalism to communism, the dictatorship of the proletariat.” Until the promulgation of the CC (1922), this task had to be accomplished without a Special Part of the CC, that is, without statutory offenses with clearly delineated elements. This goal is clearly instrumental or utilitarian and reflects the Marxist notion that “law” will still be necessary during the transitional dictatorship of the proletariat. Criminal law will be needed for class purposes, thus also encompassing its use as enemy criminal law. In later formulations, the mention of the “dictatorship of the proletariat” disappears, with the goal of the criminal law being the protection of: the “government of the workers” from “crimes and socially dangerous elements” (§ 5 CC (1922)); or of the “socialist state of workers and peasants” against “socially dangerous acts (crimes)” (§ 1 CC (1926)). Finally, in post-Stalinist legislation, the goal becomes the protection of the “Soviet social and state structure, socialist property, the individual and rights of the citizen, and the entire socialist legal order” against “criminal acts” (§ 1 Principles (1958); § 1 CC (1960)). The USSR has become a state of all the people,

10   SU (1922), No. 15, item 153.   SZ (1924), No. 24, items 205 and 206.   SZ (1926), No. 80, item 600.    12  Vedomosti Verkhovnogo Soveta SSSR (1959), No. 1, item 6. 13   Vedomosti Verkhovnogo Soveta RSFSR (1960), No. 40, item 591. Criminal codes were within the competence of the Soviet republics and the criminal codes of the RSFSR, by far the largest and most influential Soviet republic, will be my reference point. The “Principles,” on the contrary, were Union-wide in their application. 9

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308   stephen c. thaman not just workers and peasants, and with no hint of transitoriness. Enemy criminal law and Marxist utopianism have faded.

3.  Judicial discretion in the Soviet definition of crime Even with the promulgation of the first criminal code (CC (1922)), the imprint of the utopian “anti-law” period was still apparent. It set forth two principles which rendered the definition of crime incredibly malleable:  judicial discretion (in the form of “revolutionary conscience” or “socialist legal consciousness”), and the use of analogy.

a)  Judging according to “revolutionary conscience” or “socialist legal consciousness” Even before the Principles (1919), Decree No. 1 on the Courts, provided that “local courts will only be guided in their decisions and judgments by the laws of the old government to the extent that they have not been eliminated by the revolution and do not contradict revolutionary conscience and revolutionary legal consciousness.” Decree No. 2 on the Courts of March 7, 1918, bound local courts to apply “socialist” legal consciousness and informal justice principles. § 9 CC (1922) instructed judges to sentence according to their “socialist legal consciousness” while “observing the guiding principles and articles” of the Code.

b) Analogy The ability to condemn someone after they have committed a dangerous act not rendered punishable by the Code is a version of convicting based solely on “revolutionary conscience.” It violates the principles of legality and nulla crimen sine lege. Punishment by analogy was allowed by § 10 CC (1922) and § 16 CC (1926), though it was seldom used. Crimes were vaguely defined in order to give state organs maximum flexibility in apprehending and convicting “enemies of the people.” The effect of the doctrine of analogy was to widen the already wide definition of political crimes listed in § 58 CC (1926) (see Section IV.2.b). The legitimacy of the use of analogy and “revolutionary conscience” was eventually called into question by Soviet legal theorists, the most prominent of whom was Mikhail S. Strogovich (1894–1984). Writing in the 1940s and 1950s, he demanded that courts should punish only criminal acts included in the Code, and not status or class affiliation, and should seek to ascertain the truth of such charges and given written reasons based on evidence presented in court. His ideological opponent was Vyshinsky, who thought material truth could not be reached and that socialist legal consciousness was needed to correct the law to achieve political aims.

marxist and soviet law    309 Poland, East Germany, Czechoslovakia, and Hungary never introduced analogy though they did, by and large, adopt the Soviet system of criminal law after World War II. Nulla crimen sine lege was finally recognized, and analogy eliminated, in the CC (1960). Analogy and “revolutionary conscience” also played an important role in the early decades of the People’s Republic of China and unified Vietnam. Analogy was only eliminated in 1985 in Vietnam and 1997 in China.

4.  Actus reus and social dangerousness § 6 Principles (1919) described a crime not as the violation of a formal normative prohibition, but as an “act or omission dangerous for the given system of social relations,” implying that the definition of crime may fluctuate with changes in the country’s social relations. This sociological, rather than psychological, approach paved the way for the instrumental use of criminal law not only to crush the regime’s perceived enemies, but also to facilitate the industrialization of Soviet society. This material approach to criminal law was followed in all the Soviet codes and has even been maintained in the post-Soviet Criminal Code of the Russian Republic. § 6 CC (1926) also allowed for dismissal of de minimis crimes even though the elements of an offense were provable, if the act committed lacked the requisite social dangerousness and this provision remained part of Soviet and later Russian law. § 8 CC (1926) also provided for dismissal if the actor or the crime was no longer considered to be socially dangerous at the time of trial. The same applied in § 43(1) Principles (1958) and § 50 CC (1960). The Principles (1919) require an “act or omission,” but this restriction became foggy over the years as enemy criminal law required the punishment of people due to their status. The goal of the criminal law to protect against “socially dangerous elements” (§ 5 CC (1922)) intimates that a voluntary act or omission may not have been a prerequisite for imposing sanctions. Persons considered dangerous due to their past criminal conduct or association with a criminal milieu could be subject to punitive measures (§ 7 CC (1926)), including banishment or restrictions on where they could live (§ 49 CC (1922); § 22 Principles (1924)). Acquitted persons could also be subject to the sanction of a “warning” (43 CC (1926)). However, the Supreme Court of the RSFSR in 1927 decided that one could not be banished or exiled based on status alone, without having committed a criminal act and the post-Stalinist § 3 Principles (1958), clearly require that: “Criminal responsibility and punishment may be imposed only on a person, who is guilty of the commission of a criminal act, that is, intentionally or negligently commits a socially dangerous act that is provided in the criminal law.”

310   stephen c. thaman The emphasis on social dangerousness, rather than the morally laden and individualistic notion of personal guilt, is one of the most typical and lasting characteristics of Soviet criminal law.

5.  Mens rea a)  Intent and negligence (carelessness) The early Soviet codes reflect the Marxist attempt to break from the concept of psychological guilt and retributive punishment or “just deserts” and to move to a sociological analysis of social dangerousness in objective terms. In many ways, this came close to a denial of the inner or mental element of crime, or mens rea. Soviet courts vacillated from imposing strict liability for harm caused to insisting on guilty intent. Whether a crime was committed intentionally, knowingly, or negligently, was, according to § 12(v) Principles (1919), seen more as a factor in imposing punishment, than an element of the offense committed. Thus, pursuant to § 11 CC (1922), to be “punished” one must have acted (a) intentionally, that is, foresaw the results of his acts and desired, or consciously allowed, them to take place or (b) acted carelessly, that is, foolishly thought he could prevent the results of his acts or negligently failed to foresee the deleterious results. In the CC (1926), however, renowned as the Code “without guilt or punishment”, § 10 requires one of the same mental states to “apply a measure of self-defense of a judicial-corrective character,” the Code’s paraphrase for “punishment.” Even in the many Special Part offenses where causing serious injury or death aggravates punishment, the actor must at least be “careless” with respect to the aggravating result to merit the enhanced punishment. The Soviet definitions of mental states—intentional, knowingly, or carelessly (neostorozhno) are borrowed directly from the terms used in most civil law countries and have not been affected by Marxist thought.14

b)  Mental illness and diminished capacity Those suffering from a chronic mental illness or a temporary psychic disturbance at the time of their act, or who suffered from mental disease at the time of judgment, could neither be punished under § 17 CC (1922) nor be subject to measures of social defense of a judicial–corrective character under § 11 CC (1926). They could, however, be subject to other “measures of social defense of a medical character.” Nevertheless, alcoholic intoxication was never treated as a factor which could eliminate or mitigate guilt, or lead to a reduced punishment. Abuse of alcohol has long been endemic in Russian culture and been the cause of poor work habits,   The same approach is still used in post-communist Russia. Stephen C. Thaman, “Russia,” in Kevin John Heller and Markus D. Dubber (eds.), The Handbook of Comparative Criminal Law (2011), 420–422. 14

marxist and soviet law    311 violence, and low life expectancy. Yet the taxes on alcohol, especially vodka, were a major source of revenue for the tsarist and Soviet regimes, and still are in today’s Russian Federation. Until 1969, drunkenness could aggravate punishment only if it enhanced the social dangerousness of an act yet, thereafter, drunkenness became a general aggravating factor in sentencing (§ 10 CC (1960)).

c)  Treatment of children, juveniles Pursuant to § 18 CC (1922), minors younger than 14 years when they committed the act cannot be punished, and those aged 14 or 15 can normally only be subject to med­ ical or pedagogical measures and not punishment. The same limits were originally included in the CC (1926). If children had to be punished, the punishment was discounted by one-half for 14- and 15-year-olds and by one-third for 16- and 17-year-olds. However, an edict of April 7, 1935, “On the Struggle against Juvenile Crime,” lowered the minimum age of criminal responsibility to 12 years for a short list of common crimes and made children face trial in the normal courts and made them subject to the same penalties as adults. Age-based discounts were abolished by edict on November 25, 1935. The juvenile commissions which handled juvenile cases were also abolished.

6.  Inchoate crimes and accomplice liability While the Soviet definition of what constitutes an “attempt” or “preparation” of a crime does not diverge from definitions found in the civil law world, all of the Soviet codes, due to the focus on social dangerousness, applied the same punishments as for a completed crime. However, if the actor renounced his or her criminal intentions before the crime was committed, he or she could not be punished for prepar­ ation or attempt, but only where the acts already committed constituted a distinct criminal offense (§ 19 CC (1926); § 16 CC (1960)). In relation to accomplice liability, Soviet law, which differentiated between executors (principals), instigators, and aiders and abettors, also did not allocate different sentences based solely on the level or quality of the aid provided toward commission of the offense, but solely on the social dangerousness of the defendant, no matter which role he or she played in a crime’s commission (§§ 21–24 Principles (1919); § 18 CC (1926)).

7.  The Soviet theory of punishment a)  The broad use of discretion in general The first Bolshevik decrees in relation to punishment were vague and allowed great discretion. Examples are where the guilty person will “receive a severe punishment,”

312   stephen c. thaman will “get a punishment that corresponds to the gravity of the deed,” or “will be punished with the full toughness of the revolutionary law.” According to § 7 Principles (1919), punishment was described as “measures of coercion through which the state power protects the given social relations against criminals.” This “repression” was not seen as retribution in the name of justice, but mere “coercion.” § 10 Principles (1919) stated that “in selecting punishment, one must take into consideration, that criminality is caused in class society by the circumstances of social relations in which the perpetrator lives,” and that “punishment is not retribution for guilt, not penitence for guilt” but “as a protective measure, punishment should be goal-oriented and at the same time without pain, and should not impose on the perpetrator any unnecessary or superfluous suffering.” Even with the CC (1922), the most important sentencing principle was judicial discretion. Most articles gave judges a broad choice of sanctions, a spectrum of terms of custody, and noncustodial options, as well as “compulsory work” to be chosen according to their “socialist legal consciousness.” Throughout Soviet history, judges could also sentence below the statutory minimum in exceptional cases and this discretion continues to exist in post-communist Russia. Another use of judicial discretion was the power to dismiss a case with conditions, similar to what is called “diversion” in the United States. In cases of minor crimes, the court could “liberate” the accused from criminal responsibility and refer the case either to a “comrades’ court,” a lay court often within a collective farm or workers’ collective, or to the custody of a person for the purpose of supervising the conduct of the accused and ensuring the fulfillment of non-criminal measures (§§ 51, 52 CC (1960)). These courts were used in the early years of the USSR and then reinstituted in 1959.

b)  Class as an aggravating or mitigating circumstance Crucial, for the two-lane class-based approach to sentencing was § 12(a,b) Principles (1919) which asks the judge to determine “if the act was committed by a person who belonged to the propertied class and was committed with the goal of restoring, maintaining or obtaining privileges bound with the private property owning class, or whether by a propertyless person motivated by hunger or necessity” or “in the interest of restoring to power the vanquished class.” § 31 (a,b,v) Principles (1924) contained similar language. § 32(b) Principles (1924) also made it a mitigating factor if the actor was a worker or working peasant. In the following section on the Special Part we will see how rich peasants (kulaks) were subjected to aggravated punishments for theft, solely due to their class adherence. The aggravating and mitigating circumstances based on class did not make it into either the CC (1922) or the CC (1926), however, and were criticized as being “vulgar Marxist” principles. Article 4 of the Soviet Constitution of 1936, dubbed the

marxist and soviet law    313 “Stalin Constitution,” proclaimed that the “exploitation of man by man” had been abolished, that is, that classes no longer existed. As we shall see in the discussion of the Special Part, workers were actually subject to some of the most draconian punishments during Stalin’s forced industrialization of the country.

c)  Other aggravating circumstances and mitigating circumstances Other than the specific Soviet or “Marxist” aggravating circumstances related to class mentioned previously, Soviet law provided for aggravating circumstances that were very similar to those found in Western democratic penal codes. Soviet mitigating circumstances, other than those based on class, are also not dissimilar to those found in Western codes. The mitigating circumstances of hunger and need, however, disappeared in the Principles (1958) and the CC (1960), supposedly due to the fact that need had been eliminated by that time!15

8.  Soviet punishments and measures of social protection a)  Non-custodial punishments and measures of judicial–corrective character Other than deprivation of liberty and the death penalty, § 33 CC (1922) provided for expulsion from the country (exile) for a term or forever, forced labor without imprisonment, probation (conditional punishment), confiscation of property, fines, loss of rights, professional prohibitions, public reproach, and restitution. Among the “measures of judicial–corrective character” in the CC (1926) were also “declar­ ation as an enemy of the workers,” loss of citizenship, and expulsion from the country (§ 20(a) CC (1926)), a larger gamut of internal exile and banishment provisions and “warnings” (§ 20(o) CC (1926)). From the early 1920s to the beginning of World War II, it was likely that a person convicted of a crime would receive a lenient, usually noncustodial, sanction. 80% of those convicted in court in the early 1920s received a sentence of compulsory labor without deprivation of liberty which, per § 35 CC (1922), could last from a week to a year.

b)  Deprivation of liberty In the early Soviet years, deprivation of liberty was considered to be an exceptional punishment for workers, peasants, or other common people and only to be imposed as the ultima ratio. For the class enemy or enemy of the people, however, the typical   Ulrike Schittenhelm, Strafe und Stanktionensystem im sowjetischen Recht (1994), 215.

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314   stephen c. thaman punishment was deprivation of liberty, or death penalty by shooting. Since jail sentences were considered to go against the preventive goal of rehabilitation, a minimum sentence of six months was first set in the CC (1922), but was reduced to one month in 1923, seven days in 1924, and one day in the CC (1926), only to be raised to three months again in § 24 CC (1960). The reason for these short prison sentences was that neither fines, forced labor without confinement, nor suspended sentences were realistic alternatives in the early Soviet era.16 The percentage of sentences to deprivation of liberty gradually rose because there were insufficient work opportunities for a sentence to compulsory labor without confinement. By 1926, 40% received terms in prison, usually only for a number of months, up from around 20% in previous years, though the rate fell to around 9.6% in 1928 and 1929. However, with the Law of August 7, 1932 (see Section IV.3), rates of imprisonment jumped to 29% in 1933 and up to 67% in 1941, with the average terms being considerably longer.17 The USSR never had a punishment of life imprisonment because prisoners were always considered to be subject to rehabilitation. The longest prison sentence was originally ten years (§ 18 Principles (1919); § 34 CC (1922); § 28 CC (1926)), though the maximum was raised to 25 years in 1937 for some political crimes, but in § 23 Principles (1958) the maximum was again lowered to ten years for normal crimes, and 15 years for especially dangerous recidivists and those convicted of especially grave crimes, such as aggravated murder. Vietnam, unlike the USSR and most other socialist regimes, did provide in general for longer prison sentences and life imprisonment for murder and other serious crimes. In the mature Soviet system there were three basic types of deprivation of liberty: (a) settlement colonies, more like half-way houses, where low-level prisoners could work, live with their families, and leave for schooling; (b)  corrective labor colonies, for higher security prisoners; and (c) prison (tiur’ma), since 1936 for dangerous recidivists sentenced to more than five years for grave crimes. Solzhenitsyn maintained that the system of Soviet concentration camps was first conceived by Lenin in the decree, “Temporary Instructions on Deprivation of Freedom,” of July 23, 1918. In a letter of August 1918, Lenin expressed his position: “Lock up all the doubtful ones in a concentration camp outside the city” and “carry out merciless mass terror.” Solzhenitsyn claimed that this was the first time the term “concentration camp” was used in relation to one’s own citizens.18 Soviet law always allowed early release from prison after having served a set percentage of the sentence. In the last variant (§§ 44, 44-1 Principles (1958); §§ 53, 53-1 CC (1960)), the condition for release was that “the actor has shown his correction through exemplary conduct and an honest approach to work.” Here one again sees the Soviet emphasis on rehabilitating prisoners to play a role in the country’s 17   Schittenhelm (n. 15) 63, 90, 113.   Solomon (n. 7) 52, 223–224, 229.   Aleksandr Solzhenitsyn, Gulag Archipelago, Vol. 2 (1979), 14–21.

16 18

marxist and soviet law    315 economy, although those sentenced to corrective labor colonies—the GULAG— actually were the primary workforce in the industrialization of the USSR. Laogai, or “reform through labor” which was aimed at transforming criminals into productive citizens, was the main sanction imposed in the People’s Republic of China for convicted criminals, or those just administratively detained. Although re-education was the main goal of criminal justice in China, in 1956 Mao stated that some counterrevolutionaries had to be killed: “because they were deeply hated by the masses and owed the masses heavy blood-debts.” From 1952 to 1962, around ten million prisoners died in Chinese re-education and prison camps from malnutrition, being worked to death, or from execution. Even after the 1997 reforms in China, minor offenders could still be administratively committed to terms of “re-education through labor” of up to four years without even invoking the protections of the criminal justice system. Socialist North Vietnam also had a broad system of “re-education” camps. Decrees in 1961 permitted unlimited detention in three-year renewable periods for the re-education of “counterrevolutionary elements” who threatened public secur­ ity, among them “professional scoundrels,” defined as persons who earned a living by criminal means, such as thieves, pimps, and recalcitrant hooligans who had “refused to mend their ways” after being subjected to re-education measures not involving incarceration. Similar measures were applied to South Vietnamese collaborators with the U.S.-supported regime after the North’s victory in 1975.

c)  Banishment, exile, restrictions on residence Expulsion from the country or republic (vysylka) or internal banishment or exile (ssylka) in places like Siberia has a long tradition in Russia. § 36(a) CC (1922) and § 20(e) CC (1926) provided for a punishment or sanction of “expulsion from the USSR for a term or forever.” § 20(zh) CC (1926) included a measure for internal exile (i.e. in Siberia). The maximum length of banishment was originally 15 years but was eventually reduced to ten. Banishment and exclusion from a place could be imposed as the main, or as a supplementary, punishment. These punishments remained on the books until perestroika.

d)  The death penalty Russia has always had an ambivalent attitude toward the death penalty. Empress Elizabeth, for instance, abolished it in 1753 but it kept coming back until it was abolished by the interim government of Alexander Kerensky after the overthrow of the tsar in February 1917. Although the Bolsheviks suspended the death penalty shortly after their seizure of power, it was reintroduced on June 16, 1918, to be used by the revolutionary tribunals and the CHEKA during the “red terror” of the years of “war communism.” Lenin claimed that “no one can be revolutionary and repudiate the

316   stephen c. thaman death penalty.” § 9 Principles (1919) provided:  “The protection of society against future criminal acts of someone who is subject to punishment can be achieved either through his adjustment to the given social order or, when the perpetrator does not adjust, through isolation and in exceptional cases through physical extermination.” Although the death penalty was again abolished by decree after the end of the Civil War in January 1920, it was reauthorized five months later. § 33 CC (1922) and § 21 CC (1926) foresaw death by shooting, “until its repeal,” as the punishment for the most serious crimes which threatened the foundations of the Soviet state. The CC (1960), at its most repressive, provided for the death penalty, “until its repeal” for 17 different offenses, including some economic offenses. Executions reached a high of 2,000 a year in the 1960s then dropped to 1,000 per year from the early 1970s to the mid-1980s. The death penalty is still on the books in the Russian Federation but there has been a moratorium on executions since 1996 due to Russia’s ratification of the European Convention on Human Rights. One official estimate was that 9,641 persons were executed following court trial from December 1917 through February 1922, the period of “war communism,” but others put the figure at from 25,000 to 150,000. Of course, the numbers executed by the CHEKA and other administrative organs was much greater. The number of executions following court verdicts during Stalin’s reign is estimated at somewhere between 700,000 and 800,000. It has also been estimated that from 1960 to 1981 2,000 to 3,000 persons were executed each year, with the number falling to around 750 a year from 1982 through 1989. In the early 1950s in China, 95% of all crimes carried the death penalty, life imprisonment, or imprisonment for a term. An estimated four million arrests were made by popular tribunals and around one-quarter of those arrested were executed. The death penalty was carried out immediately, usually in public, with a bullet in the nape of the neck. The Criminal Code of China of 1997 still has 68 crimes which are punishable by death, 20 of which are economic offenses, such as bribery or embezzlement, which can end in the death penalty if the loss amounts to more than 100,000 RMB ($14,500).

iv.  The Special Part of Soviet Criminal Law . Introduction The really distinctive aspect of the Special Part of Soviet law is to be seen in three areas: counterrevolutionary crimes (always the first to be mentioned in the Special

marxist and soviet law    317 Part), or crimes against the Soviet way of life, economic crimes (including theft of state property), and crimes by officialdom. Otherwise, crimes against the person such as murder, assault, sexual assault, etc., will only be mentioned in passing where pertinent.19

2.  Counterrevolutionary crimes and crimes against the Soviet state and way of life a) Introduction Since all states punish high treason and other crimes against state power or the constitution, it is important to distinguish those provisions of Soviet law which go beyond the norm and are framed in vague terms which permit “flexible” application to dissidents or non-conformists of diverse stripes. Typically Soviet, in this context, is the threatened punishment of all adult members of the family of someone who is guilty of treason with loss of civil rights or being exiled to Siberia or other outlying regions for up to five years (§ 58(1v) CC (1926)).

b)  Counterrevolutionary crimes and anti-Soviet agitation § 57 CC (1922) described “counterrevolutionary acts” as not only those aimed at overthrowing Soviet power and the Soviet state, but also acts which are “aimed at helping that part of the international bourgeoisie which does not recognize the equal rights of the communist system of property which has arrived to replace capitalism, and strives to overthrow it through interventions or blockades, espionage, financing of the press or other similar means.” §§ 60, 61 CC (1922) provide for a possible death penalty for anyone participating in such acts, or aiding organizations which “help the international bourgeoisie.” § 58(1,4) CC (1926) contains similar language. §§ 69, 70 CC (1922) punished “propaganda and agitation” whether to “overthrow the Soviet power” or for “helping the international bourgeoisie.” § 72 CC (1922) punished the “preparation, possession with intent to distribute, and distribution of agitational literature of a counterrevolutionary character” and § 73 punished “conceiving and distribution of untrue rumors or unproven information with counterrevolutionary goals, which could give rise to social panic, or lack of trust in the government.” The infamous § 58(10) CC (1926), which was in force throughout Stalin’s reign, contained similar language, and provided for the “highest form of social defense,” that is, the death penalty, if the propaganda, agitation, or literature contained religious or nationalistic content or the acts were committed during times of war or   On the modern Russian approach to crimes against the person and sexual assault, which is similar to the approach in Soviet times, see Thaman (n. 14) 435–440. 19

318   stephen c. thaman emergency. Solzhenitsyn gave examples of conduct that led to punishment under § 58(10) CC (1926): putting a noose around a bust of Stalin better to carry it (ten years), a shepherd calling a cow a “collective-farm whore,” a deaf and dumb carpenter hanging his coat on a bust of Lenin (ten years), drinking heavily because of hatred of the Soviet government (eight years); praying in church for the death of Stalin (25 years), or saying Pushkin was a better poet than the Soviet icon Mayakovsky (15 years).20 Anti-Soviet agitation continued to be punished by § 70 CC-RSFSR (1960), although no longer with the death penalty. The crime of “undermining state industry, transport, commerce, or the monetary or credit system, or using state enterprises with counterrevolutionary intent,” sometimes called “wrecking” was also punishable by death (§ 58(7) CC (1926)), though a similar offense in post-Stalinist times was no longer punishable by death (§ 69 CC (1960)). Up until the late 1970s, the 21 Articles of China’s “Statute on Punishment for Counterrevolutionary Activity” of February 20, 1951 was the closest thing to a criminal code. “Counterrevolutionary” was defined as “any activity that aims at overthrowing or undermining the democratic dictatorship of the people and the socialist system and therefore puts the People’s Republic of China in harm’s way.” Like other socialist penal codes, the CC-Vietnam (1985) penalized a wide range of conduct as crimes against the state, which included “propaganda against the socialist regime,” or “production, possession, or distribution of documents or cultural articles whose content is directed against the socialist system.” In 1999, Cuba passed a law in response to a drastic tightening of the U.S. trade embargo, which punishes by up to 20 years any “actions designed to support, facilitate, or collaborate with the objectives” of the embargo and the “economic war” against Cuba, which can include possessing, distributing, or reproducing “material with a subversive character” from a foreign government or collaborating with foreign media that “destabilizes the country and destroys the socialist state.”

c)  Crimes against the socialist way of life Parasitism Adults could be punished as “parasites” if they lived off income not based on their own work and actually refused to do socially necessary labor per § 209 CC-RSFSR (1960). These specific laws were first introduced in 1957. A first violation could lead to a warning, but further violations could trigger banishment from one’s place of residence with a duty to work from two to five years. This punishment was administrative and issued by local committees or village Soviets and could not be appealed to the courts.21 In 1970, along with § 209 CC (1960) which punished begging and vagrancy, § 209-1 CC (1960) was introduced which criminalized stubborn refusal to engage in socially useful labor. It was punished by deprivation of liberty of up to one year, and   Solzhenitsyn (n. 18) 279–281.   

20

  Schittenhelm (n. 15) 222–223.

21

marxist and soviet law    319 up to two years for repeat offenders. In 1975, § 209-1 CC (1960) was repealed, and parasitism was incorporated into § 209 CC (1960) as the crime of living a “long-term parasitic lifestyle,” defined as gaining one’s livelihood from illegal sources, such as prostitution, speculation, gambling, fortune-telling, begging, profits from renting one’s house or car, etc. Dissidents, such as the poet Joseph Brodsky (1940–1996) were sentenced under these provisions.22 Cuba has criminalized the failure to work, which can result in a sentence of up to two years of forced labor. Gays and lesbians were also punished with up to four years’ forced labor for “dangerousness” (peligrosidad), defined as “having a special proclivity to commit crimes, demonstrated by behavior that clearly contradicts socialist norms.” Homosexuality was considered to be deviant, against socialist morality, and even “counterrevolutionary.”

Hooliganism The crime of “hooliganism” takes its name from the drunken exploits of Irish seamen and became a peculiarly Soviet-Russian crime. Khuliganstvo originally began as an offense aimed at drunk or disorderly conduct which disturbed the peace. It normally involved rowdy conduct that escalated into personal injury or property destruction and nearly all those prosecuted were intoxicated at the time of the offense. In the CC (1922) hooliganism was characterized as a crime against “life, health and dignity.” Hooliganism was originally tried in the village or comrades’ courts and most sentences were to forced labor without confinement or very short jail sentences.23 Traditionally, “hooliganism” was described as “gross mischief and drunken boldness, and striving in an acute way to show one’s power and strength, a desire to show disdain to those around one, to draw attention to oneself with one’s cynical behavior.” In the last Soviet code, “hooliganism” was described as “intentional acts which grossly violate social order and express a clear disrespect for society.” An aggravated form, “malicious hooliganism,” applied to those with prior hooliganism convictions, those who acted against representatives of the state or social organizations, or whose conduct “distinguishes itself by its unmistakable cynicism or auda­ city” (§ 206 CC (1960)). An edict of August 10, 1940, aimed at hooliganism and theft in factories, led to the amendment of § 74 CC (1926) and the setting of a five-year maximum for aggravated hooliganism in the workplace. During the campaign triggered by the edict, nearly all those convicted of hooliganism received a term of imprisonment.24 When the death penalty was introduced for aggravated murder, “hooliganistic motivation” became one of the aggravating factors (§ 102(b) CC (1960)).25   Schittenhelm (n. 15) 255–256.    23  Solomon (n. 7) 58, 132–133.   Solomon (n. 7) 331–332. 25   On “hooliganism” in modern Russian law, Thaman (n. 14) 448–449. 22

24

320   stephen c. thaman

3.  Crimes against property: the priority of socialist property over private property The definition of theft in Soviet law followed tsarist law and distinguished between “secret” (krazha) and “open” takings (grabezh).26 Characteristic of Soviet law, however, is the distinction made between crimes against private and socialist property. In the USSR, due to replacement of private ownership of the means of production by state ownership, crimes against state property were punished more severely than crimes against private property. Crimes against state property were really “economic” crimes, and indirect crimes against the state. Thus, § 79 CC (1926) punished non-aggravated destroying or damaging of property of government agencies or enterprises by deprivation of liberty of up to one year, whereas the same act against private property was punishable by only up to six months’ deprivation of liberty (§ 175 CC (1926)). Theft of private property was punishable by up to three months’ deprivation of liberty but theft of state property could be punished by up to five years’ deprivation of liberty (§ 162(a,d,e) CC (1926)). The original version of the CC-RSFSR (1960) continued this differentiation between crimes against socialist property and private property. Criminal law was used as an instrument by Stalin in his drive to collectivize agriculture and force rapid industrialization. In 1930, it became a crime to kill your own cattle, pregnant livestock, or stock of breeding age. In March 1931, “spoiling a tractor” became a criminal offense (§§ 79-1, 79-4 CC (1926), as amended). Most notorious, however, was the law of August 7, 1932, written by Stalin himself, which preempted the provisions in the CC (1926) and referred to socialist property as “holy and untouchable” and provided for the death penalty, or, in mitigated situations, for ten years’ deprivation of liberty, for anyone who stole from state enterprises, collective farms, or cooperatives, including theft of harvest or livestock. The bulk of the prosecutions were against peasants for stealing grain during the catastrophic famine unleashed by the forced collectivization.27 Although the law of August 7 fell into disuse after collectivization, after World War II Stalin returned to draconian punishments for theft in a decree of June 4, 1947, which raised the minimum punishment for simple theft of personal property from five to six years, and that for aggravated theft from seven to ten years. For simple theft of state property, the minimum was raised from six to seven years with a maximum for repeat offenses of 25 years. Under pressure from Stalin, the Supreme Court of the USSR issued a directive in 1952 which prevented judges from sentencing below the minimum.28 After Stalin’s death, first-time petty theft was decriminalized, but the draconian sentences for theft otherwise survived until enactment of the CC (1960). Stalin’s   On crimes against property in modern Russia, Thaman (n. 14) 440–443.   Schittenhelm (n. 15) 160.    28  Solomon (n. 7) 440.

26 27

marxist and soviet law    321 “strike-hard” campaign against theft by workers in industrial and agricultural enterprises is perhaps the best example of the move from Marxist to instrumental criminal law. During the early Marxist period, the worker was the carrier of the revolution and the bourgeois elements were the class enemy. Under Stalin, the worker and peasant became the new serfs of an economy based on slave labor and, in a sense, became the class enemy of the owners of the means of production, the Communist Party.29

4.  Economic crimes a)  Criminalization of entrepreneurial activity After the Russian Revolution, the act of “buying and selling to make a profit” was immediately criminalized, though this provision was eliminated during NEP in favor of anti-monopoly or price-fixing laws. §§ 99, 99-1 CC (1926) punished by up to two years the acquisition of products or fish with the intent of selling them for profit. § 107 CC (1926) punished sale of agricultural products for profit. After NEP, however, Soviet codes provided for criminal punishment for entrepreneurial activity up until perestroika. See § 153 CC-RSFSR (1960).

b)  Criminalization of common labor infractions During the Civil War the Bolsheviks used military conscription to recruit labor for their enterprises and missing or leaving work subjected conscripted workers to a criminal charge of “labor desertion” under the CC (1922). This was dropped in the CC (1926).30 In preparation for war, Stalin issued an edict on June 26, 1940, which criminalized common labor infractions, such as quitting and shirking, and raised to new levels punishments for hooliganism, petty theft at factories, and production of defective goods. Such offenses were responsible for more than two-thirds of all criminal convictions in 1940, more than one-half in 1945, and over 40% even in 1949. Any employee of a state firm who quit a regular job without permission was subject to a term of imprisonment of two to four months. The edict also prohibited the firing of workers who shirked. Any shirker who missed all or part of a day at work faced a punishment of one to six months’ corrective work with a deduction from earnings of up to 25%. To prevent workers from stealing something small from their factory in order to get fired so that they could find better work, a decree was issued on August 10, 1940, imposing a mandatory one-year prison sentence for petty theft at factories. 29   e.g. the majority of workers who built the mammoth Moscow–Volga canal between Sept. 14, 1932 and Jan. 31, 1938, were prisoners sentenced to corrective labor camps for property and economic crimes, among other things. 22,842 of them died during its construction. Karl Schlögel, Terror und 30 Traum. Moskau 1937 (2nd ed., 2011), 374.   Solomon (n. 7) 305.

322   stephen c. thaman Even though judges were reluctant to convict for these offenses, convictions for violations of the edict, mainly for shirking, amounted to 51.1% of all convictions from 1943 through 1945.31 The law punishing violation of a labor contract or arriving late at work was elimin­ ated in 1956.

5.  Crimes against public administration Crimes against public administration, like “anti-soviet” activity, were sufficiently vague to be used in an instrumental way to punish those whose conduct impeded Soviet industrialization. The most common offense was § 61 CC (1926), “refusal to fulfill a duty, universal governmental task, or industrial labor having universal governmental importance” which was punishable by a fine, or on a second violation by deprivation of liberty or forced labor for up to one year, or if committed by a “kulak” element or in an aggravated manner, by up to two years’ deprivation of liberty. During collectivization of agriculture, § 61 was used to punish peasants who hoarded grain, thus forcing them to dissolve their farms and flee the countryside.32 The poor functioning of the Soviet economy, and the mistakes and accidents caused by break-neck industrialization, led Stalin and other high government officials to find scapegoats for these shortcomings. This use of the criminal law against scapegoats was a distinctive aspect of Stalin’s use of the criminal law. Individuals could be held criminally responsible not only for actions performed, but for omissions, accidents, or failures that were not intentional and not even the fault of the accused.33 Government officials prosecuted as “scapegoats” were originally charged with “abuse of power or official position” (§ 109 CC (1926)) in the case of intentional violations and under § 111 CC (1926), in the case of negligent failure to fulfill official duties. Violations of § 109 were punishable by a minimum of six months’ deprivation of liberty, and of §111 by a maximum of three years’ deprivation of liberty. But Vyshinskiy urged legal officials to charge wrecking (§ 58(7) CC (1926)) and counterrevolutionary sabotage (§ 58(14) CC (1926)) in all industrial failings. In 1937, when some products were found to be infected with ticks, Vyshinskiy declared this the work of wreckers and insisted on the death penalty for all convicted. In 1937 and 1938, many, if not most, cases involving accidents, defective goods, broken machines, or other problems of the economy were escalated from their usual status of “criminal negligence” to the potentially capital crime of “wrecking.”34   Solomon (n. 7) 299–301, 311, 324.    32  Solomon (n. 7) 93.   Solomon (n. 7) 138–139.    34  Solomon (n. 7) 241–242.

31

33

marxist and soviet law    323

6.  Crimes against the person a)  Homicide and sexual offenses The formulations of homicide and sexual offenses in the CC (1922) and subsequent penal codes were taken over directly from the 1903 tsarist draft criminal code and reveal nothing peculiarly “Marxist” or “Soviet.” If anything, there seems to be a peculiar lack of concern with homicide, when compared with other seemingly less serious “counterrevolutionary” or “anti-Soviet” offenses. No crime of homicide even existed until the CC (1922), as the decrees passed by the commissars were dedicated solely to counterrevolutionary activities. The maximum punishment for aggravated murder remained at ten years, until § 102 CC (1960) for the first time provided for a possible death penalty. Due to the number of murders perpetrated by the Soviet authorities themselves, it is not surprising that homicide was not of particular concern to them.

b) Abortion In 1920, Russia became the first country to legalize abortion, permitting free abortions on request when performed by doctors in hospitals. Underground abortions remained criminal after 1920. The CC (1922) did, however, punish abortions performed by anyone other than a doctor or in unsanitary conditions by up to one year’s imprisonment, and provided for mandatory imprisonment of up to five years for persons who performed abortions as a trade or caused the death of the woman.35 But on June 27, 1936 Stalin issued a decree banning all abortions other than to protect the health of the pregnant woman or prevent the birth of a child with an inherited disease. Doctors faced up to two years’ deprivation of liberty if they performed abortions without a pressing medical need and self-aborting women were punished by censure and a small fine.36 The re-establishment of abortion as a crime is an example of Stalin’s use of crim­ inal law to implement social policy. Stalin sought to raise the birth rate and remedy one of the negative consequences of his rule—the steady drop in births since 1927 caused by collectivization, deportation of family members, and the need for women to enter the workforce. Their low wages meant it was difficult to support large families.37 The criminalization of abortion by Stalin was ineffective as women refused to turn in the illegal abortionists and the courts were also reluctant to impose the required prison sentences.38 In 1955, abortion became available in hospital and clinics during the first 12 weeks of pregnancy.39

  Solomon (n. 7) 214.      Solomon (n. 7) 212.    39   Schittenhelm (n. 15) 198.

  Solomon (n. 7) 211, 216.   Solomon (n. 7) 221.

35

36

37

38

324   stephen c. thaman

v.  Conclusion: The Disappearance of Soviet Socialist Law? In December 1991, the USSR ceased to exist and was replaced by 15 independent republics. All 15 republics embarked on courses of reform, including the promulgation of new constitutions and new criminal codes. Already in 1989, the former socialist countries of Eastern and Southern Europe had renounced socialism and many also passed new constitutions and codes. They quickly shed nearly all traces of Soviet socialist law, as did the ex-Soviet Baltic countries of Estonia, Latvia, and Lithuania. Since most of these countries had essentially been colonized by the USSR and its law, it was easy for them to rid themselves of its worst aspects. Although tendencies toward authoritarian rule are blemishing the democratic advances in some of the former Soviet republics, and democracy has completely failed to take root in most of the dynastic authoritarian former Soviet republics of Central Asia, all former Soviet republics, with the exception perhaps of Belarus, have “de-Sovietized” their criminal law. The different treatment of state and private property has by and large disappeared, and the death penalty has virtually disappeared from the post-Soviet landscape. Russia, and many of the post-Soviet countries have, however, maintained the material definition of crime based on social dangerousness. I stated earlier that “Marxist” notions of law could only with difficulty become the foundation of a country like the USSR or China, which had forced a socialist revolution in a country that had not benefited from capitalist development of the means of production. Thus these countries had to revert to what Marx called the “Asiatic mode of production,” that is, an economy based on slave labor. Soviet criminal law produced these slaves with its sentences to corrective labor colonies, and disciplined them when they were obliged to work in state enterprises or collective farms. Today’s former Soviet republics are now going through a belated “bourgeois” revolution against the Soviet empire based on forced labor, which should eventually lead to the rejection of enemy criminal law and the instrumental use of criminal law for development purposes. China and Vietnam are carefully taking steps in this direction and Cuba may not be far behind. But North Korea? The only thing that might survive are some of the utopian, “liberal” aspects of early “Marxist” law.

References Berman, Harold J., “ Principles of Soviet Criminal Law,” (1947) 56 Yale LJ 803 Fuller, Lon L., “Pashukanis and Vyshinsky: A Study in the Development of Marxian Legal Theory,” (1949) 47 Michigan LR 1157

marxist and soviet law    325 Kelsen, Hans, The Communist Theory of Law (1988) Kucherov, Samuel, The Organs of Soviet Administration of Justice (1970) Luna, Erik, “Cuban Criminal Justice and the Ideal of Good Governance,” (2004) 14 Transnational Law and Contemporary Problems 529 Luo, Weh, “China,” in Kevin Jon Heller and Markus D.  Dubber (eds.), The Handbook of Comparative Criminal Law (2011), 137–178 Mühlhahn, Klaus, Criminal Justice in China. A History (2009) Murphy, Jeffrie G., “Marxism and Retribution,” (1973) 2 Philosophy and Public Affairs 217 Pashukanis, Evgeny, “The General Theory of Law and Marxism,” in Piers Beirne and Robert Sharlett (eds.), Pashukanis: Selected Writings on Marxism and Law (1980), 40–131. Available at:  Quigley, John, “Viet Nam’s First Modern Penal Code,” (1988) 9 New York Law School Journal of International & Comparative Law 143 Schittenhelm, Ulrike, Strafe und Stanktionensystem im sowjetischen Recht (1994) Smith, Gordon B., Reforming the Russian Legal System (1996) Solomon, Peter H., Jr., Soviet Criminal Justice Under Stalin (1996) Stone, Alan, “The Place of Law in the Marxian Structure-Superstructure Archetype,” (1985) 19 Law & Society Review 39 Thaman, Stephen C., “Russia,” in Kevin Jon Heller and Markus D.  Dubber (eds.), The Handbook of Comparative Criminal Law (2011), 414–454

­c hapter 15

MILITARY JUSTICE rain liivoja*

i.  Introduction to Military Justice “Military justice” and “military law” refer to the imposition of punishment by military authorities, especially military courts or tribunals. Yet military justice does not amount to a distinct model or system of criminal justice. The extent to which military courts are used—to say nothing of their composition, jurisdiction, and procedure—differs markedly from state to state. Even common law countries, which share certain traditions of British military law, have become quite diverse in their contemporary practices. Moreover, military justice does not have a singular function, rationale, or aim. It serves different purposes in different contexts. First and foremost, many states rely on a military justice system to try and punish service members for misconduct that undermines discipline in the armed forces. Secondly, during armed conflicts, states have also empowered military courts to deal with offenses committed by enemy belligerents and by residents of territories under military occupation. Finally, states sometimes set up military courts to try persons with no association to their armed forces for offenses against the security of the state or, in circumstances of a public emergency, an even wider range of offenses. This chapter addresses each of these three circumstances separately in Sections III, IV, and V but places the emphasis on the first—the most common one. *  I am grateful to Matthew Groves and Alison Duxbury for their helpful comments on an earlier draft. The responsibility for the present text, however, is mine alone.

military justice   327

ii.  Due Process and Military Justice Much of the contemporary discussion of military justice as a phenomenon revolves around its compatibility with due process guarantees of international law.1 The prevalence of this paradigm can be seen as one indicator of the general increase of civilian oversight of the armed forces and in particular the subjection of the military to more civilian standards of (judicial) scrutiny.2 There has been much debate about whether proceedings before a military court can meet the standard of a “fair and public hearing by a competent, independent and impartial tribunal established by law,” as required by the International Covenant on Civil and Political Rights (ICCPR) and regional human rights treaties.3 Human rights treaty bodies have often been skeptical about military courts living up to that standard, perhaps partly as a result of applying the test of independence and impartiality more stringently to military courts than to civilian courts.4 Treaty bodies have been particularly critical about the trial of civilians before military courts, which raises the awkward question whether—and, if so, why—the independence and impartiality assessment changes depending upon whether the accused is a service member or a civilian.5 However, the insufficiently articulated concern of human rights treaty bodies in this respect appears to be that trying certain civilians before military courts—even if those courts meet the due process requirements—discriminates against them compared to other civilians.6 Furthermore, human rights treaties recognize the right to liberty and security of person, which includes the right to be “brought promptly before a judge or other officer authorized by law to exercise judicial power” in the event of an arrest or detention on a criminal charge.7 This raises the further problem as to whether a military authority could validly authorize the deprivation of liberty. 1  See generally Jeanine Bucherer, Die Vereinbarkeit von Militärgerichten mit dem Recht auf ein faires Verfahren (2005); Peter Rowe, The Impact of Human Rights Law on Armed Forces (2006), ch. 3; Ian Leigh and Hans Born, Handbook on Human Rights and Fundamental Freedoms of Armed Forces Personnel (2008), ch. 21. 2   See e.g. Gerry R. Rubin, “United Kingdom Military Law: Autonomy, Civilianisation, Juridification,” (2002) 65 Modern LR 36 ff. 3   International Covenant on Civil and Political Rights (Dec. 16, 1966) 999 UNTS 171 (ICCPR), Art. 14(1); cf. Convention for the Protection of Human Rights and Fundamental Freedoms (Nov. 4, 1950) 213 UNTS 222 (ECHR), Art. 6(1); American Convention on Human Rights (Nov. 22, 1969) 1144 UNTS 123 (AmCHR), Art. 8(1); African Charter on Human and Peoples’ Rights (June 27, 1981) 1520 UNTS 217, Art. 7(1); Arab Charter on Human Rights (May 22, 2004) (ArabCHR), Art. 13(1). 4   With respect to the European Court of Human Rights, see Ann Lyon, “Two Swords and Two 5 Standards,” [2005] Crim. LR 850 ff.   Rowe (n. 1) 100. 6  Rain Liivoja, “Trying Civilian Contractors in Military Courts: A Necessary Evil?,” in Alison Duxbury and Matthew Groves (eds.), Military Justice in the Modern Age (forthcoming), and sources cited therein. 7   ICCPR, Art. 9(3); cf. ECHR, Art. 5(3); AmCHR, Art. 7(5); ArabCHR, Art. 14(5).

328   rain liivoja Admittedly, military justice has organizational and procedural peculiarities that can be difficult to reconcile fully with due process safeguards arising from human rights law. This is demonstrated by the fact that a number of states have entered reservations with respect to the relevant provisions of human rights treaties to cover aspects of military justice.8 Even absent a reservation, provisions relating to due process in most human rights treaties can be derogated from “In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed,”9 such as an armed conflict or large-scale civil unrest. However, measures of derogation are valid only to the extent that they “are not inconsistent with [the derogating state’s] other obligations under international law.”10 The law of armed conflict requires, quite independently of human right law, that individuals be tried by impartial and regularly constituted courts respecting the generally recognized principles of regular judicial procedure.11 As a result, many due process rights under human rights law become non-derogable in times of conflict as a result of the law of armed conflict. While military justice is usually examined in its particular constitutional setting, human rights law and the law of armed conflict provide a lens for examining the phenomenon in a comparative way. Hence, this chapter aims to situate contempor­ ary practices of military justice in their international law context.

iii.  Military Discipline and Military Justice .  Military discipline and the law The principal function of the armed forces in a democratic society is to ensure the defense of the nation. This task is a collective one: the effectiveness of the military hinges on the well-coordinated functioning of its component parts. Achieving this

  See Rowe (n. 1) 78, 90.   ICCPR, Art. 4(1); cf. ECHR, Art. 15(1); AmCHR, Art. 27(1); ArabCHR, Art. 4(1). 10   ICCPR, Art. 4(1); cf. ECHR, Art. 15(1); AmCHR, Art. 27(1); ArabCHR, Art. 4(1). 11   See Geneva Conventions (Aug. 12, 1949) 75 UNTS 31, 85, 135 and 287, Common Art. 3; Protocol Additional (I)  Relating to the Protection of Victims of International Armed Conflicts (June 8, 1977)  1125 UNTS 3 (API), Art. 75(4); Protocol Additional (II) Relating to the Protection of Victims of Non-International Armed Conflicts (June 8, 1977) 1125 UNTS 609 (APII), Art. 6(2); International Committee of the Red Cross, Customary International Humanitarian Law (online database) at:  (CIHL), rule 100 and commentary thereto. 8

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military justice   329 coordination depends on the maintenance of good order and a high degree of discipline among the members of the forces. Moreover, service members are—not to put too fine a point on it—trained to kill people and break things, and they have at their disposal weaponry and heavy equipment to apply such training in practice. With a lack of discipline, the military could become not only ineffective in defending a nation, but a threat to that very nation. As a learned judge once noted, “there is nothing so dangerous to the civil establishment of a state, as a licentious and undisciplined army.”12 Military discipline can be enhanced in a number of ways. In the first instance, it is engrained through training, personal example, encouragement, direction, guidance, and supervision.13 For addressing lapses of discipline, there are various non-punitive corrective mechanisms, such as counseling, admonition, additional instruction, administrative withholding of privileges, non-recommendation for awards and promotions, and so on.14 However, formal legal processes have an important role to play, especially as regards particularly serious transgressions against the expected standards of good order and discipline.15 One might well say that the armed forces could not properly discharge their function without a formal, legally enforceable code of discipline.16 Be that as it may, international law expressly requires the “armed forces of a Party to a conflict” to be “subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.”17 Breaches of the code of discipline may entail disciplinary or criminal liability. This division is based on the relative gravity of the transgressions: disciplinary offenses are comparatively minor ones, whereas criminal offenses, as the label suggests, are comparable in severity to offenses proscribed by general criminal law. To reflect this distinction and to provide for different procedures for addressing offenses of different gravity, many states have enumerated military disciplinary offenses and military criminal offenses in separate legal instruments—effectively splitting the code of discipline into two.18 In other states, the code of discipline is contained in a single legal instrument, making the disciplinary–criminal divide more theoretical.19   Grant v. Sir Charles Gould (1792) 126 E.R. 432, 451 (Lord Loughborough).   Robert Edwards, “Discipline,” in Bernd Horn and Robert W. Walker (eds.), The Military Leadership Handbook (2008), 228 ff. 14   See Rules for Courts-Martial (United States), rule 306(c)(2); Rowe (n. 1) 70–72. 15   See Jeff Blackett, Rant on the Court Martial and Service Law (3rd ed., 2009), ch. 1. 16 17  See R. v. MacKay [1978] 1 F.C. 233, para. 6 (Cattanach, J.).   API, Art. 43(1). 18   See e.g Wehrstrafgesetz (Military Criminal Code), Mar. 30, 1957 (WStG), and Wehrdisziplinarordnung (Military Disciplinary Code), Aug. 16, 2001 (WDO) (Germany); Wetboek van Militair Strafrecht (Military Criminal Code), Apr. 27, 1903, and Wet militair tuchtrecht (Military Discipline Code), June 14, 1990 (the Netherlands). 19  See e.g. Defence Force Discipline Act 1982 (Australia) (DFDA); National Defence Act 1985 (Canada) (NDA); Armed Forces Act 2006 (United Kingdom) (AFA); Uniform Code of Military Justice, May 5, 1950 (United States) (UCMJ). In Finland, offenses are codified in a single Act, see Rikoslaki (Criminal Code), Dec. 19, 1889, ch. 45, but they can be dealt with by means of two different 12 13

330   rain liivoja In any event, given the severity of the punishments that may be applicable to disciplinary offenses in a military context, the distinction is often more apparent than real. Courts have refused to take the label “disciplinary” at face value, holding that ostensibly disciplinary offenses with serious sanctions such as detention are capable of triggering due process safeguards appropriate for criminal proceedings.20 The unclear boundary between disciplinary and criminal liability sets military discipline apart from other types of professional discipline. Many professions— including law, medicine, and accounting—have codes of conduct enforced by professional bodies. However, such bodies administer disciplinary sanctions outside the penal law framework and such reprimands remain distinct from any punishment that may, for the same act of professional misconduct, be imposed by the state as a matter of criminal law. In the military context, however, the disciplinary system blends into the regular criminal justice system or replaces it altogether. The military code of discipline as a whole is typically enforced by a combin­ ation of judicial and non-judicial measures. Non-judicial measures entail the authority of military commanders to impose punishment for disciplinary offenses and sometimes minor criminal offenses without a formal trial. This leaves more serious offenses to be dealt with by the judicial system. And the nature of the judicial procedure applicable to serious offenses committed by service members is in many ways the hallmark of a given military justice system.

2.  Substantive law Before discussing questions of procedure, it may be useful to highlight some of the substantive penal law issues involved in military justice, which are relevant irrespective of the particular procedural model chosen.

a)  Military offenses Considerations of military discipline have given rise to what are often called “purely military offenses” or “military-specific offenses,” that is to say, offenses that have no civilian equivalent and are thus unique to the military. Such offenses may be defined in a separate military criminal code or military disciplinary code, or in a subdivision of the general penal code. On closer inspection, such offenses fall into two categories. First of all, certain offenses are proscribed solely with military discipline (or, more broadly, the security of the state) in mind and injure no other interest generally procedures, see respectively Sotilasoikeudenkäyntilaki (Code of Military Judicial Procedure), Mar. 25, 1983; Sotilaskurinpitolaki (Code of Military Discipline), Mar. 25, 1983.  See Engel and others v.  Netherlands, App. nos. 5100/71, 5101/71, 5102/71, 5354/72, and 5370/72, ECtHR, Judgment of 8 June 1976 [1976] 1 EHRR 647; R. v. Wigglesworth [1987] 2 SCR 541, 559. 20

military justice   331 protected by penal law. Such offenses include absence without leave,21 desertion (absence without leave with the intention to be absent permanently or to avoid hazardous duty, such as taking part in hostilities);22 failure to obey a lawful order;23 insubordination (disrespectful conduct toward superiors);24 mutiny (collective acts to overthrow or resist authority);25 neglect of duty;26 malingering (causing oneself an injury, or aggravating an existing injury, to avoid service);27 unlawful disclosure of information;28 assisting an enemy;29 and other forms of misconduct particular to the conduct of military operations.30 The second group of offenses is concerned primarily, but not exclusively, with military discipline. Here the conduct does meet the definition of some civilian offense but its effect on military discipline is such as to amplify its seriousness. For example, in a military context, it is insufficient to regard a physical attack on a super­ior as garden-variety assault. Given how seriously it undermines military authority and jeopardizes discipline, such conduct typically constitutes a distinct aggravated form of insubordination.31 Other offenses in this category include the maltreatment of subordinates;32 certain offenses against military or public property;33 looting (taking property that is left exposed or unprotected in the course of military oper­ations);34 offenses relating to the operation or safety of military vehicles, aircraft, and vessels;35 unlawful use of weapons;36 and offenses relating to alcohol and controlled substances in the military.37 A commonplace feature of the code of discipline is a catch-all provision, known as the “general article” or the “devil’s article,” which makes it an offense to engage in unspecified conduct—not necessarily meeting the definition of any other offense, military or civilian—which prejudices military discipline or brings discredit upon the armed forces.38 These types of provisions, while inimical to ordinary criminal

  UCMJ, Art. 86; AFA, section 9; § 15 WStG.   UCMJ, Art. 85; AFA, sections 8–10; § 16 WStG. 23   UCMJ, Art. 92; AFA, sections 12–13; §§ 19, 22 WStG. 24   UCMJ, Arts. 89–91; AFA, section 11(2); §§ 20, 23–25 WStG. 25   UCMJ, Art. 94; AFA, section 6. 26   AFA, section 15; see also UCMJ, Art. 113; AFA, section 2(4) (neglect of guard duty); UCMJ, Art. 107; AFA, section 18; § 42 WStG (making false reports). 27   UCMJ, Art. 115; AFA § 16; § 15 WStG. 28  UCMJ, Art. 106a; AFA, section 17. 29 30   UCMJ, Art. 104; AFA, section 1.   UCMJ, Arts. 99–103, 105; AFA, sections 2–3, 5. 31   UCMJ, Arts. 89–91; AFA, section 11(1); §§ 20, 23–25 WStG. 32   UCMJ, Art. 93; AFA, section 22; §§ 30–32 WStG. 33   UCMJ, Arts. 108–109; AFA, sections 24–26.    34  UCMJ, Art. 103(b)(3); AFA, section 4. 35 36   UCMJ, Arts. 110, 111; AFA, sections 31–38.   § 46 WStG. 37   UCMJ, Arts. 112, 112a; AFA, section 20. 38   UCMJ, Art. 134; AFA, section 19. See also D. B. Nichols, “The Devil’s Article,” (1963) 22 Military LR 111 ff.; James K. Gaynor, “Prejudicial and Discreditable Military Conduct: A Critical Appraisal of the General Article,” (1971) 22 Hastings LJ 259 ff.; Matthew Groves, “The Use of Civilian Law Principles in Military Discipline,” (1997) 23 Monash University LR 456 ff. See also UCMJ, Art. 133 (conduct unbecoming an officer and a gentleman). 21

22

332   rain liivoja justice because of their vagueness, have been tolerated in the military context because they can be interpreted in light of the traditions of the armed forces and the prevailing military culture.39 Thus, general articles incorporate into the law, and attach punishments to the violation of, extra-legal standards of honorable military conduct.40

b)  Ambit of the law 41 All of the offenses just mentioned are what in German parlance are known as Sonderdelikte—they can only be committed by a limited range of individuals. These individuals include service members first and foremost but, in some states and under some circumstances, also civilians who have a particularly close connection to the armed forces (civilian employees, contractors, etc.).42 Thus, the personal applicability of military law tends to be fairly narrowly circumscribed. The opposite is true, however, when it comes to the territorial or geograph­ ical applicability of the law. The penal law of a state—including both the law that defines military offenses as well as ordinary criminal law—often has very extensive extraterritorial applicability to service members. With respect to military offenses, the reason is quite clear: the maintenance of military discipline is as important on overseas deployments as it is at home. With respect to the broad extraterritorial applicability of general criminal law to service members, two reasons in particular stand out. First, when in the territory of another state, service members often have at least some degree of immunity from the local legal system, either by virtue of the law of armed conflict or as a result of a treaty arrangement between their home state and the territorial state. Secondly, common crimes committed by service members have—at least under some circumstances—implications for military discipline and potentially engage the international responsibility of the home state. As a result, it is recognized that there must remain the residual possibility of proceedings against service members under the home state’s law if they commit some common crime abroad for which they cannot be brought to justice locally. In states where military offenses are contained in the civilian penal code, the extraterritorial application of all penal law to service members abroad can be achieved simply by having a special jurisdictional provision in that code.43 In states   See e.g. U.S. v. van Steenwyk, 21 M.J. 795 (Navy–Marine Corps Court of Military Review, 1985); Parker v. Levy, 417 U.S. 733 (1974). 40   See Rain Liivoja, “Law and Honour: Normative Pluralism in the Regulation of Military Conduct,” in Jan Klabbers and Touko Piiparinen (eds.), Normative Pluralism and International Law: Exploring Global Governance (2013), 143 ff. 41   This section draws upon Rain Liivoja, Extraterritorial Criminal Jurisdiction over the Armed Forces (forthcoming). See also Rain Liivoja, “Service Jurisdiction in International Law,” (2010) 11 Melbourne 42 Journal of International Law 309 ff.   See UCMJ, Art. 2; AFA, sections 367–371A. 43  See e.g. Karistusseadustik (Penal Code), June 6, 2001 (Estonia), § 7(2)(1); Уголовный кодекс (Criminal Code), June 13, 1996 (Russia), § 12(2). 39

military justice   333 with a military criminal code, the arrangement tends to be more complex: first, the military criminal code is given broad extraterritorial application with respect to the individuals subject to it;44 then, any conduct that would violate civilian criminal law if committed within the territory of that state is made an offense against the military criminal code.45 This arrangement effectively incorporates civilian criminal law into military criminal law, thereby making it applicable to service members abroad. There is, of course, nothing exceptional about a state extending the applicability of its criminal law to offenses abroad, especially when it comes to the conduct of the nationals of that state. However, two points bear noting here. First, states that do not routinely and extensively apply their penal law to their nationals abroad often do so with respect to their service members. Secondly, many states that restrict the applicability of their penal law to the conduct of nationals abroad by reference to the seriousness of the offense or the double criminality rule do not apply such restrictions when it comes to the conduct of service members. Thus, the applicability of penal law to service members abroad is uniquely expansive. Contrary to popular belief, war crimes are not distinctly military offenses. War crimes are serious violations of the law of armed conflict to which international law attaches individual criminal responsibility.46 Such acts can be perpetrated by anyone.47 Accordingly, the definitions of war crimes are often not part of the code of discipline but the general penal law applicable to service members and civilians alike and contained in special legislation addressing international crimes48 or in the civilian penal code.49

c)  Military defenses The applicability of general penal law to service members raises the question as to whether distinctly military defenses exist to accommodate the requirements of military discipline, especially on operations. Much of the discussion of this point has, at least since World War I, focused on the possibility of an order of a military superior exempting a subordinate from responsibility when carrying out the order. This issue is particularly thorny because service members commonly have a legal obligation to carry out orders and may be punished for failing to do so.50

  See e.g. UCMJ, Art. 5; DFDA, section 9.   See e.g. AFA, section 42; DFDA, section 61; cf. UCMJ, Arts. 118–131 (defining a number of civilian offenses expressly) and 134 (incorporating by reference other “crimes and offenses not capital” under 46 U.S. law).   See CIHL (n. 11), rule 156. 47   There are numerous examples of civilians convicted of war crimes. See e.g. In re Tesch et  al. (Zyklon B Case) (1946) 1 LRTWC 93 (British Military Court at Hamburg). 48   War Crimes Act of 1996, codified at 18 USC § 2441; see also 18 USC § 2442; International Criminal Court Act 2001 (United Kingdom), especially sections 50, 51, 58; Völkerstrafgesetzbuch (Code of Crimes against International Law), June 26, 2002 (Germany), §§ 8–12. 49   Criminal Code, Schedule 1 to the Criminal Code Act 1995 (Australia), sections 268.24–268.101. 50   See n. 23. 44 45

334   rain liivoja With respect to the most serious international crimes, the charters of the post-World War II international military tribunals as well as the statutes of the contemporary ad hoc tribunals, have excluded such a defense entirely.51 The Rome Statute, however, adopts a more nuanced approach, allowing the defense of superior orders with respect to war crimes, provided that the person was under a legal obligation to carry out the order, the person did not know that the order was unlawful, and the order was not manifestly unlawful.52 Construed in this way, the defense of superior orders becomes akin to an unavoidable mistake of law in the sense that the order leads the subordinate mistakenly to believe that she was obliged to do something that was actually unlawful. In any event, from this perspective superior orders constitute an excuse, not a justification: orders do not render the conduct lawful, they only exempt the individual from criminal liability in limited circumstances. Yet the problem of military defenses also presents itself with respect to ordinary offenses—common crimes that do not rise to the level of violations of international law. Could superior orders or membership in the armed forces in some cases act as a justification and make lawful something that ordinarily would be unlawful? This issue has not been extensively discussed but can have considerable practical import­ ance. By engaging in lawful acts of war, service members may engage in conduct that meets the definition of a criminal offense (e.g. killing an enemy combatant would normally satisfy all the elements of the crime of murder). The same may be the case where service members participate in a peacekeeping operation that has been given a mandate under Chapter VII of the UN Charter to use “any necessary means.” While the prudent exercise of prosecutorial discretion would normally preclude any actual prosecution of a service member who complied with the relevant rules of international law, the criminal law of some states contains a “public duty” or “lawful authority” defense that applies to service members53 and in other states it may be possible directly to invoke rules of international law as a defense.54

3. Procedure a)  Summary proceedings A recurring feature or theme of military justice is the significant role of the commander. In fact, much of the historical development of military justice can be seen   Charter of the International Military Tribunal (Aug. 8, 1945) 82 UNTS 279, Art. 8; Statute of the International Criminal Tribunal for the former Yugoslavia, S.C. Res. 827 (May 25, 1993), Art. 7(4). 52   Rome Statute of the International Criminal Court (July 17, 1998) 2187 UNTS 90, Art. 33. 53   See U.S. Model Penal Code, § 3.03(1)(d) (“conduct is justifiable when it is required or authorized by . . . the law governing the armed services or the lawful conduct of war”). 54   Grundgesetz (Basic Law), 23 May 1949 (Germany), Art. 25 (general rules of international law take precedence over legislation and directly create rights for individuals); Penal Code (Estonia), section 27 (unlawfulness of an act may be precluded, inter alia, by treaty or customary international law). 51

military justice   335 as the gradual narrowing of the commander’s authority to impose punishment “summarily,” that is to say, without a regular trial.55 Important and far-reaching procedural restrictions have been put in place over centuries, leading to the development of elaborate military justice systems and in some states the transfer of some of the disciplinary punitive power to civilian authorities. However, most armed forces retain the direct authority of the commander to impose “non-judicial punishment” in what are referred to as “summary” proceedings. Such proceedings are limited to comparatively petty infractions, especially those that have a purely disciplinary character56 and, in some states, also those that amount to minor criminal offenses.57 Summary proceedings entail a hearing before a more senior service member who not only decides what charges to bring but, acting as a trier of fact and law, determines whether a charge has been proven, and, if it has, awards punishment.58 Summary proceedings are thus essentially simple inquisitorial processes—in contrast to the adversarial process that may be applicable in judicial proceedings.59 The accused is usually not entitled to be represented by counsel but may be permitted to appear with an “assisting officer.”60 The range of punishments available to the commander tends to be fairly restricted, being generally limited to admonitions or reprimands, fines or forfeitures of pay, extra duties, and limited reductions in rank, seniority, or pay grade.61 In many instances, the expedited nature of summary proceedings and the reduced sentencing options make such proceedings attractive for the accused as a way of getting the matter “over and done with.” From a human rights perspective, however, the possibility of a commander—a non-judicial authority—imposing restrictions on liberty as summary punishment has proven controversial.62 The European Court of Human Rights has conceded that “A disciplinary penalty or measure which on analysis would unquestionably be deemed a deprivation of liberty were it to be applied to a civilian may not possess this characteristic when imposed upon a serviceman.”63 But it has also found that guarantees of judicial review apply where the penalty or measure “takes the form of restrictions that clearly deviate from the normal conditions of life within the armed forces.”64 For example, while refusing to regard as detention the confinement of service members, during off-duty hours, to military premises without keeping   See Liivoja (n. 41).   Wehrbeschwerdeordnung (Military Complaints Regulations), Dec. 23, 1956 (Germany). 57   AFA, sections 53–54, Schedule 1; UCMJ, Arts. 15, 20. 58   AFA, section 131; UCMJ, Art. 15 (non-judicial punishment). 59   U.K. Ministry of Defence, JSP 830—Manual of Service Law: Version 2.0 (Jan. 31, 2011), ch. 9, para. 3; Rules for Courts-Martial (United States), rule 1301(b). 60  The Armed Forces (Summary Hearing and Activation of Suspended Sentences of Service Detention) Rules 2009 (United Kingdom), rule 10. 61   AFA, section 131; UCMJ Art. 15(b)–(c); §§ 22–26 WBO. 62   See e.g. Bell v. U.K., App. no. 41534/98, ECtHR, Judgment of 16 Jan. 2007. 63 64   Engel (n. 20) para. 59.   Engel (n. 20) para. 59. 55

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336   rain liivoja them “under lock and key,” the Court viewed as detention the placement of service members, by day and by night, in a locked cell, even for a fairly short period.65 Accordingly, in some military justice systems a decision imposing detention has to be reviewed and approved by a judge,66 the service member may elect to be tried by a judicial body instead of summary proceedings,67 and/or the service member may appeal a summary punishment to a judicial body, whether a military or a civilian court.68

b)  Judicial proceedings Military offenses that are too serious to be dealt with summarily by the commanding officer must be disposed of judicially. Broadly speaking, the judicial bodies tasked with enforcing military discipline may be: (a) ad hoc military tribunals; (b) permanent military courts; (c) specialized civilian courts; and (d) general civilian courts.69 Ad hoc military tribunals—used, for example, in Australia, Canada, Ireland, Kenya, Singapore, and the United States—generally mean courts-martial, that is to say “panels” of service members, installed for a specific trial.70 While the panel members do not have legal training, they sit with a legally qualified “military judge” or “judge advocate.”71 Thus, in some respects, the court-martial panel resembles a jury. However, the panel is not necessarily made up of the peers of the defendant but often of more senior service members and it can typically convict by simple majority where a civilian jury may require unanimity or qualified majority.72 Traditionally—and in line with the significant role of the commander—the commander makes the decision to bring charges, and appoints the prosecutor and members of the court-martial, in her capacity as the “convening authority.” Subsequent to the trial, the commander also approves or sets aside the decision of the court-martial panel. This approach of construing the military tribunal as a disciplinary tool at the disposal of the commander notably still prevails in the United States.73 However, such a model has attracted criticism precisely due to the significant influence of the commander and the resulting doubts as to the independence and impartiality of panel members. To alleviate these concerns, the commander’s authority in this respect has been significantly reduced in Australia and Canada where the decision to prosecute is now made by an independent Director of

66   Engel (n. 20) paras. 61–63.   § 40 WBO. 68   AFA, section 129; UCMJ, Arts. 15(a), 20.   AFA, section 141. 69   cf. Arne Willy Dahl, “International Trends in Military Justice” (Global Military Appellate Seminar, Yale Law School, Apr. 1–2, 2011). 70   The exact composition may depend on the seriousness of the alleged offense. See UCMJ, Arts. 16–19; DFDA, sections 114–115. 71   See UCMJ, Art. 16; DFDA, sections 117, 119(1)(a)(iii), 134, 196. 72 73   See DFDA, sections 116, 133; UCMJ, Arts. 25, 52.   See UCMJ, Arts. 22–23, 60. 65

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military justice   337 Military Prosecutions74 and the courts-martial is empanelled by a similarly independent authority.75 Despite such improvements, the use of ad hoc military tribunals has also attracted criticism because of the lack of guarantees of independence for the military judge.76 One option for addressing this problem, without doing away with the essentially ad hoc and military nature of the courts-martial, has been to provide tenure for military judges.77 A somewhat more far-reaching option has been to make the military courts permanent. For example, after a substantial reform in the United Kingdom and New Zealand in 2009, both states now have a Court Martial, which, despite its name, is a permanent court.78 In both instances a panel of service members sits with a judge or judge advocate who, with respect to the procedure of appointment and guarantees of independence, compares favorably to a judge in a civilian court.79 Finland and the Netherlands provide examples of systems where the composition of ordinary civilian courts is altered in cases dealing with offenses committed by service members, effectively turning these courts into specialized civilian courts. While a court of first instance in Finland would ordinarily sit with a professional judge as president and three lay judges drawn from the community,80 in military cases there would be a professional judge and two service members; a court of appeal and the Supreme Court would sit with two additional military members.81 In the Netherlands, military cases are concentrated to the Arnhem District Court and Court of Appeal, which have military chambers composed of civilian judges and a military judge.82 Finally, a number of states have opted to deal with military cases in ordinary criminal courts of general jurisdiction. Examples include Austria,83 Denmark,84 Estonia, Germany,85 and Sweden. In view of recent reforms in military justice, the distinction between the different models is becoming blurred. For example, while a Canadian court-martial is nominally an ad hoc military tribunal and the UK Court Martial a permanent military court, they operate quite similarly: the proceedings are presided over by a   DFDA, sections 103, 118G–118GR; NDA, sections 164.2, 165, 165.1.   DFDA, sections 119–125, 129B, 188F–188FM (Registrar of Military Justice); NDA, sections 165.18– 76 165.192 (Court Martial Administrator).   LeBlanc v. The Queen [2011] CMAC 2. 77   Security of Tenure of Military Judges Act 2011 (Canada). 78   AFA, section 154; Court Martial Act 2007 (New Zealand), section 8. 79   AFA, sections 155, 362; Courts-Martial (Appeals) Act 1951, sections 28–35; Court Martial Act 2007 (New Zealand), sections 10–21. 80   Oikeudenkäymiskaari (Code of Judicial Procedure), Jan. 1, 1734 (Finland), ch. 2, § 1. 81   Code of Military Judicial Procedure (Finland), §§ 3, 10. 82  “The Netherlands,” in Stanislas Horvat, Ilja van Hespen, and Veerle van Gijsegem (eds.), International Conference on Military Jurisdiction: Conference Proceedings (2013), 350 ff., 353–355. 83   Austrian Ministry of Defence and Sport, “Austria,” in Horvat (n. 82) 164 ff, 164. 84  See The Danish Military Prosecution Service (2009), 6, available at: . 85   See German Ministry of Defence, “Germany,” in Horvat (n. 82) 270 ff., 273. 74 75

338   rain liivoja judge whose appointment is permanent and the judgment is made by a panel that is assembled for the specific trial. The difference between a military court and a specialized civilian court is likewise becoming less and less obvious. Generally speaking, a military court is a body composed exclusively or partially of members of the armed forces.86 But in the British system it is possible for the Court Martial to sit with a panel of civilians (generally Ministry of Defence civil servants) where the defendant is a civilian (say, a military contractor). Also, in states that have ad hoc military tribunals, appellate military courts are often made up of civilian judges—the US Court of Appeals for the Armed Forces and the Australian Defence Force Discipline Appeal Tribunal being cases in point. Thus, military courts and tribunals bear the label “military” not necessarily because of their composition or even the procedure of judicial appointment, but because of their position in the legal system and their relationship to the armed forces and ordinary civilian courts.

c)  Rationale for a separate military justice system A number of rationales have been given for the existence of a separate system of military justice. First, it has been held that “the military is, by necessity, a specialized society separ­ ate from civilian society”—owing to the fact that “it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise”—and that “the military has, again by necessity, developed laws and traditions of its own during its long history.”87 Secondly, emphasis has been placed on the military’s need to “enforce internal discipline effectively and efficiently” in order to maintain “a state of readiness.”88 Thus, “Breaches of military discipline must be dealt with speedily and, frequently, punished more severely than would be the case if a civilian engaged in such conduct,” and, as a consequence, “Recourse to the ordinary criminal courts would, as a general rule, be inadequate to serve the particular disciplinary needs of the military.”89 Moreover, in the event of a breach of discipline occurring abroad, it may be operationally preferable to deal with the matter “on the spot” rather than return the offending service member to the national territory. Thirdly, the argument has been made that the cases arising in the military are so peculiar that civilian judges (or juries), lacking operational knowledge and experience, are ill-placed to sit in judgment of service members.90 However, none of these considerations appear to be entirely controlling. The idea of the military as a separate society sounds somewhat hollow to the   See e.g. Rowe (n. 1) 95.   Parker v. Levy, 417 U.S. 733, 743 (1974) (Rehnquist, J.), citing Toth v. Quarles, 350 U.S. 11, 17 (1955). 88 89   R. v. Généreux [1992] 1 SCR 259, 293 (Lamer, C.J.).   Généreux (n. 88) 293. 90   Mentioned in Mindia Vashakmadze, Understanding Military Justice: Guidebook (2010), 10. 86 87

military justice   339 contemporary observer. As for disciplinary needs, many states deem it possible to rely on a combination of summary proceedings for minor offenses and the civilian justice system for serious offenses without any perceived detrimental impact on discipline. Finally, there is no particular reason to think that civilian courts, which are considered entirely capable of handling, say, highly complex medical malpractice cases, would be fundamentally incapable of assessing the propriety of the conduct of service members. I would suggest that two further—and perhaps more pertinent—explanations can be given for the existence of military justice systems at present. First, it is significant that most common law countries have elected to have military courts, whereas within the civil law tradition the situation is much more diverse. One of the reasons is the role of juries as triers of fact in the common law model and the concomitant weight traditionally ascribed to oral evidence and cross-examination of witnesses. Applying these principles in the event of an offense committed abroad leads to significant logistical problems. Military courts that do not have a jury can more easily sit abroad.91 Civil law countries—many of them with investigating judges and the possibility of introducing evidence that has been reduced to writing—experience a significantly reduced need for a distinct “mobile” justice system for the armed forces. Secondly, military courts tend to persist in countries where the armed forces enjoy a particularly significant position in society. The armed forces may hold so much (political) clout that the civil branches of government defer to the military even to the extent of giving it comparative autonomy in matters of discipline and criminal justice. This may at least partly explain the prevalence of military courts in some parts of Eastern Europe, Latin America, and Asia.

d) Jurisdiction In states that have either military courts or specialized civilian courts, delimiting the jurisdiction of such courts can be complicated. While military-specific offenses would fall quite naturally within the purview of the specialized court system, the matter is different when it comes to ordinary criminal offenses committed by service members. In some states, the membership of the accused in the armed forces is sufficient to grant military courts jurisdiction over her offenses that violate general criminal law. This is often called the “service status” test and is, for example, relied upon in the United States.92 In other states, there must be a demonstrable link between the conduct of the individual service member and the discipline of the armed forces in order to sustain the jurisdiction of military courts. This is referred

91  cf. Michael R.  Gibson, “International Human Rights Law and the Administration of Justice through Military Tribunals:  Preserving Utility While Precluding Impunity,” (2008) 4 Journal of 92 International Law & International Relations 1 ff.   Solorio v. US, 483 U.S. 435 (1987).

340   rain liivoja to as the “service connection” test, which prevails, for example, in Australia93 (where, however, the service connection test has been so loosely applied that in practice the outcome resembles that of the service status test).94 If military courts have jurisdiction over ordinary offenses—however related or unrelated to military service—they inevitably end up competing with civilian courts. At least part of this problem might be resolved by having procedural rules determining the proper judicial forum, for example by making the military trial of particularly serious civilian crimes committed within the territory of the state subject to the consent of the relevant civilian authorities.95 With respect to situations not covered by such rules, the civilian and military authorities may need to engage in ad hoc consultations96 or conclude inter-agency agreements.97

iv.  Armed Conflict and Military Justice Military tribunals have been used regularly in times of armed conflict beyond the previously discussed function of maintaining discipline within a state’s own armed forces. This has entailed, in particular, the trial of captured enemy belligerents on the one hand and civilians residing in foreign territories under military control on the other.

1.  Trial of enemy belligerents In an international armed conflict, members of the enemy armed forces, members of irregular armed groups under certain conditions, and participants in a levée en masse are entitled to be treated as prisoners of war (PoWs) on capture.98 While this

 See Re Tracey, ex p. Ryan [1989] HCA 12, (1989) 166 CLR 518; Re Nolan, ex p. Young [1991] HCA 29, (1991) 172 CLR 460; Re Tyler, ex p. Foley [1994] HCA 25, (1994) 181 CLR 18. 94  See Re Aird, ex p. Alpert [2004] HCA 44, (2004) 220 CLR 308; Andrew D. Mitchell and Tania Voon, “Justice at the Sharp End: Improving Australia’s Military Justice System,” (2005) 28 University of 95 New South Wales LJ 396 ff., 402–416.   See e.g. DFDA, section 63. 96   See e.g. U.K. Ministry of Defence, JSP 830—Manual of Service Law, Vol. 1, ch. 1, para. 52. 97   See e.g. Memorandum of Understanding between the Australian DPP and Director of Military Prosecutions, May 22, 2007. 98   Geneva Convention (III) relative to the Treatment of Prisoners of War (Aug. 12, 1949) 75 UNTS 135 (GCIII), Art. 4. 93

military justice   341 means that they cannot be punished for lawful acts of war, they can be prosecuted for war crimes as well as common crimes committed before or during captivity. The detaining state may exercise penal and disciplinary power over PoWs subject to the “principle of assimilation.”99 In the words of the 1907 Hague Regulations, PoW are “subject to the laws, regulations, and orders in force in the army of the State in whose power they are.”100 The 1929 Geneva Convention on PoWs and the 1949 Geneva Convention III reiterate this principle101 and also spell out its specific aspects, such as the equivalence of punishments,102 and the requirement that PoWs be tried by the same courts and according to the same procedure as members of the armed forces of the detaining state.103 The Conventions also provide for certain minimum procedural rights, such as the right to an effective defense and the right to appeal.104 After World War II, the Tokyo Tribunal and many national courts took the position that, under the 1929 Convention, the principle of assimilation only applied to offenses committed by PoWs while in detention and not to offenses committed prior to capture.105 While this view was probably consistent with the intentions of the drafters of the Convention,106 it led to a peculiar situation where proceedings relating to fairly minor offenses committed in captivity were subject to greater procedural safeguards than trials of war crimes committed before capture.107 Although the French Cour de Cassation changed its mind in 1950 and began applying the relevant provisions of the 1926 Conventions to the trials of war criminals,108 the bulk of post-World War II war crimes trials were held before a motley array of national and quasi-international courts and tribunals that did not necessarily align with the regular disciplinary practices of the armed forces of the Allies. This matter was conclusively resolved, however, by the 1949 Geneva Convention III which expressly provides that PoWs “prosecuted under the laws of the Detaining Power for acts committed prior to capture shall retain, even if convicted, the benefits of the 99  Jean S. Pictet (ed.), Geneva Convention III Relative to the Treatment of Prisoners of War: Commentary (1960), 406 ff. 100   Hague Regulation respecting the Laws and Customs of War on Land (Oct. 18, 1907) 205 CTS 277 (H.R.), Art. 8(1). 101   Geneva Convention on Prisoners of War (July 27, 1929) 118 LNTS 343 (PoW Convention), Art. 102 45(1); GCIII, Art. 82(1).   PoW Convention, Art. 46; GCIII, Arts. 87–88. 103   PoW Convention, Art. 63; GCIII, Art. 102. 104   PoW Convention, Arts. 61–62, 64; GCIII, Arts. 99(3), 105–106. 105   Application of Yamashita, 327 U.S. 1, 22–24 (1946); Johnson v. Eisenträger, 339 U.S. 763, 789–790 (1950); In Wagner (Cour de Cassation, France, July 24, 1946), repr. in 3 LRTWC 23, 42, 50; In re Rauter (Special Court of Cassation, The Netherlands, Jan. 12, 1949), repr. in 14 LRTWC 89, 116–117; U.S. et al. v. Araki et al., 22 Tokyo War Crimes Trial 48413 (International Military Tribunal for the Far East, 1948), 48441–48442 (adopting the conclusion and the reasoning of Yamashita). 106   See Pictet (n. 99) 413. 107   Application of Yamashita, 327 U.S. 1, 74–78 (1946) (Rutledge, J., dissenting) (suggesting that this caused the 1926 Convention to “strain at a gnat and swallow the camel”). 108   Pictet (n. 99) 414; see also, e.g., Re Kahrs (Cour de Cassation, France, Feb. 2, 1955), repr. in 22 ILR 929.

342   rain liivoja present Convention.” 109 This savings clause made it clear that the Convention’s guarantees apply to the prosecution, trial, and punishment of a PoW for any offense, including a war crime.110 In line with this rule, when General Manuel Noriega was detained by the United States in the wake of the 1989 invasion of Panama and put on trial for drug trafficking, racketeering, and money laundering, the U.S. federal courts accorded him the guarantees stipulated in Geneva Convention III.111 According to Geneva Convention III: A prisoner of war shall be tried only by a military court, unless the existing laws of the Detaining Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect of the particular offence alleged to have been committed by the prisoner of war.112

In light of this provision, read together with the principle of assimilation, states with a military justice system have extended the reach of that system to PoWs, subject to necessary modifications (e.g. the detaining state is unlikely to concern itself with purely disciplinary offenses of PoWs).113 Coming back to General Noriega, U.S. courts made the point that his trial before a civilian court was consistent with Geneva Convention III requirements because a U.S. service member could be tried either by a civilian court or by court-martial for comparable offenses.114 Certain civilians are also entitled to PoW status. They include “Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces” and “Members of crews, including masters, pilots and apprentices of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of inter­ national law.”115 Despite being civilians, these persons ought to be assimilated in their legal status to members of the armed forces of the detaining state. This may lead to a situation where a military trial of a civilian is not only permitted but actually required by the law of armed conflict.   GCIII, Art. 85.   For a discussion of this development, see Allan Rosas, The Legal Status of Prisoners of War (1976), 367–375; Geoffrey Best, War and Law since 1945 (1994), 137–138. 111  See U.S. v. Noriega, 746 F. Supp. 1506 (S.D. Fla. 1990); U.S. v. Noriega, 808 F. Supp. 791 (S.D. Fla. 1992). 112   GCIII, Art. 83(1). The Convention also makes it clear that, in any event, the court trying a PoW must offer essential guarantees of independence and impartiality. Ibid., Art. 83(2). 113   See AFA, section 371A (allowing the application of AFA provisions to PoWs by Royal Warrant, subject to modifications contained in the warrant); UCMJ, Art. 2(a)(9) (making the UCMJ applicable to “Prisoners of war in custody of the armed forces”) and Art. 18 (extending general court-martial jurisdiction to “any person who by the law of war is subject to trial by a military”); DFDA, section 7 (making the DFDA applicable to prisoners of war “as if [they] were members of the Defence Force and also defence members” subject to certain modifications made by regulation). 114 115   Noriega (n. 111) 1525–1526.   GCIII, Art. 4A(4) and (5). 109 110

military justice   343 Importantly, unprivileged belligerents—whether civilians taking part in hostil­ ities, or combatants who have been caught spying or otherwise out of uniform— are not entitled to be treated as PoWs.116 They accordingly do not benefit from the principle of assimilation. They may be tried in a forum and under a procedure different than that applicable in the capturing armed forces.117 However, any such trial would have to take place before an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure spelled out in Art. 75 of Additional Protocol I which is considered reflective of customary law on the point. Also, as PoW status does not exist in non-international armed conflicts, the principle of assimilation is inapplicable. However, with respect to “Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause,” Common Article 3 of the Geneva Conventions specifically prohibits “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”118 In Hamdan v. Rumsfeld, the U.S. Supreme Court found that the military commissions created by a Military Order of President George W. Bush119 to try detainees at Guantánamo Bay were in violation of Common Article 3. The Court approvingly cited the International Committee of the Red Cross’s (ICRC’s) Commentary and Customary International Law Study to the effect that “regularly constituted” courts would mean courts “established and organised in accordance with the laws and procedures already in force in a country” and would include “ordinary military courts” and exclude “all special tribunals.”120 In terms of the “judicial guarantees . . . recognized as indispensable,” the Supreme Court mentioned “at least the barest of those trial protections that have been recognized by customary international law,” many of which, as the Court noted, are described in Art. 75 of Additional Protocol I.121 As a consequence, Congress created a statutory basis for the military commissions in 2006 and enhanced the due process rights of the accused in 2009. The compatibility of the new arrangement with Common Article 3 remains unclear.122   See R. R. Baxter, “So-Called ‘Unprivileged Belligerency’: Spies, Guerillas and Saboteurs,” (1951) 28 British Yearbook of International Law 323 ff. 117   Conversely, use by the United States of military commissions to try individuals detained in recent conflicts who qualify for PoW status would be unlawful. Evan J. Wallach, “Afghanistan, Quirin, and Uchiyama: Does the Sauce Suit the Gander?,” (Nov. 2003) Army Lawyer 18 ff. 118   Geneva Conventions, Common Art. 3(1)(d). 119   Military Order, Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism (Nov. 13, 2001). 120   Hamdan v. Rumsfeld, 548 U.S. 557, 632–633 (per Stevens, J.), 643 (Kennedy, J., concurring) (2006). 121   Hamdan v. Rumsfeld (n. 120) (per Stevens, J.), 643 (Kennedy, J., concurring). 122   For a number of excellent essays on the military commissions, see Fionnuala Ní Aoláin and Oren Gross (eds.), Guantánamo and Beyond: Exceptional Courts and Military Commissions in Comparative Perspective (2013). 116

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2.  Trial of civilians in occupied territory Under the law of armed conflict, “Territory is considered occupied when it is actually placed under the authority of the hostile army,” irrespective of whether that army meets any armed resistance.123 Thus, occupation refers to any situation where one state has obtained effective military control of the territory of another state without the latter’s consent. International law presumes occupation to be of a temporary and transitory character: the occupant obtains no title to the territory, merely administering it in accordance with international law, and is supposed to leave a minimal “footprint.” This is reflected in a key provision of the law of occupation in the 1907 Hague Regulations: The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and civil life, while respecting, unless absolutely prevented, the laws in force in the country.124

The 1949 Geneva Convention IV clarifies this framework and seeks to ensure that the occupier takes the interests of the inhabitants of the occupied territory more fully into account.125 Convention IV specifies that, subject to certain limited exceptions, “penal laws of the occupied territory shall remain in force” and “the tribunals of the occupied territory shall continue to function in respect of all offences covered by the said law.”126 At the same time, the Convention permits the occupant to enact new penal law to enable it to fulfill its obligations under the law of armed conflict, to maintain the orderly government of the territory, and, importantly, to ensure its own security.127 Local courts, however, are likely to resist the idea of applying the security legislation enacted by the occupying power that would provide, for example, for the punishment of civilians committing acts of sabotage against the occupant. The occupant does not have the authority to extend the jurisdiction of its own ordinary court system to cover the occupied territory.128 To fill this judicial void, Art. 66 of Geneva Convention IV expressly permits the occupying power to “hand over the accused to its properly constituted, non-political military courts, on condition that the said courts sit in the occupied country.” Such “occupation courts” have in fact been created in situations of occupation both before and after the entry into force of the 1949 Geneva Conventions.   H.R., Art. 42(1); Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War (Aug. 12, 1949) 75 UNTS 287 (GCIV), Art. 2(2). 124   H.R., Art. 43(1). The phrase “l’ordre et la vie public” appearing in the authentic French text has sometimes been mistranslated as “the public order and safety.” See Edmund H. Schwenk, “Legislative Power of the Military Occupant under Article 43, Hague Regulations,” (1945) 54 Yale LJ 393 ff. 125   See generally Eyal Benvenisti, The International Law of Occupation (2nd ed., 2012), ch. 4. 126   GCIV, Art. 64(1). 127   GCIV, Art. 64(2). See also Marco Sassòli, “Legislation and Maintenance of Public Order and Civil Life by Occupying Powers,” (2005) 16 European Journal of International Law 661 ff., 668–682. 128   U.K. Ministry of Defence, The Manual of the Law of Armed Conflict (2004), para. 11.59. 123

military justice   345 The condition incorporated into Art. 66 that occupation courts must be “non-political” seeks to prevent the recurrence of the World War II-era Axis practice of using the judiciary as an instrument of political or racial persecution.129 Thus, this condition reinforces the guarantees of impartiality. The requirement for the courts to be “properly constituted” proves somewhat more challenging to interpret. There is broad agreement that this phrase excludes “all special tribunals”130 and “Special courts set up on an ad hoc basis.”131 The ICRC Commentary suggests, moreover, that “It is the ordinary military courts of the Occupying Power which will be competent.”132 However, in practice, the occupant is more likely to establish occupation courts that are distinct from the justice system that deals with offenses within its armed forces, at least partly because “it is desirable to follow forms of judicial procedure generally similar to the forms to which the native population is accustomed.”133 Thus, for example, during World War II, the United States had set up “military commissions” or “military government courts” in Europe with rules of procedure incorporating “features of Continental Practice.”134 Also, the Israeli occupation courts operating in Palestinian territories are “de-linked from the ordinary military tribunals.”135 Hence, occupation courts tend to be less regular than ordinary courts in that they are created specifically to address a wartime situation. In view of this state practice, the better reading of the words “properly constituted” in this context may be that the courts must have a clear legal basis and a clear process for judicial appointments. As discussed earlier, military courts take different forms, which raises the question as to the possible composition of occupation courts. The ICRC Commentary suggests that “military courts” mean “courts whose members have military status and are subordinate to the military authorities.”136 Thus, one possible interpretation of Art. 66 is that “the judges must be members of the armed forces of the occupying power. In this way, the responsibility of the armed forces for the administration 129   Jean S. Pictet (ed.), Geneva Convention IV relative to the Protection of Civilian Persons in Time of 130 War: Commentary (1958), 340.   Pictet (n. 129). 131   Hans-Peter Gasser, “Protection of the Civilian Population,” in Dieter Fleck (ed.), The Handbook of International Humanitarian Law (2nd ed., 2008), 237–323 ff., § 569, commentary para. 2. 132   Pictet (n. 129) 340. 133   Gerhard von Glahn, The Occupation of Enemy Territory: A Commentary on the Law and Practice of Belligerent Occupation (1957), 112–113; see also Morris Greenspan, The Modern Law of Land Warfare (1959), 255. 134   Von Glahn (n. 133) 113. Further on the U.S. courts, see e.g. Eli E. Nobleman, American Military Government Courts in Germany: Their Role in the Democratization of the German People (1950); Worth B. McCauley, “American Courts in Germany: 600,000 Cases Later,” (1954) 40 American Bar Association Journal 1041–1045 ff. 135   Yoram Dinstein, The International Law of Belligerent Occupation (2009), 137. On the operation of these courts, see Sharon Weill, “The Judicial Arm of the Occupation: The Israeli Military Courts in the Occupied Territories,” (2007) 89(866) International Review of the Red Cross 395 ff.; Lisa Hajjar, Courting Conflict: The Israeli Military Court System in the West Bank and Gaza (2005). 136   Pictet (n. 129) 340.

346   rain liivoja of the occupied territory and for enforcing the law of occupation is emphasized.”137 Another view is that “The occupation courts may consist of either military or civilian judges, but they must be responsible to the military authorities of the occupying power.”138 Interestingly, after World War II, U.S. occupation courts were eventually transferred under the control of the Department of State. The U.S. Supreme Court took the view that U.S. military control over the courts was retained by the fact that the Department of State reported to the President who is also the Commander in Chief of the U.S. armed forces.139 That occupation courts must sit in occupied territory is connected to the absolute ban on removing civilians from the occupied territory and the requirement for them to be detained—pending determination of guilt and while serving their sentence—in the occupied territory.140 The ICRC Commentary suggests that this need to sit in the occupied territory is indeed one of the reasons why the courts must have a military character,141 suggesting that civilian courts would have greater difficulty doing so. As all of this shows, while the law of armed conflict certainly sets restrictions on the use of military courts in occupied territory, it unambiguously permits the use of such courts by the occupant. Despite the view of some human rights treaty bodies that military courts should be precluded from trying civilians,142 in this respect the law of armed conflict ought to be controlling as lex specialis. In other words, the military nature of the occupation courts and the process of appointing its judges should not be enough to challenge the compatibility of the proceedings before these courts with human rights instruments. However, the law of armed conflict specifies a number of due process guarantees that any occupation courts would have to honor.143 This includes the prohibition of retroactive law144 and the right to a “regular” and “fair” trial that affords all essential judicial guarantees (including the presumption of innocence, the right to be informed of the charges, the right to present evidence, the right to counsel, the right to be present at one’s trial, the right not to incriminate oneself, the right to call and examine witnesses, and ne bis in idem).145 Inasmuch as the existence of these provisions in the law of armed conflict makes it impossible to derogate from the corresponding obligations under human rights law,146 human rights and the law of armed conflict become mutually supportive in this context.   Gasser (n. 131) § 569, commentary para. 2.   U.K. Ministry of Defence (n. 128) para. 11.59.1; similarly von Glahn (n. 133) 116. 139 140   Madsen v. Kinsella, 343 U.S. 341, 357 (1952).   GCIV, Arts. 49(1) and 76(1). 141 142   Pictet (n. 129) 340.   See n. 5 and accompanying text. 143   See generally U.K. Ministry of Defence (n. 128) paras. 9.6, 11.60–11.74; Gasser (n. 131) § 570. 144   GCIV, Art. 67; API, Art. 75(4)(c); CIHL (n. 11) rule 101. 145   GCIV, Arts. 71–72; API, Art. 75(4); see also CIHL (n. 11) rule 100. Note, however, that ne bis in idem does not preclude retrial by the local courts. Dinstein (n. 135) 140. 146   cf. Dinstein (n. 135) 143. 137

138

military justice   347 Some difficulties may arise, however, with regard to the right to appeal of civilians in occupied territory. In this respect, Geneva Convention IV provides that “Courts of appeal shall preferably sit in the occupied country.”147 This provision has to be read in conjunction with another provision of the Convention, which provides that in the absence of courts of appeal, petitions must be addressed to the “competent authority of the Occupying Power.”148 Consequently, the law of armed conflict cannot be interpreted as creating an obligation for courts of appeal to be created,149 Geneva Convention IV merely specifies where such courts—if created—should sit. Human rights law, on the other hand, requires the availability of recourse to a higher judicial body: for example, the ICCPR provides that “Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.”150 Given that the law of armed conflict does not explicitly authorize the occupant to withhold the right to appeal, it could be argued that the law of armed conflict by itself is incapable of qualifying the right to appeal as it exists under human rights law. However, a derogation from the relevant ICCPR provision is possible and an occupant might need to avail itself of this possibility if it wishes to process appeals non-judicially.

v.  Security, States of Emergency, and Military Justice Military justice can play a role in circumstances where, in response to a grave public emergency, a “state of siege” (l’état de siege) has been declared or “martial law” imposed.151 Such a declaration typically entails the (partial) suspension of the normal mode of governance, especially assistance provided to the civilian authorities by the military or, in more extreme versions, the substitution of military authority for certain civilian governmental functions. The latter may include the extension of the competence of military courts to deal with offenses committed by civilians against the security of the state and sometimes even ordinary crimes. Historical examples abound. For example, when martial law was declared in Hawaii in 1941 in   GCIV, Art. 66.    148  GCIV, Art. 73.   Von Glahn (n. 133) 117; HCJ 87/85 Arjoub v. IDF Commander in Judea and Samaria (1988) 42(1) 150 IsrSC 353, 367–370.   ICCPR, Art. 14(5). 151   For a discussion of the different models of emergency powers, see in particular Max Radin, “Martial Law and the State of Siege,” (1942) California LR 634 ff.; Joseph B. Kelly and George A. Pelletier, Jr., “Theories of Emergency Government,” (1966) 11 South Dakota LR 42 ff.; Oren Gross and Fionnuala Ní Aoláin, Law in Times of Crisis: Emergency Powers in Theory and Practice (2006), 17–109. 147

149

348   rain liivoja the wake of the Japanese attack on Pearl Harbor, jurisdiction over all criminal cases was promptly given to a system of military commissions and courts.152 Whether military courts can lawfully be given such extended jurisdiction in times of emergency depends on the procedure of such courts, the constitutional provisions of the state in question, and, contemporarily, the possibility of derogating from international human rights law obligations. Some states have also sought to establish militarized courts for the trial of particular categories of offenses—especially terrorism-related offenses—without a declared state of emergency. For example, in the 1980s, after a period of military rule, Turkey established a system of State Security Courts to try crimes against the security of the state. Those courts operated with panels of three judges, one of whom was a military officer. The European Court of Human Rights was highly critical of this arrangement holding that the presence of a military judge gave a defendant legitimate cause to doubt the independence and impartiality of the court, amounting to a violation of the European Convention on Human Rights.153 As a result, the State Security Courts were abolished in 2004.

vi.  Concluding Remarks The practice of states in relation to military justice is diverse and in something of a flux: numerous states have recently reformed their military justice systems or are contemplating (further) reforms. The trend is clearly toward civilianization: military courts increasingly operate like their civilian counterparts or are abolished altogether.154 This is a welcome development on the assumption that it can be implemented without adversely affecting military discipline. Much of the change in military justice has resulted from the exercise of closer civilian control over the armed forces and the influence of human rights law. Human rights treaty bodies have been skeptical of the independence and impartiality of military courts. Gross misuses of military justice by autocratic regimes in many   See e.g. Garner Anthony, “Martial Law in Hawaii,” (1942) 30 California LR 371 ff.   Incal v. Turkey, App. no. 22678/93, ECtHR (Grand Chamber), Judgment of 9 June 1998, paras. 72–73. 154   See e.g. Rubin, (2002) 65 Modern LR 36 ff.; Matthew Groves, “The Civilianisation of Australian Military Law,” (2005) 28 University of New South Wales LJ 364 ff.; Stephen I. Vladeck, “The Civilianization of Military Jurisdiction,” in John T. Parry and Song Richardson (eds.), The Constitution and the Future of Criminal Law in America (2013), 287 ff. 152 153

military justice   349 parts of the world demonstrate155 that these concerns are well founded. However, it is probably erroneous to think that military courts can never be sufficiently independent or impartial to meet human right standards.156

References Andreu-Guzmán, Federico, Military Jurisdiction and International Law: Military Courts and Gross Human Rights Violations (2004) Blackett, Jeff, Rant on the Court Martial and Service Law (3rd ed., 2010) Bucherer, Jeanine, Die Vereinbarkeit von Militärgerichten mit dem Recht auf ein faires Verfahren gemäß Art. 6 Abs. 1 EMRK, Art. 8 Abs. 1 AMRK und Art. 14 Abs. 1 des UN-Paktes über bürgerliche und politische Rechte (2005) Duxbury, Alison and Groves, Matthew (eds.), Military Justice in the Modern Age (forthcoming) Fidell, Eugene R. and Sullivan, Dwight H. (eds.), Evolving Military Justice (2002) Fidell, Eugene R., Hillman, Elizabeth L., and Sullivan, Dwight H., Military Justice: Cases and Materials (2nd ed., 2012) Fisher, Louis, Military Tribunals and Presidential Power: American Revolution to the War on Terrorism (2003) Horvat, Stanislas, van Hespen, Ilja, and van Gijsegem, Veerle (eds.), International Conference on Military Jurisdiction: Conference Proceedings (2013) Liivoja, Rain, Extraterritorial Criminal Jurisdiction over the Armed Forces (forthcoming) Ní Aoláin, Fionnuala, and Gross, Oren (eds.), Guantánamo and Beyond: Exceptional Courts and Military Commissions in Comparative Perspective (2013) Nolte, Georg (ed.), European Military Law Systems (2003) Vashakmadze, Mndia, Understanding Military Justice: Guidebook (2010) Winthrop, William, Military Law and Precedents (2nd ed., 1920)

  For a particularly bleak view, see Federico Andreu-Guzmán, Military Jurisdiction and International 156 Law: Military Courts and Gross Human Rights Violations (2004).   Rowe (n. 1) 101. 155

part iii

ASPECTS AND ISSUES

SECTION A

FOUNDATIONS

­c hapter 16

THEORIES OF CRIME AND PUNISHMENT emmanuel melissaris*

i.  Introduction to Theories of Crime and Punishment The aim of this chapter is to separate as clearly as possible the central issues pertaining to the justification of criminalization and punishment and to indicate some influential ways in which the question has been addressed in post-Enlightenment, occidental thought. Its scope is therefore quite broad in that it tries to organize a vast terrain of ideas and yet narrow in that it does not examine the history of punitive practices or the deep genealogy of ideas on criminalization and punishment. The chapter will begin with the methodological question of what kind of theory is suitable for grasping and grounding criminalization and punishment. It will then go on to single out the central questions that theories of crime and punishment must answer: What is a crime? What does it mean to be responsible for a crime? Why respond to crime? Who may respond to crime? How should one respond to crime? The chapter will not defend any substantive theory of crime and punishment. However, it will, at the very least, suggest that the answer to all these questions cannot be piecemeal as if the criminal law were a special case and somehow

*  I am grateful to Nicola Lacey and Federico Picinali for comments on drafts of this chapter.

356   emmanuel melissaris isolated from the rest of the legal system. A theory of crime and punishment must form part of a comprehensive theory of the state and its institutional structure in a way that is sensitive to actual practices in a political community.

ii.  What Kind of “Theory”? The debate regarding the appropriate vantage point, from which to think about the justification of criminalization and punishment, has recently intensified.1 This methodological meta-question is of some significance so I  will begin by considering three types of theory, the differences between which revolve mainly around the relationship between context-independent reasons for action and empirically identifiable facts.

1.  Ideal theory Many take a top-down approach. They think that it is possible to work out some principles on the basis of values, which apply to all and at all times irrespective of the historical context with all its empirical complications. Let us call this type of theory ideal for the sake of brevity and to highlight the priority of context-independent principles over fact or belief.2 To start from the abstract and move down to the empirical is not to say that such principles are not sensitive to facts in the world—they will of course have to be applied to such facts and application will inevitably generate a number of problems on a number of levels. For instance, say we accept it as a matter of true general principle that causing harm to others is wrongful (and therefore at least prima facie eligible for criminalization). Still, the harm principle cannot determine by itself 1   See characteristically the editors’ introduction in R. A. Duff and Stuart Green (eds.), Philosophical Foundations of Criminal Law (2011). This methodological debate has been rife in general legal theory for a long time, although the focus there is slightly different. See indicatively, John Finnis, “Law and What I Truly Should Decide,” (2003) 48 American Journal of Jurisprudence 107 ff.; Ronald Dworkin, “Hart’s Postscript and the Character of Legal Philosophy,” (2004) 24 OJLS 1 ff.; Andrei Marmor, “Legal Positivism: Still Descriptive and Morally Neutral,” (2006) 26 OJLS 683 ff. 2   There is, of course, a variety of views as to how these agent- and context-independent prin­ciples are grounded. Some are moral realists (see e.g. Michael S. Moore, Placing Blame: A Theory of the Criminal Law (1997)), others ground the law and punitive practices on a correct construction of reason (Kant’s theory of punishment is of that sort; see Immanuel Kant, Groundwork of the Metaphysics of Morals (transl. Mary Gregor, 1997)), others are intuitionists and so forth.

theories of crime and punishment    357 whether a particular act counts as harmful. There is no ideal theorist, who would deny such difficulties of interpretation and application. The question is framed differently, namely as pertaining to the priority between theoretical standpoints. According to ideal theory, the locus of application of ideal principles has no bearing on the latter’s justification or content. We can make normative sense of facts, that is, we can know what the right thing to do in the real world is, only if we already have some normative standards, which are true independently of experience. Ideal theories are more often than not moral. This has at least three central implications. First, they hold these higher level principles to pertain to our relations to each other, to how we ought to treat each other as persons, that is, in our manifestation as moral agents, with the respect that each of us deserves as members of humanity. Secondly, ideal theories hold the community to be morally constituted. Some ideal theories of crime and punishment form part of comprehensive moral theories of the community. Others simply extrapolate from interpersonal norms, which, writ large, are held to be capable of governing the relationships of communities of people. Thirdly, ideal theories consider the real setting of the people, whose lives they purport to govern, their beliefs, and the actual ways in which they interact with each other, to be of secondary significance. They regard moral principles as universally binding and true either as a matter of fact-independent truth or as a matter of the correct exercise of our reason and, in any case, independently of our beliefs and experience. So, ideal theory’s way of dealing with disagreement about value is to idealize the normative perspective of the moral agent and separate it from the real circumstances and beliefs of the criminal law’s addressees. An implication of this is that theories of this sort do not have an in-built way of resolving actual controversy about their foundational assumptions. They stand and fall on the success of these assumptions. Absent any compelling reason for accepting the theory’s foundations, one has no reason to accept its conclusions either. There is one last but very important point about ideal theory. As already mentioned, some versions of it are parts of comprehensive theories, which place the criminal law within a general framework of justification of legal institutions. Very often, however, ideal theory tends to treat the criminal law as an autonomous domain and its justification as dissociated from the justification of the rest of the institutional structure. The conditions of legitimacy of the criminal law are treated as purely moral and not as a part of a wider scheme of relations between people. This strategy of regarding the criminal law as autonomous has at least two upshots. First, many non-comprehensive ideal theorists will think that there are good reasons for holding an act to be wrong, and therefore at least prima facie eligible for punishment, even if social relations are not politically organized and constituted. Or, to put it differently, reasons for criminalizing and punishing are constitutive of the reasons for having a relevant legal framework rather than the other way around. Secondly, reasons for criminalization, the conditions of criminal responsibility, and reasons for punishing are assumed not to be affected in a direct and necessary way

358   emmanuel melissaris by the justice or injustice of the rest of a legal system. For example, an ideal theorist might think that there are strong reasons for which to hold violations of property rights as wrongful and for punishing such violations even if the pattern of distribution of property rights is grossly unjust. In this sense, the criminal law is held to be the paradigmatic domain of application of general rational principles to situated agents, it is the ideal type of law.3

2.  Situated theory The world is not as tidy as ideal theories would wish it to be. Institutional arrangements cannot be rationalized so as to cohere with one meta-principle or with a set of consistent and coherent principles. To mention but one typical example, most (including most ideal theorists) would agree that one may be held criminally responsible for a wrongful act only if one displays a certain mindset, for example one must have intended to bring about a result or have been reckless about the result coming about. However, most jurisdictions are fraught with offenses, which have no such requirement (the so-called “strict liability” offenses).4 Such inconsistencies prompt many theorists to think about the criminal law in an alternative way, which does not accentuate unity and coherence of ideal principle but rather the reality of institutional set-up. Let us call this kind of theory “situated theory” to emphasize that it is anchored to actual practices and that it moves from that level to the higher level of generalized statements about the criminal law. Situated theorists take issue with the fact that ideal theory fails to account for the way that institutions have in fact developed and readily jettisons as irrelevant or unjustifiable sizeable chunks of the criminal law, because they do not neatly fit into ideal schemes of principle. Situated theorists also consider this inability as symptomatic of a deeper problem with ideal theory, namely its failure to appreciate the salience of real practices to the grounding of the criminal law. Situated theory therefore urges us to pay closer attention to such practices and use them as a guideline to make sense of the criminal law.5 But what kind of sense of the criminal law will empirical knowledge help us to make? And which data of experience are salient? One possibility is that a clearer understanding of institutional facts will allow us to make the most of the critical potential of ideal theory. Whereas the latter singles out the universal standards, which our criminal law practices must meet, situated theory elucidates the meaning 3   For a critique of this view of the criminal law from a Marxist perspective, see Evgeny Pashukanis, Law and Marxism: A General Theory (transl. Barbara Einhorn, 1978). 4   For a critique of criminal law and criminal law theory on these grounds, see Alan Norrie, Crime, Reason and History (2001). 5   For a defense of situated method, see Nicola Lacey, “Institutionalising Responsibility: Implications for Jurisprudence,” (2013) 4 Jurisprudence 1, 1 ff.

theories of crime and punishment    359 of our actual, complex, and interdependent practices and the reasons animating them. Both these tasks are necessary but neither is sufficient in itself. Now, if this is the case, the dispute seems to focus mainly on the diagnostic ability of ideal theory and its ability to interpret facts in light of values. And this also entails a critique of ideal theory on the question of the autonomy of the criminal law in relation to the rest of the institutional structure of which it forms part. It is true that a great deal of ideal theory neglects or often altogether disregards the complexity of facts, especially institutional facts, which help to shape the relations, which the criminal law aspires to govern. It often regards criminal law doctrine as nothing but perfect reflections of the moral relations between idealized agents independently of their real setting. Situated theory, on the other hand, views the person-bearer of criminal responsibility not as an abstraction but as a participant in a complex scheme of institutional relations, which immanently constitute her personhood. These institutional facts have a direct and necessary impact on the reasons determining the way in which the criminal law ought to treat people. In other words, whereas for ideal theory agents in criminal law are stripped of any characteristic other than some universal and immutable ones, for situated theory they are institutionally—and, for some, in other ways too—shaped in a relevant way. To this extent, situated theory’s objection seems plausible. It seems incomplete to assume, like many ideal theorists do, that the conception of persons and their relations relevant to the justification of criminal law practices is an ideal one with institutional conditions being simple add-ons. It is also incorrect to assume that the meaning of our practices, and especially institutional ones, somehow hits us in the face and therefore that the reasons backing institutional practices are immediately visible without the need for inquiry of the type that situated theory engages in. Situated theory is right to point out that this is not so, that institutional normative meaning is much more complex than ideal theory would assume. Important as this critique may be, however, it seems not to target the central claim of ideal theory. Adapting the context of application of ideal theory in a way that is more attuned to the complexities of institutional structures is useful and indeed necessary but it does not cancel out the distinctive part that ideal theory aspires to play. In light of the knowledge provided by situated theory, we can go on to ask whether our practices satisfy general principles, which we have worked out independently of experience, and adapt them accordingly. Many proponents of situated theory might be unhappy with this division of theor­ etical labor. Their objection with ideal normative theory might reach much further. The claim is possibly that the institutional set-up in all its historical particularity is more deeply and directly salient to the very question of the grounds of our practices of criminalization and punishment.6 6  This can arguably be traced back to the influential thought of Michel Foucault. See Michel Foucault, Discipline and Punish: The Birth of the Prison (transl. Alan Sheridan, 1979). For an account of how punishment mutually interacts with a wider network of social practices but also for a critical

360   emmanuel melissaris One possible reading of it might be that, contrary to the hopes of ideal theorists, justification of complex institutions is simply never possible from the perspective of agents employing a priori reasons. At best, a theorist may be able to record the intrasystemic development of institutions as the outcome of power relations, available technologies, historically contingent choices, and so forth. This can only be achieved, situated theorists might emphasize, by taking account of a wider range of relevant facts so as to place the criminal law in a wider nexus of social relations, both institutional and extra-institutional, and by enlisting to that end the help of speculative social sciences such as history, political economy, sociology, etc. We may thus be in a position to form a framework to help us to understand the causes of our practices of criminalization and punishment. Within this framework we may factor in agents’ beliefs and choices but these can only form a small and contingent part of a complex scheme of determining factors, over which agents do not exercise any control. So the claim may be that not only does ideal normative theory not tell us everything there is to know about crime and punishment but in fact it can tell us nothing meaningful, let alone useful, about our practices of holding people responsible in a certain way and at a given time and space. Theory is then nothing but the admission and recording of the radical limitations of our ability to control our normative practices with the use of reasons. In other words, the argument altogether rejects as an illusion the normative perspective of reason-giving participants in the system of criminal law, in a way that runs counter to our self-understanding and our intuitions about how we exercise our judgment in relation to the world. This is clearly an extremely ambitious argument and much can be said about it but we will focus on one point. To argue consistently that what we generally perceive as practical decisions pertaining to the ought are in reality nothing but the outcome of systemic causal reactions—of which our psychological attitudes to certain facts in the world are only a part—one must be able to show that the selection of the relevant facts purportedly explaining legal practices is itself normatively inert, that is, independent of any prior normative framework of reasons determining the direction of inquiry. This begs the question why some facts are singled out over others as determining the development of our normative practices. For example, an increasing number of scholars think about criminalization and punishment in political economic terms trying to trace the parallel development of punitive practices and modern capitalism in their interconnectedness.7 Why, then, is it that the political economic standpoint enjoys priority over the vast range of available such account of the way in which various influential social theorists have made sense of punishment, see David Garland, Punishment and Modern Society: A Study in Social Theory (1991). 7   See e.g. Loïc Wacquant, Punishing the Poor: The Neoliberal Government of Social Insecurity (2009) and Nicola Lacey, The Prisoners’ Dilemma:  Political Economy and Punishment in Contemporary Democracies (2008).

theories of crime and punishment    361 perspectives? Why should we hold economic facts as pertaining so directly and centrally to our practices of holding people criminally responsible and punishing them as a response? The answer might be that our theories are always tentative because we lack the epistemic resources to construct a perfect, fully comprehensive explanatory scheme of our practices as determined by various facts over which we exercise no control. But until such a perfect theory is devised—and it is highly questionable whether it is even possible but this cannot be discussed here—the criteria of selection seem inescapably normative in nature. Situated theory takes the participant, normative, reason-giving perspective—even if we are deluded that such a perspective is genuine—very much in the way of ideal theory but with two differences: first, situated theory expands the relevant context so as to encompass reasons from elsewhere in the institutional (and social) structure. It is on this basis that it is able to criticize ideal theory, and rightly so, as misreading our normative practices by focusing exclusively on one normative domain. Secondly, and precisely because of its aversion to ideal theory, it is very often reluctant to spell out the standards, which support its critical project. To return to the previous example, what political economic theories of criminalization and punishment really do is to place these practices into a wider matrix not of facts but reasons, which are determined by a specific conception of the good, the relative worth of people, and so on. This is already valuable as a critique of certain types of ideal theory, which disregard the deeper and wider normative structure supporting the criminal law. But there is also an implicit argument there that elucidating the true nature of institutional reasons for criminalizing and punishing can be valuable as a critique of these practices as animated by these reasons. For this project to be completed one would have to turn to ideal theory, that is, one would have to work out reasons, which enjoy priority over facts, or at least most facts. I say most facts, because there may be a way of reconciling the two positions of ideal and situated theory. To this I turn in the next section.

3.  Political constructivist theory This is the bind in which we find ourselves after the previous two sections: either we work out a priori reasons regarding criminalization and punishment, which we then go on to apply to facts in the world, or we concentrate on facts and dismiss the possibility of assuming the participant, normative perspective altogether. But there may still be a way of reconciling the two positions. There may be a way of thinking of some facts in the world as having normative significance and as capable of forming at least the first stage of construction of normative theory. This time, however, theory is not premised on context-independent truth but on the reflective grasp and unraveling of the normative perspective of real, situated agents who share certain normative attitudes. This is the initial premise of constructivism

362   emmanuel melissaris in meta-ethics generally8 but what we have in mind here is a specific kind of constructivism, which is particularly pertinent to the grounding of criminalization and punishment, namely political constructivism.9 Political constructivism regards as arbitrary the selection of a certain conception of the abstract reasoning agent independently of, and often despite, the self-understanding of the actual people, whose behavior the law claims to be governing. Now, an ideal theorist might object that, if we are confident that our overarching principles are true, there is no reason why actual beliefs in the community should be taken into account at all. The answer to this objection lies in the characteristics of large, complex, differentiated, modern societies, which display a distinct mode of integration. Such societies are marked by a pluralism of beliefs regarding the good life—beliefs which are often irreconcilable with each other and the conflicts between which cannot be settled from within any one of the belief systems. In other words, no moral system of beliefs can claim objectivity and immunity from reasonable contestation and we can never have the epistemic confidence that one model of morality is superior to its reasonable competitors. Accordingly, members of modern societies do not recognize each other on the basis of a shared set of conceptions of the good, as was—or still is—the case in pre-modern societies. Social relations are mediated by political institutions, in which people participate in a distinct capacity of theirs, their capacity as citizens, as members of a political, rather than a moral, community. So, enforcing one such conception of the good would be unjustified to those whose actions it is meant to guide but also unstable in the long run. Therefore, political constructivism is concerned with the justification of polit­ ical institutions as political institutions, that is as a free-standing domain of social relations. Political constructivism uses as the first step in the construction of the grounds of the law the basic terms on which citizens in modern societies regard themselves and others in their public manifestations as citizens, as members of the political community. Some thinkers in this post-metaphysical tradition start from the specifically political conception of the person embedded in current political institutions in democratic societies.10 Others build the normative constitution of the political community on the basis of the character of social relations in the modern public sphere.11 Either way, what is distinctive is that political constructivist theory

  See among others T. M. Scanlon, What we Owe to Each Other (1998).   An example of a constructivist theory specifically of crime and punishment is Matt Matravers, Justice and Punishment: The Rationale of Coercion (2000). 10   John Rawls, Political Liberalism (1993). For a reconstruction of a broadly Rawlsian outline of a theory of crime and punishment, see Emmanuel Melissaris, “Toward a Political Theory of Criminal Law: A Critical Rawlsian Account,” (2012) 15 New Crim. LR 122 ff. 11   Jürgen Habermas, Between Facts and Norms:  Contributions to a Discourse Theory of Law and Democracy (transl. William Rehg, 1996). 8

9

theories of crime and punishment    363 proceeds from a certain conception of personhood that draws on the actual experience of the political community. Political constructivism therefore occupies the middle ground between ideal and situated theory and arguably resolves the central tension between them. It takes into account certain facts about our societies, facts which are not morally thick but are not normatively inert either. They are not thick in that they do not enforce any specific conception of the good and they do not have action-guiding force without further ado. And they are not normatively inert, because they have certain upshots for the normative terms of social cooperation. This points to political constructivism’s related claim that these foundational assumptions about a certain state of affairs serving as the first step in the process of the construction of an institutional order are uncontroversial. The members of the political community already participate in a certain form of social cooperation. Therefore, to the extent that they accept this (and they could not reasonably deny it, because it is a presupposition of their actual practices) they also already necessarily accept its presupposed premises. Therefore, all principles that follow from that empirically observable foundation are already acceptable—though not necessarily actually accepted—and one can only reject them at the risk of self-contradiction. But not everything is justified counterfactually and in the absence of those whose lives are governed by the law. This would be inconsistent on the part of political constructivism, the purpose of which is to reconcile actual ethical pluralism within the constitution of the political community. It is only the outer framework of the institutional structure that will be determined philosophically (i.e. independently of the empirical context) while its greatest part will have to be justified against the backdrop of this plurality of beliefs. Different theorists think about this in different ways and we cannot go into the details here but the important point for our purposes is that the justification of the law and, of course, the criminal law in particular, must be anchored to a consensus in the political community. Consensus does not mean some sort of majoritarian rule over the minority but rather a general agreement on reasons that all can accept on the basis of fair democratic representation of all beliefs. This type of thinking about the justification of the state and its institutional structure has important ramifications for the criminal law. Crucially, criminalization and punishment cease to be distinct, self-standing practices dissociated from the rest of the legal system. They form an integral part of their institutional setting. Therefore, their justification depends necessarily on the justification of the rest of the institutional structure. There are two aspects to this. First, should the institutional structure not be adequately justified on the basis outlined previously, then the state is not authorized to mete out punishment because no genuine duties on the part of citizens are established. Secondly, particular criminal law-based duties are shaped in complete interdependence with the overall way in which social relations are legally regulated. Whereas much of ideal theory necessarily compartmentalizes

364   emmanuel melissaris various contexts of social interaction and holds different areas of law as mirroring these contexts, political constructivism treats such compartmentalization as wholly contingent on the way that relations actually develop and in light of the most effect­ ive ways of governing them in light of the framework requirements of justice. For example, if, say, property relations are adequately governed though different means, contract or tort and so forth, there may be nothing that necessitates the criminalization of violations of property rights. Thus, the requirement of coherence between institutional practices (and not only rules within the doctrine of criminal law) is established. Through this strategy of bracketing the criminal law as political in that very specific sense and as concerning a particular manifestation of the personhood of citizens, political constructivism arguably deals with a number of problems that no one, single ideal theory is able to. To list a few such points: it accounts for the exclusive authority of the state to punish as the expression of the collective; it can justify the selective, albeit consistent, criminalization of certain acts but not others, whereas ideal theory which regards the criminal law as necessary cannot do so consistently; the flip-side of this is that it can also justify the criminalization of acts which are not intuitively morally wrong, that is, it can justify what is often called the regulatory function of the criminal law; it takes seriously empirical facts about our societies while still providing philosophical normative guidelines, which can help us practically to organize this knowledge. And, of course, it addresses the shortcomings of situated theory by reconciling the perspective of the reason-giving agent with the perspective of the observer of facts in a community. Naturally, there is a range of objections that could be raised against a political constructivist justification of the criminal law. One such forceful objection is that it runs counter to most people’s intuitions regarding wrongdoing. There is something awkward, the objection goes, about thinking of acts such as murder, rape, and assault not as serious moral wrongs but rather as disruptions of the smooth running of a contingent institutional structure. A corollary of this is the objection that political constructivism leaves decisions regarding such profoundly controversial issues to a political dialogue, which will be more easily manipulated and yield skewed results rather than lead to some consensus regarding criminalization and punishment. These are difficult objections to respond to but let me attempt to outline the beginning of a response. First, political constructivism does not require citizens to forsake their moral beliefs. However, it does require them to show reasonable regard for others when the question is which norms are to apply to everyone within the political community. Now, this may of course be put to the test, because not every­ one may be motivated by reasonableness in this sense. There are at least two safety mechanisms. First, certain citizens’ duties will not be put to such tests of public dialogue, because they will already follow from the philosophically worked out normative foundations of the political community. For example, violations of others’

theories of crime and punishment    365 bodily, sexual, and psychological integrity more than deprive the victim of some good; they signify a rejection of the victim as a member of the political community. One is therefore under a duty to forbear from such acts of violence because not doing so would amount to a self-contradictory refutation of the normative framework of the political community. It is, however, true that anything short of this will be more controversial. Political constructivism relies a great deal on the hope that citizens within a well-grounded and just state will be able not only to recognize their political duties but also to be motivated by that recognition. It expects citizens with no complaints against the state to understand why acts, which they may consider punishable, are not punished or the other way around. And it also expects citizens to build their political duties within the structure of norms, which govern their lives. This balance between motivation and external obligation may indeed pose a problem for political constructivism. But in this context we can only note it rather than discuss it in any depth or detail.

iii.  The Justification of Crime And Punishment 1.  What is crime? The question should probably be reformulated in a more detailed manner: is there a class of acts (or omissions), which are distinguished from other acts in a way that is of special concern to the whole of the relevant community and warrants the use of the label of crime as appropriate? If so, what exactly is the differentia specifica of this class of acts?12 The point of putting the question in such an abstract way is to avoid prejudicing the answer and to acknowledge the profound disagreements as to what crime is and what the appropriate response to it is. To illustrate the range of this disagreement:  some consider criminalization to be a necessary institution while others regard it as altogether unjustifiable;13 some think that a theory of crime should 12   For such an abstract philosophical account of crime, see Grant Lamond, “What is a Crime?,” (2007) 27 OJLS 609 ff. 13   For a variety of arguments skeptical of punitive practices from various perspectives, see Georg Rusche and Otto Kirchheimer, Punishment and Social Structure (1939); Louk Hulsman, “Critical Criminology and the Concept of Crime,” (1986) 10 Contemporary Crises 63 ff.; Nils Christie, “Conflicts as Property,” (1977) 17 British Journal of Criminology 1 ff.; Hyman Gross, Crime and Punishment: A Concise Moral Critique (2012); Deirdre Golash, The Case Against Punishment (2005).

366   emmanuel melissaris try to accommodate some of our shared intuitions, whether they be institutionally entrenched or not, whereas others are overtly and fully revisionist; some believe that the concept of crime has some immutable transcendental properties the content of which is waiting to be discovered by us while others see it only as politically constructed and pertaining to our character as citizens; some are not squeamish about extending the scope of the criminal law whereas others set tight restrictions to its range.14 There is, however, one thing on which most would agree and this is that crime involves some wrongful conduct, which is public in nature, that is, it is somehow of concern not only to the actor and the immediate victim but also the community at large.15 The question of wrongfulness is addressed in more detail elsewhere in this Handbook so in this context it suffices broadly to distinguish between two general approaches to the question of wrongfulness (approaches which are unsurprisingly marked by a great deal of internal variation and disagreement): liberal and moralist.16 The standard liberal position is that all the members of a political community ought to be allowed to decide how to live their lives in any way they choose and consider fulfilling. The purpose of the state is largely to provide the framework within which individuals may pursue happiness as autonomous individuals. The state is therefore generally not justified to demand of citizens to act in a certain way; it is only authorized to mark the outer boundaries of citizens’ freedom. And any transgression of these boundaries on the part of citizens counts as wrongful and as prima facie eligible for criminalization. The question, then, is what these outer boundaries of liberty are. The view with arguably the greatest currency in criminal law theory as well as criminal law doctrine in various jurisdictions is that one’s liberty meets its limits at the point of causing harm.17 The “harm principle” generally requires that action does not constitute an unjustified interference with the comfort or interests of the other, which would leave the other worse off. Again, this basic position does not preclude disagreement on the details. For example, one may hold that harm is a necessary condition of specifically criminal wrongfulness (therefore wrongfulness being nothing but harmfulness). Others believe that, whereas harm is normally required for an act   See e.g. Douglas Husak, Overcriminalization: The Limits of the Criminal Law (2008).   On the public nature of criminal wrongs, see Markus D. Dubber, “Criminal Law Between Public and Private Law,” in R. A. Duff et al. (eds.), The Boundaries of the Criminal Law (2010). 16   This standard terminology should not confuse us. That some approaches to crime are labeled as “liberal” does not imply that moralist theories are somehow anti-liberty. The difference between them revolves around the conception of liberty, which they entail, and the placement of liberty in the overall normative scheme. 17   The standard formulation of the harm principle goes back to J. S. Mill, On Liberty (1859). See also Joel Feinberg, Harm to Others (1984). 14 15

theories of crime and punishment    367 to count as wrongful, this is not always the case. For example, some hold that certain instances of causing offense to others (say, by ridiculing their religious beliefs) are equally wrongful.18 Or one might think that posing the risk of harm is already wrongful even if no harm in fact is caused (this is a commonly used justification for the criminalization of attempts). Not all liberals subscribe to the harm principle as the decisive condition of wrongfulness. Some think that the harm principle sets the threshold too high. For example, thinkers in the republican tradition shift the focus from harm to the duties to which we are subject by virtue of our membership of the political community and the institutional structure that frames it.19 Although refraining from harming others will be one of those duties, it will not be the only one. All duties stemming from the politically determined institutional structure will be of the same kind and therefore prima facie eligible for regulation through the criminal law.20 What is also distinctive of this approach is that the grounds of wrongfulness are now necessarily social. Although allowing individuals the space in which they can exercise their free choices is still a concern, it is no longer the focal point, because individual freedom presupposes a scheme of social cooperation, which determines normative relations. The liberal groundwork of these approaches to wrongfulness also already accounts for the public nature of crimes. Acts which harm or interfere with the independence of others and so forth are wrongful in a publicly, and therefore legally, relevant way because they interfere with others in their particular capacity as members of the political community. Liberal theories draw a sharp—though not always entirely clear-cut—distinction between the political and the social/associational with only the former falling within the remit of the criminal law. The central liberal premise that wrongdoing is relative to the space of freedom of others is not shared by conceptions of wrongfulness, which we can roughly group together as moralist. Moralists generally hold that we are under certain duties, which are prior to and independent of our joint membership of political communities in the sense that they are not determined by but rather determine the reasons animating our political associations and their form. The option is therefore available to moralism to enforce a specific conception of the good thus circumscribing people’s positive freedom at least by limiting the range of options available to them. Thus, our failure to abide by our moral duties is wrongful independently of whether it has an impact on others. Depending on the moral scheme on which they rely, moralist theories of crime would therefore not hesitate to include in the category of 18  Joel Feinberg, Offense to Others (1985); A.  P. Simester and Andrew von Hirsch (eds.), Incivilities: Regulating Offensive Behaviour (2006). 19   For a republican, anti-domination theory of punishment, see John Braithwaite and Philip Pettit, Not Just Deserts: A Republican Theory of Criminal Justice (1990). 20   See e.g. a Kant-inspired account along these lines, Arthur Ripstein, “Beyond the Harm Principle,” (2006) 34 Philosophy and Public Affairs 215 ff.

368   emmanuel melissaris crime acts or courses of conduct, which liberals would generally consider exempted from the coercive powers of the state, such as sexual preferences or the recreational use of drugs.21 Nevertheless, most moralists would espouse the liberal view that for an act to be criminal it must have some external impact on the world. They therefore generally steer clear from considering mere thoughts as being the proper object of criminalization. The moralist conception of crime diverges from the liberal one regarding the question of publicity on the same grounds. Whereas liberal theories of crime normatively bracket off the political, moralist theories reject this distinction and consider the bond of the community to be moral. This means that the community is constituted by a set of duties (and corresponding rights), which preexist it, rather than the other way around.

2.  What does it mean to be responsible for a crime? If one thinks that criminalization presupposes some external impact, then one is more likely than not to also think that criminalization also presupposes acting. For an act to be wrong, it does not suffice that it brings about a result or that it is in violation of a certain duty. It must also be someone’s act. It is impossible even to speak of authorless wrongs. Natural disasters, for example, may have a horrendous impact on people’s lives but calling them wrongful is to overstretch our linguistic intuitions. The question of criminal responsibility refers to the conditions under which an act or a result can be attributed to a particular person as an offense. It is therefore a two-pronged question. First, how can an act simpliciter be attributed to an actor? When, for example, can we say that it is A’s actions rather than something else, which caused bodily harm to B? Secondly, under which conditions is one blameworthy? To use the same example, when can we say that A is to be held responsible for wrongfully causing bodily harm to B? The question of mere attributability is generally treated as partly subjective and partly objective. It is subjective in that for one to have genuinely acted one must have exercised a certain degree of control over one’s actions. So, if A is pushed, loses control of her body, and crashes through a window, we would not be able meaningfully to say that the window broke as a result of A’s action. This is a rather pared down requirement of subjectivity in that the actor’s attitude refers only to the intention of the actor to act in a certain way rather than not to bring about the wrongful

  Arguably the most characteristic, though perhaps not the most sophisticated, example of a moralist theory of crime in terms of the enforcement of purportedly shared moral convictions in the community is Patrick Devlin, The Enforcement of Morals (1965). Lord Devlin was, of course, engaged with H. L. A. Hart in a debate over this, triggered by the question of decriminalization of homosexuality in England and Wales in the 1950s. See H. L. A. Hart, Law, Liberty and Morality (1963). 21

theories of crime and punishment    369 result as such or, to put it more generally as not all criminal wrongs are result-based, to give her action the meaning of the wrongful act. The objective leg of the attributability question presents us with greater difficulty in result-based crimes, where the stake is to draw a connection between acts and events in the world. Most regard this as an issue of causation. The sort of question typically asked here is “did A’s injecting B with a noxious substance causally contribute to B’s death to a sufficient degree”? Some believe that there are robust metaphysical or scientific principles allowing us to determine causal links.22 However, on many occasions most people would intuit that one is responsible for an event in the world despite the absence of any causal link. We might think, for example, that one is responsible for failing to act in circumstances in which an unwanted event has occurred. Such cases prompt some thinkers not to give up on causation as a desert base but to rethink it. Instead of regarding it as a question of metaphysics or science, they turn to our common sense understanding of connections between events in the world.23 In this way, they also draw distinctions between causal contributions of varying degrees, distinctions which have a bearing on the actor’s criminal responsibility. This take on causation seems implicitly to conflate the question of attributability of an event with that of an actor’s substantive responsibility for the event coming about. Others merge these two explicitly. In the case of omissions, for example, they believe that the event is attributable to the actor to the extent that the latter was under a duty to act even though there can be no causal link between the failure to act and the event. Most would agree that whether one is blameworthy is to be judged in relation to one’s attitude toward one’s act but what kind of attitude this must be is contested.24 One approach to it, indeed one adopted by many jurisdictions, is cognitive. The actor is held to be blameworthy to the extent that she knows and appreciates to a sufficient degree the implications of her acts. So, for example, one will be blamed for the death of another if one has caused the death with an act which she knew or could foresee would result in the other’s death. The stronger the cognitive connection of the actor to the act, the stronger the case for blameworthiness. So, if A believes that his stabbing B will cause B’s death, then A is held to have intended to kill B and his blameworthiness is therefore stronger. If, however, A does not have such a direct belief, his foresight of the likely outcomes of his acts will suffice for him to be held to be reckless and therefore blameworthy, albeit to a lesser degree than if he had intended the result. And, of course, if one is not in a position to be fully aware of the meaning of one’s actions, for instance because of mental illness, then one is either altogether exempted from criminal responsibility or one is held responsible to a lesser degree. 22   See Michael S. Moore, Causation and Responsibility: An Essay in Law, Morals, and Metaphysics 23 (2009).   See H. L. A. Hart and Tony Honoré, Causation in the Law (2nd ed., 1985). 24   See Winnie Chan and A. P. Simester, “Four Functions of Mens Rea,” (2011) 70 Cambridge LJ 381 ff.

370   emmanuel melissaris What is important to note about this approach to blameworthiness is that it is generally not sensitive to the actor’s moral disposition toward her acts. As long as the actor has the requisite ability and mindset to realize the meaning and pos­sible implications of her actions, whether she morally endorses (for some, whether she wants or welcomes) the result of her actions is largely irrelevant in ascertaining her prima facie culpability. The threshold of criminal responsibility is therefore lower. For example, rightful ulterior motives will generally not make a difference to one’s responsibility.25 This approach also implies a certain division of moral labor between the state and citizens. It is based on the assumption that the moral demerit of an act has already been determined by the state and that individuals do not have the moral discretion to hierarchize between goods. But, and although this is generally the position in law, there is also a strong argument that it is precisely that kind of moral attitude that one should be attentive to when judging one’s blameworthiness. Some try to see this moral stance as part and parcel of the actor’s character as developed throughout her life and link criminal responsibility with agency and the expression of bad character.26 If we fail to show regard to one’s moral dispositions, the argument goes, then we will also fail to capture the nuances of acting for different reasons. For example, one might argue that it is one thing to foresee that another will die as a result of your actions and be morally indifferent to that, even though you may not intend it, than it is to foresee the other’s death and regret that eventuality. The moral circumstances of the act may, however, have an external impact, even if one subscribes to a cognitive understanding of culpability. One might hold that the baseline of criminal responsibility is determined by the actor’s cognitive disposition and at the same time accept that there may nevertheless be concurrent facts of moral salience, which condition that disposition. There may, for example, be facts, which affected the actor’s reasoning ability in the circumstances. Typical such examples would be acting on having been provoked by another or in defense of one’s life or the life of another.27 One important point should be highlighted here, which connects to the earl­ ier methodological discussion. Whichever tack one takes on the question of criminal responsibility, one presupposes a certain conception of the acting person and her reflective and reasoning faculties. Some hold that this conception of the characteristics of the person is context-independent and therefore unaffected, at least in all its salient respects, by the setting in which it is manifested. 25   There are, however, strong arguments that it should. See indicatively Douglas Husak, “Motive and Criminal Liability,” (1989) 8 Criminal Justice Ethics 3 ff.; Victor Tadros, “Wrongdoing and Motivation,” in Victor Tadros (ed.), The Ends of Harm: The Moral Foundations of Criminal Law (2011). 26  For a recent account of criminal responsibility on the basis of character, see Victor Tadros, Criminal Responsibility (2005). 27   See Jeremy Horder, Excusing Crime (2004); John Gardner, Offences and Defences: Selected Essays in the Philosophy of Criminal Law (2007).

theories of crime and punishment    371 Others, however, believe that viewing the person as an abstraction fails to pay sufficient attention to the complexities and the differences generated by the actual context, institutional and otherwise, in which the criminal law finds its addressees. Take the example of acting in self-defense. One’s view on whether and how exactly acting in self-defense justifies exculpation will depend on whether one views the conception of the person relevant to the criminal law as constituted through its relations with others or not. To explain, say that one regards the person as bearer of certain features, which do not depend on the person’s social environment and in particular her relations with others. In that case, one might regard the acts of others, which give rise to the claim to self-defense, as events wholly external to the actor. Consequently, what the threshold of, say, what the justified perception of threat is will be set accordingly. But if one considers that the relevant conception of the person is social or political and therefore constituted by relations with others, then the expectations that the criminal law will have of us as to the trust we should display to each other will be determined differently.

3.  Responding to crime One would be very hard-pressed to find real criminal justice systems built around a single and coherent justification of punishment. Take as an example the Criminal Justice Act 2003 in England and Wales which, in section 142, lists a variety of purposes of punishment: (a) the punishment of offenders; (b) the reduction of crime (including its reduction by deterrence); (c) the reform and rehabilitation of offenders; (d) the protection of the public; (e) the making of reparation by offenders to persons affected by their offenses. Many of these aims seem to be at odds with each other, first, because they cannot all be fully pursued at the same time. We cannot, for example, punish only for the sake of punishing and only to rehabilitate offenders. Secondly, it is not clear at all to which cases each of these rationales should apply. For example, which offenders should be treated so as to protect the public and which ones should we aim to reform? Nevertheless, some analytical distinctions can be and have been drawn between various justifications of punishment and they can help us to organize our thinking about our punitive practices. Many people might think that neither can there be punishment without crime nor crime without punishment. But, on more careful thought, it is not clear at all that there is a necessary, two-way link between the two. Even if we manage to reach an agreement on what properly qualifies as a crime, we still have no compelling reasons to agree as to whether we ought somehow to respond to crime, let alone that the appropriate response is punishment. The matter of the response to crime is analytically separate and entails four central questions: Why do wrongful acts warrant

372   emmanuel melissaris a response? Who is to respond? How ought one to respond to crime generally? How ought one to respond to particular instances of crime? Some hold that the criminal wrongdoing itself already justifies a response. They think that the fact that someone has committed a crime is in itself a sufficient reason for taking some accountability-holding measure, because wrongdoers deserve to be held accountable, precisely for committing a wrong of a certain kind. The views that converge in that point are generally classified as retributivist.28 Some retributivists might believe that the desert thesis suffices as a comprehensive justification of punishment. This, however, does not seem to be the case. For retributivism to answer all the other relevant questions that a theory of punishment must address, it must employ more than the desert thesis. First of all, to argue that certain types of wrongdoing are deserving of a distinctive response, one must have a corresponding theory of criminal wrongdoing, which differentiates crimes from other types of wrongs (such as, say, tortious ones). In other words, one must have a theory of why certain wrongful acts deserve punishment while others do not. And such a theory must avoid the circularity of grounding desert on desert, that is, claiming that crime is what deserves to be punished while simultaneously arguing that certain types of wrongs ought to be punished, because they are distinctive in a separate way. At the same time, retributivist theory regarding wrongdoing, and criminal responsibility too, must be of the same character as the desert claim, namely it must be experience-independent. For example, a theory of wrongdoing on the basis of the unwanted consequences of the wrongful act is not available to retributivists. A second difficult point that retributivism must grapple with is what exactly it is that the wrongdoer deserves. Some believe that the right response is punishment in its standard understanding of depriving the wrongdoer of certain rights, liberties, facilities, resources, and benefits which she otherwise would have been able and entitled to enjoy, a deprivation which most people would consider an unpleasant state of affairs. (Note here that what counts as punishment is generally regarded as an objective matter rather than as relative to the attitudes of the punished.29) Some might even believe that the distribution of penalties, too, is determined by the wrongdoing. However, such connections of equivalence between wrongdoing and punishment are notoriously difficult to draw. The difficulty lies in that contingently developed punitive technologies (situated theories of punishment very convincingly show that such practices are historically conditioned) are being represented as necessary normative   Retributivism can be a broad church. See John Cottingham, “Varieties of Retribution,” (1979) 29 Philosophical Quarterly 238 ff.; Nigel Walker, “Even More Varieties of Retribution,” (1999) 4 Philosophy 595 ff. 29   For a suggestion as to how we should speak about punishment, see Antony Flew, “The Justification of Punishment,” (1954) 29 Philosophy 291 ff. 28

theories of crime and punishment    373 consequences of wrongdoing, which is so defined independently of any empir­ ical fact. One possible way for retributivists to overcome this difficulty is to argue that it is not exclusively punishment in its current understanding that is deserved by the wrongdoer but suffering generally. This time the claim is that the wrongdoer deserves to be treated harshly, because she or he has caused some unpleasant consequence in an impermissible way. This way of linking crime and punishment appeals more plausibly to the intuition of lex talionis: you caused suffering, therefore you deserve to suffer for it. For example, in Kantian thought the wrongdoer is held to have unilaterally, therefore unwarrantedly, imposed her will upon others. In doing so, she not only violates the rights of others but also undermines the law, which has exclusive authority heteronomously to impose constraints to how people may act on their choices. A response to crime is normatively required to restore the rightful balance, which the wrongdoer upset with her action. And the response must be the imposition of suffering to the wrongdoer, because this turns the latter’s own choices against her.30 According to a similar argument, this time influenced by Hegel, the wrong that the wrongdoer has committed can only be annulled by turning it against the wrongdoer in the form of imposition of suffering.31 Focusing on suffering rather than punishment in the narrower sense begins to address the problem identified earlier but it does not do so fully and it also creates new problems. First, it seems that retributivism still cannot escape relying on ungrounded intuitions when making the transition between crime and punishment or suffering. It is telling that it so frequently relies on metaphors of “undoing” or “eradicating” the wrong or restoring the normative standing or the wrongdoer vis-à-vis her victims and others. Attempts have been made to address the vagueness that so often undermines the retributivist thesis. Some, for example, focus on the expressive function of punishment and believe that it forcefully communicates that the wrongdoer has unjustifiedly upset the normative relations with the victim.32 Others think of imposing suffering in retribution as canceling out the unfair advantage that the wrongdoer has gained.33 These alternatives may face difficulties of their own (e.g. thinking of wrongs such as murder or rape in terms of “gaining unfair advantage” seems rather odd) but they do begin to give a more plausible account of the link between wrongdoing and suffering. 30  B. Sharon Byrd, “Kant’s Theory of Punishment:  Deterrence in its Threat, Retribution in its Execution,” (1989) 8 Law & Philosophy 151 ff. 31   Georg Hegel, Philosophy of Right (transl. T. M. Knox, 1952). 32   R.  A. Duff, Punishment, Communication, and Community (2001); Jean Hampton, “The Moral Education Theory of Punishment,” (1984) 13 Philosophy & Public Affairs 208 ff. 33   Michael Davis, “Criminal Desert and Unfair Advantage: What’s the Connection?,” (1993) 12 Law & Philosophy 133 ff.

374   emmanuel melissaris Secondly, the new problem created is that the strict retributivist thesis must be either watered down by placing weight on the consequences of punishment or by resorting to other reasons outside its pedigree to specify the suffering that the wrongdoer deserves. This relates to the kind of suffering (should it be incarceration? a fine?), the independent amount of suffering (how long a sentence? how hefty a fine?), and the amount of suffering in relation to that imposed for other wrongs (should a murderer be imprisoned for a term longer than a thief?). It does not seem possible that these questions can be answered on the basis of the pure retributivist thesis alone.34 Similarly, even if we agreed that the response to wrongdoing is a matter of desert and, indeed, that the response ought to be suffering or punishment narrowly conceived, this still does not tell us why anyone else may make the wrongdoer suffer.35 The retributivist thesis will need to be complemented by an argument authorizing or compelling others to impose punishment. The more austere versions of retributivism, such as the Kantian one briefly outlined previously, try to address this by employing the same kind of metaphors that they use to ground desert: something would be amiss and the moral balance in the community would be upset, if wrongdoers remained unpunished. Therefore, others (who these others may be will be discussed later in this section) are under a duty to respond to criminal wrongdoing by imposing suffering. The philosophical tradition customarily juxtaposed to retributivism is consequentialism.36 Whereas for retributivism punishment can only be justified in relation to the past wrong, consequentialism in punishment, like in all other domains, is forward-looking in that it grounds punitive practices on an evaluation of their results. A  consequentialist may therefore attach no independent value to punishment; she may consider it a practice that we may or may not have (unless one evaluates consequences in terms of their intrinsic value). Consequentialism must therefore place punishment in a wider web of practices, in order to ascertain whether it is indeed the best possible way of addressing whichever problems need to be addressed. In other words, it needs to be part of a comprehensive theory that transcends the narrower boundaries of punishment. Quite evidently consequentialism also does not necessarily link punishment to wrongdoing, that is, it does not follow analytically from the barest formulation of the consequentialist thesis itself that punishment must necessarily come only as a response to wrongdoing. 34   For a defense to this kind of objection, see Jeffrie G. Murphy, “Three Mistakes about Retributivism,” (1971) 31 Analysis 166 ff. 35  For this and more objections to retributivism, see David Dolinko, “Three Mistakes of Retributivism,” (1992) 39 UCLA LR 1623 ff. 36   Some think that the distinction is no longer representative of how people think about punishment. See Mitchell N. Berman, “Two Kinds of Retributivism,” in R. A. Duff and Stuart Green (eds.), Philosophical Foundations of Criminal Law (2011).

theories of crime and punishment    375 Arguably the most typical and influential example of consequentialist thinking is utilitarianism, for which an act is justified to the extent that it maintains the appropriate balance of welfare.37 Responding to wrongdoing is therefore justified to the extent that it maximizes happiness and minimizes pain. But how may general feli­city be maximized through punishment? The most common answers to the question, both in theory and in actual criminal justice practice, are deterrence, and rehabilitation (or reform). Deterrence is said to be directly achieved either by incapacitating the offender altogether or by giving the wrongdoer a strong disincentive not to reoffend. The basic idea is that, once one has been subjected to the hard treatment of punishment in a way that cancels out the value of one’s wrong, it is only rational and prudent for one not to repeat the same or any other punishable wrong. And the aggregate of happiness in the community will be greater if fewer offenses are committed. This aim of individual deterrence is accompanied by general deterrence. The idea here is that punishment will have an impact not only on the punished but also on the public at large, who will witness the punishment and the disvalue of offending and therefore be prevented from committing the same or a different offense.38 Obviously, these basic ideas of deterrence rely on a range of assumptions:  that people, offenders and the public at large alike, are rationally motivated, that the surrounding social circumstances allow them to exercise their rational faculties to the requisite degree, and so on. The deterrence thesis must therefore necessarily form part of a comprehensive scheme of management of people’s incentives. But, interestingly, this may lead to the refutation of the deterrence thesis itself because it may be the case that, all things considered, the utility of tolerating a certain amount of crime is greater than its opposite. Rehabilitation fell from favor toward the end of the twentieth century but seems to be enjoying increasing popularity again. Not many people would argue anymore that offenders are somehow defective and have to be treated for them to overcome their criminal tendencies.39 Indeed, it is hard to see how rehabilitation in that sense can ever be an aim of punishment, given that punishment presupposes that the person punished is responsible and aware of the meaning of his or her suffering. In its contemporary conception, rehabilitation targets the structural and personal factors that may have contributed to the offense. This is achieved by training offenders and facilitating their reintroduction and integration in the community. Once again, note that this has much wider implications. This type of rehabilitation which targets the so-called “causes of crime” must be part of a wider 37  Utilitarianism in punishment is traced back to the thought of Jeremy Bentham. See Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (ed. J. H. Burns and H. L. A. Hart, 1970). 38   Daniel M. Farrell, “The Justification of Deterrence,” (1985) 94 Philosophical Review 367 ff. 39   This way of thinking about crime in the modern era goes back to Cesare Beccaria. See Cesare Beccaria, An Essay on Crimes and Punishments. By the Marquis Beccaria of Milan; With a Commentary by M. de Voltaire ([1764] 1872).

376   emmanuel melissaris web of policies of non-coercive prevention of crime, that is, prevention through institutions and practices which will ensure that people will not have compelling incentives to offend in the first place. The objection most frequently leveled against utilitarianism in particular and consequentialism generally is that it disregards the value of each individual human being, precisely because it dissociates punishment from any sense of desert. If wrongdoing ceases to be a necessary condition for punishment, then there seems to be nothing stopping us from punishing too severely for minor offenses, punishing the undeserving, or, worse even, punishing the altogether innocent. The problem in this is that it is impermissible to use others solely (we will all inevitably use others instrumentally to some extent) as a means to ends, which they have not set for themselves. Using others in that way is to fail to show due respect to them as persons. One possible retort is that the insufficient respect critique draws a caricature of the utilitarian pleasure/pain calculus. Utilitarianism, the argument would go, is much more sensitive to the implications of punishing the innocent or meting out disproportionate sanctions. And in the real world, especially now that everything may be put to close scrutiny by civil society at all times, punishing the undeserving or the innocent or meting out punishments disproportionate to the wrong. One could insist that this is simply to keep one’s fingers crossed. It still does not convincingly respond to the objection that there is nothing in the pedigree of utilitarianism to protect people from undeserved punishment. Now why should this perturb a utilitarian, who prioritizes happiness in numbers over the happiness of concrete individuals? One could argue that there is a contradiction in this. Utilitarianism’s concern with maximizing statistical happiness already implies a concern with the happiness of individuals. Although it may not be possible to satisfy all preferences, all preferences will be taken into account. Actively depriving the innocent of their freedom of choice by punishing them is altogether to disregard their preferences and their chance at achieving happiness. According to a more modest kind of retributivism which incorporates consequentialist considerations, wrongdoing does not necessitate a response but it is the only justification of it.40 The most convincing way of making this argument is by considering wrongdoing as the violation of certain duties, which are justifiable to their bearers. The question then is what being under a duty entails. At the very least, and independently of whether duties correspond to rights, it seems to be part of the concept of a duty that it gives the person to whom the duty is owed the right to hold accountable the party which violated the duty. Seen from a different angle, the violation of a duty is a necessary requirement of punishment. For a response to be made, it must be a response to someone’s specific act, which was in violation   H. L. A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law (1968); John Rawls, “Two Concepts of Rules,” (1955) 64 Philosophical Review 3 ff. 40

theories of crime and punishment    377 of a duty. This eliminates the risk of punishing those who have done no wrong, a risk inherent in utilitarianism. The difference of this type of retributivism to the stricter type outlined earlier is that there is nothing in the basic justification of holding wrongdoers accountable to determine how a wrongdoer may be held accountable. The type of the response will have to be determined in a way unconnected to the justification of the response or the wrongdoing. Most in this tradition would justify the response in utilitarian terms with a view to maximizing the effectiveness of responding to wrongdoing in terms of reassuring the citizens, maintaining stability, and so forth. Clearly, there is a residual risk in this of the same kind that utilitarianism entails. If punishment as an accountability-seeking measure, its type, and amount are determined in terms of their consequences alone, then it is still possible to instrumentalize offenders. The only way of avoiding this is by placing the justification of punishment within a general scheme of justification of public norms, which includes everyone on which public norms may have an impact. This may be done by democratic deliberation or on the basis of rationality and reciprocity but, at the very least, punishment must be justified in a way that is acceptable by all participants in the political community. The final distinct question has to do with who is authorized to punish. But theor­ ies of punishment also need to engage with urgent practical issues in the real world so the question must be put more specifically: why is the state authorized to punish? Some try to extrapolate the justification of the authority of the state to punish from conceptions of one-to-one, interpersonal moral relations. For instance, some regard state punishment as justified by the impact that the wrongdoing may have on a wider range of people (some regard it to be a form of collective self-defense) or on the basis of the relationships of the victim with others (e.g. a moral duty to rescue). There are, however, various problems with this approach. First, it tries to ground the involvement of the community and the state in punishment on wrongdoing but it inescapably assumes that agents are placed within normative relational frameworks, which are prior to and not constituted by the wrongdoing. Secondly, it offers a rather one-sided account of the state, which is much more than the bearer of the authority to punish. So it seems that to be able to justify why the state is authorized to punish, let alone that its authority is exclusive, one needs a theory which will account for the distinctly public character of certain instances of wrongdoing and, on this basis, proceed to ground the authority of the state to hold wrongdoers accountable. Such a theory of punishment must form a coherent part of a comprehensive theory of the state and its institutions.41 This may be done in a variety of ways. One might, for example, consider our normative relations as constituted exclusively within the political normative framework that is the state and therefore regard crime and   Michael Philips, “The Justification of Punishment and the Justification of Political Authority,” (1986) 5 Law & Philosophy 393 ff. 41

378   emmanuel melissaris punishment as specifically political categories (note that this coheres with various justifications of punishment generally). Alternatively, one may be a utilitarian and believe that the state is authorized to punish because this is the most appropriate way of pursuing the good consequences, which justify punishment generally. One may think of crime as the violation of certain duties Either way, the important point is that a comprehensive theory of the state as authorized to mediate between us in our normative relations must take precedence.

References Braithwaite, John and Pettit, Philip, Not Just Deserts: A Republican Theory of Criminal Justice (1990) Duff, R. A., Answering for Crime: Responsibility and Liability in the Criminal Law (2007) Feinberg, Joel, Harm to Others (1984) Fletcher, George, Rethinking Criminal Law (1978) Foucault, Michel, Discipline and Punish: The Birth of the Prison (transl. Alan Sheridan, 1979) Garland, David, Punishment and Modern Society: A Study in Social Theory (1991) Hart, H. L. A., Punishment and Responsibility: Essays in the Philosophy of Law (1968) Honderich, Ted, Punishment: The Supposed Justifications (1989) Kant, Immanuel, Groundwork of the Metaphysics of Morals (transl. Mary Gregor, 1997) Lacey, Nicola, “In Search of the Responsible Subject: History, Philosophy and Social Sciences in Criminal Law Theory,” (2001) 64 Modern LR 350 Moore, Michael S., Placing Blame: A Theory of the Criminal Law (1997) Morris, Herbert, “Persons and Punishment,” (1968) 52 The Monist 475 Quinn, Warren, “The Right to Threaten and the Right to Punish,” (1985) 14 Philosophy and Public Affairs 327 Rawls, John, “Two Concepts of Rules,” (1955) 64 Philosophical Review 3 Smart, J. J. C., “Utilitarianism and Punishment,” (1991) 25 Israel LR 360

­c hapter 17

CODIFICATION lindsay farmer*

i.  Cosmos and Chaos Sir James Fitzjames Stephen, the celebrated Victorian criminal lawyer, once famously remarked that to compare the Indian Penal Code with the English criminal law was like comparing “cosmos with chaos.”1 He saw the recently enacted Indian Penal Code as a model of order: free of technicalities, systematically arranged, and comprehensible to professionals and non-professionals alike. The English common law by contrast, was technical, unsystematic, complex, and in need of reform. Of course, Stephen’s use of these terms was hardly neutral, as he was a campaigner for the codification of the English law. However, in making the comparison, he drew on a number of long-established rhetorical tropes around the issue of codification: order was contrasted with disorder; simplicity with technicality; accessibility with inaccessibility; a heavenly ideal with earthly chaos. And what lay behind many of these claims was the idea of the modern compared with the old, the anachronistic, or the pre-modern. Codification was novel, offering progress and freedom. It offered a break from the past, a new kind of order that fitted with modern sensibilities. Just as advocates of codification in common law jurisdictions have routinely bemoaned the partial or incomplete modernization of the common law, the conventional accounts of European codification link the reform and codification of the penal *  My thanks to James Chalmers, and to Sarah Armstrong for clarifying the issues. 1   “Codification in India and in England,” (1872) Law Magazine and Review 963, 974.

380   lindsay farmer law and the formation of the modern nation-state.2 According to this story, the code links the control of political power to a reconstitution of the relationship between state and individual. Historically, the modern is inaugurated with the enactment of the classical penal codes in Tuscany (1786), Austria (1787), France (1791 and 1810), and Bavaria (1813) limiting the use of torture and the death penalty and introducing fixed punishments according to law. These codes are seen as marking the transition to a modern legal and political order in which the abstract juridical subject is moved to the center of the law, and the relationship between the juridical individual and the constitutional state is coded in a new way. The figure of the code thus stands in both a historical and theoretical sense at the juncture of law and modernity.3 Underlying both sets of claims there is a more fundamental belief that the codification of the relationship between citizen and state, particularly in the area of crim­ inal law, can better guarantee individual freedom. This may be true—and it is no doubt possible to point to legal systems where this seems to have been the case—but it is not a necessary relation. Codes may be complex, technical, and authoritarian as well as accessible and democratic. If we are to understand this relationship—and how codification might contribute to values such as liberty—it is necessary to look more closely at the relationship between codification and modernity, to understand the role that codes have played in the building of the modern state and the government of empire. This chapter will critically examine the codification of the criminal law through an investigation of the modern idea of codification, with a particular focus on the theory and practice of codification in England and the United States. This contribution is thus not an argument either for or against codification: rather the aim of the chapter is to widen the focus from a discussion of what are claimed to be the immediate benefits of a project of codification to raise some broader issues about the meaning and functions of codification of the criminal law.

ii.  The Idea of Codification Before I  move to these issues, it is necessary to clarify the meaning of the term “codification.” The first point to make is that, in an important sense, the law is always already codified: that is to say, that the choice is never strictly that between 2  For a review of the modern codification movement in Europe, see Gunther Weiss, “The Enchantment of Codification in the Common Law World,” (2000) 25 Yale Journal of International Law 435 ff., esp. 448–470. 3   See Max Weber, Economy and Society (1978), 865–880 for an influential account of the link between the development of formal legal rationality in legal instruments such as natural law codes, and the development of legal modernity.

codification   381 codified and non-codified law. Even in a common law system, every statement of the law, every case, and every treatise is already codifying in some way in that it seeks to formulate a rule that will apply to more than the instant case. It may do this more or less systematically and with a greater or lesser degree of sophistication; it may do so with different degrees of generality, according to different standards of rationality, or for different purposes; but the imposing of an order on a social practice (whether it be conceived as the practice of regulating social conduct or adjudicating disputes) is a codification of that practice.4 Codification in this sense must be understood as “imposing order on action.”5 It entails the adoption of forms of classification and division and principles of hierarchy, tools which enable the users to distinguish between and order relevant practices. These may be more or less formal—in the sense of being fully articulated or written down—but codification in this sense is foundational to the recognition of law as a discrete social practice or institution.6 Further, as this is a legal code it is important to remember that the practices that are being codified are those of lawyers: the code is a systematization of the norms used in the legal regulation of social conduct.7 However, a criminal code must also, at least to some extent, represent social conduct (and legal practices) in a way that is intelligible to ordinary citizens—though the question of the precise balance between legal systematicity, technicality, and intelligibility to non-lawyers will always be a matter of choice for any given codifier. Codification is thus primarily performing two functions. First, a code must render behavior intelligible to law. Legal and social practices must be described and classified in terms of categories that will allow for the possibility of recognition and intervention.8 Law must articulate an understanding of the social as a fit object for the governance of rules. The converse of this is also true, that a code should render the legal norms intelligible to those who are subject to them. It should be possible for the individual to order their own actions, by making judgments about what is or is not permissible under law. Secondly, a code must make the law intelligible to itself. It must ensure the reproducibility of prohibitions and sentences, making possible communication within the legal system—between different legal actors or institutions, or indeed between different rules or concepts. 4   See Pierre Bourdieu, “Codification,” in Pierre Bourdieu, In Other Words. Essays Towards a Reflexive 5 Sociology (1990), 76–86.   Bourdieu (n. 4) 78–79. 6  See further Lindsay Farmer, “Criminal Law as an Institution,” in R.  A. Duff et  al. (eds.), Criminalization (forthcoming 2014); Neil MacCormick, Institutions of Law (2007), Pt. 1. On the idea of the coding of communication as constitutive of the legal system, see Niklas Luhmann, Law as a Social System (2004), 98–105. 7   This is in practice the case, rather than the opposite (starting from social conduct) because in practice no codifier is starting from tabula rasa, the complete absence of legal rules. It is always codifying the law, the preexisting legal practice. 8   Gilles Deleuze, Foucault (1986), 32: “Penal law concerns those aspects of criminal material that can be articulated: it is a system of language that classifies and translates offences and calculates sentences; a family of statements that is also a threshold.”

382   lindsay farmer By describing the process of codification in these terms, we can see that three further consequences ensue.9 First, codes establish normativity. The code is not identical to the custom or practice that it regulates; it must always be a representation.10 The code in this sense is necessarily an evaluation, a symbolic representation of practice, which has an effect on the practice that it codifies by establishing standards, classifying, and organizing. The standards of the code can make the internal organization of the legal system more effective, by laying down standard meanings of terms or introducing common standards of interpretation. Secondly, the production of a written code makes for the possibility of revision and comparison. This allows for the logical control of coherence, the replacement of diachronic by synchronic logic. In both of these respects, the practice of codification is reflexive, establishing the possibility (indeed, the inevitability) of revisability against internal and external measures. (Is the code internally consistent? Is it an accur­ ate description of practice? Does the practice of adjudication measure up to the normative standards of the code? Is this an effective way of censuring behavior?) It is thus important to note that the standards or norms of a code are not necessarily fixed—indeed, they may be more or less flexible, and may even incorporate a mechanism that allows for revision of their own content. What is important is that they establish a measure or standard against which legal practice can judge itself. Finally, the written code requires some sort of authorization, whether this means that the code be legitimated in the name of custom or community (common law), by its internal (formal) rationality, by the status of its author, through its formal enactment by a political body, or by its effectiveness in bringing about a certain aim (e.g. reducing crime).11 A code will not be authoritative, will not be an accepted standard of conduct, unless those who are subject to the code recognize its authority. Thus, the success or failure of a code will not depend on its coherence or rationality alone, but must also be assessed in terms of its (apparent) legitimacy or its success in coordinating values and functions in the legal system and more broadly.12 The question at issue, then, is never the purely abstract one of whether or not the law should be codified, but is always that of whether the law should be codified in a certain way, and thus whether or not the new code is in some way “better” than already existing codifications. This, incidentally, also addresses one of the issues that surround many codification initiatives: whether the codification can simply restate the law without amendment or whether it necessarily involves   See esp. Bourdieu (n. 4) 80–81.   Peter Goodrich, Reading the Law. A Critical Introduction to Legal Method (1986), 27; Alain Supiot, Homo Juridicus. On the Anthropological Function of Law (2007), Prologue. 11   Weber (n. 3) ch. III is the classic statement on the forms of legitimation. 12   These are described by Nicola Lacey as the functions of criminal law in coordinating knowledge and values. See “In Search of the Responsible Subject: History, Philosophy and the Social Sciences in Criminal Law Theory,” (2001) 64 Modern LR 350 ff. 9

10

codification   383 legal change or reform.13 This understanding of codification would imply that as a minimum, while substantive rules of law may simply be restated, there is necessarily a reclassification or reorganization at a conceptual level (either the form or the source of the law).14 In the absence of this there is merely repetition. The issue, we can now see, is thus much more than the argument that the law should take the form of legislation as opposed to common law. The common law is already codified, and a conceptual reorganization, such as is undertaken by treatise writers, might recodify the law.15 These codifications have been achieved on the basis of a certain view of the functions of the law, understandings of efficiency and legitimacy, and according to a certain logic. New codes are normally a response to certain perceived failings: a lack of logical coherence, a failure in the normative structure; a failure of legitimacy (that it should be authorized in the name of parliament or reason rather than that of the individual writer or custom); or, indeed, whether a recodification might simply make the law function better. The demand for codification will thus be expected to arise from actual or perceived shortcomings in the existing practice of coordination or legitimacy of the law. If this clarifies the concept of codification, it is important to recognize, as I suggested previously, that the question of codification has acquired a particular significance in modernity where the term refers to a legislation of a particular kind: the production of a universal and complete body of rules which is intended to replace all preexisting norms.16 This understanding of legislation as the primary agent of legal change or reform is uniquely modern.17 Codification as a form of legislation is understood as central to the project of producing a rational and modern form of government: the idea of the code is the expression of particular forms of legal rationalism, as a mode of coding the relationship between the social and the polit­ ical. However, it also reflects two important transformations in understandings of the authority and legitimacy of law: first, that a sovereign people are seen as the authors of the law, through the legislature; and second a modern understanding of 13   Although the claim that a code is not changing the law is probably normally a matter of trying to make the code more acceptable politically. cf. John Austin, Lectures on Jurisprudence, Vol. 2 (5th ed., 1885), 1026: “Codification of existing law, and innovation upon the substance of existing law, are perfectly distinct; although a code may happen to be wholly or partially new in matter as well as in form.” 14   And while this is the minimum, it is hard to conceive of codification addressed at issues of coord­ ination which does not also require some changes to substantive rules to achieve greater consistency and coherence. 15   See Markus D. Dubber and Angela Fernandez, Law Books in Action (2012), for discussion of the codifying aspects of legal treatises. 16   Though the idea of a legal code stretches back to antiquity, the idea of a universal legislative code replacing all existing law is distinctively modern. The term “codification” was coined by Jeremy Bentham in the early nineteenth century, specifically because he sought to distinguish his project from other kinds of legislation in terms of the features identified below. See John Dinwiddy, Bentham. Selected Writing of John Dinwiddy (2004), 47. 17   Henry Maine, Ancient Law (1861), 17–18. Discussed in Karuna Mantena, Alibis of Empire (2010), 106.

384   lindsay farmer the rule of law as general and binding even on its authors.18 We should thus distinguish between codification as a practice and legislation as the specifically modern means by which practices are codified in law. The relationship between legal rationality and modern conceptions of government must accordingly be central to any critical understanding of codification. This raises important theoretical questions about the links between penal law, social governance, and the forms of political order.

iii.  Codification and Modernity Modern codes, and in particular modern penal codes, are generally understood to possess certain key features. These can be summarized as completeness, system, simplicity, and authority.19 While this is not intended to be an exhaustive list—particular codes may have these features to a greater or lesser degree, and may also possess additional characteristics—these are the principal characteristics that have framed the modern conception and theory of legislative codification. In what follows I  shall discuss each of these features in turn, and use this to elucidate the more general claims about the novelty and binding character of law. However, in doing so I want to make it clear that while these have been seen as the core characteristics of modern codes, the way in which these have been articulated has varied considerably between different codification projects. By investigating the differences as well as the similarities between initiatives it will be possible to develop our understanding of the modern codification project.

1. Completeness A necessary implication of the idea that the code should replace all previously existing law, is that the code should be a complete statement of the law in a particular area: a full catalogue of offenses and punishments. This idea of completeness can be understood as having three dimensions. The code should be exclusive—the only source of law; it should be gapless; and it should be comprehensive.

18   See John H. Merryman, The Civil Law Tradition (1969), ch. 5; Stephen Skinner, “Tainted Law? The Italian Penal Code, Fascism and Democracy,” (2011) 7 International Journal of Law in Context 435. 19   This is an amended version of the features identified in Weiss (n. 2) 435, 454–470.

codification   385 The idea of exclusivity is bound up with the political motivations of the early codification movement. If the code were the only source of law, the role of the judge would simply be to apply the law as stated in the code. The first European codifiers, as part of the penal reform movement of the eighteenth century, were concerned, amongst other things, with the exercise of arbitrary power—by judges or by the state—and saw codes as a way of limiting or restraining that power.20 It followed from the idea of exclusivity that if there were no other sources of law the code must be complete and comprehensive, enumerating both crimes and the punishments which attached to those crimes. It had to contain all the law, all the particular areas or issues of law, and had to cover all possible eventualities. The exercise of state power was thus to be bound by laws laid down in advance: judges would not be permitted to reason by analogy to extend the application of the law or be allowed to impose arbitrary punishments. This is, in essence, an expression of what came to be known as the principle of legality—formulated as the Latin maxims nullum crimen sine lege and nullum poena sine lege by Anselm von Feuerbach—limiting punishment and judicial power through the use of law, and in particular the use of legislation. This was first articulated in the late eighteenth century in various forms, from the texts of penal reformers such as Beccaria to the French Declaration of the Rights of Man (1789), and was inextricably bound up with the demand for codification.21 One of the fullest expressions of this idea was Jeremy Bentham’s pannomion.22 This was conceived as a complete body of law: “a man need but open the book in order to inform himself what the aspect borne by the law bears to every imaginable act that can come within the possible sphere of human agency.”23 Bentham’s theory of legislation had its origins in his critique of the common law as not proper law because it did not originate from the command of the sovereign. It its place he sought to develop a theory—a science—of legislation unifying a theory of action, a theory of law, and a theory of punishment.24 This science began from the premise that the failures of the law could be attributed directly to the form of the common law. Common law was not law, and could not be law, because it did not emanate from the sovereign but from judges; the law that was produced was arbitrary, in the sense that it was not clearly stated in advance; and it was stated in technical and obscure 20   See e.g. Cesare Beccaria, On Crimes and Punishments ([1767] 1995), chs. 4 and 5: “On the interpretation of the law” and “The obscurity of the laws”; Montesquieu, The Spirit of the Laws ([1748] 1949), XI, vi. 21   For a short historical review, see Stefan Glaser, “Nullum Crimen Sine Lege,” (1942) 24 Journal of Comparative Legislation & International Law 29–37. For critical discussion of the principle of legality and its relation to codification, see Markus D. Dubber, “The Legality Principle in American and German Criminal Law: An Essay in Comparative Legal History,” in Georges Martyn et al. (eds.), From the Judge’s Arbitrium to the Legality Principle: Legislation as a Source of Law in Criminal Trials (2013). 22   Jeremy Bentham, An Introduction to the Principles and Morals of Legislation ([1789] 1982), 305. 23   Jeremy Bentham, Of Laws in General (1970), 246. 24   See also David Lieberman, The Province of Legislation Determined (1989), chs. 11–13.

386   lindsay farmer language.25 Legislative science, by contrast, would be a matter of “the detailed and continuous regulation of the human condition.”26 Law was not to be understood as developing organically through the existing institutions of government, like the common law. Instead, it was imposed from outside, according to empirical criteria, that would also shape those institutions.27 Although it might respect the existing common law, in terms of its content or arrangement, this was a matter of legislative policy and, in principle, the sovereign legislator could make law as they chose. In addition, the law was to be seen as a series of interrelated substantive rules that could be expressed independently of the forms of procedure. The basis for this logically unified and exhaustive classification of law is laid down in An Introduction to the Principles and Morals of Legislation (first published in 1789) and Of Laws in General (which remained unpublished during his lifetime). While the former was expressly conceived of as an introduction to the plan of a penal code, the latter was a systematic attempt to define the nature of law and the relationships between penal and civil law. The significance of the latter work lies in the fact that in it Bentham sought to elaborate on his insight that it was not possible to produce a penal code without first understanding how penal law related to other areas of law and how the whole body of law should be arranged.28 His pannomion would thus be complete in the sense that it would comprise both penal and civil law, and it would be exhaustive as it would be contained in an arrangement that comprised the rigorous division and classification of offenses according to the principle of utility.29 This was a new ideal of completeness in which system was elevated to an ordering principle.30 Although this issue of completeness and exclusivity could be approached in different ways, the Benthamite version of the universal and complete code became the ideal that shaped the reception and development of the modern idea of codification.31 This was particularly true in common law countries where pursuit of   His critique of the common law was most clearly articulated in “A Fragment on Government and a Comment on the Commentaries.” 26   J. H. Burns, The Fabric of Felicity. The Legislator and the Human Condition (1967), 15. Leonard J. Hume, Bentham and Bureaucracy (2004), ch. 2, discusses the origins of the idea of the sovereignty of the legislator. cf. James Mill: “Legislation is a science, a task for the ablest philosophic mind, a subject for dispassionate study and expert knowledge” quoted in Eric Stokes, The English Utilitarians and India (1959), 176–177. 27   See Lieberman (n. 24)  209–215, arguing that the foundations of a legislative science based on moral and social theory were laid by Eden and Romilly under the influence of Beccaria. 28   Bentham (n. 22) 299 fn. 29   Bentham (n. 22) ch. XVI. See Lieberman (n. 24) chs. 11–13; Lindsay Farmer, “Reconstructing the English Codification Debate:  The Criminal Law Commissioners 1833–45,” (2000) 18 Law & History Review 397; Michael Lobban, “Theories of Law and Government,” in W. Cornish et al. (eds.), Oxford History of the Laws of England (2010), Pt. 1 ch. IV. 30   And, of course, the paradox of Benthamite codification was that the aim of simplicity produced systems of daunting complexity. 31   Varga draws a distinction between quantitative and qualitative understandings of completeness. The former conceives of covering the field in minute detail and completeness; qualitative codification 25

codification   387 the ideal also became a serious obstacle to the success of any codification project because of the procedural and political difficulties of producing and enacting a code on this scale. The first attempt to codify U.S.  criminal law, for example, by Edward Livingstone in Louisiana in 1826, followed the novel Benthamite model and comprised four separate codes including crimes and punishments, evidence, procedure, and reform and prison discipline, all of which were organized around a common principle of utilitarianism.32 However, it failed to attract the necessary political support and was never enacted. The major English codification initiative of the nineteenth century suffered the same fate as the scale of the project undermined prospects for legislative success.33 Criminal law commissioners were appointed in 1833 and labored for 12 years, producing eight reports containing a digest of both the common law and statute law according to a broadly Benthamite plan. But the time taken meant that the government had changed and political support had dissipated by the time that the draft was ready. In this connection, it is interesting to note the contrasting scope and fortunes of two major twentieth-century codification initiatives. The American Law Institute’s Model Penal Code (MPC) (1962) was conceived in broad terms from the outset. Its full title is a Penal and Correctional Code, covering “treatment and correction” and “organization of correction” as well as the substantive criminal law.34 It aimed to take a comprehensive and scientific approach to the criminal law, in light of contemporary theories of rehabilitation and treatment of offenders, and thereby address the definition of criminal conduct, the relevance of the characteristics of the individual offender, and the methods of treatment or punishment.35 The drafters of the MPC were perhaps able to take this comprehensive approach precisely because it was devised as a “treatise on the major problems of the penal law” which might act as a model for future legislators rather than as a piece of legislation as such (notwithstanding that it has subsequently been legislated by many states).36 The English codification initiative, which began in 1967 and was finally abandoned in 2008, by contrast, strove—at least in its conception—for a Benthamite is the idea of expressing the law in more general principles, in the manner of the Napoleonic Codes but also allowing more space for development or interpretation. See Csaba Varga, “Utopias of Rationality in the Development of Codification,” in Francis Charles Hutley et  al. (eds.), Law and the Future of Society (1979), 27.   See generally Sanford H. Kadish, “Codifiers of the Criminal Law,” in Sanford H. Kadish, Blame and Punishment. Essays on the Criminal Law (1987). 33   On the membership and history of the commission, see Farmer, (2000) 18 Law & History Review 397; K. J. M. Smith, “Criminal Law,” in William Cornish et al. (eds.), Oxford History of the Laws of England, Vol. XIII (2010), ch. 6. 34  See Paul H.  Robinson and Markus D.  Dubber, “The American Model Penal Code:  A  Brief Overview,” (2007) 10 New Crim. LR 319. See also Herbert Wechsler, “The Challenge of a Model Penal Code,” (1952) 65 Harvard LR 1097. The American Law Institute produced a separate model code of 35 criminal procedure in 1930.   See Wechsler (n. 34) 1097, 1104–1105. 36   Wechsler (n. 34) 1097, 1130. 32

388   lindsay farmer completeness.37 However, as work on the code progressed it gradually moved away from an ambition to produce a complete code toward an approach which sought to codify particular sub-areas with a view to building these up into something more comprehensive.38 The idea of completeness, then, or the proper content of a penal or criminal code, was gradually reduced to a kind of legislative pragmatism.

2. Simplicity A motivation of codifiers has always been that of simplifying the law such that “the average citizen would be able to understand it and the average judge would be unable not to.”39 Simplicity refers to both the sense of simplifying the sources of the law and that of simplifying the form and mode of expression of the law. The idea of simplifying the sources is clearly connected with that of completeness: reducing the number of lawmaking bodies to a single one, the legislature, and limiting the power of the judiciary—in line with the democratic impulse of the modern codification movement. The other dimension of simplicity is often expressed in terms of the accessibility of the law. This again has two possible and related senses. On the one hand, there is the sense of freeing the law from technicality to make it accessible even to those without specialized legal training. On the other hand, it refers to making the law physically accessible to all, perhaps by publishing the law in a single volume so that the ordinary person would not need access to a library of law books in order to know the law. In its most radical form, this has been expressed as the claim that a codified law would do away with the need for lawyers altogether, making each man his own lawyer.40 However, claims about accessibility might take other forms. It might mean, for example, that the law should be available in a format that allows easy access and consultation.41 Or that the law should be made more accessible to lawyers and   See the 1967 statement by the Home Secretary, Roy Jenkins, introducing the codification project: “A comprehensive criminal code should contain the following parts. It should provide a statement of general principles and their application; it should set out clearly the law relating to specific offences; it should contain a code of criminal procedure including a comprehensive statement of the law of criminal evidence and possibly a section on punishment” quoted in Law Commission, Codification of the Criminal Law (Law Com No. 143, 1985), 3; see also J. R. Spencer, “The Case for a Code of Criminal Procedure,” [2000] Crim. LR 519 ff. 38   The process is reviewed in Andrew Ashworth and Jeremy Horder, Principles of Criminal Law (7th ed., 2013). The project was revived in Criminal Justice. The Way Ahead (Cm. 5074, 2001), 55, before its final abandonment was announced in 2008 (Law Com No. 311, Tenth Programme of Law Reform). 39   Kadish (n. 32) 216. 40   See quote from Bentham at n. 23. See also Donald Veall, The Popular Movement for Law Reform 1640–1660 (1970), ch. III for early radical proposals of this sort. 41   See e.g. Markus D. Dubber, “Reforming American Penal Law,” (1999) 90 Journal of Crim. Law & Criminology 49 ff. on the use of the Internet. See also “Penal Panopticon. The Idea of a Modern Model Penal Code,” (2001) 4 Buffalo Crim. LR 53 ff. 37

codification   389 other officials of the legal system, as a way of reducing costs and making the criminal justice system more efficient.42 Claims about accessibility can routinely be found in statements about the benefits of codification, but differing views of the meaning of accessibility can have radically different implications for the structure and style of the code. These differences can be seen in the debate about the intended audience of a criminal code. This has been discussed in a contemporary theoretical debate about the audience of the criminal law more generally, specifically whether its intended audience is the ordinary citizen or courts and legal professionals.43 If the law is aimed primarily at the citizen it is argued that it should be articulated in the form of clear, general rules which might guide everyday conduct. This is of particular importance in the sphere of the criminal law where the law should be consistent with and sustain community morality, and where the law should be sufficiently precise and clear to enable individuals to plan their conduct in such a way as not to break the law.44 By contrast, rules for the attribution of liability—determining the precise degree of seriousness of an offense, or the scope of a defense, or the appropriate amount of punishment—are directed primarily at judges or the courts who apply the law. The rules might be expressed in more technical language, but importantly need not be subject to the same constraints of accessibility or simplicity because they are intended primarily to guide the court.45 In the context of codification, this distinction has been taken up most fully by Robinson whose theory of codification is based on the argument that there should be separate codes of conduct and adjudication.46 He argues that the primary function of a code should be to communicate the rules of lawful conduct to citizens, but that this function is often impeded by the failure to distinguish between different types of rules (or the functions of different types of rules). Specifically he argues that some defenses or rules which relate to the judging of the seriousness of the breach of a norm are not rules of conduct at all. These can use complex criteria because they are primarily addressed to judges, whereas a code of conduct should contain only simple rule definitions and justification defenses. However, other approaches to codification have taken a completely different approach to the question of accessibility with a great degree of success. One of the 42   This is the position of the UK White Paper on criminal justice, Criminal Justice: The Way Ahead (Cm. 5074, 2001), 55. 43   Meir Dan-Cohen, “Decision Rules and Conduct Rules: On Acoustic Separation in the Criminal Law,” in Meir Dan-Cohen, Harmful Thoughts. Essays on Law, Self and Morality (2002), 37–93. DanCohen traces the distinction between two types of rules back to Bentham. See also Peter Alldridge, “Rules for Courts and Rules for Citizens,” (1990) 10 OJLS 487 ff. 44   See Ashworth and Horder (n. 38)  56–73 discussing the principle of maximum certainty and related principles. 45   See Alldridge (n. 43) 487, 490–492 for a discussion of the implications of the distinction for the principle of legality. 46   See Paul H. Robinson, Structure and Function in Criminal Law (1997), esp. chs. 7–11.

390   lindsay farmer most celebrated achievements here is Macaulay’s Indian Penal Code (IPC).47 One of the noted aspects of the IPC was its use of illustrations: hypothetical examples which followed on the statement of the rule in order to explain its scope. Macaulay argued that the illustrations served several functions.48 First, and most importantly, they were aimed at making the law comprehensible to those who were to obey it. Secondly, they were a way of explaining complex or difficult language to the courts which were to apply the law. And finally, and consistently with his Benthamite background, the illustrations were provided by the legislature, rather than the courts on the basis of decided cases, and thus the lawmakers could more expressly articulate the meaning of the law.

3. System The requirement of system, as noted earlier, is inherent to the idea of codification: coding is a form of ordering and the success of any given code will depend on its intelligibility to those who are subject to, or use, the code. System is also related to the issue of comprehensiveness—if the law is to be complete or gapless there is a question about how this can be done. An extensive listing of rules would run the risk of being unmanageable, while too few rules, or rules of too great a degree of generality, would be difficult to apply. The question of system, then, is related to the degree of technicality of any given code. Of course, a system need not be complex,49 but in modern penal codes it is understood as the need to present a clearly structured and consistent whole of legal rules and principles, promoting the internal coherence of the law.50 For Bentham there was a minimum requirement of scientific classification and orderly distribution.51 This was in part expressed in things like a requirement of separate chapters for different classes of offenses, numbered paragraphs, precise offense definitions, and so on. However, his conception of legislative science was more rigorous, requiring a consistent account linking his theory of punishment to the definition of offenses. The search for the interests to be protected in criminal law led him to challenge existing classifications of criminal offenses. The “parts or 47   See Barry Wright, “Macaulay’s Indian Penal Code: Historical Context and Originating Principles,” in Wing-Cheong Chan et al. (eds.), Codification, Macaulay and the Indian Penal Code (2011); Kadish (n. 32) 211–222. 48   T. B. Macaulay, “Introductory Report upon the Indian Penal Code,” in T. B. Macaulay, Speeches 49 and Poems (1867), 313–329.   e.g. alphabetical ordering as in the U.S. Federal Code 1949. 50   The presence of system is also usually understood as marking a difference from mere consolidation of existing laws. There is also a question here of the aesthetics of codification. Kelly points out that seventeenth-century natural lawyers saw codes as a form of “perfect jurisprudence” and Leibniz drew on Euclidean geometry. Donald Kelley, The Human Measure. Social Thought in the Western Legal Tradition (1990), ch. 12. Michael Moore has referred to the “ungodly repugnancy of uncodified 51 law”: Act and Crime (1993), 4.   See Lieberman (n. 24) ch. 12.

codification   391 contents” of the legal system would become an “object of arithmetic,” and its “linea­ ments and limits” an “object of mensuration.”52 While Bentham’s classification of mental states and categorization of offenses continue to exert an influence on criminal law theory, in more recent practice system has come to mean the definition of a distinctive general part and the adoption of a particular analytical structure.53 In this context, the general provisions can be regarded as performing two related functions. First, the establishment of a common structure creates a grid of intelligibility which allows individual offenses to be defined using a common terminology and makes possible the assessment of their relative seriousness. This might take a number of different forms (which are not mutually exclusive), all aimed at establishing consistency.54 The code might contain a general provision necessitating that the proof of each offense requires the establishment of an element relating to action and one relating to the mental state of the accused. The definition of each particular offense can be separated into distinct elements of actus reus and mens rea. Or, each particular part of the code can contain cognate groups of offenses (against the person, property, public order, and so on), and internally each section might contain a core offense, defining key terms, with others as variants. Alternatively, the general part of the code might define all the liability concepts to be used in the law (the various states of mens rea, causation, inchoate offences, complicity, etc.), so that the definition of each offense must look back to those general provisions. On this model, which has been that favored by the U.S. MPC and the English codification project, the general part exerts a strong definitional control over particular offenses, and further aims at limiting the judge’s definitional powers and standardizing judicial analysis.55 For this reason, the general parts of these codes have comprised a large part of the code as they have sought to set out an exhaustive account of liability terms. Secondly, the general part might go beyond mere definitional control to establish a normative framework. Thus, for example, the use of a strong subjective definition of mens rea, placing a heavy burden on the Crown in the prosecution of crime, expresses a particular kind of individualism and a particular understanding of the relationship between the individual and the state.56 Alternatively, a code might use flexible and open-ended normative standards (reasonable, wrongful, etc.) in order to maximize the flexibility of   Lieberman (n. 24) 280.   Bentham’s influence on English law is systematically traced in K. J. M. Smith, Lawyers, Legislators and Theorists (1998). 54   Robinson and Dubber discuss the adoption of these measures by the U.S. MPC (n. 34) 330–336. 55   cf. Ian D.  Leader-Elliott, “Benthamite Reflections on Codification of the General Principles of Criminal Liability: Towards the Panopticon,” (2006) 9 Buffalo Crim. LR 391 arguing that the primary audience for general principles of liability is the legislature because it will shape and constrain future legislation. 56   See e.g. the discussion of Glanville Williams in Nicola Lacey, “Contingency, Coherence, and Conceptualism. Reflections on the Encounter Between ‘Critique’ and ‘the Philosophy of the Criminal Law,’ ” in R. A. Duff (ed.), Philosophy and the Criminal Law (1998), 29–36. 52 53

392   lindsay farmer judge and jury. It is instructive in this context to consider the example of the two drafts of the general part of the English code published in 1985 and 1989.57 In the former, the introduction of a subjective test of liability was regarded as establishing the code as a form of protection of personal liberty against state action. In the latter, the subjective test had given way in several places to a concern with efficiency, and the burden on the prosecution had been eased.58 This, then, explicitly ties the normative structure of the code to questions of political legitimacy.

4. Authority Finally, a central feature of the modern idea of codification is that the code should be authoritative. As we have seen, codes were aimed at reducing perceived diversity and disorder in the number and the hierarchy of legal sources and replacing them with a single unified law. However, while the authority of the code was to be singular, in the sense that it would be the sole source of law for a particular geographical territory or area of substantive law, the external source of that authority was less clear. While the core of the idea is that the code should be passed by the legislature, with its enactment as positive law giving it authority, the identification of the source of this authority is considerably more complex. On the one hand, the authority might be derived from the identity of the legislator. This might be the body that enacted the code (a particular parliament or legislative body), or come from the personal identity of the author (or supposed author) of the code (as in the Code Napoléon), or in terms of a political authority that itself authorized or legitimated the legislative body (as in the passing of a national code of criminal law following independence).59 On the other, the authority might be seen to emanate from a quality inherent to the code itself: either in terms of its internal rationality, understood as an articulation of a particular form of legal sovereignty, or its embodiment of a particular science of legislation. In practice, however, the source of authority was normally understood as deriving from a combination of these factors. Different episodes of codification illustrate this. In the early natural law codifications, the aim was that of breaking from traditional sources to the authority of reason (as legislative science). The aim was to replace traditional forms of law   Law Commission, Codification of the Criminal Law (Law Com No. 143, 1985); Law Commission, A Criminal Code for England and Wales (Law Com No. 177, 1989). 58   On this point see Simon Gardner and Gráinne de Búrca, “The Codification of the Criminal Law,” (1990) 10 OJLS 559 ff.; Simon Gardner, “Reiterating the Criminal Code,” (1992) 55 Modern LR 839 ff.; and more generally Ian Dennis, “The Critical Condition of Criminal Law,” [1997] Current Legal Problems 213 ff. 59   “The function of a code is to replace old and found new order, springing from the government or ruler of the time and generally bearing the name of the codifier, if not the ruler himself, as representative of that government and what it stood for, or sought to do”: Merryman (n. 18) 26–29. 57

codification   393 and lawmaking by a universal law emanating from a single sovereign. As Weiss points out, enlightened absolutism provided the perfect political environment in which this kind of codification could take place, as an absolute power to legislate combined with a demand for a more rational form of government.60 Authority thus derived in part from the person of the sovereign and in part from the rationality of the code itself. Later codifications were more obviously linked to state formation. As new republics were created, or as nations gained independence, codes were a way of binding citizens to the state—as both authors and subjects of law with the authority of the code deriving more directly from their legislation in the name of the people.61 However, the question of authority is also linked to the idea of authorship. Although modern codes are legislated in the name of the people, their authority derives in part from their author—with certain codes being known either by the name of their political author (e.g. the Code Napoléon) or their “scientific” author (e.g. the Italian “Rocco” penal code62). Authority may thus be based on either political or scientific standing. Of course, there may be a tension here between political legitimacy and technical authority.63 A code is normally prepared as a whole, by a commission or an individual author, and so although it might be enacted by parliament it is not in any sense its author. And while there may be trust in the expert knowledge or status of the drafter(s) this might diminish over time, as particular penal practices or theories fall into disrepute, or more dramatically if there are changes in the political order.64

iv.  The Function of a Penal Code A code is almost the only blessing, perhaps is the only blessing, which absolute governments are better fitted to confer on a nation than popular governments.65

This statement from Macaulay neatly captures the tension described in the last section between the liberalism and authoritarianism that lies at the heart of the modern codification project. Macaulay’s argument was that while the British Parliament   Weiss (n. 2) 435, 451–454.   Stephen Jacobson, “Law and Nationalism in Nineteenth Century Europe: The Case of Catalonia in Comparative Perspective,” (2002) 20 Law & History Review 307. 62   See Skinner (n. 18) 435. 63   cf. Stephen (n. 1) 963 acknowledging this tension. 64   See Dubber, (2001) 4 Buffalo Crim. LR 53 on the declining scientific legitimacy of the MPC. See Skinner (n. 18) 435 on the question of the continuing legitimacy of the Italian Rocco code after the fall of the fascist order. 65   T. B. Macaulay, “Government of India,” July 10, 1833 in Macaulay: Prose and Poetry (1970), 675. 60 61

394   lindsay farmer was too riven by faction and too deferential to the judiciary to legislate a criminal code, this was not the case for India. Here Macaulay saw the prospects for British rule by an “enlightened and paternal despotism” that could legislate a new criminal code for India bringing the benefits of law and civilization to the Indian people.66 India was seen as a kind of political “blank slate” where institutional reforms could be tested. In short, the code was the proper tool for the government of Empire. The place of the code in imperial government can be seen clearly if we look more closely at the history of Macaulay’s IPC.67 Macaulay was appointed legal representative to the Governor General of India’s Legislative Council in 1833, and in that role he initiated an ambitious plan to “modernize” the laws and colonial governance of India. Central to this project was the drafting of a new penal code which would replace what he saw as the existing patchwork of Muslim, Hindu, and English laws and East India Company regulations in order to create a uniformity and certainty in the law, and which would apply equally to European and native subjects.68 The code was Benthamite in its foundations:  it aimed to be simple, complete and rational, organized along utilitarian principles, and was to replace all existing systems of law. And it was, by the standards of its time, a liberal document, promoting equality between Indians and Europeans and between different ranks in society.69 His code was presented to Parliament in 1837, but was not enacted until 1860 in the wake of the Rebellion of 1857.70 Crucial to the adoption of the code was the realization that the old system of government in India had broken down, and that a novel approach was required to reduce the reliance on military intervention and to make British rule more effective. Ironically, given its liberal and utilitarian character, the IPC was seen as a necessary step in this new imperial rule which aimed at the centralization of power and the introduction of a new mechanism of control and effective crime management based on developing understandings of the peculiarities of Indian culture.71 This authoritarianism also lay at the heart of Bentham’s theory of codification, where individual freedom was less the core of the project than an incidental benefit. Bentham’s plan was the definition and distribution of law as an aid to more effective government. This is captured in a striking image: On a map of the law executed upon such a plan there are no terrae incognitae, no blank spaces: nothing is at least omitted, nothing unprovided for: the vast and hitherto shapeless

  Macaulay (n. 65), discussed in Mantena (n. 17) ch. 3.   See in particular Mantena (n. 17) ch. 3; Wright (n. 47); S. den Otter, “ ‘A Legislating Empire’: Victorian Political Theorists, Codes of Law, and Empire,” in Duncan Bell, Victorian Visions of Global Order (2007); Elizabeth Kolsky, “Codification and the Rule of Colonial Difference: Criminal Procedure in British India,” (2005) 23 Law & History Review 631 ff. 68 69   See Macaulay (n. 48) 315–321.   This is discussed in Kadish (n. 32) 217–218. 70   See Wright (n. 47) 36–38 for discussion of the period between drafting and coming into force in 71 1862.   See Kolsky (n. 67) 631. 66 67

codification   395 expanse of jurisprudence is collected and condensed into a compact sphere which the eye at a moment’s warning can traverse in all imaginable directions.72

The resemblance between Bentham’s vision of the science of legislation and his plan for the construction of a panopticon is not accidental.73 The legislator, placed at the center of the network of rules that govern the social, corresponds in location and symbolic­ ally to the gaze that animates his “simple idea in Architecture,” creating a new kind of legal order that corresponds to the institutions of police and discipline.74 It is a striking feature of Bentham’s proposal for the codification of the criminal law and the reform of punishment, and of those which followed his lead, that it did not explicitly raise the question of the limits of state power. Indeed, the issue of the restraint of political power was conspicuously absent from Bentham’s discussion of the merits of systematizing the law. This is a reflection of the way in which the entire question of codification was understood less as a means of restraining political power than as a way of improving the efficacy of existing governmental institutions. In his conception, legislation becomes the primary medium for the expression of the law, based on natural and universal principles which should, in principle, extend over the entire realm of social life.75 A complete catalog of offenses would lead to a complete understanding of everything that could be done by law, and crime became a social problem to be solved through the development of a penal policy. The reform of punishment and the criminal law is thus aimed at the renewal and extension of state power rather than its retrenchment.76 These two examples have sought to draw out the links between particular codification projects and particular governmental projects—the government of empire and the nineteenth-century modernization of criminal justice in England—so as to argue that criminal codes cannot be judged in abstract terms, or as isolated from the polit­ ical and social context in which they are drafted or enacted. While these two examples have laid particular stress on the imperial context and ambitions of these projects, it is possible to see that other codes have sought to establish a more liberal kind of political sovereignty, notably in the contrast between the adoption of codes in self-governing jurisdictions and the imposition of “imperial” codes.77 Wright, in particular, has shown how the adoption of criminal codes in the “self-governing” colonies of Canada, New Zealand, and Queensland were democratic in impulse and sought to make the rule of law more effective in culturally diverse frontier settings—even if they also made   Bentham (n. 23) 246.   Jeremy Bentham, The Panopticon Writings (ed. Miran Bozovic, 1995), esp. Bentham’s preface and the introduction by Bozovic. On panopticism and modernity, see Michel Foucault, Discipline and Punish: The Birth of the Prison (1977). 74   Bentham (n. 73) 31. See also Jacques-Alain Miller, “Jeremy Bentham’s Panoptic Device,” (1987) 41 75 October 3 ff., 14–16.   Lieberman (n. 24) ch. 13 and Conclusion. 76   This is discussed at greater length in Farmer (n. 33) 397, 417–425. 77  See Barry Wright, “Criminal Law Codification and Imperial Projects. The Self-Governing Jurisdiction Codes of the 1890s,” (2008) 12 Legal History 19 ff. also Martin L. Friedland, “R. S. Wright’s Model Criminal Code: A Forgotten Chapter in the History of the Criminal Law,” (1981) 1 OJLS 307 ff. 72 73

396   lindsay farmer possible a greater range of criminal law interventions.78 What these examples point to more broadly is that criminal codes can bring about a recodifying of political order, framing the relation between state and citizen as a matter of public law. However, it is also important to recognize, as Dubber has pointed out, that this legitimacy may change over time as the social and political context in which the law is applied changes.79 He argues powerfully there has been a breakdown in the consensus that underpinned the MPC, which undermines its legitimacy. This is the result of a number of different factors: breakdown of the consensus of jurists and the belief in social science that grounded the code; the disappearance of trust in expert knowledge which legitimated the original code; and the massive expansion in penal statutes which has accompanied the “war on crime” since the 1980s. What is significant about Dubber’s critique is not just that he recognizes the central importance of political legitimacy to codification, but also that he raises the issue of how a theory of codification might engage in novel ways with these legitimacy questions. Thus, he argues that the very range of existing penal provision makes it impossible to construct a theory of penal legislation that could cover all laws, and that a code should therefore not be a compendium of penal laws. Instead, it should be based on a common core of penal provisions, which could become the principled vantage point from which internal and external legitimacy could be tested. This must be more than the existing common core of liberal criminal law doctrine, for it should take into account the role of penal law in public policy. The code, finally, should be structured in such a way as to facilitate public scrutiny—not just by those with expertise or status—because of the centrality of criminal law to the exercise of state power.80

v. Conclusion Men longed for new codes, which, by their completeness, should ensure a mechanically precise administration of justice.81

This has been a discussion of codification which has focused on the theory and history of codification initiatives, rather than offering a more prosaic summary of the   Wright, (2008) 12 Legal History 19, 26–30.   Dubber (n. 41) 53. See also “The Modern Penal Code, Legal Process, and the Alegitimacy of American Penality,” in Markus D. Dubber (ed.), Foundational Texts in Criminal Law (2014). 80   Dubber places great store on the potential importance of the Internet as a means of facilitating both internal scrutiny by jurists, and external scrutiny by members of the public: Dubber (n. 41) 53, 92–97. 81   Friedrich Carl von Savigny, Of the Vocation of Our Age for Legislation and Jurisprudence ([1831] 1975), 21 see also at 130 on undesirability of a mechanical code. 78

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codification   397 arguments for and against codification, or an examination of the practicalities of drafting or legislating a criminal code. The reason for this is that this focus has allowed us to see some of the questions around codification in a new light: the value of codification cannot be assessed only in terms of abstract values of accessibility, comprehensibility, or the like, but must also be understood in terms of its connection to moments of legal and political government. This chapter has thus addressed three main issues. First, it has set out a novel theoretical understanding of the meaning of codification. This argued that codification must be understood as a practice of imposing or creating order and that this is a function that can be performed by a range of legal practices or texts. Only by understanding this can we then identify what is specific to the modern understanding of codification—namely, codification by legislation. Secondly, it identified and discussed certain key features of this modern understanding of codification by legislation—namely, the demand for completeness, system, simplicity, and authority. In each case I showed that these were not absolute standards, but were given content by the aims of particular codification initiatives. Finally, it was argued that codification cannot be understood merely as a technical legal exercise, but is always connected with questions of government—both in the broad sense of the place of law in governing social and political relations and in the narrower sense of the internal ordering of the criminal law. In assessing or analyzing particular codification initiatives, then, it is crucial always to understand them in these terms. It is appropriate, finally, to conclude with the statement from Friedrich Carl von Savigny which heads this section. Best known as the arch-opponent of codification, von Savigny nonetheless captures something of the promise of the code: that it offers an escape from the mundane, the arbitrary, the disorderly administration of justice, into a modern world, constructed by men but governed by rules, of system and order—of cosmos in place of chaos. It was imagined that by this means it was possible for man to liberate himself from politics; but what our discussion has shown is that while the promise of codes remains, the benefits of codification of the criminal law must always be assessed in relation to the governmental projects of which they are part.

References Dubber, Markus D., “Penal Panopticon: The Idea of a Modern Model Penal Code,” (2001) 4 Buffalo Crim. LR 53 Farmer, Lindsay, “Reconstructing the English Codification Debate:  The Criminal Law Commissioners 1833–45,” (2000) 18 Law & History Review 397 Friedland, Martin L., “R. S.  Wright’s Model Criminal Code:  A  Forgotten Chapter in the History of the Criminal Law,” (1981) 1 OJLS 307 Kadish, Sanford H., “Codifiers of the Criminal Law,” in Sanford H. Kadish, Blame and Punishment. Essays on the Criminal Law (1987)

398   lindsay farmer Kolsky, Elizabeth, “Codification and the Rule of Colonial Difference: Criminal Procedure in British India,” (2005) 23 Law & History Review 631 Leader-Elliott, Ian D., “Benthamite Reflections on Codification of the General Principles of Criminal Liability: Towards the Panopticon,” (2006) 9 Buffalo Crim. LR 391 Lieberman, David, The Province of Legislation Determined. Legal Theory in Eighteenth Century Britain (1989) Mantena, Karuna, Alibis of Empire. Henry Maine and the Ends of Liberal Imperialism (2010), ch. 3 Robinson, Paul H., Structure and Function in Criminal Law (1997) Robinson, Paul H. and Dubber, Markus D., “The American Model Penal Code:  A  Brief Overview,” (2007) 10 New Crim. LR 319 Skinner, Stephen, “Tainted Law? The Italian Penal Code, Fascism and Democracy,” (2011) 7 International Journal of Law in Context 435 Wechsler, Herbert, “The Challenge of a Model Penal Code,” (1952) 65 Harvard LR 1097 Weiss, Gunther, “The Enchantment of Codification in the Common Law World,” (2000) 25 Yale Journal of International Law 435 Wells, Celia, “Codification of the Criminal Law. Part  4 Restatement or Reform?,” [1986] Crim. LR 314 Wright, Barry, “Criminal Law Codification and Imperial Projects. The Self-Governing Jurisdiction Codes of the 1890s,” (2008) 12 Legal History 19

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JURISDICTION alejandro chehtman*

i.  The Challenge of Jurisdiction On August 2, 1926, the French steamer S.S. Lotus collided with the Turkish Boz Court, causing eight Turkish sailors on board the latter to perish. The Lotus arrived in Constantinople the next morning. A few days later, Lieutenant Demons, the officer of the watch on the Lotus was arrested; he was prosecuted and ultimately convicted by a Turkish court for manslaughter. He was sentenced to 80 days’ imprisonment. This incident created international tensions between France and Turkey, which ultimately agreed to take the matter to the Permanent Court of International Justice (PCIJ). By a very tight majority (7:6, with the President breaking the tie) the PCIJ concluded that by prosecuting Demons, Turkey did not act in breach of its obligations under international law.1 Both the decision and the reasoning of the Court have been extremely controversial ever since. Indeed, in their Separate Opinion to the 2002 decision in the Arrest Warrant case, International Court of Justice (ICJ) Judges Higgins, Kooijmans, and Buergenthal described Lotus as “the high water mark of laissez-faire in international relations” only to add that such “an era . . . has been significantly overtaken by other tendencies.”2 *  I am grateful to Markus Dubber, Tatjana Hörnle, and Máximo Langer for useful comments on a previous version of this chapter. All errors are my own. 1  PCIJ, S.S. Lotus (France v. Turkey), PCIJ Rep., Ser. A, No. 10, p. 19 (1927). 2  ICJ, Arrest Warrant (Democratic Republic of Congo v. Belgium), ICJ Rep. 3 (2002), Separate Opinion of Higgins et al., paras. 50–51.

400   alejandro chehtman The specific rule on which Lotus was ultimately decided, that is, that the Turkish ship should be assimilated to Turkish territory for the purposes of jurisdiction, has been expressly rejected in subsequent treaty law.3 Furthermore, the reasoning of the Court, signaling that states were allowed to assert their jurisdiction extraterritorially unless there was an explicit prohibitive rule, has been subsequently described as obsolete.4 Yet Lotus illustrates the underlying issue with jurisdictional claims under international law. In a world in which states are conceptualized as territorially bound political entities, the allocation and scope of the authority of each unit can create problems with other sovereigns. Nonetheless, jurisdiction can and should also be a matter of the appropriate scope of the state’s authority over individuals. Simply put, jurisdiction “concerns essentially the extent of each state’s right to regulate conduct or the consequences of events.”5 In this sense, it not only involves the relationship between states, but it also involves a specific relationship between a particular state and a certain individual or group of people. In this further sense, jurisdiction poses important questions concerning the adequate scope of the state’s power to criminalize certain behaviors. This dimension of jurisdiction has somewhat come to the forefront of contemporary scholarship as a result of the rise of terrorism, transnational crime, and ultimately international criminal law.6 Yet it still remains a largely neglected topic in criminal law theory. This chapter seeks to provide an account of criminal jurisdiction that takes into consideration both the international and the criminal law perspectives. But before doing so, a note on the relevant sources of the law is in order. Provisions establishing criminal jurisdiction over a particular offense are characteristically provided for under the domestic legal system of each state. In the Lotus case, for example, Turkey’s criminal jurisdiction was invoked on the basis of Art. 6 of the Turkish Criminal Code, which established its criminal jurisdiction over serious offenses perpetrated against Turkey or its subjects irrespective of where they may have taken place, and provided the defendant was arrested in Turkey.7 Argentina, by contrast, does not claim jurisdiction over domestic crimes perpetrated

3   The international conventions on the law of the sea overruled this particular holding of Lotus, see Art. 11 of the 1958 Convention on the High Seas and Art. 97(1) of the UN Convention on the Law of the Sea. 4   Objections to the Court’s reasoning were immediately available. See, for all, Fritz A. Mann, Studies in International Law (1973), 26. On doubts, see P. J. Kuijper, “The European Community and the U.S. Pipeline Embargo: Comments on Comments,” (1984) 72 German Yearbook of International Law 93. 5   Arthur Watts and R. Y. Jennings. Oppenheim’s International Law, Vol. 1: Peace (1992), 456. 6   Lindsay Farmer, “Territorial Jurisdiction and Criminalization,” (2013) 63 University of Toronto LJ 249. 7   S.S. Lotus (n. 1), 14-16. As mentioned previously, the Court ended up deciding the case on alternative grounds.

jurisdiction   401 extraterritorially on the ground that the offense was perpetrated by one of its nationals or against one of them.8 And yet, it may be argued that the scope of states’ jurisdiction is ultimately governed by international law. This means that states are free to decide whether and when they will exercise this right, but they must do so only within the constraints imposed by the international legal system.9 It also means that states can assume a duty to exercise their criminal jurisdiction vis-à-vis certain cases. Admittedly, the relationship between international and domestic provisions is slightly more complex than the static portrait I have just provided. The international norms that regulate criminal jurisdiction over domestic offenses are usually provided for under customary international law, and customary international law is constituted, as it is usually stated, by state practice accepted as law. This means, in short, that domestic provisions putting forward new forms or bases of criminal jurisdiction may become accepted as a result of the behavior of states. And this behavior is essentially what they provide for under their domestic legal system, or are willing to tolerate. Finally, this picture is further complicated by the fact that territorial or geographical limitations to the jurisdiction of a given state with respect to specific offenses are usually implied rather than expressly stipulated in the law.10 As Brownlie recalls, “the appearance of clear principles [in this area] has been retarded by the promin­ ence in the sources of the subject of municipal decisions, which exhibit empiricism and adherence to national policies.”11 This chapter is structured as follows. Section II introduces three basic distinctions that will clarify the main conceptual framework relevant to this topic. Section III presents and critically assesses the basic legal framework currently in force, namely, the principles of territoriality, nationality, passive personality, and protection. The principle of universal jurisdiction, which is one of the salient features of the nascent system of international criminal law, is beyond the scope of this chapter.12 Section IV discusses less central bases of criminal jurisdiction, such as the principle of vicarious jurisdiction, fraude à la loi, and jurisdiction over organized or transnational criminality. Section V explores the three main theoretical approaches under which the existing legal framework has usually been defended. Section VI provides a brief conclusion.   See e.g. Art. 1 of the Argentine Criminal Code.   Joseph H. Beale, “The Jurisdiction of a Sovereign State,” (1923) 36 Harvard LR 243. 10   See, for instance, the presumption against extraterritoriality in Treacy v.  DPP [1971] A.C. 537, 551 (England and Wales). In the United States, although there is a general presumption against the extraterritorial application of domestic laws, it does not always apply to criminal matters (see e.g. U.S. v. Bowman, 260 U.S. 94, 97–98 (1922)). 11   Ian Brownlie, Principles of Public International Law (2003), 301. 12   I address the issue of universal jurisdiction in Alejandro Chehtman, The Philosophical Foundations of Extraterritorial Punishment (2010), Chapter 5. 8

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ii.  Three Basic Distinctions This section introduces three basic distinctions that will clarify the conceptual landscape of the chapter. First, it is worth carrying out some analytical work on the notion of criminal jurisdiction. Criminal jurisdiction has been standardly described as a right to inflict legal punishment on offenders. Following Wesley Hohfeld’s classical analysis, the proposition “X has a right to φ” may take the form of a claim, a liberty, a power, or an immunity. Within this framework, the right to punish involves first and foremost a normative power. When an individual is convicted in a criminal trial, she enters the courtroom holding certain rights and leaves it with some of her rights altered. Usually, she would be imprisoned, some of her property would be taken away from her, or some other burden will be imposed upon her.13 Admittedly, when we say that a state has the right to punish an offender, we not only mean that it holds the normative power to alter her rights in this harmful way, but also that it is permissible for the state to do so. Some would even claim that the state is under a prima facie duty to exercise this power. But the critical point here is that the power to punish a particular individual, and that state’s liberty (or duty) to exercise it belong to a different level of analysis. This first clarification helps us to account for a standard conceptual distinction in the language of jurisdiction in public international law. The PCIJ classically held in Lotus that “the first and foremost restriction imposed by international law upon a State is that—failing the existence of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial.”14 A few lines below, the majority opinion clarifies that this does not mean that: international law prohibits a State from exercising jurisdiction in its own territory, in respect of . . . acts which have taken place abroad. . . . Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property, or acts outside their territory, it leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules.15

Despite appearances, there is no contradiction between these two propositions. Rather, they constitute the standard reference for the distinction between enforcement jurisdiction (prohibited extraterritorially unless expressly permitted) and prescriptive and adjudicative jurisdiction (allegedly permitted extraterritorially unless expressly prohibited16). Put in analytical terms, this second-order normative   Admittedly, many more rights are altered depending on the jurisdiction. 15   S.S. Lotus (n. 1) 18.   S.S. Lotus (n. 1) 19. 16  As indicated previously, this approach to extraterritorial jurisdiction has since been widely criticized. 13

14

jurisdiction   403 change (criminal sanction) must not be conflated with the first-order liberty to enforce it. Thirdly, scholars have traditionally distinguished the ambit of the criminal law from the venue as different dimensions of jurisdiction.17 Issues of venue can be described as establishing the competence of a particular court. As Lindsay Farmer illustrates it, in Scotland the High Court of Justiciary has sole jurisdiction over the crimes of murder or rape. The ambit of the criminal law, by contrast, “concern[s]‌the question of whether the substantive law applies to the conduct that is alleged to amount to that offence.”18 Sometimes, legal provisions make it seemingly harder to draw this analytic distinction. Section 46(2) of the Senior Courts Act 1981 provides the English Crown Court with “exclusive jurisdiction” in “proceedings on indictment for offences wherever committed.” But, as Hirst notes, this provision has not been construed as establishing universal jurisdiction over such offenses but rather in terms of venue. Namely, it establishes the Crown Court jurisdiction over any offense which otherwise falls within the ambit (jurisdiction) of the English criminal law system.19 It is only the issue of ambit that is of relevance for us here.

iii.  The Basic Framework The scope of the state’s criminal law is essentially territorial. Yet, states also characteristically claim the power to punish certain municipal offenses committed abroad. This section examines the core jurisdictional bases provided for under international law, namely, the principles of territoriality, nationality, passive personality, and protection. Section IV, in turn, will address some of the less central bases and assess the relationship between them and the core framework. Our task will be to clarify the main consideration on which each jurisdictional basis rests, assess the normative arguments on which it has been defended, and succinctly explore the reciprocal influence between the conceptual and normative dimensions of each principle. I shall not examine whether there is any priority under international law between concurring bases.20   See G. Williams, “Venue and the Ambit of Criminal Law,” (1965) 81 LQR 176, 395, and 518.   Farmer, (2013) 63 University of Toronto LJ 250–251. 19   Michael Hirst, Jurisdiction and the Ambit of the Criminal Law (2003), 11. 20  In its more recent decision in Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), the ICJ seems to suggest that there is no such priority between different jurisdictional bases (ICJ Judgment of July 20, 2012). However, this decision rests on very specific facts. 17

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1.  The principle of territoriality The principle of territoriality basically entails that a state has the normative power to prescribe criminal prohibitions which are binding on every person who is, for whatever reason, on its territory. This proposition, which was ultimately unwarranted for the most of antiquity, became solidified as the core rule regulating criminal jurisdiction around the seventeenth century, with the consolidation of the modern, territorially defined state.21 Before, jurisdiction was dependent upon allegiance, usually based on nationality, or even religion. Common law countries have traditionally been significantly more attached to territoriality as the core jurisdictional principle than civil law countries. Yet some of them, particularly the United States, have been quite prone to interpreting this principle in very broad terms as we will examine later. More interestingly, crimes can sometimes cross national borders. To put it quite schematically, we can readily picture a case in which A shoots B from State S across the national border into State S2. In this type of scenario, the standard doctrine distinguishes between subjective and objective territoriality. This means that State S would be entitled to claim criminal jurisdiction over A’s act of murder on the ground of subjective territoriality. Objective territoriality, by contrast, refers to a state exercising its criminal jurisdiction over an offense when the result of her act occurred on its territory (despite the fact that her conduct was performed abroad).22 This principle can be applied to many other more pressing issues such as Internet fraud, computer hacking, money laundering, and even terrorism. Determining when a particular offense can be said to be committed on the territory of a particular state can be a complicated matter; sometimes, this complexity is only enhanced by the lack of systematic guiding principles.23 States are often prone to creating fictions to deal with this type of case. The Canadian Criminal Code, for instance, prohibits bigamy by criminalizing the act of leaving Canada with the intent to commit bigamy.24 A further controversial extension of the principle of objective territoriality is the effects doctrine. In the famous Alcoa case, Judge Learned Hand, indicated that “any state may impose liabilities, even upon persons not within its allegiance, for conduct outside its borders that has consequences within its borders which the state reprehends.”25 The doctrine, Shaw recalls, “was to some extent modified by the requirement of intention and the view that the effect should be substantial.”26   Classical thinkers like Bodin, Montesquieu, Rousseau, Beccaria, Puffendorf, Wolf, and Grotius strongly advocated the centrality of the principle of lex loci delicti in the application of criminal law (for a succinct analysis, see Cedric Ryngaert, Jurisdiction in International Law (2008), 48–52). 22   See e.g. State v. Hall, 114 N.C. 909, 19 S.E. 602 (1804) for exactly this situation, albeit between the U.S. states of North Carolina and Tennessee. See also, DPP v. Doot [1973] 1 All E.R. 940 (H.L.) in the 23 24 United Kingdom.   See Hirst (n. 19) ch. 4.   See Williams, (1965) 81 LQR 395. 25   States v. Aluminium Co. of America, 148 F.2d, 443 (2d Cir. 1945). 26   Malcolm N. Shaw, International Law (2008), 689. 21

jurisdiction   405 This doctrine has been strongly resisted by foreign courts, and some states have even enacted “blocking” legislation.27 As a legal basis for criminal jurisdiction, territoriality raises virtually no controversy.28 In Farmer’s words, “The idea of territorial jurisdiction is the central case and organising [principle], and other cases were either fitted into this or treated as exceptions.”29 In the common law tradition, particularly in the United Kingdom, it was originally associated with the institution of juries. It was also endorsed for other practical reasons, such as the accessibility to evidence and witnesses. Currently, however, the territorial scope of a state’s criminal law is commonly regarded as a manifestation of its sovereignty. In the words of the Permanent Court of Arbitration in the Island of Palmas case: Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the function of a State. This development . . . of international law established this principle of the exclusive competence of the State in regard to its own territory.30

However, resorting to sovereignty as the only consideration to account for the scope of states’ criminal laws begs the critical question. Namely, it assumes that the reasons why a particular conduct is the business of a particular state are clear enough when, in fact, this is precisely the issue under discussion.31

2.  The nationality principle The nationality principle has traditionally involved a state holding extraterritorial criminal jurisdiction over a particular offender on the grounds that she is a national of that state. Suppose an Englishman travels to Thailand and perpetrates a sexual offence against a minor. On his return to the United Kingdom, he can be prosecuted before the English courts, and under English law, on the grounds of his nationality alone.32 This jurisdictional basis is uncontroversial under existing international law, and is fairly common in the domestic legislation of several countries, particularly those of the common law tradition. In fact, it has been generally recognized that the original conception of law was personal, and that only the appearance of the territorial state gave rise to the right to subject aliens to the lex loci.33 Although many countries have self-imposed  See Rio Tinto Zinc. Corp. v. Westinghouse Elec. Corp. [1978] 1 All E.R. 434 (H.L.), 437–438 and the 28 U.K. Protection of Trading Interests Act 1980.   e.g. Brownlie (n. 11) 299. 29   Farmer, (2013) 63 University of Toronto LJ 258. 30  PCA, Island of Palmas (U.S. v. Netherlands) (1928) 2 RIAA 829, 838. For a similar point, see The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch.) 116 (1812) (Justice John Marshall). 31   I have explored this issue in Alejandro Chehtman, “Citizenship v Territoriality: Explaining the Scope of the Criminal Law,” (2010) 13 NCLR 427–448. 32   U.K. Sexual Offences Act 2003, which also confers jurisdiction based on residence. On this, see also the Landmines Act 1998 and the Nuclear Explosions (Prohibition and Inspections) Act 1998. 33   James Leslie Brierley, “The Lotus Case,” (1928) 44 LQR 155–156. 27

406   alejandro chehtman restrictions on the application of this basis of jurisdiction, it is generally argued that, as a matter of international law, there is no rule against extending it as far as they see fit.34 In practice, the nationality principle often comes accompanied by other considerations. Commonly, it is provided for offenses that affect the security of the state, or that are committed against a national of the extraterritorial state. For the sake of clarity, we will concentrate here on cases in which the nationality of the offender constitutes the sole basis for criminal jurisdiction. Other grounds of extraterritorial criminal jurisdiction will be examined later. A second aspect worth noting is the relatively unstable basis of this jurisdictional principle. Traditionally, the nationality principle only made reference to membership to a state, that is, citizenship. Yet, this assumption seems unwarranted. Donnedieu de Vabres pointed out that, historic­ ally, it was the domicile of the accused rather than her nationality which provided the basis for this type of jurisdiction.35 Although nowadays this principle is taken to mean that in the main states have the right to prosecute their nationals, the generally accepted position is that residence may suffice to justify jurisdiction.36 Interestingly, these conceptual issues are not entirely divorced from the normative argument that underpins the principle of nationality. Thus, nationality-based criminal jurisdiction has been advocated, for instance, on the basis of the proposition that certain sexual offenses committed abroad should be prosecuted by the state of nationality on grounds of the possibility of recidivism at home.37 A first remark is that, if anything, this argument provides a justification for punishing only that state’s residents and not its nationals. It would not be able to explain, for example, why Argentina would hold a power to punish an Argentine national residing in Spain for an offense she committed in Spain (or France for that matter). Nationality would cease to have any relevance for the exercise of extraterritorial criminal jurisdiction. Other scholars are concerned with jurisdictional gaps and the need to fight “impunity” or, as Cockburn L.J. famously put it, some “blot upon the law.”38 Two different scenarios are often mentioned. First, we may face a situation in which the offense is committed on a territory on which no state has jurisdiction (terra nullius). Accordingly, the nationality principle was invoked by the United States, for instance, when one of its nationals killed someone on a Guano Island.39 However, even if we recognize the U.S. jurisdiction in this case on the grounds that they have an interest in avoiding impunity, it does not seem to follow that only the state of which the offender is a national has a power to punish her. Rather, the logical implication of

34   Regarding self-imposed restrictions, in some countries the law requires that the offense is a crime under the law of the state on whose territory it was committed (e.g. Egypt). In others, it is only provided for serious offenses (e.g. France). 35   Henri Donnedieu de Vabres, Les Principes Modernes Du Droit Pénal International (1928), 66–68. 36   See Brownlie (n. 11) 303. 37   P. Arnell, “The Case for Nationality Based Jurisdiction,” (2001) 50 ICLQ 961. 38 39   R. v. Wilson (1887) 3 QBD 42, 44.   Jones v. U.S., 137 U.S. 202L (1890).

jurisdiction   407 this argument is that any state would have the right to exercise criminal jurisdiction over that offender for her crime. A second, more interesting scenario would obtain when the offender returns to her “home” country after committing an offense abroad. Extradition laws in many states prohibit the extradition of nationals, and this type of regulation is arguably consistent with international law.40 I  shall not seek to evaluate the normative soundness of this type of provision here.41 Rather, let us focus on two key considerations. On the one hand, it is interesting to note that the rule on non-extradition of nationals has traditionally been closely connected to the principle of nationality. As Plachta argues, there was historically a “causal” connection in French law between the prohibition of extradition of nationals and the law giving France the power to punish them for offenses perpetrated extraterritorially.42 On the other hand, it would be a conceptual mistake to treat the rule of non-extradition of nationals as an automatic endorsement of the principle of nationality. Admittedly, the Harvard Research Code argued that “if a requested State fails to surrender its national, it shall try him itself.”43 Yet if having a moral duty not to extradite an offender sufficed to confer upon the requested state the power to punish her itself, the nationality of the offender would play no significant part in the argument in support of conferring that state criminal jurisdiction over the offense. A  more plausible rationalization of this situation would suggest that this kind of jurisdiction is not based on the principle of nationality but rather on what has been termed “vicarious” or “representational” jurisdiction.44 Nationality, or even residence, would have no bearing under such an argument on the conferral of criminal jurisdiction to an extraterritorial state.45 Finally, it has often been argued that the nationality principle is based on the special relationship that links individuals to the state of which they are members. This relationship is usually referred to as allegiance.46 The argument depends on what exactly this relationship amounts to. We may articulate this allegiance relationship under the term “mutual exchange of benefits” scheme.47 Defenders of this argument would 40   See e.g. Christopher L. Blakesley, “A Conceptual Framework for Extradition and Jurisdiction over Extraterritorial Crimes,” (1984) Utah LR 709. 41   For a detailed analysis, see Alejandro Chehtman (n. 12) 63–64. 42  Michael Plachta, “(Non-)extradition of Nationals:  A  Neverending Story?,” (1999) 13 Emory International LR 118–119. 43   Harvard Research in International Law, “Draft Convention on Extradition,” (1935) 29 AJIL Supp. 126. 44   See Jürgen Meyer, “The Vicarious Administration of Justice: An Overlooked Basis of Jurisdiction,” (1990) 31 Harvard International LJ 110. 45   On the principle of vicarious jurisdiction, see Section IV. 46   See e.g. Blackmer v. U.S., 284 U.S. 421, 427 (1932). None of the well-known arguments defending the intrinsic “ethical significance” of nationality seem to entail the application of a state’s criminal laws to its nationals abroad. For all, see David Miller, On Nationality (1995). 47   This is, roughly, how fair play theories of punishment justify this power. See e.g. Richard Dagger, “Punishment as Fair Play,” (2008) 14 Res Publica 259. They too are liable to this line of criticism.

408   alejandro chehtman suggest that because the offender receives protection and other benefits from the state of which she is a national, she also has to bear the burdens of her membership of that state. But this argument can be readily put into question. Consider the following situation: a Peruvian citizen travels to Iceland and kills a man in a fight. When she is back in Lima, the question is whether she should be prosecuted under the Peruvian criminal law. Once we have discarded the arguments based on recidivism, the need to fill accountability gaps, or the non-extradition of nationals, it is unclear what Peru’s interest would be in this individual respecting its domestic criminal laws abroad.

3.  The principle of passive personality The principle of passive personality entails that a state can prosecute an offense perpetrated extraterritorially on the grounds that it has been perpetrated against one of its nationals. This basis for criminal jurisdiction is among the most contested in contemporary international law.48 It is the only regular basis for extraterritorial criminal jurisdiction that was not included in the 1935 Harvard Draft Convention on Jurisdiction with Respect to Crime. Although it was the basis on which Turkey’s domestic crim­ inal law based its jurisdiction over Lieutenant Demons in the Lotus case, the PCIJ did not endorse the acceptance of that jurisdictional claim as a matter of international law. A  standard objection against it has traditionally been that perpetrators would normally not be able to anticipate that they will be subjected to a foreign criminal law.49 Nonetheless, the principle of passive personality has been increasingly adopted by states, including France.50 Ultimately, it seems safe to suggest that this jurisdictional basis is probably not unlawful under contemporary international law.51 Interestingly, the principle of passive personality has been notoriously popular in cases involving terrorist acts.52 However, defending the principle of passive personality on the basis of this type of case seems to argue on the basis of a non sequitur. Geoffrey Watson has contended that “In terrorism cases, the exercise of passive personality jurisdiction flows naturally from the foreign affairs power [of the United States],” only to add that a “terrorist crime against an American abroad 48   See e.g. F. A. Mann, “The Doctrine of Jurisdiction in International Law,” in F. A. Mann, Further Studies in International Law (1990), 92. 49   Geoffrey R. Watson, “The Passive Personality Principle,” (1993) 28 Texas International LJ 22–25. 50   France’s Criminal Procedure Law claims criminal jurisdiction over crimes (as opposed to délits) committed extraterritorially against its nationals (art. 689 of its Code de procédure pénal referring to art. 113-7 of its Code pénal). 51   For a list of countries that have adopted this basis for jurisdiction, see Watson, (1993) 28 Texas International LJ 13 fn 76. 52   The United States relied (partially) upon this principle in U.S. v. Yunis, 681 F. Supp. 896 (1988) despite the fact it had strongly objected to Mexico exercising extraterritorial criminal jurisdiction on this basis in the famous Cutting incident of 1887 (U.S. Department of State, Report on Extraterritorial Crime and the Cutting Case, in Foreign Relations of the United States (1887), 751–867).

jurisdiction   409 affects United States security interests in a way that a common crime does not.”53 This latter qualification seems to add a critical consideration. It indicates that the reason why the state of nationality of the victims of, say, hostage-taking may be ultimately justified in prosecuting this type of crime, is that the state itself is being coerced into doing or refraining from doing something that it would otherwise not do. Most terrorism attacks have precisely this configuration. Examples include the attack against members of the Israeli team at the Munich Olympic Games and the hijacking of the Achille Lauro by members of the Palestine Liberation Front. By contrast, there are situations in which the victim of a terrorist act just happens to be a national of a particular state, but has not been targeted as such. This would be the case, for instance, of a non-U.S. national who happened to be visiting the World Trade Center on September 9, 2001, a non-U.K.  national traveling on the London Underground near Russell Square on July 7, 2004, or a French national arriving at Atocha railway station in Madrid on March 11, 2004. If her country of nationality were to claim the power to punish the perpetrators of any of these acts, it would then be relying strictly on the principle of passive personality.54 As may be clear from these examples, and as Watson’s analysis implicitly admits, the extension of the scope of the power to punish in these situations is hardly based on the nationality of the victim, but should instead be explained on grounds of the protection of the sovereignty and security of the state. As such, these cases provide no support for the principle of passive personality; rather, they should be discussed under the protective principle.

4.  The principle of protection The protective principle is invoked when a state claims extraterritorial criminal jurisdiction to punish someone for an offense against its security, integrity, sovereignty, or important governmental functions. It is beyond the scope of this chapter to clarify which offenses do in fact meet the test of affecting these goods, or which goods in particular warrant states having jurisdiction on these grounds. It may suffice for present purposes to concentrate on certain offenses for which this prin­ ciple is standardly invoked, such as those committed against a state’s governmental authorities, its military forces, the counterfeiting of its currency, or public documents issued by the state.55 It seems safe to argue that currently this basis for criminal jurisdiction is reasonably well established under international law. It should   Watson, (1993) 28 Texas International LJ 33.   Some scholars argue that terrorist acts should, in fact, warrant conferring universal jurisdiction over their perpetrators. 55  See e.g. Monika B.  Krizek, “The Protective Principle of Extraterritorial Jurisdiction:  A  Brief History and an Application of the Principle to Espionage as an Illustration of Current United States Practice,” (1988) 6 Boston University International LJ 339. 53

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410   alejandro chehtman be noted, however, that states have had diverging attitudes toward this principle. While continental Europe and Latin America have often advocated this basis of jurisdiction, the Anglo-American world has traditionally been reluctant to accept it. However, the United States and the United Kingdom have increasingly come to terms with the concept and used it for their own policy purposes.56 The principle of protection has been often resisted as a jurisdictional basis. I will assess here two lines of criticism. The first underlying preoccupation seems to rest with the rights of those individuals subjected to prosecution in this type of case. On the one hand, it has been argued that these trials will necessarily be biased or polit­ ically conditioned. This objection, however, affects only some of the offenses that usually give rise to the protective principle, but not necessarily many others such as counterfeiting currency or public documents, or even perjury to the detriment of national authorities abroad. At the same time, it also equally affects some prosecutions based on the territoriality principle, such as the trial of Mossaui in the United States. This shows that the difficulty in this particular situation is unrelated to the type of jurisdictional basis invoked.57 On the other hand, it has been argued that this type of jurisdiction lends itself to inadmissible extensions.58 This is historically true. Jessup cites a case in which, during the Nazi period, a German court approved the prosecution in Germany of a Jewish alien who had extramarital intercourse with a young German woman in Czechoslovakia on the grounds that it affected the “purity of the German blood.”59 Salman Rushdie’s death fatwah constitutes another powerful illustration of this danger. Without going that far, many provisions that invoke the protective principle are unacceptably vague. For example, the Hungarian Penal Code at some point provided for extraterritorial jurisdiction over any act against “a fundamental interest relating to the democratic, political and economic order of the Hungarian People’s Republic.”60 As is often argued, however, the fact that a given state can abuse a right it possesses is hardly a conclusive argument against it possessing that right in the first place. These examples show cases of blatant abuse of this doctrine, but they say very little about its application to offenses that do in fact affect the security or polit­ ical independence of the state.

56   At least until the late 1950s, the United Kingdom and the United States both seemed to have rejected this basis of jurisdiction unless a bond of allegiance between the offender and the sovereign was found. 57  Unless, of course, it is construed on an ad hoc basis:  on this, see Danielle Ireland-Piper, “Extraterritorial Criminal Jurisdiction: Does the Long Arm of the law Undermine the Rule of Law?,” (2012) 13 Melbourne Journal of International Law 122–157. 58   Manual R. García-Mora, “Criminal Jurisdiction over Foreigners for Treason and Offences against the Safety of the State Committed Upon Foreign Territory,” (1957–58) 19 University of Pittsburgh LR 59 567, 583.   Philip C. Jessup, Transnational Law (1956), 50. 60  Michael Akehurst, “Jurisdiction in International Law,” (1972–73) 46 British Yearbook of International Law 158.

jurisdiction   411

iv.  Other Jurisdictional Bases The previous section provided an account of the standard bases or principles of criminal jurisdiction. But that picture barely covered this complex, highly tech­ nical, and often intricate area of the law. As stated by Brownlie, general principles of criminal jurisdiction are better approached as “generalizations of a mass of national provisions which by and large do not directly reflect categories of jurisdiction.”61 Accordingly, there are many more instances of criminal jurisdiction than those I can adequately address here. For example, a state’s criminal law characteristically applies on board ships registered in that state (“flying its flag”), whether at sea or in foreign ports or harbors. A similar rule applies to a state’s aircraft and embassies.62 At the same time, the criminal law of the state usually applies to members of its armed forces abroad, and it is standardly accepted that a military occupying power holds jurisdiction over the occupied territories.63 Finally, the rise of organized or transnational criminality and cybercrime are pushing the jurisdictional boundaries of states in the same way as did terrorism a few decades ago. This section will provide a succinct discussion of some of these less central jurisdictional principles, and will explore the conceptual and normative challenges they raise. It will concentrate on the principles of vicarious jurisdiction, the problem of circumvention tourism, and the jurisdictional rules that apply to transnational criminality.64

1.  Vicarious jurisdiction The principle of “vicarious” or “representational” jurisdiction is a somewhat neglected basis of criminal jurisdiction in common law countries.65 This prin­ ciple provides an extraterritorial state with the power to punish an offender in its custody, when her extradition has not been requested by the state with traditional jurisdiction over the case, or when there are legal obstacles to agreeing to such request. Therefore, it has often been considered subsidiary to non-extradition, and 62   Brownlie (n. 11) 309.   See e.g. Hirst (n. 19).   See, respectively, Rain Liivoja, “Service Jurisdiction under International Law,” (2000) 11 Melbourne Journal of International Law 308–337 and Alejandro Chehtman, “Occupation Courts, Jus ad bellum, and Non-State Actors: Revisiting the Ethics of Military Occupation” (2013), Jean Monnet Working Papers Series No. 15/13, New York University School of Law. 64   The reason for this is mainly that other jurisdictional bases just described, e.g. jurisdiction over ships, aircraft, embassies, and areas subjected to military occupation can, each with some peculiarities of their own, be more easily assimilated to the principle of territoriality. After all, in each of these cases the state holding adjudicative or legislative jurisdiction is the one holding enforcement jurisdiction (Section II). 65  For the connection between “vicarious” jurisdiction and transnational criminal law, see Christopher L. Blakesley and Otto Lagodny, “Finding Harmony Amidst Disagreement Over Extradition, 61

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412   alejandro chehtman not directly dependent on the authorization of the territorial state. However, we need not take this analysis at face value. As argued in Section III.2, the power to punish an offender and the power to refuse extradition may be historically connected but they are logically and normatively independent. It follows, then, that such extraterritorial power cannot simply be normatively justified on the basis of non-extradition.66 If refusing to extradite an offender sufficed to confer on an extraterritorial state the power to punish an offender, any state would be able to claim universal jurisdiction over domestic offenses simply by apprehending the suspect and refusing to extradite her. The arguments often used in defense of this principle point to the practical convenience of this type of arrangement to minimize the tension resulting from a refusal to extradite an alleged offender, or as a simple institutional arrangement to punish a fugitive who managed to cross an international border into a state with no extradition treaty with the territorial state.67 They are therefore concerned only with issues of institutionalization, and largely beg the underlying question of principle. By contrast, I suggest that authorization accounts for a large number of cases in which this basis of jurisdiction is claimed. Vicarious jurisdiction is frequently agreed by states either in an extradition treaty or through the rule of aut dedere aut judicare in a multilateral convention.68 It may also be provided under reciprocal legislation or implicitly acquiesced in by refusing to request extradition. As a result, authorization by a state which does otherwise have jurisdiction over the offense is perhaps the main consistent normative explanation of the power to punish offenses extraterritor­ ially in cases other than protection. Admittedly, this explanation would also mean that when this principle is claimed unilaterally by an extraterritorial state—that is, without any form of authorization by those with accepted jurisdictional claims over the offense at issue—we would have to conclude that it is being exercised ultra vires.69

2.  Fraude à la loi A second conceptually problematic instance of criminal jurisdiction worth noting here is that of fraude à la loi of a given state or, as more recently put by Glenn Cohen, Jurisdiction, the Role of Human Rights and issues of Extraterritoriality under International Criminal Law,” (1991) 24 Vanderbilt Journal of Transnational Law 36.   For a similar point, see Albin Eser, “Common Goals and Different Ways in International Criminal Law: Reflections From a European Perspective,” (1990) 31 Harvard International LJ 119. 67   See Blakesley and Lagodny, (1991) 24 Vanderbilt Journal of Transnational Law 39. 68   This principle should not be conflated with the principle of universal jurisdiction. On this distinction, see inter alia Christoph Safferling, “International Decisions: Public Prosecutor v. Djajic,” (1998) 92 AJIL 529–530. 69   This jurisdictional basis must not be conflated with extraterritorial jurisdiction based on what were called Capitulation treaties. Until well into the twentieth century, many European powers had 66

jurisdiction   413 circumvention tourism. Cohen explores contemporary legal practice in four different cases; namely, female genital cutting (FGC), abortion, assisted suicide, and the use of reproductive technology.70 He conceptualizes and defends this form of extraterritorial criminal jurisdiction as a qualified combination of the nationality and passive personality principles that he terms the “double coincidence of citizenship.” He asks us to consider the case of a state (Murder Island, or MI) where there is no prohibition of murder. Ben and John, both U.S. citizens, visit MI and Ben stabs John. Would it be wrong for the United States to seek to extend its criminal law to cover Ben’s act in this instance? Surely not, he contends: “At least one justification that underlies the home country’s prohibition on murder is that it is wrong for U.S. citizens to murder other citizens.”71 This approach to circumvention tourism, however, seems to face difficulties both at the normative and the conceptual levels. Furthermore, these difficulties appear to stem precisely from the centrality of the “double coincidence of citizenship” requirement. For one thing, one may readily wonder what normative work this double coincidence of citizenship requirement actually does. In Cohen’s example it certainly seems superfluous. Although it is true that it is wrong for U.S. citizens to murder fellow citizens, even on MI, it would also be wrong for U.S. citizens to go “man-hunting” for locals, even if the local laws so allowed. If jurisdiction is based on the fact that the former type of behavior is wrong, then I do not see this latter type of behavior as being any “less wrong” than the former. If this is correct, criminal jurisdiction over circumvention tourists would be conceptualized merely as an instance of jurisdiction based on the principle of nationality explored previously. But this would create problems: it is not obvious why a U.S. citizen who has been living in Spain for the last ten years and who takes his daughter to a country where FGC is legal should be prosecuted by a court in Washington DC, but not by a Spanish court. These seem to be necessary implications to Cohen’s argument, since he explicitly relies, to justify the exercise of jurisdiction in this type of case, on benefits such as “U.S. diplomatic responsibility and U.S. laws that provide for his protection.”72 Ultimately these two considerations appear to undermine the conceptual soundness of this approach. They clearly show that there is an important sense in which this argument seems entirely divorced from the idea of circumvention or of fraude à la loi. By contrast, if extraterritorial criminal jurisdiction over circumvention tourists or those engaging in fraude à la loi seems intuitively plausible, it appears to gain its moral traction from something other than the nationality of the perpetrator (and that of the victim). Suppose an offender goes with her victim to the border of State “national courts” in the territories of other states (e.g. Persia, China, the Ottoman Empire, etc.) to try their nationals for crimes committed there. See e.g. W. E. Grisby, “Mixed Courts of Egypt,” (1896) 12 LQR 252.   I. Glenn Cohen, “Circumvention Tourism,” (2012) 97 Cornell LR 1309.   Cohen (n. 70) 1341.    72  Cohen (n. 70) 1342.

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414   alejandro chehtman A, tricks her into stepping across into State B, beats her up, and then both return to State A. Would not individuals in State A have an interest in seeing the offender punished in order to be reassured that the laws are effectively in force? Arguably they would. But critically this seems to respond to territorial considerations, not considerations of nationality (neither those of the perpetrator, nor those of the victim). Individuals in State A have an interest in not being tricked or forced into a position in which State A lacks the power to punish the offender. It is immaterial for these purposes whether they are nationals of that state, permanent residents, or simply foreigners on holiday. This analysis, I suggest, makes straightforward sense of the idea of circumvention or fraude à la loi on this jurisdictional basis.

3.  Jurisdiction over transnational criminality Arguably one of the currently more pressing instances of extraterritorial criminal jurisdiction is that over organized crime. In Farmer’s words, “it has become commonplace to argue that the paradigm of territorial jurisdiction is currently being superseded, as a result of changes in the nature of crime and with the creation of more transnational and international criminal law.”73 International criminal law is beyond the scope of this chapter but transnational criminal law is, both conceptually and normatively, of particular relevance in a world in which the forces of globalization seem to have bolstered organized crime and other transnational criminal endeavors.74 There are two ways of accounting for the specific jurisdictional regime that should govern this type of criminality. One could claim that extraterritorial states have, themselves, criminal jurisdiction over this type of offense. For instance, it may be argued that under certain circumstances individuals in State A would have an interest in an extraterritorial state being able to enforce State A’s criminal laws. Corruption may be a good example in several countries. However, this approach would be both conceptually problematic and normatively unappealing. From the conceptual point of view, this would lead to a jurisdictional regime identical to that over international crimes, such as genocide, crimes against humanity, or war crimes—that is, to universal jurisdiction. This would obscure rather than illuminate what is conceptually distinct about transnational crimes. Furthermore, this would be generally unpersuasive as a normative position, and hardly compatible with the way in which jurisdiction over transnational crimes is currently regulated. The second approach to jurisdiction over this kind of offense is to suggest that the interest that individuals have in this type of activity being prohibited in their   Farmer, (2013) 63 University of Toronto LJ 249.   See e.g. Liangsiriprasert v. U.S. Government [1991] 1 A.C. 225, 241. For a different take, see Misha Glenny, Mcmafia: A Journey through the Global Criminal Underworld (2008). 73

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jurisdiction   415 home state may well warrant conferring upon their state the power to authorize an extraterritorial authority to enforce such prohibitions. Under this framework, states hold the right to grant each other extraterritorial criminal jurisdiction for acts committed on their respective territories. States can either provide a foreign state with full power to exercise extraterritorial criminal jurisdiction, or subject it to certain limitations.75 The Conventions of the Council of Europe on Cybercrime (2001) and on Action against Trafficking in Human Beings (2005), and the 2003 UN Convention against Corruption are simple illustrations of this. Yet these considerations do not per se advocate extraterritorial states having criminal jurisdiction over these types of crimes. They provide only prudential reasons. To quote Chief Justice Taft, some offenses “are such that to limit their [prosecution] to the strictly territorial jurisdiction would be greatly to curtail the scope and usefulness of the statute.”76 But it would be up to the state which has jurisdiction over an offense on independent grounds, and only up to that state alone, to decide whether an extraterritorial state will hold the (concurrent) power to punish that type of offense.

v.  General Accounts of the Scope of the Criminal Law In Sections III and IV, I examined the arguments provided for each specific extension of the basic territorial scope of the right to punish. In this section, by contrast, I shall briefly explore the three main general accounts of the scope of states’ criminal jurisdiction available in the literature: namely, comity, the justification for the right to punish, and the (relational) structure of criminal responsibility.

1. Comity International lawyers often explain the scope of the jurisdictional powers of the state by recourse to the idea that international law does not clearly allow or prohibit the exercise of extraterritorial criminal jurisdiction. By contrast, the regulation of this area in the international arena results from “an accommodation process operating outside the limits of formal international law . . . described by the principle of   e.g. they may limit this authorization to certain crimes, or certain offenders, etc.   U.S. v. Bowman (n. 10) 98.

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416   alejandro chehtman international comity.”77 The established meaning of comity, it is often argued, falls short of establishing a legal obligation upon states. Oppenheim, for instance, refers to the “rules of politeness, convenience and goodwill observed by States in their mutual intercourse without being legally bound by them.”78 In the words of ICJ Judge Fitzmaurice in Barcelona Traction: that under present conditions, international law does not impose hard and fast rules on States delimiting spheres of national jurisdiction. . . . It does however . . . involve for every State an obligation to exercise moderation and restraint as to the extent of the jurisdiction assumed by its courts in cases having a foreign element, and to avoid undue encroachment on a jurisdiction more properly appertaining to, or more appropriately exercisable by another State.79

Accordingly, this argument goes, states have often sought to accommodate each other’s interests through (mostly) limiting the jurisdictional bases they would rely upon to a number of standardly agreed ones, and they have usually provided for certain requirements actually to exercise their jurisdiction in particular cases, namely, the requirement of double criminality, limiting the jurisdiction to certain classes of offenses, and so on. A first thing to note about comity is that it represents the point of view of only part of the international community. Indeed, references to comity or reasonableness are largely unknown in continental Europe.80 Similarly, it has been claimed that “The idea that international comity . . . should determine the extent of English criminal law is an attractive one in some respects, and has gained a number of supporters, but it has never truly represented the position under English law.”81 Thus, it is not clear that comity can account for what actually happens in this area globally. Nevertheless, the main problem with comity as a general account of the scope of a state’s criminal jurisdiction is that it does not take seriously enough the kind of institution that requires justification. This approach obscures, first and foremost, the fact that the infliction of legal punishment needs to be justified before the defendant to whom it will be meted out. In the words of Markus Dubber, it would obscure the fundamental fact that “conceptions of ‘international’ [i.e. extraterritorial] criminal jurisdiction in a given domestic system reflect that system’s fundamental conceptions of domestic criminal law, including most importantly the notions of crime and penal power itself.”82 Admittedly, the principle of comity has been often linked to the idea of reasonableness in the exercise of jurisdiction.83 But this can work only as a broad   H. G. Maier, “Jurisdictional Rules in Customary International Law,” in Karl M. Meesseen (ed.), Extraterrritorial Jurisdiction in Theory and Practice (1996), 69. 78   Cited in Brownlie (n. 11) 29. 79  ICJ, Barcelona Traction, Light and Power Co. Ltd (Belgium v. Spain), ICJ Rep. 3, 105 (1970), Separate 80 81 Opinion of Fitzmaurice.   Ryngaert (n. 21) 167.   Hirst (n. 19) 9. 82  Markus D.  Dubber, “Criminal Jurisdiction and Conceptions of Penalty in Comparative Perspective,” (2013) 63 University of Toronto LJ 278. 83  See Restatement (Third) of US Foreign Relations Law, § 402. 77

jurisdiction   417 rule of thumb. Precisely when it is reasonable to prosecute and punish a particular offender and why this is so, are the questions for which this argument should account.

2.  The justification of the right to punish The standard way of examining the scope of the criminal law is arguably by looking at the reasons that justify a certain body (a particular state) inflicting legal punishment on a particular offender.84 This approach presupposes, as do many of the specific arguments discussed in Sections III and IV, that territorial or extraterritorial scope of a state’s power to punish a given offender is largely determined by the reasons that justify it holding that power in the first place.85 Let us concentrate first on deterrence as a general argument for legal punishment. The central claim on which deterrence is grounded is that punishment is justified as a means of protecting individuals’ rights and other valuable public goods by deterring potential offenders. Standard deterrence theory seems to be premised on the following reasoning: the “more” punishment is exacted, the stronger the deterrent effect of criminal law will be and, as a result, the fewer violations of these rights and goods will obtain. In particular, the deterrent effect has been said to depend on the certainty, severity, and celerity of the punishment.86 Ostensibly, allowing every state to exercise its criminal jurisdiction over any given offense will contribute to the certainty of the punishment. More importantly, perhaps, it would contribute to the perceived certainty. It is obviously beyond our scope here to even begin to consider how strong this extra deterrent effect would be. Yet, if one accepts that there will be some additional deterrence, any justification that relies on deterrence would be committed to granting every state the power to punish any particular offender.87 This is not only implaus­ ible but it is also entirely at odds with the existing legal framework. Interestingly, retributivist justifications for legal punishment seem to face similar problems. A central tenet of retributive justifications for legal punishment is that “the state is justified in punishing an offender because she deserves to be punished.”88 Regardless of the precise explanation of the proposition that “the state has the power to punish an offender because she deserves to be punished” or “inflicting punishment to 84   Justifications for punishment are notoriously complex and varied. I simplify here the literature in a way that takes into consideration at least some of the most relevant arguments on which contempor­ ary justifications rely. 85   It will suffice to note that this position is fairly common in discussions regarding other aspects of the scope of a state’s right to punish, e.g. sentencing severity, or the types of penalties that might be 86 morally warranted.   Jeremy Bentham, The Rationale of Punishment (1830), ch. VI. 87   See, similarly, Walter W.  Cook, “The Application of the Criminal Law of a Country to Acts Committed by Foreigners Outside the Jurisdiction,” (1934) 4 West Virginia Law Quarterly XL 328. 88   Some retributivists argue that this proposition explains only why it is permissible to visit legal punishment upon offenders while others suggest that desert accounts for a full molecular right to punish. My claim here applies only to the latter.

418   alejandro chehtman the guilty is intrinsically good,” each seem to warrant the conclusion that states should have the power to punish offenders irrespective of where the offense was committed. It is very easy to jump from this consideration to some form of legal moralism.89 But that would hardly provide us with a convincing account of the scope of the jurisdictional powers of the state. At least if not qualified by external constraints, their proposals for amendment of the basic rules would be too radical to merit serious scrutiny. Elsewhere I  have argued that the norm-projection argument for legal punishment, or at least a specific version of it, may be slightly better in accounting for the scope of states’ criminal jurisdiction.90 This argument claims that a criminal law system constitutes a public good that benefits the individuals that happen to be under it in a certain way. In short, having criminal laws in force contributes to our sense of being the bearers of certain rights, and to building our confidence in the fact that there are legal rules protecting those rights which bind the conduct of others around us.91 This argument swiftly accounts for the essentially territorial scope of a state’s criminal jurisdiction. Suppose X, an Argentine national, goes to Paris to a conference. While she is there, X has an interest in individuals in Paris abiding by most of the French criminal laws. It is the belief in these rules being in force that contributes to her sense of being a bearer of rights and that these rights are protected by crim­ inal rules. Although temporarily limited—after all, X will probably be out of the country in a matter of days—this interest is arguably as strong as the interest of any other French citizen standing next to her on the Metro, or having a stroll through the gardens of the Museé Rodin. On these same grounds we can account satisfactorily for the principle of protection (Section III.4). Namely, individuals in Brazil have a general interest in its domestic criminal law prohibiting the counterfeiting of Brazilian Reales irrespective of where the forgery happens to be carried out. This argument explicitly rejects two standard bases of extraterritorial criminal jurisdiction, that is, the principles of nationality and passive personality (Sections III.2 and III.3). Simply put, there seems to be no way in which Spain’s criminal rules being in force require punishing an offender for a robbery she committed in Paraguay, simply on the grounds that she happens to be a national of Spain or on the grounds that the victim is a national of Spain. The collective interest of individuals in Spain in the sense of security and dignity that the Spanish criminal laws being in force provide for them does not seem to be affected by a robbery in Paraguay. I have defended these considerations as proposals for legal reform, but they can equally be criticized as blatant failures to account for the existing legal framework.   See e.g. Michael S. Moore, Placing Blame: A Theory of Criminal Law (1997).   For other versions of this argument, see David Luban, “War Crimes. The Law of Hell,” in Larry May (ed.), War. Essays in Political Philosophy (2008), 287 and Mark A. Drumbl, Atrocity, Punishment, and International Law (2007), 176. 91   For a full defense of this argument, see Chehtman (n. 12), chs. 2 and 3. 89

90

jurisdiction   419

3.  The relational structure of criminal responsibility A final way of approaching the issue of the scope of states’ criminal jurisdiction is by turning to certain structural features of the notion of criminal responsibility. Antony Duff has famously argued that the concept of responsibility has a relational dimension; an offender is responsible for X to Y, or better, she is responsible as W for X to Y. To use one of Duff ’s examples: as a university teacher, there are only certain bodies or individuals who can call me to account if, say, I deliver an ill-prepared lecture. I will not be accountable to “a passing stranger, or to [my] aunt, . . . or to the Pope.”92 Duff goes on to argue that, similarly, individuals should be held accountable “as citizens” of a political community. Duff uses this conceptual point to develop his model of civic criminal responsibility. Individuals should respond “as citizens” of a political community to their community. It is the fact that they belong to the political community that makes them accountable to a particular state for a criminal offense. This general account of the notion of responsibility would allow us to make sense of the central features of the extraterritorial scope of the criminal law. Duff argues that “The wrongs that properly concern a political community, as a political community, are those committed within it by its own members.”93 This, in turn, leads smoothly to the principle of territoriality. He is, admittedly, reluctant normatively to adopt the principles of nationality and passive personality. For it may well be that “we are not answerable to our fellow citizens for wrongs that we commit abroad, and that while we may expect our fellow citizens to have some collective concern at least for serious wrongs that we suffer abroad, that concern should not extend to calling the wrongdoers to account.”94 In these cases, the advantage over territorially based accounts of the scope of the criminal law would not be normative, but analytical: “the point is that extra-territorial jurisdiction over crimes committed by or against the polity’s members makes straightforward sense if we take citizenship to be the basis of criminal responsibility—whereas if we start with a territorial criter­ ion of jurisdiction they will seem much more puzzling.”95 A central problem with this citizenship-based conception of the criminal law is that it needs to extend to visitors and temporary residents, as well as citizens. With regard to them, Duff claims that they should, as guests, “be accorded many of the rights and protections of citizenship, as well as being expected to accept some of its responsibilities and duties.”96 Duff does not elaborate on this. He only stipulates that “This is not to revert to a geographical principle that grounds jurisdiction in the territorial location of crime:  what makes normative sense of jurisdiction is still the law’s identity as the law of a particular polity.”97 But this is a crucial part of his argument. Being a guest is, both in terms of the application of the criminal 92   R.  A. Duff, “Criminal Responsibility, Municipal and International” (unpublished manuscript, 93 2006), 5.   Duff (n. 92) 13. 94   R. A. Duff, Answering for Crime: Responsibility and Liability in the Criminal Law (2007), 54. 95 96 97   Duff (n. 94).   Duff (n. 94).   Duff (n. 94) 55.

420   alejandro chehtman law and in everyday moral situations, a spatially determined notion. I am a guest at your house only when I am physically at your house. But Duff ’s whole point is to argue against this kind of criterion. Thus, if he wants this analogy to work he needs to explain why this is not simply falling back into a territorial conception of the criminal law. Furthermore, Duff ’s model of civic criminal responsibility would face difficulties explaining, for example, the principle of protection (Section III.4). Namely, it would have difficulties explaining why, for instance, Uruguay has the power to punish an Italian national for counterfeiting Uruguayan currency in France. After all, the perpetrators of these offenses lack the relevant relationship to these states, and one can hardly argue that they have received any specific benefit or protection from either Scotland or Uruguay. In fact, they may never have set foot in any of these countries. And yet, these jurisdictional bases are not only well established as a matter of law; they also seem based on widely held intuitions about the appropriate scope of states’ power to punish. This example is hardly conclusive but illustrates well the difficulties that Duff ’s framework faces in a globalized world, where the movement of people and things is increasingly fluid.

vi. Conclusion This chapter has presented a succinct, though comprehensive, analysis of criminal jurisdiction under both domestic and international law. It has explored the basic legal framework, namely, the principles of territoriality, nationality, passive personality, and protection, and some of the less central bases, such as vicarious jurisdiction, fraude à la loi, and jurisdiction over transnational criminality. All in all, the chapter supports at least three main conclusions. First, it shows that there are important connections between the conceptual and the normative dimensions of each of these jurisdictional bases. Secondly, it suggests that the question of jurisdiction is not only an aspect of the mutual relations between states, but that it is also a substantive issue concerning the scope of the right of each state to criminalize and punish certain behaviors. Finally, it claims that it is much harder to provide a unified account of the way in which criminal jurisdiction is currently regulated both as a matter of domestic and international law than may be thought before detailed examination. In fact, the arguments that were introduced and critically assessed can neither explain the existing legal framework nor can they satisfactorily accommodate our key intuitions regarding the appropriate scope of the criminal law.

jurisdiction   421

References Akehurst, Michael, “Jurisdiction in International Law,” (1972–73) 46 British Yearbook of International Law 145 Arnell, P., “The Case for Nationality Based Jurisdiction,” (2001) 50 ICLQ 955 Chehtman, Alejandro, The Philosophical Foundations of Extraterritorial Punishment (2010) Cohen, I. Glenn, “Circumvention Tourism,” (2012) 97 Cornell LR 1309 Duff, R.  A., Answering for Crime:  Responsibility and Liability in the Criminal Law, Legal Theory Today (2007) García-Mora, Manuel R., “Criminal Jurisdiction over Foreigners for Treason and Offences against the Safety of the State Committed Upon Foreign Territory,” (1957–58) 19 University of Pittsburgh LR 567 Harvard Research in International Law, “Draft Convention on Jurisdiction with Respect to Crime,” (1935) 29 AJIL Supp. 435 Hirst, Michael, Jurisdiction and the Ambit of the Criminal Law (2003) Kassan, Shalom, “Extraterritorial Jurisdiction in the Ancient World,” (1935) 29 AJIL 237 Lowe, Vaughan, Extraterritorial Jurisdiction:  An Annotated Collection of Legal Materials (1983) Mann, F. A., “The Doctrine of Jurisdiction in International Law,” (1964–I) 111 RCADI 1 Mann, F.  A., “The Doctrine of Jurisdiction Revisited after Twenty Years,” (1984–III) 186 RCADI 9 Ryngaert, Cedric, Jurisdiction in International Law (2008) Watson, Geoffrey R., “Offenders Abroad:  The Case for Nationality-Based Criminal Jurisdiction,” (1992) 14 Yale Journal of International Law 41 Watson, Geoffrey R., “The Passive Personality Principle,” (1993) 28 Texas International LJ 1 Special Issue of (2013) 63 University of Toronto Law Journal, issue 2, on Criminal Jurisdiction: Comparison, History, Theory, with articles by Mireille Hildebrandt, Lindsay Farmer, Marcus D. Dubber, and Guyora Binder

­c hapter 19

CONSTITUTIONAL PRINCIPLES benjamin l. berger*

i.  Criminal Law and the Constitutional Imagination Viewed in the longue durée, criminal law has undergone a contemporary revolution in constitutional significance. Consider Milsom’s inimitable assessment of the historical place of criminal law in the development of the common law legal system: The miserable history of crime in England can be shortly told. Nothing worth-while was created. There are only administrative achievements to trace. So far as justice was done throughout the centuries, it was done by jurors and in spite of savage laws.1

For Milsom, criminal law was an exception to the development of the common law, at best an embarrassing outlier, and at worst a field of savagery and misery. To be sure, it was a field from which little could be learned about the evolution of the common law conceptions of just legal rule. However true this assessment may have been, that it could be plausibly advanced is sufficient to mark the tremendous shift that has occurred in the imagined *  The author wishes to thank Markus D. Dubber, Tatjana Hörnle, and Lisa Kerr for their helpful comments on past versions of this chapter, as well as Geneviève Murray (JD, NYU and Osgoode) and Madison Robins (JD, Osgoode) for their excellent research assistance. 1   S. F. C. Milsom, Historical Foundations of the Common Law (2nd ed., 1999), 403.

constitutional principles   423 location of criminal law within the landscape of the key elements of legal rule, or what we might call criminal law’s place within the framework of modern constitutional essentials. The history of criminal law reform is of course deep, with great periods of creative legislative innovation and political activity in ideas of criminal justice. Yet with the rise of rights constitutionalism as the heart of the modern liberal rule of law, criminal law has begun a new life in which it is subject to substantial justice-based innovation through appeal to the internal and basic norms of the legal system itself. It has transformed from a marginal arena of law, as Milsom described it, to the quintessential site for the working out of central constitutional themes. With the ascendance of rights protecting constitutions, the criminal law— with its liberally transfixing confrontation between state and citizen—has offered itself as the paradigmatic place for working out liberal conceptions of justice. And so criminal law has been fused to constitutional law, with key constitutional themes expressing themselves through debates about criminal law, and traditional criminal law issues and debates entering a constitutional idiom. Far from the picture painted by Milsom, criminal law is now best understood and approached as a species of the constitutional, or so this chapter will argue. This contemporary tethering of criminal law and constitutional law has two aspects. The following section of this chapter will explore the ways in which substantive criminal law—the principles of criminal liability—has become a laboratory for the constitutional, focusing and advancing classic questions of constitutional concern. The nature of sovereignty and the role of state violence, basic understandings of the nature of the legal subject, the guiding logics of constitutional judgment, and the role of discretion and mercy in legal rule—all preserves of constitutional thought—are issues that have been exercised and explored most dramatically through debates around criminal responsibility. Section III of this chapter will explore the second aspect of this relationship between constitutional and criminal law, namely the translation of classic criminal law debates into constitutional questions—the movement of traditional concerns of substantive criminal law into a constitutional register. From the limits of the criminal law and the basic requirements of fault to the role of criminal defenses and the nature of just punishment, core questions of criminal law theory have become irreducibly constitutional, guided by claims of rights and the basic norms of the legal order. The extent to which courts have explored the constitutional foundations of criminal law has been extremely uneven across national traditions. Certain broad and essentially formal principles can be found across a number of countries, such as the principle of legality found in the constitutional law of Germany, France, Japan, South Africa, and indeed most constitutional orders.2 Yet when it comes to the application of constitutional principles to the general part of the criminal law, exploration   See Kevin Jon Heller and Markus D. Dubber (eds.), The Handbook of Comparative Criminal Law (2011). 2

424   benjamin l. berger has often been rather modest. The U.S. Supreme Court, for example, has engaged in extensive constitutional reflection on criminal procedure, but “has ventured forth with great trepidation”3 when it comes to substantive law. By contrast, Canada has been at the vanguard of constitutional criminal law. The combination of its young bill of rights (the Charter of Rights and Freedoms, 1982), its unitary criminal law, and its involved Supreme Court has generated intriguing case examples and a dynamic contemporary jurisprudence on the topic. George Fletcher has observed that these factors have combined to make the Canadian Supreme Court “one of the leading jurisdictions in the world in applying constitutional provisions to the general part of criminal law.”4 The Canadian jurisprudence is thus a particularly fruitful point of illustration and will therefore serve as a kind of case study in this chapter exploring the mutual imbrication of criminal law and modern rights constitutionalism. The Canadian case is also valuable, however, because it sounds a cautionary note to those who might imagine that the constitutionalization of criminal law would lead inexorably to its progressive development. Much of value has been generated through the fecund interaction of substantive criminal justice and constitutional principles. Yet this interaction has proved as likely to limit change and entrench the old as to offer a lever for enlightened reform. In all of this, the Canadian cases are offered as instructive, not as exemplary. And it is here that one arrives at a challenging irony. Despite the profound change in the imaginative relationship between criminal law and the larger legal structure— with the migration of criminal law from the margins of legal history to the center of our constitutional imagination—more of Milsom’s assessment remains apposite than we might have hoped, with the contemporary history of criminal law still invested with its share of misery and much criminal justice still left to be done in spite of the law. Ultimately, the intimate relationship between these two legal fields has drawn into sharper relief the ineluctably political nature and social functions of the criminal law.

II. Critical Constitutional Themes in Criminal Law To claim that contemporary substantive criminal law must be understood as a species of constitutional reflection is to assert a certain coincidence in the thematic preoccupations that organize thought and debate in both fields. This   George Fletcher, The Grammar of Criminal Law:  American, Comparative, and International 4 (2007), 99.   Fletcher (n. 3) 101. 3

constitutional principles   425 section identifies four central concerns of modern constitutional theory that have found forceful and focused expression in the central problematics of contemporary criminal law. Examination of these “constitutional dimensions” of criminal law reveals not only the way in which criminal law has become a labora­tory for the constitutional, but also the deeper constitutional register in which the more specific criminal law issues addressed later in this chapter work themselves out.

1.  Sovereignty and state violence Legal theory has seen a renaissance of interest in the nature and relevance of the concept of sovereignty in modern constitutional orders. Some of this scholarly attention has been generated by contemporary challenges to the nation-state form, challenges posed by a variety of phenomena, including new patterns of global migration and the emergence (or recognition) of transnational legal orders. Others have returned to the question of sovereignty in view of particular exercises of exceptional executive action taken in reaction to perceived existential threats to society. This return to the concept of sovereignty has brought renewed engagement with the work of Carl Schmitt, who put sovereignty at the heart of his constitutional theory, and that of his contemporary reinterpreters, most not­ ably Giorgio Agamben.5 Such scholarship has turned attention to the somewhat mysterious manner in which the apparently antiquated concept of sovereignty has nevertheless continued to express itself in modern liberal constitutionalism. Paul Kahn has offered among the most serious and searching engagements with these themes, exposing the anxieties and paradoxes that afflict the attempt to square the liberal culture of law’s rule with the ongoing political salience of ideas of sovereignty.6 The criminal accused is a palimpsest for state sovereignty, a layered expression of the variety of ways in which contests over and assertions of sovereignty are an abiding feature of our constitutional lives. At one very concrete level the criminal accused continues to show what Foucault claimed so powerfully, that the work of sovereign power is marked on the body.7 Sovereignty is asserted and exercised through the very physical business of criminal punishment. The monopoly on the legitimate use of violence that Weber identified as the calling card of state sovereignty is most habitually and routinely asserted in the modern 5  Carl Schmitt, Political Theology:  Four Chapters on the Concept of Sovereignty (2005); Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (1998); Giorgio Agamben, State of Exception (2005). 6  Paul W.  Kahn, Putting Liberalism in its Place (2005); Paul W.  Kahn, Political Theology:  Four Chapters on the Concept of Sovereignty (2011). 7   Michel Foucault, Discipline and Punish: The Birth of the Prison (2nd ed., 1995).

426   benjamin l. berger state through the ascription of criminal responsibility and the punishment that follows.8 For constitutional theory that insists on the violence at the foundation of legal authority, the figure of the criminal accused becomes central, as it was for Robert Cover.9 Talk about the violence of sovereign authority sheds any comfortingly metaphorical character when attention is turned to the work of the criminal law. But at another layer, the criminal accused also stands as a challenge about the source of that sovereign authority:  on whose behalf is one called to account by the criminal law? Where does one find the sovereign will that must, in constitutional theory, underwrite this coercive exercise of authority? The criminal law persistently raises this issue of who the constitutional “we” is, who the criminal law reflects, and on whose behalf it speaks. Debates about the nature of the reasonable person—so central to substantive criminal law—are one expression of this issue, as is the classic theoretical concern over morals legislation and the limits of criminal law. Yet the use of criminal law as an assertion of the political sovereignty of a certain community takes on far more concrete and literal forms as well. In Canada, the extension of Crown sovereignty over a vast territory already inhabited by Indigenous societies was carried out in substantial measure through the expanded reach of the criminal law and the performance of sovereignty through criminal trials.10 Today, Indigenous rights and title remain the fundamental challenges to state sovereignty in Canada; and, today, we still see criminal law playing a significant role in the political domination of Indigenous peoples, with soaring rates of Aboriginal incarceration, a crisis to which the Supreme Court of Canada has itself called attention.11 Finally, the boundaries of ordinary criminal law have been the chief site for the contemporary reappearance of certain forms of executive action that trouble prevailing orthodoxies about the nature of sovereign authority in a constitutional democracy. One sees this in the array of executive-empowering responses to terrorism and security concerns around the world, for which Guantánamo Bay stands as a kind of apogee.12 Again, the criminal accused takes center stage. As the wrongdoer has floated between ordinary criminal law norms and the exceptional spaces and rules created in response to extraordinary threats—as crime becomes terror and the criminal becomes the enemy combatant—he has marked the complexity and arguable instability of sovereign authority in modern constitutional life.   Max Weber, “Politics as a Vocation,” in Hans Heinrich Gerth and C. Wright Mills (eds.), From Max Weber, Essays in Sociology (2009), 77 ff. 9   Robert M. Cover, “Violence and the Word,” (1986) 95 Yale LJ 1601 ff. 10   See e.g. Hamar Foster, “The Queen’s Law is Better Than Yours: International Homicide in Early British Columbia,” in Jim Phillips, Tina Loo, and Susan Lewthwaite (eds.), Essays in the History of Canadian Criminal Law, Vol. 5: Crime and Criminal Justice (1994), 41 ff. 11  See R. v. Ipeelee [2012] 1 SCR 433. 12   See Kent Roach, The 9/11 Effect: Comparative Counter-Terrorism (2011). 8

constitutional principles   427

2.  Anthropology of the legal subject The extension of a package of constitutional rights and freedoms depends on a tacit anthropology. Constitutional rights are animated by a more or less explicit set of assumptions about what is of irreducible value in the human subject, such that it calls for legal regard and protection. So, at one level, one can cull a peculiar picture of a flourishing human life from the fundamental freedoms, claims about equality, and other duties and liberties inscribed in the central texts of a legal system. But at a deeper level, the content of these rights will be shaped by a sense of what faculties and aspects of the legal person will have relevance for legal analysis. Indeed, as certain legal theorists have provocatively explored, the contemporary rule of law asserts and relies on a particular sense of the nature and psychology of the legal person, whose fundamental attributes both entitle her to legal rights and make her a fit and appropriate subject for the exercise of legal power.13 It comes as little surprise that a liberal constitutional culture assumes a fundamentally liberal subject. With the contemporary confluence of constitutional and criminal law, an intriguing mirror has been held up to these features, turning the bases for the enjoyment of rights into the prerequisites for criminal responsibility. As these two fields of law have fused, coherence is quite naturally sought in the image of the individual who is subject to state power, whether for the purposes of protecting her from that power or making her a proper subject of its coercive exercise. The former becomes the basis for rights protection, the latter for criminal responsibility. With the constitutionalization of criminal law, that which is valued in the anthropology of the legal subject also becomes the foundation for the assignation of blame. The priority given to the faculty of choice in Canadian rights analysis provides a sharp example of this instinct to coherence in the anthropology of the criminal/ constitutional subject. Some version of a focus on the exercise of will and the faculty of choice has influenced a range of constitutional rights and protections. Choice has become central to the jurisprudence on equality—a particularly fertile soil in which to find claims about human nature—such that the presence or absence of choice is a key diagnostic for detecting discrimination.14 Freedom of religion is cast around the figure of the highly autonomous and free-choosing self, the guiding question being whether the individual retained a “meaningful choice” to practice his or her religion.15 Even rights associated with the criminal process, such as the right to silence 13   See e.g. Ngaire Naffine, Law’s Meaning of Life: Philosophy, Religion, Darwin and the Legal Person (2009). 14   See Hester Lessard, “Charter Gridlock: Equality Formalism and Marriage Fundamentalism,” in Sheila McIntyre and Sandra Rodgers (eds.), Diminishing Returns: Inequality and the Canadian Charter of Rights and Freedoms (2006), 291 ff.; Diana Majury, “Women are Themselves to Blame: Choice as a Justification for Unequal Treatment,” in Fay Faraday, Margaret Denike, and M. Kate Stephenson (eds.), Making Equality Rights Real: Securing Substantive Equality Under the Charter (2006), 209 ff. 15   Benjamin L. Berger, “Law’s Religion: Rendering Culture,” (2007) 45 Osgoode Hall LJ 277 ff.; Alberta v.  Hutterian Brethren of Wilson Colony [2009] 2 SCR 567.

428   benjamin l. berger and right to counsel, now turn on claims about individual choice.16 In each instance, the critique that has been leveled at the jurisprudence has been that this image of an autonomous, free-choosing agent is an impoverished one that ignores the influence of the social and the economic on the exercise of will. Meanwhile, choice has also been central to the constitutionalization of substantive criminal law in Canada. The freely choosing agent is entitled to certain rights and protections, but is also one who can be blamed and punished. In a mirror image of the rights jurisprudence, choice has become the lodestar for criminal liability, with the Supreme Court holding that punishment cannot take place absent “meaningful choice.”17 Resonant with the kinds of claims found in much equality jurisprudence, the Court holds that the failure to honor this principle offends the dignity of the human subject.18 The language of voluntariness has hemorrhaged throughout substantive criminal law, setting the constitutional threshold for the law of actus reus and, as I will explore later, criminal defenses. Yet as the understanding of the legal subject is mirrored in constitutional and criminal law, so too are the critiques. The conceptions of choice that arise in the confluence of constitutional and substantive criminal law also turn out to be too bare and impoverished, ill-fitted to taking meaningful account of the complex ways that choices are made real, are shaped by history, social and economic inequality, and mental health.

3.  The rule of proportionality The ascendancy of proportionality review as the defining characteristic of modern constitutionalism is well observed.19 Despite the variation in the historical trad­itions and legal cultures shaping constitutionalism in modern Western democracies, there is striking convergence on the idea that constitutional judgment is ultimately an exercise in the refined and careful deployment of proportionality review. Some have described proportionality and balancing as the very task of the constitutional judge20 and even the “ultimate rule of law.”21 The rise of proportionality as the domin­ ant logic of contemporary constitutionalism reflects a particular way of imagining the relationship of law to justice. It is a way of conceiving of the constitutional order that is intimately linked to a claim about reason as the essence of the contemporary  See R. v. Spencer [2007] 1 SCR 500; R. v. Sinclair [2011] 3 SCR 3. 18   R. v. Ruzic [2001] 1 SCR 933.   Ruzic (n. 17). 19   See e.g. Paul W. Kahn, “Comparative Constitutionalism in a New Key,” (2003) 101 Michigan LR 2677 ff.; Alec Stone Sweet and Jud Mathews, “Proportionality Balancing and Global Constitutionalism,” (2008) 47 Columbia Journal of Transnational Law 72 ff.; Benjamin L. Berger, “The Abiding Presence of Conscience: Criminal Justice Against the Law and the Modern Constitutional Imagination,” (2011) 61 University of Toronto LJ 579 ff. 20   Aharon Barak, The Judge in a Democracy (2006). 21   David M. Beatty, The Ultimate Rule of Law (2004). 16 17

constitutional principles   429 rule of law.22 As Kahn puts it, “[p]roportionality is nothing more than the contempor­ ary expression of reasonableness.”23 As criminal law debates have shifted into a constitutional idiom, the grammar of proportionality has left a strong imprint on a substantial range of criminal law issues. Indeed, this aspect of modern constitutionalism is well adapted to an encounter with criminal justice. The constitutional logic of proportionality appeals to something genetic in criminal law theory, the influential idea of proportionality as the philosophical lodestar for just punishment, a principle emblematically articulated by Cesare Beccaria in his volume On Crimes and Punishment.24 Furthermore, the principle of proportionality has long been central to the law of criminal defenses, playing a patent role in the law of self-defense, wherein the core criterion in justifying otherwise criminal violence is the measure of proportionality. Indeed, one might be moved to say that the notion of proportionality as the governing ethic for legitimate violence has generalized to become the foundational constitutional ethic for all rights-affecting government activity. Perhaps, then, the lines of influence should be reversed, with contemporary constitutional law having come around to the logic of criminal punishment. Whatever the best version of the history of the migration of legal ideas, proportionality analysis has found fertile soil in constitutional reflection on criminal law issues. Again, the Canadian experience, in which the rule of proportionality is the heart of constitutional analysis and pervasive in the criminal law, is merely illustrative of broader trends. Given what I have discussed, perhaps the least surprising appearance of the rule of proportionality in the criminal law is in constitutional principles governing criminal punishment. What was, in Beccaria’s hands, criminal justice theory, and later a banner under which criminal justice reformers marched, has now become a constitutional standard. As I will discuss later, the constitutional law governing cruel and unusual punishment has worked itself out using concepts of gross disproportionality. But the rule of proportionality has had another, even more fundamental, influence on substantive criminal law. In a world in which limits on rights are assessed through an “all things considered” balancing of means and ends, the whole of the criminal law, with its intrinsic limitation of basic liberties, becomes subject to that logic. And so as rights become the language in which the legitimacy of criminal law is questioned—be it in terms of constraints on expression, association, privacy, or just general claims to liberty—and courts become the forum in which reform is sought, the very question of the justified limits of substantive criminal law reduces to a question of constitutional proportionality. In Canada, this overarching logic of constitutional analysis even touches upon mens rea requirements, with proportionality between   See Berger, (2011) 61 University of Toronto LJ 579.   Kahn, (2003) 101 Michigan LR 2677, 2698. 24   Cesare Beccaria, Of Crimes and Punishments (1996). 22 23

430   benjamin l. berger the degree of moral fault and the gravity of the crime/seriousness of the penalty becoming a principle of fundamental justice and the constitutional measuring stick for acceptable levels of fault.

4.  Judgment, discretion, and mercy The commodious standard of proportionality seems to offer itself to all legal decisions. This extension of the rule of proportionality is part of an aspiration to see all legal judgment, all justice, bound by a legal rule. This is a cherished hope in the project of modern constitutionalism. It is one expression of the rule of law, the constitutional ambition to have a government of standards and law, not discretion and power. The saturation of criminal law with concepts of proportionality is, thus, expressive of this larger pattern and set of constitutional hopes. The criminal law is a text into which this ambition has been written. But the criminal law also challenges the adequacy of this powerful modern constitutional imagination. It has persistently raised instances in which the circles of justice and law have not been coextensive, in which the tools of liberal legal rule have seemed inadequate to the task of doing justice in response to crime and victimization. In these instances, criminal law has reminded constitutional theory of the irrepressible role of discretion, of conscientious judgment, and of mercy in the constitutional order—that there remains passion and compassion in the fabric of constitutionalism. Such passion and feeling in claims of justice has nefarious expressions, of course. The uses of and exceptions from ordinary criminal justice to respond to terror post-9/11 are one such instance. The criminalization of migration around the world stands as another example25 and, of course, the criminal law has been a tool for the expression of homophobia and racism. Such cases have forced constitutional law to reckon with its capacity to respond to fear, ignorance, and the associated excesses of executive and legislative authority.26 Yet the criminal justice system has also consistently reminded constitutional law of the unruly but ineradicable place of mercy and equity as a part of our constitutional lives.27 The criminal law, invested so thoroughly as it is with human sorrow and tragedy, has insisted that judgment in a just constitutional order cannot be exhausted by tests (or, in Alexy’s hands, formulae)28 of proportionality. Judgment cannot be satisfied by reason alone, but will instead draw on faculties of compassion 25   Juliet Stumpf, “The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power,” (2006) 56 American University LR 367 ff. 26   See e.g. Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Air Transport Security Case, BVerfG, 1 BvR 357/05 vom 15.2.2006, Absatz-Nr. (1-154). 27   I develop these themes at length in Berger, (2011) 61 University of Toronto LJ 579. 28   Robert Alexy, A Theory of Constitutional Rights (transl. Julian Rivers, 2002).

constitutional principles   431 and mercy (in addition to fear and contempt). And so, when Robert Latimer faced a jury of his peers, charged with the murder of his severely disabled and ill daughter who had only a life of pain ahead of her, that jury sought to ignore the law, calling for a parole ineligibility period of only one year, when the law demanded ten. Although the Supreme Court of Canada refused to give force to the jury’s recommendation, insisting on the ten-year minimum, the case ignited debates about criminal and constitutional justice despite the law.29 As a conservative-populist crime agenda has taken hold in Canada and minimum sentences, along with other “tough on crime” policies, have proliferated, issues of constitutional exemptions, the need for discretion, and the virtue of a system with room for mercy have taken on renewed salience. Equity and mercy have also continued to imprint on fundamental doctrines of criminal responsibility, often enlisting constitutional norms to find exceptions to traditional principles. Extraordinary cases, calling for compassion and concession to the harsh realities of human experience, have stretched and challenged the law of criminal defenses, which has always been a repository for principles that acknow­ ledge the affective realities that law’s reason must accommodate. All of this reflects yet another way in which fundamental issues of legal and polit­ ical theory have worked themselves out at the confluence of criminal and constitutional law. With devices like jury nullification, the extraordinary justice of pardons, the day-to-day exercises of discretion on which the system depends, and its endless supply of truly hard cases, the criminal law has played an important role in insisting on the place of discretion and mercy in our constitutional lives. At the same time, constitutional law has offered itself as a modern language of principle in which judges can speak when justice must be done outside the received shape of criminal law.

III. The Constitutionalization of Substantive Criminal Law One theme of this chapter is the way in which the criminal law has been a stage for the dramatic display of key issues in contemporary constitutionalism. Those interested in understanding the core problematics of contemporary constitutionalism must have regard to the dynamics and dilemmas found in substantive criminal law. The selection of themes canvassed in the first half of this chapter offer a starting point for further research into these deeper structural relationships between constitutional and criminal law.   R. v. Latimer [2001] 1 SCR 3.

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432   benjamin l. berger Yet there is another dynamic involved in the confluence of these two areas of law, one that has arguably had more concrete and immediate effects. The constitutionalization of criminal law has also meant the migration of traditional substantive criminal law debates into new constitutional registers. What were once matters of substantive criminal law policy would now be debated as issues of fundamental freedoms, rights to equality and liberty, and the scope of permis­ sible state interference in such rights and freedoms. Constitutional law would give a doctrinal foothold for traditional philosophical debates in substantive criminal law, old saws and hobbyhorses of criminal law theory now taking on new juridical salience. In Canada, this translation of substantive criminal law into a constitutional idiom was accompanied by hopes for the advancement and liberalization of criminal law doctrine, as well as the insulation of issues of crime and punishment from populist expressions of politics. Yet both ambitions have been unevenly realized, disappointing some and teaching all something about the limits of the transformative potential—and perhaps even certain dangers—of rights constitutionalism. It would be wrong to conclude that, in the Canadian case at least, no progress was made with the application of constitutional concepts in the criminal law; certain constitutional protections have made criminal law more temperate and humane. It would be very wrong, however, to be too sanguine about the achievements of constitutional criminal law: the experience has just as often been one of constitutional rights deflecting legal debate from aspirational principles to mere minimum standards. Each of the following examples tells part of this complex story of the constitutionalization of substantive criminal law, while also giving concrete expression to the broader themes discussed previously.

1.  The limits of the criminal law The issue of the substantive limits of criminal law has long been grist for the criminal law theory mill. Explored most famously in the Hart–Devlin debate,30 this foundational policy issue within substantive criminal law has asked whether there are principled boundaries on the kinds of activity that can be regulated by criminal law, and what kinds of social concerns are appropriate subjects for this most coercive form of state regulation. Can the criminal law legitimately be used to pursue moral aims, encoding in the law the views and sentiments of the dominant community, as Devlin argued it could? Or, as Hart argued, echoing Mill’s classic assertion of a “harm principle” limiting the permissible scope of legislation, must the criminal law be underwritten by some claim that it is preventing a more or less tangible harm to others?   Patrick Devlin, The Enforcement of Morals (1965); H. L. A. Hart, “Immorality and Treason,” in Richard A. Wasserstrom (ed.), Morality and the Law (1971), 49 ff. 30

constitutional principles   433 What was a matter of legal theory and criminal law policy has, with the constitutionalization of criminal law, become a question of legality. In this, the reframing of this issue in the language of rights and its transformation into a justiciable issue serves as an interesting instance of the legalization of politics in liberal constitutional orders. Comaroff and Comaroff argue that the contemporary appeal to legal instruments and procedures to address matters once remitted to democratic polit­ ics is a neoliberal response to the challenges of deep ethical difference.31 The apparent neutrality of legal language offers an appealing respite from the political, and the movement of morally charged policy debates about the uses of criminal law into the courtroom is an outstanding case in point. Constitutionalization has given the judiciary a new role in defining the substantive limits of criminal law and some of the most contentious moral and ethical issues in Western democracies—abortion, hate speech, and the rights of sexual minorities, to name just a few—have thereby transferred from the domain of representative politics to the courts. Doctrinally, these issues appear in a variety of ways within different constitutional traditions. In the United States a number of questions concerning the constitutional limits of criminal law have arisen through the protection of privacy in the substantive due process clause,32 with others taking the form of First Amendment protections on expression.33 In other constitutional systems, similar issues have been framed differently.34 Whatever the vernacular, the structure is the same: the threat of punishment makes criminal law a radical restraint on liberty and rights claims become the means of testing the boundaries of criminalization. Canada has produced a rich constitutional jurisprudence on the limits of crim­ inal law, with cases touching on matters such as prostitution, polygamy, drug policy, assisted suicide, and hate speech. I wish to focus on two themes or patterns that arise from this case law that will have resonance in other constitutional and crim­ inal systems: the role played by the concept of “harm” and the salience and impact of equality norms. The pivotal role played by the concept of harm in the history of debates about the limits of criminal law has persisted with the constitutionalization of the issue. The most direct appearance of the regulative idea of harm in the field of constitutional criminal law is the question of whether the harm principle is, itself, a constitutional principle limiting the scope of criminal legislation. In Canada this issue arose in relation to drug policy with the R. v. Malmo-Levine case.35 The accused, charged with possession of a small amount of marijuana, argued that the prohibition on simple possession of the drug was unconstitutional because the conduct posed no   Jean Comaroff and John L. Comaroff, Theory from the South: Or, How Euro-America is Evolving 32 toward Africa (2012), 145.   Lawrence v. Texas, 539 U.S. 558 (2003). 33   R.A.V. v. St. Paul, 505 U.S. 377 (1991); Wisconsin v. Mitchell, 508 U.S. 476 (1993). 34   See e.g. Holocaust Denial Case, 90 BVerfGE 241 (1994); Jersild v. Denmark (1994) 19 EHRR 1. 35   R. v. Malmo-Levine; R. v. Caine, 2003 SCC 74. 31

434   benjamin l. berger risk of harm to others. Malmo-Levine argued that Mill’s harm principle was, in the language of section 7 of the Canadian Charter, a “principle of fundamental justice” such that any criminal legislation was unconstitutional if the criminalized conduct did not cause tangible harm to others. Assisted by the trial judge’s findings of fact, which suggested that moderate use of marijuana did not cause serious harm to others, the case made its way to the Supreme Court of Canada. The Court held that, though it might be good criminal law policy, the harm principle was not a principle of fundamental justice for the purposes of the Charter. Though it has been rejected as an independent constitutional limit on the crim­ inal law, the harm principle nevertheless remains central to constitutional judgments about the boundaries of criminal legislation. The centrality of proportionality to the analysis of rights claims gives harm pride of place in the justification of limits on fundamental freedoms. Given the cultural appeal and purchase of arguments about harm, laws that limit expressive freedoms (like hate-speech crimes or the criminalization of obscenity) or religious freedoms (like polygamy prohibitions) will frequently be justified by reference to the harms caused by the conduct in question. In the means-ends rationality of modern constitutionalism, judgments about harm will be central to defending the use of criminal law as a well tailored and proportionate (and, therefore, constitutionally acceptable) limit on liberty. Of course, the normative dependence of these judgments—what counts as a harm and how seriously a given harm is treated—is another betrayal of the neutrality offered by the legalization of politics.36 The other notable aspect of the constitutionalization of questions around the limits of criminal law is the opportunity that this has given for the increased influence of equality norms on the shape and functions of substantive criminal law. As the question of the substantive boundaries of criminal law becomes a constitutional matter, it comes into direct contact with equality norms that, although despairingly marginal in the historical development of criminal law, have such a central role in modern constitutional cultures. The imprint of constitutional equality norms on questions of the legitimate ambit of criminal legislation can be seen in a number of areas. First, equality rights and commitments have inflected the debates about harm canvassed earlier. Viewed through the lens of equality, certain harms come into focus that might not have been previously visible to the law, and other harms simply loom larger in the balancing used to justify limits on liberty. Thus, in cases that have challenged the constitutionality of criminal limits on obscenity,37 the Supreme Court of Canada has recognized “communicative harms,” particularly negative messaging about women apt to exacerbate gender subordination, as crucial to the justification for such crimes. Similarly, a decision upholding the constitutionality of 36   Bernard Harcourt has called this the “collapse of the harm principle”: Bernard E. Harcourt, “The Collapse of the Harm Principle,” (1999) 90 Journal of Crim. Law & Criminology 109 ff. 37   R. v. Butler [1992] 1 SCR 452.

constitutional principles   435 the crime of polygamy leaned heavily on the practice’s potentially harmful effects on women.38 Equality, arguably the basal norm of modern rights constitutionalism, conditions the analysis of harm. But equality rights and values have had an even more direct role in setting substantive limits to criminal law. Equality reasoning has increasingly served as the principal constitutional basis for the invalidation of certain crimes. Though often framed in terms of privacy or autonomy rights, the decriminalization of abortion is irreducibly about gender equality and anti-subordination.39 Lawrence v. Texas,40 again cast as a privacy case due to the particularities of the U.S. constitutional provisions, was the American instantiation of a set of constitutional victories for the equality of sexual minorities that has taken place through debates about the limits of criminal legislation.41 In Canada, challenges to the criminalization of prostitution have relied on the link between sexual violence and gender equality42 and the principal rationale for the invalidation of the criminal bar on assisted suicide in Canada was the discriminatory effect that such a crime had on the severely disabled.43 Thus, in a variety of ways, the transfer of philosophical debates about the limits of crim­ inal law into a constitutional idiom has seen a greater role for equality in giving substantive shape to the criminal law.

2.  The constitutionalization of fault The greatest potential for the impact of constitutional principles on the structure and operation of substantive criminal law lies in their application to the law of mens rea. Principles of mental fault encode basic positions about fairness and fundamental justice in the attribution of blame, and have something to say about every matter brought to the criminal law. In this respect, this aspect of substantive criminal law seems uniquely well fitted to interact with constitutional norms and principles, setting limits on criminal law in a far more quotidian way than is found in time-totime constitutional challenges to various offenses. And, indeed, this was the area of criminal law doctrine that attracted the most excited hopes and ambitions in Canada with the introduction of the Charter of Rights and Freedoms. To that point there had been a slow common law evolution regarding principles of criminal fault. Faced with a Criminal Code that was rarely explicit about mens rea requirements, judges had articulated interpretive principles regarding

  Reference re: Section 293 of the Criminal Code of Canada, 2011 BCSC 1588. 40  See R. v. Morgentaler [1988] 1 SCR 30; Roe v. Wade, 410 U.S. 113 (1973).   See n. 32. 41   See also Naz Foundation v. Govt. of NCT of Delhi, 160 Delhi Law Times 277 (2009). 42   Canada (Attorney General) v. Bedford [2013] 3 S.C.R. 1101. 43   Carter v. Canada (Attorney General), 2012 BCSC 886, reversed in 2013 BCCA 435, on appeal to the Supreme Court of Canada. 38

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436   benjamin l. berger fault and had established common law presumptions. But in a context of true parliamentary sovereignty in matters of criminal justice, these remained just principles and presumptions. Would constitutionalization transform interpretive principles into constitutional imperatives, offering greater protection for the fair treatment of the accused—and restraint in the use of the penal law as a tool of governance—than was previously possible? The Canadian story provides an evocative point for reflection on—and perhaps some lessons about—the nature of the constitutionalization of fault.44 This story began dramatically with the Supreme Court of Canada’s decision in Re B.C. Motor Vehicle Act.45 Over the course of the twentieth century, with the rise of the regulatory state, the law of mens rea as it governed public welfare offenses had undergone substantial change. Although there had been a traditional presumption that mens rea was required for true crimes, the long-standing position was that absolute liability—the absence of any fault requirement—would be acceptable for public welfare or “regulatory” offenses.46 By the late 1970s, however, the courts had become dissatisfied with imposing liability for offenses—even regulatory offenses— without any fault requirement whatsoever. In R. v. Sault Ste Marie,47 the Supreme Court of Canada created a “halfway house” between the fault presumptions for true crime and a complete absence of a mens rea requirement. The Court articulated a common law presumption for strict liability in regulatory or public welfare offenses. That is, unless the statutory language prohibited such an interpretation, the courts would presume that an accused could not be convicted of a regulatory offense if he could show that he had exercised due diligence. In effect, carelessness was the new common law standard for fault in regulatory offenses. B.C. Motor Vehicles, decided in 1985, was such a significant case because, as the Supreme Court’s first foray into the interaction of constitutional rights and substantive criminal law, it held that this presumption would now be a constitutional requirement. Aided by some inventive work in the interpretation of section 7 of the Charter, the Court held that the principles of fundamental justice meant that “a law that has the potential to convict a person who had not really done anything wrong”48—viz., absolute liability—was unconstitutional if punishment could result in the deprivation of liberty. This decision had two important effects. First, an important constitutional minimum was thereby set in Canadian criminal law: one could not combine imprisonment with absolute liability. Secondly, and of more general interest, the case reflected one possible mode of interaction between constitutional principles and the criminal law: the constitutional entrenchment of common law notions of fairness. 44   Certain examples of the constitutionalization of elements of fault can be found in other jurisdictions. See e.g. the German case of BVerfG, 2 BvR 794/95 (2002), and the Judgment of the Italian Constitutional Court, Mar. 23–24, 1988, 31 Revista Italiana Di Diritto e Procedura Penale 686 (1988), 45 dealing with status offenses and mistake of law, respectively.   [1985] 2 SCR 486. 46 47   R. v. Pierce Fisheries [1971] SCR 5.   [1978] 2 SCR 1299. 48   B.C. Motor Vehicles (n. 45) 492.

constitutional principles   437 Canada had also been working out a great divide that mirrored a central theme in criminal law theory, the contest between subjective and objective theories of fault. While certain scholars of criminal law advocated for the greater use—or at least acceptability—of objective forms of fault,49 the trend in Canadian common law had been toward subjectivity in criminal fault. By 1978, the Court had held that, absent language to the contrary, the strong presumption would be that any true crime, as distinct from regulatory offenses, would require subjective mens rea. Would this presumption also be constitutionalized? The answer was interestingly ambivalent. On the one hand, the Supreme Court took the important step of invalidating Canada’s constructive murder provisions on the ground that such a serious crime— what the Court labeled a “stigma offence”—demanded full subjective mens rea.50 The fact that the constructive murder provision allowed for conviction without subjective foresight of death made it constitutionally infirm. The conceptual basis upon which the Court made this decision is also notable—it employed a proportionality principle. The Court reasoned that the principles of fundamental justice required proportionality between the moral blameworthiness of the offender and the stigma and penalty associated with the crime. In the case of murder, this proportionality principle mandated subjective foresight of death. Yet, on the other hand, the Court swiftly contained the reach of this demand for subjective mens rea when met with the many forms of objective fault found in the criminal law, including reasonable foresight requirements, requirements for reasonable steps, and reasonable person standards. Only a very few offenses would be labeled “stigma offenses” and for the rest—the vast preponderance of true crimes (including manslaughter51)—objective mens rea would suffice. Proportionality between moral blame and stigma/penalty would also mean that a minimum degree of carelessness would be required for true crimes,52 but the principle had no real purchase in the meaty middle that, in fact, represented most crimes. In effect, through constitutional analysis, the Court gave its blessing to a large margin of policy discretion for Parliament in the arena of criminal fault. When combined with a very low standard for causation, which has also received constitutional approval, the result is a substantive criminal law that casts the net of liability very broadly indeed.53 As Kent Roach notes, a gap has opened up between the wisdom reflected in the common law of fault and the governing constitutional principles.54 Crucially, in constitutional matters, such a gap is really a warrant, comforting a legislature that the only standard   George P. Fletcher, Rethinking Criminal Law (1978).   R. v. Vaillancourt [1987] 2 SCR 636; R. v. Martineau [1990] 2 SCR 633. 51   R. v. Creighton [1993] 3 SCR 3. 52   See, most recently, R. v. Roy [2012] 2 SCR 60. 53   Gerry Ferguson, “Causation and the Mens Rea for Manslaughter: A Lethal Combination,” (2013) 99 Criminal Reports 351 ff. 54   Kent Roach, “Mind the Gap: Canada’s Different Criminal and Constitutional Standards of Fault,” (2011) 61 University of Toronto LJ 545 ff. 49 50

438   benjamin l. berger with which it need concern itself is the bare constitutional threshold. With this, we see another form of the interaction between constitutional principles and substantive criminal law: the translation of aspirational standards into mere minimums, with the consequent shift of attention from what is wise to what is permitted. This unfolding also troubles the conceit that constitutionalism will naturally insulate criminal law from the populism and politics that frequently typify debates about crime. No area of substantive law has a greater potential impact on the day-today efficacy of a crime-control agenda than does the law of fault. Yet in Canada, despite the setting of important constitutional thresholds at the very high and very low ends of the ladder of crime, the law of mens rea has been largely undisturbed by constitutional analysis. In this respect, constitutional law has served, rather than resisted, the radical expansion of crime-control agendas. From time to time a crime is challenged as unconstitutional, and the result is both interesting and important. As we will see in the next section, constitutional law has had things of philosoph­ ical and even media interest to say about the (often extraordinary) law of criminal defenses. But the story of the constitutionalization of fault in Canada is a reminder of the relative marginality of these intriguing cases from the everyday realities of governance through criminal law.

3.  Constitutional principles and criminal defenses One can find an elaborate picture of the social and internal lives of individuals in the law of criminal defenses. Criminal defenses stake out perspectives on how emotion works on individual will, as evident in defenses like provocation.55 The law of necessity and duress trades on assumptions about the limits of human endurance and fortitude. Defenses depend on conceptions of the sources and nature of vulnerability, both mental and physical. This area of law not only makes descriptive claims about these many aspects of human experience, it judges their significance to personal responsibility and, in so doing, shapes attitudes about appropriate responses to the extremities of life. Criminal defenses thus say a great deal about judgment, mercy, and exceptions in the legal order, lending this area to constitutional reflection. Constitutional principles have appeared in the law of criminal defenses in a couple of distinctive ways. On the one hand, constitutional principles have been generated inductively from the structure of classic criminal law doctrine, resulting in guiding standards against which to evaluate criminal defenses. On the other, a “soft” form of constitutional rule has seen the tacit norms of the constitutional order— what the Supreme Court of Canada has called “Charter values”—used to direct the   See generally Benjamin L. Berger, “Emotions and the Veil of Voluntarism: The Loss of Judgment in Canadian Criminal Law,” (2006) 51 McGill LJ 99 ff. 55

constitutional principles   439 development of the common law of criminal defenses. Both of these influences of constitutional principles have transformed aspects of the criminal justice system, largely in the direction of greater compassion, making the criminal law more sensitive and responsive to a broader range of human experiences. Yet the abiding gaps in criminal defenses, those areas of suffering and marginalization compounded rather than alleviated by the criminal law and about which constitutional law seems to have little to say, gesture to the structural limits of constitutional justice. The organizing constitutional idea in the law of criminal defenses in Canada has become the concept of “moral involuntariness.” Originally introduced in a celebrated necessity case,56 the phrase lay largely dormant in the criminal law until 2001 and the case of R. v. Ruzic.57 Ruzic was the crescendo in a long development in the interpretation of the defense of duress in Canada, which had both a broad common law test and a significantly narrowed statutory expression. Prior to the Charter, the Court was limited to interpretive techniques in softening the harshness of these statutory restrictions. Ruzic provided the opportunity for a constitutional coup de grâce, in the full resonances of that phrase. The accused, living in Serbia, had been threatened with harm to herself and her mother if she refused to smuggle drugs into Canada. She was apprehended on arrival in Canada, charged with importing narcotics, and pled duress. The Criminal Code required that the threat that impelled the accused to commit the crime be imminent and that the threatener be present when the crime was committed. Ruzic could not fit herself within these requirements, yet the facts of the case cried out for relief. The Supreme Court of Canada held that these requirements were unconstitutional because the statute allowed for the conviction of the “morally involuntary.” The Court generated this novel “principle of fundamental justice” by canvassing the internal structure and assumptions of the criminal law itself. Crucially, the Court reasoned from the requirement for physical voluntariness noting that it reflected the informing principle that a person should only be punished for genuine expressions of their will. Indeed, the concept of “involuntariness” had already spread throughout the law of criminal defenses, serving also as the basis for the defenses of extreme intoxication58 and automatism.59 The Court held that the ubiquity of this principle reflected the criminal law’s concern for the autonomy of the human subject and its implicit commitment to respond to the individual’s capacity for meaningful choice. Translated into constitutional terms, the principle of moral involuntariness would mean that any law that would permit the conviction and punishment of the morally involuntary would be unconstitutional. With this, the Court articulated a new meta-standard for the constitutional scrutiny of criminal defenses and arguably installed the concept as the touchstone for criminal blame. This new principle clearly bears the imprint of criminal law doctrine, inductively created as it was from 57   Perka v. The Queen [1984] 2 SCR 232.   R. v. Ruzic [2001] 1 SCR 687. 59   R. v. Daviault [1994] 3 SCR 63.   R. v. Stone [1999] 2 SCR 290.

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440   benjamin l. berger other principles of criminal responsibility. Yet most interesting for present purposes is that, whether intended or not, this new principle brings criminal law into harmony with an important theme in liberal constitutionalism discussed earlier in this chapter: the analytic priority of “choice.” The creation of this moral involuntariness standard in criminal law thus reflects an inclination towards coherence between criminal and constitutional logics. Yet some of the most profound impacts of constitutional law in the realm of crim­ inal defenses have come through more subtle means. One important such influence has been the increased salience and force of equality norms—and, in particular, principles of gender equality—in the development of the common law governing criminal defenses. The most celebrated example in Canada involved the reinterpretation of the law of self-defense to respond to the realities of spousal violence. The case was R. v. Lavallée60 and although Justice Bertha Wilson nowhere explicitly applied the equality protections of the Charter, the dominant note in the decision is the need to ensure that women receive the equal benefit and protection of the criminal law. Permitting the introduction of evidence of “battered spouse syndrome” and ridding the interpretation of self-defense of any strict demand for imminence of apprehended harm, the heart of Justice Wilson’s decision was the demand that the ubiquitous concept of the “reasonable person,” upon which so much criminal law depends, must be sufficiently large to take account of the lived realities of battered women. A similar imprint of constitutional norms of equality on the common law construction of reasonableness can be found in the case of the internationally beleaguered defense of provocation. In Canada, the Supreme Court has held that as long as the defense continues to exist, the ordinary person—central to the defense—should not be informed by beliefs that are inconsistent with “contemporary norms of behaviour, including fundamental values such as the commitment to equality provided for in the Canadian Charter of Rights and Freedoms.”61 Hence, it would be improper to ascribe homophobic or gender unequal beliefs to the reasonable person when evaluating the defense of provocation. The substantive law of criminal defenses has thus offered occasion for the expression of commitment to constitutional principles while being the site for significant advances and innovations in the doctrine. Indeed, I have left untouched one of the most dramatic transformations of substantive Canadian criminal law in view of constitutional principles:  the invalidation of Parliament’s scheme for addressing the defense of insanity on the grounds that operation of the scheme was fundamentally unfair to mentally disordered accused and treated them on the basis of stereotypical views of dangerousness and mental illness.62 The new scheme that resulted modernized the law of mental disorder in Canada.63 Yet, as much as it shows the progressive   [1990] 1 SCR 852. 62   R. v. Tran [2010] 3 SCR 350, para. 34.   R. v. Swain [1991] 1 SCR 933. 63   Winko v. British Columbia [1999] 2 SCR 625. 60 61

constitutional principles   441 potential of constitutional principles at play in the law of criminal defenses, the example of mental disorder also issues an important reminder about the capacity of criminal law to occlude some forms of injustice while addressing others. The narrowness of the legal definition of mental disorder means that, however constitutionally enlightened the legal procedures, a substantial criminalization of the mentally ill continues to take place.64 Self-congratulation is precluded by the reality that the vicious results of gendered violence have already been suffered by the time modernized iterations of self-defense and provocation are applied in the courts. And poverty continues to be the chief ingredient in crime and punishment alike. On these points, constitutional principles have had precious little to offer.

4.  Constitutional standards for punishment Punishment is one of the most rawly exposed exercises of state sovereignty that remains in contemporary legal systems. In this, a great constitutional theme is worked out through the daily business of sentencing courts. That the law of sentencing and punishment has been comparatively undisturbed by overt constitutional analysis belies the intrinsically constitutional aspect of this dimension of criminal law. But in addition to its essential expression of the sovereignty that underwrites the criminal law, this area has also been a site at which the prevailing constitutional logic of proportionality has marked its insistent advance.65 These are odd bedfellows: the antique drama of sovereignty and the modern juridical science of proportionality. Perhaps this is the reason that the area has thus far proven so resistant to robust constitutionalization, the exposed reality of sovereign force being ultimately indigestible by liberal constitutional thought. There are really two questions that arise when one considers the relevance of constitutional law to the practices of criminal punishment: namely, the constitutional principles governing the forms of punishment, and those that structure and constrain the manner of sentencing. With respect to the former, the crucial issue across criminal justice systems has been the constitutionality of capital punishment. In Canada, constitutional debates on this issue have drawn out the themes of sovereignty and proportionality in unique ways. Given that capital punishment is not available in Canada, constitutional reflection on the death penalty has arisen in the context of extradition 64   See Benjamin L.  Berger, “Mental Disorder and the Instability of Blame in Criminal Law,” in François Tanguay-Renaud and James Stribopoulos (eds.), Rethinking Criminal Law Theory:  New Canadian Perspectives in the Philosophy of Domestic, Transnational, and International Criminal Law (2012), 117 ff. 65  In R.  v.  Ipeelee [2012] 1 SCR 433, para. 36, the Supreme Court of Canada stated that “proportionality in sentencing could aptly be described as a principle of fundamental justice under s. 7 of the Charter.”

442   benjamin l. berger to face the death penalty in another jurisdiction, a framing of the matter that brings the sovereign dimension of criminal punishment into high relief. Moreover, courts have interpreted the governing constitutional standard shared by a number of constitutional systems—a prohibition on cruel and unusual treatment or punishment—as amounting to a question of whether the impugned sentence is grossly disproportionate, such that it would “outrage standards of decency.”66 Armed with that standard, in 1991 the Supreme Court initially found that extradition to face the death penalty did not offend the constitution,67 but reversed course just ten years later. In 2001, in view of the principles of Canadian criminal justice, the convergence of international consensus, and the domestic and international experience of wrongful convictions, the Court held that it was unconstitutional to extradite without assurances that the death penalty would not be sought.68 The decision effectively rendered the death penalty unconstitutional. Short of the extreme mark of capital punishment, however, constitutional law has thus far had little to say about the forms and real experiences of criminal punishment. Imprisonment is marked by violence, degradation, and needless fatalities. Prison conditions are often determined by low-level discretionary decisions that are insusceptible to meaningful review. Perhaps state acquiescence to foreseeable suffering will emerge as a constitutionally sufficient wrong; until then, the focus on formal state action in matters of criminal punishment has left constitutional law remarkably (perhaps blissfully) naïve to and disconnected from the realities of punishment. When it comes to the methods of sentencing, rather than the forms of punishment, the challenge has come from mandatory minimum sentences and other forms of structured sentencing. Minimum sentences make immodest legal claims. They purport to define the threshold of just and appropriate punishment for each and every circumstance; they deny the possibility of the exceptional case. In so doing, they preclude the exercise of discretion and mercy, while frustrating the governing sentencing principle of proportionality. Exceptional cases invariably arise in the criminal law, a truth to which the case law attests and that the law of affirmative defenses in part acknowledges. The constitutional question is what to do about the injustices that are, thus, the inevitable spinoff of minimum sentences. This question has become particularly pressing in Canada where the current government favors the proliferation of minimum sentences as a means of advancing a “tough on crime” agenda. Although Canadian courts experimented with using constitutional law as a kind of safety valve, offering relief in the extraordinary case,69 the ultimate position has been to reassert the primacy of the   R. v. Ferguson [2008] 1 SCR 96, para. 14.   Kindler v. Canada (Minister of Justice) [1991] 2 SCR 779. 68   United States v. Burns [2001] 1 SCR 283. 69  See R. v. Latimer [2001] 1 SCR 3. 66 67

constitutional principles   443 principle of proportionality, invalidating in its entirety any minimum sentence that runs afoul of the “gross disproportionality” standard on the facts of a given case, or even a reasonable hypothetical.70 Of course, a great deal of unfairness can take place short of gross disproportionality: the “merely excessive” sentence is nevertheless an instance of the unnecessary state infliction of pain on the individual. And with this, the problem of mandatory minimum sentences in the field of sentencing law teases out a theme of crucial constitutional significance: that discretion and mercy seem to be ineradicable components of a fundamentally just criminal law.

iv.  Conclusion: The Constitutional Lessons of Criminal Law This chapter has pointed to the many ways in which criminal law has assumed a central position in the expression of constitutional principles and themes, and in which criminal law has been transformed by—or has remained stable in spite of—the influence of contemporary constitutionalism. Yet criminal law remains something of an embarrassing underbelly of the legal system, to be grudgingly acknowledged by constitutional theory, avoided if possible. Theories are spun with little sustained regard to the organizing principles and problematics in this crucible of constitutional justice. Even the philosophy of criminal law—concerned though it is with issues of blame, responsibility, and punishment—is too often a swing from one treetop to another, with little attention to the roots of criminal law, which are found in the lived and messy realities of suffering, victimization, and punishment. And so despite the rich interactions between criminal and constitutional law that this chapter has canvassed, despite the claims made for the centrality of criminal law to constitutional reflection, perhaps we are not as far from Milsom’s view of the criminal law’s place in the system of justice as we ought to be. It is the unseemly, exceptional, and legally unruly nature of criminal justice that should, in fact, attract our constitutional regard, just as it should have drawn Milsom’s interest. Refocused attention on the constitutional dimensions of crim­ inal law will enrich the study of both. As I have argued, criminal law is, in fact, a microcosm for the constitutional, a distilled expression of the concerns at the heart of constitutional reflection. Reginald Allen offered a compendious statement of the themes of this chapter when he described the constitutional aspect of criminal law thus: “It is in the criminal process that the law and government most narrowly 70

  R. v. Ferguson [2008] 1 SCR 96.

444   benjamin l. berger touch, beneficently and also dangerously, the lives of the governed. And it is here that instinct and passion beat hardest on rationality and restraint.”71 Criminal law is among the first arenas in which we see deeper constitutional commitments; it also reveals and tests the limits of the social justice that these commitments imagine. The poverty, illness, and social dislocation that continue to drive the criminal law point to the economic and social structures that are left largely undisturbed by constitutional law. The force of state power, the salience of sovereignty, and the need for conscience all so evident in the criminal law are a forceful reminder of the abiding role of less rational forms of the political in our constitutional lives.

References Berger, Benjamin L., “The Abiding Presence of Conscience: Criminal Justice against the Law and the Modern Constitutional Imagination,” (2011) 61 University of Toronto LJ 579 Dubber, Markus D., The Sense of Justice: Empathy in Law and Punishment (2006) Duff, R. A. et al. (eds.), The Constitution of Criminal Law (2013) Fletcher, George P., Rethinking Criminal Law (1978) Fletcher, George P., The Grammar of Criminal Law: American, Comparative, and International (2007) Garland, David, Punishment and Modern Society: A Study in Social Theory (1991) Harcourt, Bernard E., “The Collapse of the Harm Principle,” (1999) 90 Journal of Crim. Law & Criminology 109 Lacey, Nicola, State Punishment: Political Principles and Community Values (1994) Lacey, Nicola, Unspeakable Subjects: Feminist Essays in Legal and Social Theory (1998) Roach, Kent, The 9/11 Effect: Comparative Counter-Terrorism (2011) Tadros, Victor, The Ends of Harm: The Moral Foundations of Criminal Law (2011) Thorburn, Malcolm, “Constitutionalism and the Limits of Criminal Law,” in R. A. Duff et al. (eds.), The Structures of Criminal Law (2011), 85–105 Zedner, Lucia and Roberts, Julian V., Principles and Values in Criminal Law and Criminal Justice: Essays in Honour of Andrew Ashworth (2012)

  Reginald Allen, “The Trial of Socrates: A Study in the Morality of the Criminal Process,” in Martin L. Friedland (ed.), Courts and Trials: A Multidisciplinary Approach (1975), 4 ff. 71

SECTION B

SUBSTANTIVE CRIMINAL LAW: GENERAL PART

­c hapter 20

ACTS AND ACTUS REUS vincent chiao*

i.  Introduction to Actus Reus It is common ground among criminal lawyers in common law jurisdictions that the concept of actus reus refers to a basic and essential component of criminal liability. There are two points at which actus reus plays a central role: first, as a necessary component of any valid crime definition; and, secondly, as one or more propositions that must be proven, usually by the prosecution, before an accused may be convicted. Beyond these general points, the content and role of actus reus has been the subject of significant controversy in recent decades. What has proven to be most controversial is the suggestion that a substantive concept of actus reus can be pressed into service to restrict or otherwise qualify the scope of criminal liability. Proposals in the literature include the suggestion that the concept of actus reus can be used to restrict liability to volitional bodily movements, to conduct or outcomes over which a person has control, or to conduct that reflects her choices. However, while courts have, in very exceptional circumstances, permitted defendants to raise novel actus reus based defenses, such as automatism and extreme intoxication, they have by and large not clearly adopted any of these more capacious understandings of actus reus.

*  This project was greatly facilitated by Spencer Robinson, who provided invaluable research assist­ ance. Funding for this project was provided by the Foundation for Legal Research, for which I  am extremely grateful.

448   vincent chiao In this chapter, I shall consider a range of recent scholarly interpretations of actus reus, and consider the degree to which any of them finds support in the case law, with particular reference to the Canadian and, to a lesser extent, U.S. jurisprudence.1 At one end of the spectrum, the minimal interpretation treats actus reus simply as referring to whatever it is the legislature has decided to criminalize, with the courts limited to adjudicating whether the prosecution has, in any given case, proven the specified actus reus to the requisite standard. At the other end of the spectrum, the maximal interpretation conceives of actus reus as restricting criminal liability to positive acts, where that is understood in terms of willed bodily movements. Between these two extremes lie a number of views, each of which tries to provide a slightly different gloss on what proof of actus reus does (or should) require, with the details left fairly open-ended and unspecified. I start by briefly discussing what I take to be common ground among the various approaches to actus reus in the literature. I then move on, in Sections III and IV, to consider the minimal and maximal conceptions of actus reus, respectively. In Section V, I consider a range of intermediate positions, in particular, approaches that interpret actus reus in terms of control or practical agency, whether as a strict “requirement” or as a looser “presumption.” The relatively sparse case law on the subject is not sufficient to decisively confirm or falsify any of these views. I conclude in Section VI with a brief discussion of why this might be.

ii.  What is Actus Reus? A common method for individuating crimes is on the basis of their constituent “elements.” An element of an offense is a predicate referring to a proposition the truth of which (with some exceptions) the prosecution bears the burden of proving beyond a reasonable doubt. If the prosecution is able to prove that all the propositions referred to in a crime definition are true of a given individual, it is entitled to a conviction against that person. The common law tradition distinguishes between two types of offense elements:  actus reus elements and mens rea elements—the “wrongful act” and the “guilty mind.” Actus reus elements typically describe an event either in terms of its consequences (a death, an injury, transference of property, release of pollutants)

1   Because substantive criminal law in the United States is a state rather than federal subject, my discussion of the U.S. jurisprudence is much less comprehensive than my discussion of the Canadian jurisprudence.

ACTS AND ACTUS REUS   449 or in terms of a person’s conduct (sexual touching, misrepresentation of a material fact, driving). Mens rea elements describe a particular type of relationship between the accused and the specified actus reus, typically though not invariably in terms of the accused’s mental state, for example that the accused brought about a consequence deliberately, or that he acted with reckless indifference. Mens rea elements thus modify actus reus elements: for every actus reus element in a crime definition, it is possible to have one or more mens rea elements that apply to it, thereby restricting the class of events that will satisfy the crime definition. Sometimes a crime defin­ ition also includes circumstantial facts such as the age or status of the victim (or the accused), the value of the property in question, etc.; these circumstantial facts are classified as actus reus elements, and may themselves have mens rea elements associated with them, for instance requiring not just that the victim fit a certain description, but also that the accused knew that to be the case at the time he acted. Every crime is thus built around proof of some actus reus element or elements. Most crimes also include mens rea elements, either explicitly or by judicial presumption. Common law courts tend to presume that criminal statutes that do not explicitly refer to mens rea nevertheless do so implicitly.2 However, there is no strict common law rule that requires mens rea. Legislatures are free to define crimes without any mens rea whatsoever; in Canada, these are referred to as absolute liability offenses. In some cases it can be difficult to determine whether to classify an element as an actus reus or mens rea term. For instance, a person commits assault when, “without the consent of another person, he applies force intentionally to that other person, directly or indirectly.”3 Suppose A pushes B into C. B clearly has not assaulted C, but is this due to failure of mens rea—he “applies force” to C, but not intentionally? Or is this due to failure of actus reus—whatever his intention, he does not “apply” force? The source of the difficulty in classifying elements neatly as either actus reus or mens rea is that attributing conduct to an individual arguably rests on its own quasi-mens rea analysis, for example in assessing whether B’s contact with C qualifies as an “application” of force by B. Practically speaking, the significance of classifying an element as an actus reus rather than a mens rea element is that if it is actus reus, the prosecution will still be required to prove it even with respect to strict or absolute liability offenses—even, for instance, if Parliament decided to strike the word “intentionally” from the definition of assault—and the defense will still be entitled to challenge the prosecution’s proof on those points. All of this I take to be common ground. In the remainder of this chapter I shall consider a variety of more elaborate interpretations of actus reus, and the support those interpretations find in the Canadian and U.S. precedents. Before proceeding, however, I pause to make a few preliminary observations. First, as a practical matter, to the best of my knowledge it has never been the case that the prosecution has   See e.g. R. v. Sault Ste Marie (City) [1978] 2 SCR 1299, paras. 60–61, 40 CCC (2d) 353.   Criminal Code, RSC 1985, c C-46 section 265(1)(a).

2 3

450   vincent chiao been required to prove as a matter of course either that the accused’s conduct was voluntary or that it was (or “included”) an act. At most, the prosecution might bear the burden of dispelling any reasonable doubt once the accused has successfully raised the issue, and otherwise be entitled to a default presumption of voluntariness.4 Indeed, depending on the kind of claim that is raised, that burden may well remain with the accused.5 Secondly, despite the fact that the first substantive provision in the U.S. Model Penal Code states that “A person is not guilty of an offense unless his liability is based on conduct that includes a voluntary act or the omission to perform an act of which he is physically capable,” it is not clear that there is much historical support for a voluntary act requirement as a principled requirement on criminal liability.6 Although Blackstone did state that an “overt act” was required for crim­ inal liability, he also, at the very outset of his volume on criminal law, asserted that “a crime, or misdemeanor, is an act committed, or omitted, in violation of a public law, either forbidding or commanding it,” suggesting that he did not view omissions as non-actionable in the criminal law.7 Strikingly, Blackstone’s discussion occurs almost in passing, in the context of a chapter that is instead devoted to a variety of defects of the will as potential defenses to liability. There, Blackstone argued that: though, in foro conscientiae, a fixed design or will to do an unlawful act is almost as heinous as the commission of it, yet no temporal tribunal can search the heart, or fathom the intentions of the mind, otherwise than they are demonstrated by outward actions, it therefore cannot punish for what it cannot know. For which reason in all temporal jurisdictions an overt act, or some open evidence of an intended crime, is necessary, in order to demonstrate the depravity of the will, before the man is liable to punishment.8

In other words, it is because it is not given to us to know what goes on in the minds of others that the law refrains from punishing people unless they make their intentions visible through overt actions or through some other “open evidence” of their inner lives. Presumably, should such evidence be available in particular cases, or because of developments in our ability (or confidence in our ability) to discern a person’s plans, Blackstone would have no objection to punishing that person. Thus, while Blackstone does allude to the necessity for an overt act, this is not because he viewed non-acts—such as omissions—as in principle not punishable in the crim­ inal law, but simply because generally we know what a person intends by observing what he does. 4   Bratty v. Attorney-General for Northern Ireland [1963] A.C. 386, 413; R. v. Stone [1999] 2 SCR 290, para. 179, 173 DLR (4th) 66. 5   R. v. Daviault [1994] 3 SCR 3, paras. 63–65, 93 CCC (3d) 21; Stone (n. 4) para. 174. 6   Model Penal Code § 2.01(1). See also Bratty (n. 4) 408–410. 7   Sir William Blackstone, Commentaries on the Laws of England, Vol. 4 (1765–1769), 21 (emphasis 8 modified.)   Blackstone (n. 7) 21.

ACTS AND ACTUS REUS   451 Consistent with this focus on inner psychological states, Blackstone expressly rejects what we would today describe as crimes of negligence or objective fault, claiming that should a person who is otherwise acting lawfully cause “any accidental mischief,” he “stands excused from all guilt.”9 The rejection of objective fault offenses is unsurprising given Blackstone’s concern, expressed in the passage just quoted, that criminal punishment should primarily rest on a person’s culpability as determined in foro conscientiae and revealed through public acts. However, once Blackstone’s reticence toward negligence liability has been set aside—as it has been in most, perhaps all, common law jurisdictions—then the rationale for insisting on overt acts in those cases will also fall by the wayside. For if the only reason for insisting on overt acts is as evidence of psychological states, and if, in cases of objective fault, we are not punishing people for their “heinous” psychological states, then it follows that for objective fault offenses there is no reason to require an overt act.

iii.  The Minimal Conception I start by considering the minimal conception of actus reus. While no one, to my knowledge, has defended this view of actus reus, it is worth briefly considering the minimal conception because it marks a natural endpoint to the spectrum of views that people have defended, and because the doctrinal reasons for its inadequacy will be illustrative for that further discussion. According to this interpretation, every crime definition must identify some target of criminal sanctions; “actus reus” simply refers to that target, whatever it is. Actus reus elements are thus more basic to a crime definition than mens rea elements in the sense that it is possible, both legally and in principle, to have a crime definition with no mens rea whatsoever, but it is not possible, on purely conceptual grounds, to define a crime without specifying an actus reus. The necessity for actus reus simply reflects the trivial observation that a purported definition of anything must at least purport to be a definition of something. The basic problem with a minimal conception of actus reus is that courts have consistently acknowledged the existence of a number of legal rules restricting liability in the name of actus reus, suggesting that the concept is not purely formal. Two prominent examples are automatism and extreme intoxication. (Something roughly analogous appears to be occurring in the Canadian law of duress as well, under the heading of “moral involuntariness.”) If properly raised, both automatism   Blackstone (n. 7) 26–27.

9

452   vincent chiao and extreme intoxication permit the trial judge or jury to acquit the accused even when it is not contested that the accused in fact caused the specified harm. This is because a person in either of these conditions does not act voluntarily; and this lack of voluntariness—coupled with a healthy dose of confidence that the bout that brought on the episode will not recur—is sufficient to defeat the prosecution’s proof of actus reus. This would be an odd result if actus reus were purely formal, for on that account, once it is established that the accused brought about the prohibited outcome, the only remaining questions would be whether he did so with the requis­ ite mens rea and, if so, whether he has any affirmative defenses available to him; voluntariness as such should, on this analysis, be immaterial. To say that the courts have acknowledged the existence of such doctrines is not to say that the courts apply them with any regularity. Although the existence of the automatism and extreme intoxication defenses in the common law is inconsistent with a purely minimal conception of actus reus, these doctrines are exceptional and applied infrequently. Automatism as a distinct defense from insanity was formally recognized in Canada in 1964, in R. v. Bleta, a case involving a fight in which the accused, after hitting his head on the pavement, got up and stabbed the victim in what he claimed was an automatistic state.10 Since Bleta, the provincial courts of appeal in Canada have only heard 27 further cases involving automatism, or about one appeal every two years. Perhaps unsurprisingly, these types of claims do not succeed very often on appeal. Out of the 28 appeals in Canadian courts in which automatism was argued as a ground of appeal, only four were resolved favorably for the accused.11 Automatism fares somewhat better at trial; out of the 73 reported trials since Bleta in which the defense was raised, the accused prevailed 28 times, or in slightly more than one-third of the cases. Most automatism appeals (21) are rejected either because the accused failed to provide sufficient medical evidence of automatism to shift the burden of proof back onto the prosecution, or because the court viewed the cause of the episode as rooted in a “disease of the mind,” and hence not “non-mental disorder.” The etiology is important because if a disease of the mind caused the alleged episode, the accused is not entitled to a simple acquittal but is rather remanded into the custody of the mental health system, where he will remain until the review boards determine he no longer poses a danger to public safety. Unsurprisingly, the decision whether to classify a given episode as resulting from a “disease of the mind” is not a purely medical question, and is strongly flavored by public safety concerns. Thus, in R. v. Stone, the Supreme Court’s most recent examination of the non-mental disorder automatism   Bleta v. R. [1964] SCR 561, 48 DLR (2d) 139. The Saskatchewan Court of Appeal seems to have been the first provincial court of appeal to recognize the defense; see R. v. Minor (1955) 112 CCC 29, para. 13, 21 C.R. 377. 11   Bleta (n. 10); R. v. Haslam (1990) 56 CCC (3d) 491, 78 C.R. (3d) 23 (BCCA); R. v. Parks [1992] 2 SCR 871, 95 DLR (4th) 27; R. v. Jiang, 2007 BCCA 270, 220 CCC (3d) 55. 10

ACTS AND ACTUS REUS   453 defense, the Court cited concerns with dissimulation and “floodgates” to justify imposing on the accused not only a significant evidentiary burden, but also the burden of proving the defense by a balance of probabilities.12 Additionally, the Court advised trial courts to start with the presumption that the accused’s alleged automatism was the result of a disease of the mind, and to reverse that presumption only in “rare cases.”13 The extreme intoxication defense is even more limited. Of the nine times that this defense has been considered on appeal, it has succeeded in only one instance, namely the case in which it was first recognized. A  search of the reported trial decisions in Canada has located precisely four instances in which the extreme intoxication defense succeeded, out of 36 reported cases.14 In the landmark case R. v. Daviault, the Supreme Court of Canada recognized that extreme intoxication could call into question whether the accused had the minimum intent to commit the act constituting the actus reus as well as whether the accused’s conduct was sufficiently voluntary.15 Reflecting the rather confused state of the jurisprudence, the majority in Daviault characterized extreme intoxication as referring to “a person so drunk that he is an automaton,” and as such, someone who “may be capable of voluntary acts such as moving his arms and legs but is quite incapable of forming the most basic or simple intent required to perform the act required by a general intent offense.”16 Despite this characterization of the defense in Daviault as pertaining to intent rather than voluntariness, the better view—and one that the Daviault court accepted, albeit in dicta—is that insofar as extreme intoxication places the accused in a state akin to automatism, it is a challenge to voluntariness, and hence a challenge to actus reus, not mens rea.17 This interpretation of Daviault has the benefit of being consistent with the Supreme Court’s characterization of automatism as bearing on the voluntariness of the accused’s conduct, and hence as falling under the actus reus rubric. The point is in any case largely moot, as Parliament effectively overruled Daviault in virtually all serious cases by prohibiting the use of self-induced intoxication to call into question “the general intent or the voluntariness required to commit the offense.”18 Given that Daviault was decided under section 7 of the Canadian Charter of Rights and Freedoms, there is a fairly straightforward argument that this legislation is unconstitutional on its face, but the Supreme Court has so far not had to face this question. As it is not possible in a project of this scale adequately to survey the state of the law in all 51 U.S. jurisdictions, I shall instead briefly compare the situation 13   Stone (n. 4) paras. 173–192.   Stone (n. 4) para. 199.   R. v. McIntyre (1992) 100 Nfld & PEIR 144, 17 WCB (2d) 5 (PEI TD); R. v. Misquadis (1995) 39 C.R. (4th) 246, 27 WCB (2d) 4 (Ont. CJ (Gen. Div.)); R. v. McShane [1996] OJ No. 361 (QL) (Ont. CJ (Prov. Div.)); R. v. Brenton (1999) 180 DLR (4th) 314, 28 C.R. (5th) 308 (NTSC) (reversed on appeal). However, coverage of trials on the online databases is quite spotty, so this figure should not be taken 15 16 to be authoritative.   Daviault (n. 5).   Daviault (n. 5) para. 59. 17 18   Daviault (n. 5) para. 66.   Criminal Code, RSC 1985, c C-46 section 33.1. 12

14

454   vincent chiao in a jurisdiction of a comparable population, namely the state of California. In California, the courts appear to have taken a functionally similar, if doctrinally somewhat distinct, approach. Rather than two distinct defenses of “extreme intoxication” and “automatism,” the California courts consider a general defense of “unconsciousness.” In contrast to the Canadian approach, the Supreme Court of California has adopted a significantly more lenient standard in permitting the defense to go to the jury on even fairly dubious evidence of unconsciousness.19 On the other hand, a defendant who renders himself “unconscious” through voluntary intoxication is not entitled to a defense against a general intent offense. The position taken in California thus closely parallels the position in Canada, in that although intoxication is understood as a possible basis for negating the “voluntariness” of an act, the availability of this defense is sharply limited by statute to a small class of offenses.20 More generally, neither the Supreme Court of Canada nor the Supreme Court of California have been entirely consistent in their understanding of whether these types of claims should be construed as pertaining to mens rea, actus reus, or an affirmative defense.21 For instance, in People v. Babbitt, the Supreme Court of California held that although unconsciousness was a complete defense to murder if involuntarily induced, and that it negated the “elements of voluntariness and intent,” this did not transform the “absence of the defense—consciousness” into an element that the prosecution was required to prove.22 The worry, presumably, is that a contrary conclusion would impose an unmanageable burden on the prosecution in a very large number of cases. If the small number of reported cases is any indication, the automatism and extreme intoxication doctrines are of marginal practical importance.23 In addition, the status of these doctrines is a bit of a puzzle in the common law. On the one hand, if voluntariness were truly an implied part of the actus reus of every offense, the burden of proof would be on the prosecution to establish it in each case. But not only does the prosecution not bear this burden unless the accused raises it, in Canada the accused faces a substantial evidentiary hurdle before the court will consider it adequately raised; and even then, the burden of proof (to a balance of probabilities)   People v. Wilson, 427 P.2d 820 (Cal. 1967) (holding that failure to instruct jury on “unconsciousness” was reversible error, no matter “how incredible the testimony of a defendant”); People v. Mathson, 210 Cal. App. 4th 1297, 149 Cal. Rptr. 3d 167 (Cal. 2012); see also People v. Hardy, 198 P.2d 865 (1948 Cal. Sup. Ct.) (reversing trial court instruction that if evidence shows defendant acted as if she were conscious, the law presumes she was conscious unless the presumption is overcome by a preponderance of the evidence); rev’d on other grounds in People v. Ray, 533 P.2d 1017 (1975). 20   See Cal. Penal Code, Part I, Title I, § 29.4. 21   Thus, in R. v. Chaulk [1990] 3 SCR 1303, para. 26, 62 CCC (3d) 193, the Supreme Court of Canada considered insanity as an actus reus defense, a mens rea defense, and, for good measure, as an excuse 22 as well.   People v. Babbitt, 755 P.2d 253, 271 (Cal. 1988). 23   Of course, it is possible that these doctrines exert more substantial influence in plea negotiations. Intuitively, this seems unlikely given the heavy evidentiary and legal requirements that the Supreme Court has placed on these doctrines, but it is hard to be certain about this. 19

ACTS AND ACTUS REUS   455 remains with the defense.24 This rule appears to be rather more relaxed in at least some U.S. jurisdictions, in which the onus on the defense is merely to raise a reasonable doubt, though it is again not clear how important this is in light of the paucity of reported cases. This suggests that, at least in Canada, automatism and extreme intoxication more closely resemble affirmative defenses, such as duress or self-defense than attacks on the prosecution’s proof regarding the elements of the offense. Nonetheless, courts have consistently classified the accused’s evidence of lack of voluntariness as undermining proof of the actus reus of the offense.25 In any case, the continued existence of these doctrines suggests that common law courts have not expressly adopted a minimal conception of actus reus. These doctrines reveal that, at least in truly exceptional circumstances, courts are willing to screen out defendants on actus reus grounds, even when the alleged defect in actus reus is not expressly recognized in either the crime definition or in a statutory defense. This suggests that the courts have not limited themselves to a purely minimal conception of actus reus, although in practice they have come extremely close to doing so.

iv.  The Maximal Conception In contrast to a minimal conception of actus reus, Michael Moore defends a robust, maximal conception, according to which actus reus should be understood fairly literally to require that every crime definition, and every prosecution, refer, directly or indirectly, to a wrongful act by the accused.26 This, of course, requires a theory of human action, which Moore provides. Without attempting to sketch the full contours of Moore’s view, the gist of Moore’s position is that an act is a willed bodily movement, meaning that, with few exceptions, the only thing that people ought to be criminally punished for are their willed bodily movements. Unsurprisingly, the maximalist conception of actus reus faces the inverse doctrinal problem faced by the minimalist conception: the overinclusiveness of the minimalist conception is mirrored in the underinclusiveness of the maximalist one. There are many well-recognized and well-established crimes that can be completed 24  See Daviault (n. 5) para. 67; Stone (n. 4) para. 179. In Bratty (n. 4) 403 ff. the House of Lords kept the burden on the prosecution, but imposed a fairly onerous evidentiary hurdle before the “presumption” of voluntariness would be displaced. 25   I thank Martha Shaffer for discussion of this point. 26   Michael S. Moore, Act and Crime: The Philosophy of Action and Its Implications for Criminal Law (1993).

456   vincent chiao without any relevant bodily movement, as well as crimes for which bodily movements serve, as Blackstone suggested, merely to corroborate the accused’s criminal intentions, which constitute the primary targets of liability. Preparatory attempts are instances of the latter, insofar as the significance of proving overt acts is simply to substantiate the sincerity of the alleged criminal plan.27 Conspiracy sometimes requires proof of an overt act, and sometimes does not; in Canada, for instance, no overt act is required, only a genuine agreement.28 As for the former, the common law tradition has long recognized special duties of care for people in particular relationships, such as husband–wife, parent–child, property owner–guest.29 Courts have also been willing, in egregious cases, to recognize novel duties to act even when not explicitly contemplated by statute. For instance, in Commonwealth v. Levesque, the Massachusetts Supreme Judicial Court imposed a duty to report an uncontrolled fire upon those who started it, such that failure to discharge that duty was sufficient to support a manslaughter conviction when several firefighters died in the ensuing blaze.30 Regulatory offenses also impose positive duties on people to act in certain ways. In R. v. Swaby, the Ontario Court of Appeal considered section 91(3) of the Criminal Code, which penalized being an occupant of a motor vehicle that one knows to contain an unauthorized weapon.31 Swaby claimed that the trial judge erred in not instructing the jury that he could not be convicted under the statute unless he had a reasonable opportunity to extract himself from the vehicle upon learning of the presence of the gun. The court accepted Swaby’s contention on the grounds that “voluntary conduct is a necessary element for criminal liability,” and that penalizing someone for being in the presence of an unauthorized weapon when he did not have a reasonable opportunity to distance himself from it would penalize involuntary conduct.32 The point here is that even in a case where the court   See Model Penal Code § 5.01; R. v. Sorrell and Bondett (1978) 41 CCC (2d) 9.   A commonly used conspiracy statute in U.S. federal law, 18 U.S.C. § 371, requires proof of “any act” in furtherance of the conspiracy. However, the Model Penal Code only requires overt acts for less serious conspiracies; see Model Penal Code § 5.03(5). For Canadian precedents, see R. v. O’Brien [1954] SCR 666, [1955] 2 DLR 311; R. v. Cotroni [1979] 2 SCR 256, 93 DLR (3d) 161; U.S. v. Dynar [1997] 2 SCR 462, 33 O.R. (3d) 478. 29   R. v. Yuman (1910) 17 CCC 474, 22 OLR 500 (Ont. C.A.) (spousal support); R. v. Naglik [1993] 3 SCR 122, 105 DLR (4th) 712 (child under care of parent); R. v. Peterson, 201 CCC (3d) 220, 34 C.R. (6th) 120 (Ont. C.A.) (parent under care of adult child); R. v. Halmo [1941] O.R. 99, [1951] 3 DLR 6 (Ont. C.A.) (principal’s duty to control agent); R. v. Kulbacki (1966) 52 DLR (2d) 283, [1966] 1 CCC 167 (Man. C.A.) (car owner’s duty to control guest driver). 30   766 N.E.2d 50 (Mass. 2002). In Canada, see R. v. Akrofi (1997) 113 CCC (3d) 201, 99 OAC 306 (Ont. C.A.) (duty of pawnbrokers to cooperate with police); R. v. Moore [1979] 1 SCR 195, 90 DLR (3d) 112 (duty to identify oneself to the police); R. v. Thornton (1991) 1 O.R. (3d) 480, 82 CCC (3d) 530 (Ont. C.A.) (duty of HIV+ individual not to donate blood). 31   (2001) 54 O.R. (3d) 577, 155 CCC (3d) 235 (Ont. C.A.). Although Swaby was prosecuted under section 91(3), it had been replaced by section 94 at the time of the appeal. Unlike section 91(3), the new section 94(3) explicitly created a defense if the occupant “on becoming aware of the presence of the firearm . . . attempted to leave the motor vehicle . . . or actually left the motor vehicle.” 32   Swaby (n. 31) paras. 17–20. 27

28

ACTS AND ACTUS REUS   457 went out of its way to read in an implicit voluntary conduct requirement—one that it acknowledged had no basis in the statute—it did not insist that only willed bodily movements could be criminalized. Rather, failure to act in the face of a reasonable opportunity to do so would be sufficient.33 Moore’s account of the act requirement draws inspiration from John Austin’s account of theory of action in the Lectures on Jurisprudence.34 In his Lectures, Austin developed a relatively detailed account of human action, according to which actions are defined by their causal histories:  they are bodily movements caused by volitions. Volitions, in turn, are “wishes or desires” that have the characteristic that the desired outcome—the bodily movement—follows “invariably and immediately” upon their formation.35 Actions are thus willed bodily movements; everything else—everything beyond the skin, as it were—is the consequence of an act, not an act itself. “So-and-so closes the door” is thus in Austin’s view not a good description of what an agent does; a more adequate description would be that the agent, with the intention of causing the door to close, moves her fingers and leans her body in such a way that the door closes.36 However, Austin does not actually subscribe to Moore’s view that only willed bodily movements are punishable in the criminal law. Austin is quite explicit in acknowledging that forbearances—deliberate failures to act—can ground liability, and indeed sometimes appears to consider merely negligent omissions to also be sufficient.37 Austin’s discussion of attempts makes clear that he views the need to prove overt acts as a safeguard against defective confessions, rather than as the basis for liability itself.38 In fact, while acknowledging that he was unaware of any legal system that did so, Austin was explicit in considering that a present intention to act or forbear in the future might well be punishable in principle.39 What Austin did view as necessary for establishing a legal “injury or wrong” is that the agent “forbears or acts with an intention adverse to his duty, or else he omits or acts negligently, heedlessly, or rashly.”40 The reason that intention or unlawful inadvertence is required is tied back to Austin’s account of how sanctions, and hence legal obligations, work: unless the party knew that he was violating his duty, or unless he might have known that he was violating his duty, the sanction could not operate, at the moment of the wrong, to the end of impelling him to the act which the Law enjoins, or of deterring him from the act which the Law forbids.41   For Moore’s response to these issues, see Moore (n. 26), ch. 2.   Moore (n. 26) 165 (“if we allow Austin the most plausible interpretation of the nature of volitions in the dimensions I have examined, his volitional theory is our current best bet about the nature of action”). 35   John Austin, Lectures on Jurisprudence, or, The Philosophy of Positive Law (1966), 424. 36 37 38   Austin (n. 35) 427.   Austin (n. 35) 377, 474, 476, 484.   Austin (n. 35) 454. 39 40 41   Austin (n. 35) 475.      Austin (n. 35) 484.      Austin (n. 35) 485. 33

34

458   vincent chiao Where willed bodily movement enters the picture is by describing how, in extremely general terms, subjects are able to discharge their legal duties, namely through the volitional control they exercise over the movements of their bodies. It is (a) people’s desire to avoid sanctions, coupled with (b) their ability to do so by controlling their bodily movements, that (c) makes it possible for the law to guide action by creating legal obligations through the threat of sanctions. On this view, what matters is not that there is willed bodily movement per se, but rather that people are in a position to comply with the law’s demands by controlling their bodies, whether through action or forbearance. Austin’s focus on the “voluntariness” of human actions is, in other words, grounded in his desire to present a theory of law’s role in guiding conduct, not in a theory about the necessary prerequisites for a criminal conviction. Of course, the law could well have its own reasons for calling something an “act” regardless of whether it would seem natural, or philosophically circumspect, to do so outside of legal contexts. But I doubt in any case that we are actually compelled to concede that, as Moore’s view would suggest, when a person is acquitted on grounds of automatism or extreme intoxication, it is because he has not acted at all.42 As Bernard Williams has pointed out, it is often hard to deny that a sleepwalker or otherwise unconscious individual is acting, and indeed, in some cases, acting intentionally.43 This point was graphically illustrated in the Daley case, in which the accused, after ingesting an estimated 30–40 drinks in the course of one evening (one estimate put the figure at 49 ounces of whiskey), drove a motorcycle around Winnipeg looking for a party; later returned home and conversed briefly with another friend; woke a new neighbor to welcome him to the neighborhood; woke his wife to let him back into his home; and, finally, once he gained entry, stabbed her to death before passing out, all while allegedly in a state of extreme intoxication amounting to automatism.44 It is natural to describe such conduct as involving action because the conduct is intelligibly goal-directed—he is trying to open the door, looking for a party, backing the motorcycle out of the driveway, and so forth. The defect is not that these are mere bodily movements—highly choreographed seizures, as it were—it is that, if the defendant is to be believed, the goals at which they are directed are not his goals.45 It is therefore not at all clear that we should assimilate conduct that so strongly supports a complex, purposive interpretation to conduct that is akin to tripping and falling down a flight of stairs.   Moore (n. 26) 254.   Bernard Williams, “Voluntary Acts and Responsible Agents,” (1990) 10 OJLS 1 ff., 1–10; Bernard Williams, “The Actus Reus of Dr. Caligari,” (1994) 142 University of Pennsylvania LR 1661 ff. Glanville Williams makes a similar observation. See Glanville Williams, Criminal Law: The General Part (2nd ed., London:  Stevens, 1962), §§ 8, 12–13. But see Jeffrie G Murphy, “Involuntary Acts and Criminal 44 Liability,” (1971) 81 Ethics 332 ff.   R. v. Daley, 2007 SCC 53, paras. 5–11, [2007] 3 SCR 523. 45   See Vincent Chiao, “Action and Agency in the Criminal Law,” (2009) 15 Legal Theory 1 ff. 42 43

ACTS AND ACTUS REUS   459

v.  Intermediate Conceptions of Actus Reus I have considered minimalist and maximalist interpretations of actus reus, and argued that both are inconsistent with well-established features of the criminal law. The minimalist interpretation has trouble accommodating the existence of common law doctrines that impose additional “voluntariness”-based constraints on criminal liability, whereas the maximalist interpretation has trouble accommodating offenses that target deliberate or negligent omissions, possession offenses, and crimes that are directed at attitudes rather than overt acts as such. I now turn to a family of intermediate views. These interpretations of actus reus are neither so minimal as to preclude any judicial oversight of criminal prosecutions on grounds of “voluntariness,” nor so maximal as to impose sweeping restrictions on existing patterns of criminalization. The two positions I shall consider are Douglas Husak’s suggestion that the common law conception of actus reus be understood in terms of a person’s “control” over the prohibited outcome or conduct, and Antony Duff ’s suggestion that it be understood to reflect the person’s practical reasoning. I treat Husak and Duff ’s positions together because the differences between them are, at least for strictly legal purposes, predominantly differences in emphasis. Duff emphasizes the connection between (punishable) conduct and “conscious plans of action,” whereas Husak emphasizes the connection to “lack of conscious control.” Historically speaking, both Husak and Duff ’s views draw on themes first articulated in H. L. A. Hart’s paper, “Acts of Will and Responsibility,” in which Hart argued that cases of sleepwalking, epilepsy, reflex actions, and so forth—cases traditionally described as evincing a “defect of the will” or “involuntary”—were better described as cases of bodily movements “not subordinated to the agent’s conscious plans of action,” or, in other words, as movements that “do not occur as part of anything the agent takes himself to be doing.”46 What proof of some actus reus element does, Hart suggested, is to ensure that no one would be convicted in a case where one lacked “conscious control over [one’s] muscular movements”—either because one was not conscious, or was conscious but was for some reason not in a position to control the movements (or lack of movement) of one’s body.47 In a Hartian vein, Duff argues that the common law concept of actus reus ought to be seen as grounded in “our capacity . . . to engage in practical reasoning and to actualise its results in ways that make a difference to the world in which we live.”48 47   H. L. A. Hart, Punishment and Responsibility (2008), 105.   Hart (n. 46) 106.   R. A. Duff, Answering for Crime (2009), 100. See also R. A. Duff, “Action, the Act Requirement and Criminal Liability,” in J. Hyman and H. C. Steward (eds.), Agency and Action (2004), 69 ff. For a similar approach, see Vincent Chiao, “Action and Agency in the Criminal Law,” (2009) 15 Legal Theory 1 ff. 46 48

460   vincent chiao For Duff, the role of actus reus is to draw a connection between a person’s reasons for acting and the conduct or consequences for which she is being held accountable. Typically, to be sure, actualizing one’s practical reasoning—one’s decision to do such-and-such, for instance—involves moving one’s body, but this is not invariably so. A parent who deliberately withholds the necessaries of life from his child may not “act,” in the sense of performing a relevant willed bodily movement, but nevertheless is engaged in culpable “action,” in the sense of translating his prac­ tical reasoning into real-world outcomes. For Duff, what is essential to agency, and hence to actus reus, is an individual’s ability to put his or her intentions into effect “in ways that make a difference to the social and material world.”49 More troublesome for Duff are cases of negligent omissions, for example cases in which a parent fails to provide the necessaries of life not out of a desire to harm the child, but out of a negligent failure to apprehend the true nature of the child’s predicament.50 In these kinds of cases, which Duff acknowledges are well established in law, criminal liability is imposed on a person for causing harm in a way that does not reflect the accused’s practical reasoning.51 Thus, Duff ultimately concedes that there is not a strict action requirement in the criminal law, but rather a defeasible action presumption: typically, criminal liability is reserved for culpable exercises of agency, and in the exceptional cases in which it is not, the grading of the offense and the punishment handed down should generally be less.52 Just as Austin’s account of willed bodily movement was tied to his psychological account of legal obligation, Duff ’s account of actus reus is tied to his account of the criminal law as providing people with new reasons for action, or reinforcing the ones they already have. On this view of the criminal law, it is of course entirely natural to view the requirement that a crime definition specify an actus reus as a requirement that a person on whom liability is imposed was in a position to have taken those reasons into account in their practical reasoning. One may wonder whether criminal liability for conduct or consequences that the accused did not specifically intend or foresee is as exceptional as Duff seems to suppose. The threat of criminal sanctions plays a significant, and probably increasing, role in encouraging compliance with minimal standards of care. This role is particularly salient in activities where an agent’s conduct may be expected to have a significant impact on the interests of others, regardless of the agent’s reasons for that conduct. In enforcing environmental regulations, for instance, it hardly matters what an individual company’s reasons were for releasing pollutants, or even that the release was accidental and unforeseen; the failure to take adequate precautions   Duff (n. 48) 100.  See R. v. Tutton [1989] 1 SCR 1392, 48 CCC (3d) 129; State v. Williams, 484 P.2d 1167 (Wash. 1971). 51   While Duff ’s discussion focuses on negligent omissions, it is arguable that his account of actus reus creates a more systemic problem for negligence-based criminal liability generally, since the case in which a person negligently moves her body is not, for Duff, significantly different from the case in 52 which she negligently fails to do so.   Duff (n. 48) 112–113. 49 50

ACTS AND ACTUS REUS   461 is sufficient to ground liability. Indeed, in some cases the lack of due diligence may also not be necessary for liability, if it is seen as desirable to force actors to internalize the costs of their conduct. Setting this issue aside, Duff ’s view faces another difficulty concerning the precise terms of the linkage between practical reasoning and conduct that is necessary for criminal liability. The suggestion that someone who commits an assault because he was physically pushed by someone else, or while in an automatistic state, or during a seizure, ought not be liable because the assault was not the result of his practical reasoning seems relatively unproblematic. But there are other ways in which a person’s conduct can come apart from his practical reasoning, and it is not clear whether Duff ’s account of actus reus would preclude liability in these cases as well. In particular, I have in mind cases of akrasia, or weakness of will. The akratic agent acts in a way that contradicts his settled intention to do X, an intention that we can take to reflect his practical reasoning about what he has all-things-considered reason to do under the circumstances as he perceives them to be. In extreme cases, it may seem plausible to describe the akratic agent as taking an external point of view on his actions, observing the movement of his body (or its non-movement) as he would that of another.53 Suppose that, despite A’s considered judgment that shoplifting is morally wrong, and a firm intention not to shoplift, he cannot resist when he sees an opportunity to shoplift some new gadget and experiences a sudden, overpowering urge to take it. Does A have a valid actus reus defense that his theft was not the result of his practical reasoning? Naturally, practical problems of proof loom large, but let us simply stipulate to the accuracy of A’s representation of his reasoning. The akratic agent’s conduct, like that of the sleepwalking, unconscious, or automatistic agent, does not reflect his practical reasoning, but it may also seem more blameworthy or deterrable than those more problematic instances as well. If we do wish to hold the akratic agent liable while exculpating the others, then Duff ’s practical reasoning account will need to appeal to a more developed account of the requisite connection between practical reasoning and conduct to enable us to do so. One might suggest that the akratic agent, unlike the sleepwalking one, has a fair opportunity to comply with the law’s demands. A  person who assaults another while sleepwalking was probably not very well situated to prevent the assault, particularly if he has no prior history of such assaults. In contrast, even if the akratic agent’s conduct does not reflect his judgment, he may still be able to prevent the theft, either by remonstrating with himself, or by gritting his teeth and forcing himself to put the gadget back on the shelf, or by asking someone else to prevent him from leaving the store with it. The line between akrasia and addiction, like the line between addiction and the more serious defects of will, is perhaps not amenable to 53   For discussion of these issues, see Gary Watson, “Excusing Addiction,” (1999) 18 Law and Phil 589 ff.; R. Jay Wallace, “Addiction as Defect of the Will: Some Philosophical Reflections,” (1999) 18 Law and Philosophy 621 ff.

462   vincent chiao precise specification, but I suspect that many would think that a line can be drawn somewhere between automatism and giving in to serious temptation. One can understand Husak’s proposal that the courts endorse a “control requirement” as, in effect, a proposal for how to draw that line: “persons are responsible and deserve punishment only for those states of affairs over which they have control.”54 Husak contrasts cases in which an accused has control over an outcome, even when he plausibly performs no action (as in pure omission-based liability), and cases in which an accused acts, but has no control over his acting, and suggests that liability would be appropriate in the former but not in the latter on grounds of control. Cases that are troublesome on both the minimal and maximal views—cases involving people who commit crimes while sleepwalking, in a state of automatism, being attacked by a swarm of bees, and so forth—are not troublesome on Husak’s control requirement. Unlike the minimalist account, insofar as these individuals lack control over their conduct, it is appropriate for courts to prevent convictions on actus reus grounds; yet, unlike the maximalist account, Husak need not commit himself to implausibly denying that the accused in such cases are acting when they engage in their complex, goal-oriented behaviors.55 Moreover, even if it is true that the accused in these cases did not, at the time of the offenses, have direct control over their conduct, nevertheless they may still be liable if they had indirect control, that is if they engaged in the activity knowing that they might well come to be in a state where they are “out of control.” This would be the case, for instance, if someone, knowing that he is prone to seizures, sets out driving even though he has knowingly failed to take his anti-seizure medication. The control approach to actus reus need not go hunting around for a prior voluntary act which can then, in a somewhat mysterious way, be considered to be “included” in the involuntary conduct of running someone over while having a seizure.56 In addition, cases that are troublesome under Duff ’s action presumption are more easily accommodated under Husak’s control requirement. For instance, in cases of negligent omissions, such as negligent failure to provide the necessaries of life, the control requirement would permit liability insofar as the victim’s well-being was under the accused’s control at the relevant times, even if the accused did not intend or foresee the harm to the victim from failing to act.

  Douglas Husak, “The Alleged Act Requirement in the Criminal Law,” in John Deigh and David Dolinko (eds.), The Oxford Handbook of Philosophy of Criminal Law (2011), 118 ff. See also Husak, The Philosophy of Criminal Law (1987), ch. 4; Husak, “Does Criminal Liability Require an Act?,” reprinted in The Philosophy of Criminal Law:  Selected Essays (2010), ch. 1; and Husak, “Rethinking the Act Requirement,” (2007) 28 Cardozo LR 2437 ff. 55   Husak, “The Alleged Act Requirement” (n. 54) 119–120. 56   Husak, “The Alleged Act Requirement” (n. 54) 120. This is essentially what happened in People v. Decina (1956) 138 N.E.2d 799, 2 N.Y.2d 133; see also Hill v. Baxter [1958] 1 Q.B. 277, [1958] 1 All E.R. 193, [1958] 2 WLR 76. A similar issue arises in the defense of necessity. See R. v. Perka [1984] 2 SCR 232, paras. 52–56, 13 DLR (4th) 1. 54

ACTS AND ACTUS REUS   463 Or would it? As with Duff ’s practical reasoning-based conception, one of the difficulties with Husak’s control requirement is in fleshing out specifically what control consists in, and—since control admits of degrees—how much of it is required for liability. Husak acknowledges the need for further specification of the “control requirement,” but has not yet suggested how this specification might go.57 One issue in particular that merits attention is the interaction between control and mens rea. Consider the following two conceptions of control. While it would not be implaus­ ible to say that A has control over Y if A is at liberty to do X, and if doing X determines whether or not Y occurs, this is a quite broad conception of control. A more narrow sense of control adds that A must be aware of the effect his choosing to do X is likely to have on Y in order to have control over Y. The narrow conception of control, in other words, adds an epistemic condition to the broad conception. Which conception of control should we prefer in this context? Husak appears to subscribe to the narrower conception, since he allows that, while people who commit crimes nonvoluntarily should not be punished insofar as they do not control their conduct, criminal liability would be appropriate “when an agent performs a voluntary act, intending, knowing, or consciously disregarding the risk that it will cause her to perform a subsequent nonvoluntary criminal act.”58 The challenge for a narrow conception of control, at least as a matter of descriptive accuracy, is that it appears to preclude absolute criminal liability, since absolute criminal liability attaches even if you were unaware (even reasonably unaware) that your decision to do X would result in Y. Absolute liability in the criminal law is, of course, quite controversial, but its existence is hard to deny. Indeed, while it is hard to get an empirically informed grip on such matters, it is safe to say that there are a great many absolute liability offenses, particularly in the regulatory arena.59 Importing an epistemic component to control also casts doubt on the distinction between actus reus and mens rea, as whether liability is strict in the criminal law depends on mens rea, not actus reus. Thus, suppose that driving with a suspended license is an absolute liability offense, and that A is reasonably unaware that his license has in fact been suspended. The fact that A is unaware of this fact would seem to undermine the epistemic component to control—he certainly has control vis-à-vis driving, but not vis-à-vis driving with a suspended license—with the apparent consequence that A should have a valid actus reus defense to liability. Of course, if A does have a valid actus reus defense on these facts, that is functionally equivalent to reading in a mens rea of negligence, that is, to refusing to countenance absolute liability offenses. But courts do allow absolute liability offenses,

  Husak, “The Alleged Act Requirement” (n. 54) 121.   Husak, “The Alleged Act Requirement” (n. 54) 120. 59   See Alan Michaels, “Constitutional Innocence,” (1999) 112 Harvard LR 828 ff. 57

58

464   vincent chiao although in post-Charter Canada, only for minor offenses that do not involve the threat of incarceration.60 It might be argued that all the control that A needs for liability is control over whether or not he is driving, not whether he is driving with a suspended license; that is, that it is enough if he is aware that he is driving, regardless of whether he also knows that his license has been suspended. This gives A narrow control over driving, and broad control over driving with a suspended license. The trouble with this proposal is that Husak suggests that whether you have control over some future event explains whether you are responsible for its occurrence, and it seems fairly clear that many future events over which we have control in the broad sense are not events for which we are responsible, since (among other things) we lack sufficiently robust information about the consequences of our actions. (Gavrilo Princip had control in the broad sense over the course of world history when he chose to assassinate Archduke Franz Ferdinand, but while he was surely responsible for the assassination and its foreseeable consequences, the bombing of Nagasaki, the fall of the Berlin Wall, and the formation of the Eurozone surely cannot be laid at his door, although each of these events can in some sense be traced back to World War I, which Princip’s action precipitated.) Thus, if A only has broad control over driving with a suspended license, it is not clear why he would be responsible for that infraction. Yet if, in order for him to be responsible, he has to have narrow control over the full description of the relevant conduct (“full” with reference to the crime defin­ ition), that will require showing subjective awareness of the material facts, in effect invalidating the absolute liability aspect of the offense—only, somewhat oddly, on actus reus rather than mens rea grounds.61 To be fair, the fuzziness of the border between mens rea and actus reus in these cases may simply reflect the limits of the concepts themselves, rather than any defect in Husak’s analysis of them. In any case, that they bleed into one another at this point has been recognized for quite some time. As Hart noted some time ago: If it is argued that this blurs the line between “strict liability” and negligence, and brings in the latter in a “subjective” form, I would admit the charge. But I would urge that we do not know how strict “strict” liability really is, or how absolute “absolute” prohibition really is, or how “subjective” negligence is, till we see what the courts do with these ideas in practice.62

  Reference re Motor Vehicle Act (British Columbia) S 94(2) [1985] 2 SCR 486, paras. 73–76, 24 DLR (4th) 536. In R. v. Hill [1975] 2 SCR 402, 43 DLR (3d) 532 the Supreme Court of Canada upheld the conviction of a motorist who, after her car came into contact with the vehicle in front of her, left the scene believing that no damage had occurred, when (so the court determined) it had in fact resulted in minor damage. Hill argued that her ignorance rendered her driving away from the scene of an accident involuntary, and hence alleged a failure of actus reus. The majority rejected the argument, analogizing her ignorance of the damage to a driver who “unwittingly exceeds the speed limit or inadvertently goes through a red light.” Ibid., para. 9. 61   Murphy raised a similar objection to Hart’s account; see Murphy (n. 43) 337. I suspect a very simi62 lar type of objection could be raised against Duff ’s position.   Hart (n. 46) 112. 60

ACTS AND ACTUS REUS   465 It may just be that, over the intervening decades, the courts have turned out to be rather more accommodating of a truly strict “strict” liability than either Hart or Husak would prefer.

vi. Conclusion I end my discussion with a cautionary note. While the academic debates surrounding the concept of actus reus have focused on the substantive criteria that different theories attempt to read into the concept, they have by and large not attended to broader questions about institutional competence. Yet these questions are unavoidable in this context. Actus reus is a common law concept, which means that it is a concept developed and applied by courts in adjudicating cases, and a concept that has effect independent of statutory law. Yet the definition of crimes is primarily—in some jurisdictions, such as Canada, exclusively—the job of the legislature.63 Thus, the more maximal one’s conception of actus reus, the more one thereby empowers common law courts to restrict or modify legislation. A  relatively more minimal conception would, in contrast, allow legislatures greater leeway, with courts enforcing statutes more or less as written. It is thus important to bear in mind that the various interpretations of actus reus differ not only in terms of the content they suggest should be read into that concept, but also in terms of the degree to which they suggest that the judiciary should be able to second-guess legislatures on the definition of crimes. Moreover, while I suggested that the minimalist view of actus reus conflicts with common law doctrines of automatism and extreme intoxication, I also noted that these doctrines are of limited significance in practice. (The interest of criminal law theorists in these doctrines far outstrips their actual significance to the law.) This suggests that the minimalist view is a very good guide to the practical significance of actus reus. In light of the relative paucity of judicial consideration of the issues that I have been considering, and the somewhat conflicting and undeveloped nature of the discussion that does exist, my suspicion is that as a matter of predicting outcomes, a minimalist interpretation of actus reus is likely to be at least as good, and perhaps substantially better, than either of the intermediate positions. This is not because courts generally reject a control- or practical agency-based view of actus reus on the merits, but because developing a view on the merits is tantamount to asserting judicial power against legislative and prosecutorial prerogative.   Frey v. Fedoruk [1950] SCR 517, para. 40, 97 CCC 1; Criminal Code, RSC 1985, c C-46 section 9.

63

466   vincent chiao Perhaps the reason courts have not developed a fuller concept of actus reus is not because they lack a sufficiently robust philosophical or psychological theory, but rather because of concerns grounded in institutional competence and legitimacy. Courts may feel, in other words, that interpolating significant substantive content into the common law concept of actus reus may be out of place in a democratic, statute-driven criminal law. It does not follow from even an entirely minimalist view of actus reus that there are no objections to criminalizing omissions, thoughts, statuses, etc. What follows is only that any such objections are grounded in political morality, not in a putative analysis of the legal concept of actus reus. Someone who defends a minimalist conception of actus reus is not, in virtue of that fact, committed to approving whatever pattern of criminalization a legislature settles on; the principle of judicial restraint should not be conflated with an anything-goes attitude toward criminalization. Rather, what she is committed to is only the view that courts should not enforce their own conception of the limits of criminal liability against legislatures, at least absent some constitutional basis for doing so. This might suggest that it is incumbent upon defenders of more robust conceptions of actus reus to explain in greater depth when and why it is appropriate for common law courts to assert control over legislatures on these sorts of open-ended and contestable issues.

References Austin, John, Lectures On Jurisprudence, or, The Philosophy of Positive Law (4th ed., 1879), 429 Botterell, Andrew, “Understanding the Voluntary Act Principle,” in François Tanguay-Renaud and James Stribopoulos (eds.), Rethinking Criminal Law Theory:  New Canadian Perspectives in the Philosophy of Domestic, Transnational, and International Criminal Law (2012), 97 ff. Chiao, Vincent, “Action and Agency in the Criminal Law,” (2009) 15 Legal Theory 1 Dan-Cohen, Meir, “Actus Reus,” in Sanford H.  Kadish (ed.), Encyclopedia of Crime and Justice (1983), 18 ff. Corrado, Michael, “Automatism and the Theory of Action,” (1990) 39 Emory LJ 1191 Duff, R. A., Answering for Crime (2009), 100 Duff, R.  A., “Action, the Act Requirement and Criminal Liability,” in J. Hyman and H. C. Steward (eds.), Agency and Action (2004), 69 ff. Fitzgerald, P. F., “Voluntary and Involuntary Acts,” in A. G. Guest (ed.), Oxford Essays in Jurisprudence (1961), 1 ff. Fletcher, George P., “On the Moral Irrelevance of Bodily Movements Symposium,” (1994) 142 University of Pennsylvania LR 1443 Hart, H.  L. A., “Acts of Will and Responsibility,” in H. L.  A. Hart, Punishment and Responsibility (2008), 91 ff. Holmes, Oliver Wendell, The Common Law (1991), 54 Husak, Douglas, The Philosophy of Criminal Law (1987), chs. 4 and 6

ACTS AND ACTUS REUS   467 Husak, Douglas, “Rethinking the Act Requirement,” (2007) 28 Cardozo LR 2437 Husak, Douglas, “Does Criminal Liability Require an Act?,” in Douglas Husak, The Philosophy of Criminal Law: Selected Essays (2010), 18 ff. Husak, Douglas, “The Alleged Act Requirement in the Criminal Law,” in John Deigh and David Dolinko (eds.), The Oxford Handbook of Philosophy of Criminal Law (2011), 118 ff. Moore, Michael S., Act and Crime: the Philosophy of Action and Its Implications for Criminal Law (1993) Simester, A. P., “On the So-called Requirement for Voluntary Action,” (1998) 1 Buffalo Crim. LR 403 Williams, Bernard, “Voluntary Acts and Responsible Agents,” (1990) 10 OJLS 1, 1–10

­c hapter 21

CAUSATION carl-friedrich stuckenberg

I.  Introduction to Causation Causation is one of the most basic relationships we perceive between objects of the material world, including between ourselves and our environment. This is captured in Hume’s famous metaphor of the “cement of the universe”1 and Kant’s classification of causality as an a priori category,2 that is, one of the concepts of pure understanding which structure human reasoning. In everyday life, causation has mainly two functions: one function is forward-looking and aims to predict what will happen under certain conditions. Such predictions allow us to attain specific goals by moving our bodies and manipulating objects. Thus, our causal knowledge provides us with “recipes” for action.3 The other function is backward-looking and seeks to explain what has happened by tracing it back to certain causes. Knowing the causes of an event or state of affairs may again lead to further action if, for example, we want to influence (repeat, prevent) the occurrence of that event, or may simply serve to satisfy our curiosity. If human behavior is identified as one of the causes of   David Hume, An Abstract of a Book lately Published entitled A Treatise of Human Nature (1740), repr. in the edition by L. A. Selby-Bigge and P. H. Nidditch, A Treatise of Human Nature (2nd ed., 1978), 662. 2   Immanuel Kant, Kritik der reinen Vernunft [Critique of Pure Reason] ([1787] transl. N. K. Smith, 2nd rev’d ed., 2003), A 196/B 241. 3   For causes as recipes, see Douglas Gasking, “Causation and Recipes,” (1955) 64 Mind 479 ff.; H. L. A. Hart and Tony Honoré, Causation in the Law (2nd ed., 1985), 31; Tony Honoré, “Necessary and Sufficient Conditions in Tort Law,” in Tony Honoré (ed.), Responsibility and Fault (1999), 94, 108 f. 1

causation   469 an event, this may lead to the attribution of praise or blame to that person in accordance with applicable social, moral, or legal standards. The role of causation in law is often explanatory in a very specialized and narrow perspective by asking whether specified behavior of a particular person caused a particular untoward event as a precondition of civil (torts) as well as criminal liability.

II.  Causation and Criminal Responsibility 1.  Results matter Although most criminal laws do not explicitly address or even define causation,4 it obviously is a central ingredient of criminal responsibility because many provisions threaten punishment to those who cause a specified result. Traditionally, the law uses verbs of action (causatives), for example a person “kills another,” “wounds or inflicts any grievous bodily harm,” “destroys or damages any property belonging to another,” while some more recent codifications phrase the prohibited action directly as causation of a harmful consequence, for example to “cause the death of another human being,” “cause bodily injury to another,” or “cause an explosion.” However, not all criminal offenses are “result crimes” but some belong to another category, usually called “conduct crimes,” which seems to sanction a certain activity as such like making a false statement under oath, driving dangerously, or offering a bribe. This distinction rests on an understanding of “result” as a state of affairs (a wound) not identical with the causal activity (throwing a rock) which hardly withstands closer scrutiny because any bodily movement can be regarded as a “result” caused by the actor.5 The category of “result crimes” rather reflects the steps of the criminal process: a harmful state of affairs (a corpse, a vandalized house), formerly called the corpus delicti, is detected and then the search for the cause begins. Even in result crimes, causation of the prohibited result is only one precondition of criminal liability among others; in other words, causation is a necessary but not a sufficient condition of liability (as a principal6) and punishment.

  There are a few exceptions, see n. 44.   See only Michael S. Moore, Causation and Responsibility (2009), 14 ff. 6   Whether liability as a participant in crime (accessory, accomplice, etc.) requires a causal contribution is often controversial and national laws differ in this respect. 4 5

470   carl-friedrich stuckenberg Causation of the result, like the occurrence of the result itself, forms part of the objective elements of the offense (“actus reus”). Normally, criminal responsibility requires in addition at least a subjective component (“mens rea”) and the absence of justificatory and exculpatory circumstances (self-defense, duress, necessity, mistake, insanity, etc.).

2.  Should results matter? Before examining the role of causation in criminal law, it should be noted that in several countries there are schools of thought in law7 and philosophy8 which hold that outcomes, and hence causation, should play no role at all in the determination of legal and moral responsibility. The underlying idea is that persons should be responsible only for what they are able to control, that is, mainly their mental states, motives, and intentions. Results are said to be subject to the influence of an infinite number of uncontrollable external factors so that the occurrence or non-occurrence of the desired outcome is largely a matter of chance, luck, or bad luck, and thus irrelevant. Therefore, the attempt of a crime should be regarded as the basic form of criminal conduct and punished no less severely than the consummated crime. Many criminal laws allow equal punishment for inchoate and consummated crimes but no known criminal law treats attempts as the standard form of crime. This is warranted if punishment is conceived of as reaction to social conflict and not to individual wickedness or bad character. If the principle is recognized that external acts should be punished and not mere thoughts, unlawful intentions must materialize to support criminal liability. A criminal act (attempt) must be a visible breach of the law, otherwise it is socially irrelevant. This materialization of the breach of the law represents the social conflict that disturbs the peace and to which the criminal law reacts. It seems that in all known societies this conflict is at its maximum if an unlawful outcome—paradigmatically, harm to another person—has been caused. Good luck benefits the actor, bad luck—mere accident—is not attributable to him anyway in a principled criminal law. In this respect, the assumption that outcomes depend largely on the vagaries of fortune is wildly exaggerated: people quite often succeed in doing what they intend. Whether the outcome was really the actor’s “doing” and justly attributable to him 7   For further argument, see Larry Alexander and Kimberley Kessler Ferzan, Crime and Culpability (2009), 171 ff.; contra Moore (n. 5)  20 ff. In German doctrine, the position was known as extremer Finalismus (“extreme finalism”), see Armin Kaufmann, “Die Dogmatik im Alternativ-Entwurf,” (1968) 80 ZStW 34 ff., 50 f.; Kaufmann, “Zum Stand der Lehre vom personalen Unrecht,” Festschrift für Hans Welzel (1974), 393 ff., 403; Diethart Zielinski, Handlungs- und Erfolgsunwert im Unrechtsbegriff (1972), 127 ff.; for a critique, see Günther Jakobs, Strafrecht Allgemeiner Teil (2nd ed., 1991), § 6 nn. 72 ff. 8   For the “moral luck” debate, see Bernard Williams, Moral Luck (1981); Thomas Nagel, “Moral Luck,” in Thomas Nagel, Mortal Questions (1979).

causation   471 or the work of uncontrollable factors, is the question that the doctrines on causation and imputation must answer in a principled manner.

3.  Criminal law vs. tort law Causation is relevant in many areas of the law but has traditionally been discussed mainly in the law of torts and criminal law. In both areas, the same problems have to be solved, like the establishment of a causal connection between a certain agency and harm and the determination of the scope of liability. The answers, however, differ because private law and criminal law serve different purposes which are reflected in divergent principles of liability. The law of torts is concerned with the social and economic distribution of risks and may consider as relevant factors whether risks are insurable, who is better equipped to bear financial burdens, which solution is economically more efficient, etc. This may lead to the exclusion of compensation in the case of contributory negligence of the victim, the introduction of non-causal vicarious liability (e.g. of the employer), and to procedural devices like a lower standard of proof (balance of probabilities) and the distribution or even reversal of the burden of proof. In contrast, criminal law is unable to repair physical harm or economic loss but is aimed to correct the intellectual damage which lies in the breach of the most fundamental societal norms by assigning blame and imposing the harshest sanctions at the state’s disposal. The criminal law’s focus is not on the distribution of goods but on the delimitation of spheres of liberty, hence it should, in light of the severity of the sanctions, apply stricter standards both substantively and procedurally (presumption of innocence, proof beyond reasonable doubt) than the law of civil wrongs.

III.  A Legacy of Conceptual Ambiguity The use of the words “causation” and “cause” is ambivalent in many legal orders. Historically, in the common law and continental law traditions, the legal notion of “cause” was used in a wider and somewhat circular sense which included normative considerations of answerability, so that “legal causation” or “cause-in-law” referred only to those events which triggered legal responsibility, hence the well-known terminological distinction between (legally relevant) “causes” and (legally irrelevant) mere background “conditions.” It has been maintained that even in ordinary discourse, there exist several usages of “cause” depending on the context, whether

472   carl-friedrich stuckenberg predictive, explanatory, or attributive, and that the legal usage is merely an example of the latter.9 Although such complex notions of “cause” tend to be unclear, if not confused, they have survived in many jurisdictions, notably in Anglo-American law.10 A development originating in the nineteenth century has led some theorists to limit the meaning of “cause” to what they regard as a purely “scientific” or factual understanding which strictly excludes any evaluative or normative aspects. This view, which is sometimes called “causal minimalism”11 and is dominant in some legal orders (e.g. Germany, Italy, Spain, Latin America), is based on a sharp distinction between (scientific) causation on the one hand and (legal) imputation or attribution (Zurechnung, imputación) on the other. In practice, genuine causal issues are of minor importance for legal responsibility whereas questions of legal policy which shape the scope of liability are of central concern.

IV.  Factual Causation 1.  What is a cause? Philosophers have tried for centuries to clarify the concept of causation and the present philosophical debate on the subject in the English-speaking world is as controversial as complicated.12 Lawyers, too, have for a long time been attentive to the intricacies of causation. However, philosophers and lawyers have until recently largely ignored each other’s efforts.13 It has even been asserted that philosophical theories are irrelevant to lawyers’ needs14 but this seems overstated: while the law employs causal analysis for its own narrow purposes,

  Notably by Hart and Honoré (n. 3) xxxiii ff., 12 ff.   cf. P. J. Richardson (ed.), Archbold: Criminal Pleading, Evidence and Practice (2013), §§ 19-4 ff.; David Ormerod, Smith and Hogan’s Criminal Law (13th ed., 2011), 81 ff.; Charles E. Torcia, Wharton’s Criminal Law, Vol. 1 (15th ed., 1993) § 26; Joshua Dressler, Understanding Criminal Law (6th ed., 2012), 11 § 14.   Hart and Honoré (n. 3) xxxiv, lxvii ff. 12   Useful introductions are Ernest Sosa and Michael Tooley (eds.), Causation (1993) and Helen Beebee, Christopher Hitchcock, and Peter Menzies (eds.), The Oxford Handbook of Causation (2009). 13   For lawyers looking to philosophy, see e.g. Hart and Honoré (n. 3) xxxvii ff., 9 ff.; Ingeborg Puppe, “The Concept of Causation in the Law,” in Benedikt Rahmen and Markus Stepanians (eds.), Critical Essays on “Causation and Responsibility” (2013), 67 ff.; a philosopher looking to the law is Moore (n. 5). 14   Hart and Honoré (n. 3) 1 ff.; Jane Stapleton, “Choosing What We Mean by “Causation” in the Law,” (2008) 73 Missouri LR 433, 447 ff. 9

10

causation   473 philosophical insights are helpful to clarify received ideas about causation which notoriously suffer from naïve intuitions and anthropomorphic analogies.15 Philosophical theories indeed had considerable influence on legal doctrine, in particular the accounts of Hume and Mill, though to a different extent in different parts of the world. Hume rejected the formerly popular ideas that causal judgments are based on the direct observation of causal forces or qualities in objects or events because no such “mysterious bond” or occult property had ever been identified. Instead, he claimed that causal judgments are based on the belief that the temporal succession of certain events is necessary because we have observed the “constant conjunction” of these events; put differently, it is the experience of regularity between prior cause and subsequent effect that creates in our mind the idea of necessary connection which constitutes the causal relation.16 It follows that “all causes are of the same kind” and any distinctions between them are without foundation.17 Mill stressed that, instead of single events, the totality of antecedent states which are conditions for the effect must be considered as “the cause.”18 Since all conditions are equally indispensable to the production of the consequent, there is no basis to distinguish between them.19 He also observed that there may be a plurality of sufficient causes: it is not true that one effect must be connected with only one cause, or assemblage of conditions; that each phenomenon can be produced only in one way. There are often several independent modes in which the same phenomenon could have originated.20

This line of thought entered continental legal doctrine in the nineteenth century through the writings of the Austrian Glaser21 and the German judge von Buri22 whose causally minimalist Äquivalenztheorie (theory of the equivalence of conditions; also called Bedingungstheorie, theory of conditions) holds that all conditions of an effect are its equivalent causes. This theory was quickly adopted by the courts and is still dominant today in Germany, Italy, Spain, and many other jurisdictions. If each condition counts as a cause, the causal chains are endless, virtually leading back to Adam and Eve or the “primeval slime.”23 Causal analysis, then, serves only   Hart and Honoré (n. 3) 30 f.   Hume (n. 1) 155–176; David Hume, An Enquiry concerning Human Understanding ([1777] ed. L. A. 17 Selby-Bigge, 3rd ed. P. H. Nidditch, 1975), 60 ff., 75 ff.   Hume (n. 1) 171. 18   John Stuart Mill, A System of Logic Ratiocinative and Inductive (1843), book III, ch. V, § 3, in John M. Robson and R. F. McRae (eds.), Collected Works of John Stuart Mill, Vol. VII (1974), 332. 19   Mill (n. 18) Collected Works, Vol. VII, 327. 20   Mill (n. 18) book III, ch. X, § 1, Collected Works, Vol. VII, 434 ff. 21   Julius Glaser, Abhandlungen aus dem Oesterreichischen Strafrecht (1858), 298 ff. 22   Maximilian von Buri, Über Causalität und deren Verantwortung (1873); von Buri, Die Causalität und ihre strafrechtlichen Beziehungen (1885); cf. Gerhard O. W. Mueller, “Causing Criminal Harm,” in Gerhard O. W. Mueller (ed.), Essays in Criminal Science (1961), 169, 189 ff. 23   Glanville Williams, “Causation in the Law,” (1961) 19 Cambridge LJ 62 ff., 64. 15

16

474   carl-friedrich stuckenberg as a first filter to exclude all those factors which are not causal and no basis for legal liability. In order to isolate the legally significant causes, limitations have to be introduced under other rubrics (see Section V.2).24 Interestingly, jurisdictions that accept the theory of conditions and those which do not, such as the common law countries, both employ the same counterfactual test to determine if an event is causal, namely by asking whether the result would not have occurred but for the existence of a certain behavior. But for defendant D’s action, would the victim V have died? Alternatively, would V have died if D had not acted as he did? This so-called “(conditio) sine qua non” or “but for” test works well in most ordinary cases if only one set of sufficient conditions is present—this might explain its undiminished popularity. “But for” causation has soon proven defective in several respects. First, it presupposes that we already possess the relevant causal knowledge because other­ wise we could not know what the result of the imaginary subtraction of the alleged causal fact would be. To answer the question if patient V would not have died but for doctor D’s use of an incorrect drug, we must know what that drug does. Therefore, Engisch25 proposed a refined test known as Theorie der gesetzmäßigen Bedingung (theory of lawful conditions), a precursor of the deductive nomological model of explanation advanced by Hempel and Oppenheim,26 which subsumes a singular event (explanandum) under a general law of nature (explanans). This corresponds to Mill’s account and Hume’s “constant conjunction.” In criminal law practice, however, it is relatively rare that causal analysis requires more specific knowledge of regularities than those available in average experience. Another flaw of the sine qua non formula is that it asks for too much, namely for a necessary condition of the result (“strong necessity”), and therefore is under-inclusive in the scenarios discussed later (see Section IV.3). An alternative account which claims to remedy these defects was sketched first by Hart and Honoré based on Mill.27 They weakened the necessity requirement and stated that: a cause may be necessary just in the sense that it is one of a set of conditions jointly sufficient for the production of the consequence; it is necessary because it is required to complete this set.28

This approach was further developed by Mackie in his “INUS” account (defining a cause as “an insufficient but non-redundant part of an unnecessary but sufficient condition”)29

  cf. Hart and Honoré (n. 3) 442 ff.   Karl Engisch, Die Kausalität als Merkmal der strafrechtlichen Tatbestände (1931), 21. 26   Carl G. Hempel and Paul Oppenheim, “Studies in the Logic of Explanation,” in Carl G. Hempel (ed.), Aspects of Scientific Explanation (1965), 245 ff. 27 28   Hart and Honoré (n. 3) xlviii, 112 f.; Honoré (n. 3) 95 ff.   Hart and Honoré (n. 3) 112. 29   John L. Mackie, The Cement of the Universe (1974), 59 ff., 62 (original italics) which he eventually rejected for other reasons. 24 25

causation   475 and finally elaborated for the law by Puppe30 (for criminal law) and Wright31 (for tort law) who coined the acronym NESS for “necessary element of a sufficient set” of conditions. This view requires causal sufficiency rather than strong necessity and, in its latest version, defines a cause as an “actual condition” which was “a part of the instantiation of one of the abstract conditions in the completely instantiated antecedent of a causal law.”32 Currently, there is a lively debate going on whether the NESS account delivers what it promises.33 At the same time, the previously mentioned philosophical controversies are spilling over into the law so that nomological or generalist accounts of causation—which are dominant in legal doctrine but increasingly disfavored in philosophy—are challenged by various types of singularist accounts. Generalist accounts are those like Hume’s, Mill’s, Engisch’s, or the NESS account which expli­ citly or implicitly refer to some general (natural) law for the explanation of a singular event. In contrast, singularist accounts do not claim that statements about singular causal relations have to be statements about the instantiation of causal laws although moderate singularists do not think that there can be lawless relations. There are manifold variations of singularism, some of them seemingly leading back to pre-Humean times by equating the causal relation with the transfer of energy or power or by reanimating the Aristotelian causa efficiens.34 Meanwhile, courts and legislators seem unimpressed by (or ignorant of) the mysteries of the metaphysics of causation and live happily with “but for” causation or leave difficult causation issues to the discretion of the jury in jurisdictions where that option exists.35

2.  What are the causal relata? While there is an extended philosophical discussion about the causal relata— the objects connected by the causal relation—whether these are facts, events,

30   Ingeborg Puppe, “Der Erfolg und seine kausale Erklärung im Strafrecht,” (1980) 92 ZStW 863, 870 ff.; Puppe in Urs Kindhäuser, Ulfrid Neumann, and Hans-Ullrich Paeffgen (eds.), Nomos Kommentar, Strafgesetzbuch, Vol. 1 (4th ed., 2013), Vor §§ 13 ff. nn. 103 ff.; Puppe (n. 13) 69 ff. 31  Richard W.  Wright, “Causation in Tort Law,” (1985) 73 California LR 1735, 1788 ff.; Wright, “Causation, Responsibility, Risk, Probability, Naked Statistics, and Proof: Pruning the Bramble Bush by Clarifying the Concepts,” (1988) 73 Iowa LR 1001, 1018 ff. 32   Richard W.  Wright, “The NESS Account of Natural Causation:  A  Response to Criticisms,” in Richard Goldberg (ed.), Perspectives on Causation (2011), 285 ff., 291. 33   Pro e.g. Wright (n. 32) 285 ff.; Puppe (n. 13) 74 ff.; also Honoré (n. 3) 99 ff.; contra Richard Fumerton and Ken Kress, “Causation and the Law:  Preemption, Lawful Sufficiency, and Causal Sufficiency,” (2001) 64 Law and Contemporary Problems 83 ff.; Stapleton (n. 14) 471 ff.; Moore (n. 5) 475 ff. 34   For an introduction, see Stahtis Psillos, “Regularity Theories,” in Beebee et al. (n. 12) 131 ff.; Michael Tooley, “Causes, Laws, and Ontology,” in Beebee et al. (n. 12) 368 ff.; in law, compare the singularist 35 Moore (n. 5) 474 ff., 496 ff., and the generalist Puppe (n. 13) 86 ff.   Mueller (n. 22) 170 f.

476   carl-friedrich stuckenberg properties, or more esoteric entities such as tropes, etc.,36 lawyers have always used specific descriptions of events, hence facts (expressed in propositions) as relata.37 Lawyers can afford to ignore metaphysical difficulties because their conception of the causal relation is the result of the application of the law to a particular case and the relevant criminal law determines how events are described. The law is not concerned with events (real occurrences) as such which may be described in various ways (D drives at 100 mph; D feels great; D wants to get home quickly) but requires that events exactly fit certain descriptions in order to be significant (D drives faster than allowed).38 Furthermore, neither criminal law nor tort law is interested in causation of harms as such. The prerequisites of legal responsibility determine which properties a cause must have, so that the precise description of a harmful event is crucial. Courts in many jurisdictions have long required that the casual connection must be shown to exist between that aspect of a defendant’s conduct which is illegal (wrongful, tortious) and the prohibited result.39 This is illustrated in an example given by Glanville Williams:40 chemist C sells a box with poisonous tablets to X for use as a photographic developer. The sale as such is legal. Yet C forgets to state on the box what the tablets are and that they are poisonous. X keeps them in his house and his wife W takes one of them by mistake for pills of her own and she dies. What is the cause of the wife’s death? But for C’s sale of the tablets, W would not have died—but this description refers to lawful conduct and will not make C liable. The relevant description here is that the chemist sold an unmarked box of poisonous tablets that W mistook for her pills: but for C’s failure to mark the box with poisonous tablets he sold to X, W would not have mistaken the tablets for her own pills and subsequently died. The illegal aspect of C’s conduct is needed for a conclusive description of the causal relation and therefore he causes W’s death in a legally relevant way. Consider Williams’ counterexample: C sells the unmarked box to X as before and X stores it away, out of the reach of his child. By some unusual mischance, his 3-year-old child gets hold of the box, swallows a tablet, and dies. Now, C’s failure to mark the box is not causally relevant— that is, is not necessary for a complete description of the causal path—because the child could not read. 36   Douglas Ehring, “Causal Relata,” in Beebee et  al. (n. 12)  387 ff.; Moore (n. 5)  347 ff.; Thomas Grosse-Wilde, “Die Relata eines juristischen Kausalbegriffs und der juristische Syllogismus,” in Carsten Bäcker and Sascha Ziemann (eds.), Junge Rechtsphilosophie (2012), 45 ff. 37   cf. Moore (n. 5) 132 ff. 38  Jane Stapleton, “Causation in the Law,” in Beebee et  al. (n. 12)  744 ff., 752 f.; Grosse-Wilde (n. 36) 48 ff. 39   Hart and Honoré (n. 3) lviii ff., 114 ff., 118; Honoré (n. 3) 104 f.; Richard W. Wright, “The Grounds and Extent of Legal Responsibility,” (2003) 40 San Diego LR 1425 ff., 1494 ff.; Ingeborg Puppe, “Negligence and Responsibility in German Road Traffic Law,” (2003) 11 European Journal of Crime, Crim. Law & Crim. Justice 151 ff.; Puppe (n. 30) Vor §§ 13 ff. nn. 200 ff. 40   Williams (n. 23) 64 f.

causation   477

3.  Common problems There are a number of vexed questions for standard accounts of causation, in particular for counterfactual dependency (sine qua non, but for), which are the staple of criminal law textbooks and have recently41 also found the attention of philosophers.

a)  Overdetermination I: redundant sufficient causes42 Suppose that A and B shoot independently43 at V. The two shots hit V at exactly the same moment and each shot is fatal. Who caused V’s death? The “but for” or sine qua non test will yield the unsatisfactory result that neither A nor B is causal because had A not shot at V, V would have died from B’s shot and, conversely, but for B’s shot, V would have died from A’s shot. Neither of the concurring conditions is necessary to produce the harm but each is sufficient for it. All known criminal laws and most theorists regard each sufficient cause as causal but their reasoning differs. Some ways of meeting this difficulty are quick (and piecemeal) fixes which modify the sine qua non account, for example by simply defining several independent sufficient conditions as causes44 or by stating that, for reasons of legal policy, a cause is either a condition sine qua non or one of several independently sufficient conditions.45 Some courts, writers, and the Restatements of Torts46 have substituted the sine qua non test with the unhelpful formula that a cause is a “substantial factor” contributing to the result.47 Another approach adopted by the U.S. Model Penal Code48 and popular in German law49 is to give a more detailed— in philosophical parlance, more fine-grained—description of the forbidden harm, here “death from two shots.” Then A and B are clearly “but for” conditions for the “result as it came about,” yet this approach is obviously circular, because the result is individuated by its alleged causes, and creates more problems than it solves.50

41  cf. Philippa Foot, “Hart and Honoré:  Causation in the Law,” (1963) 72 Philosophical Review 505: “with such questions we enter a world of complexity beyond the philosopher’s wildest imaginings.” 42   Sometimes also called the problem of additional, duplicative, or cumulative causes. Terminology is not uniform and may be misleading. 43   If they act in concert, each co-perpetrator is responsible for the other’s conduct and the problem disappears. 44   e.g. Art. 41 of the Italian Codice penale; Arkansas Code (2012) § 5-2-205; Maine Revised Statutes tit. 17-A, § 33; North Dakota Criminal Code, § 12.1-02-05; Texas Penal Code, § 6.04(a); cf. the Proposed New Federal Criminal Code, § 305, Final Report of the National Commission on Reform of Federal Criminal Laws (1971) and Working Papers of the National Commission on Reform of Federal Criminal 45 Laws, Vol. 1 (1970), 142–147.   cf. Williams (n. 23) 75 f.; also Puppe (n. 30) Vor §§ 13 ff. n. 93. 46   American Law Institute, Restatement of Torts (1934), §§ 431 ff. and Restatement (Second) of Torts (1965), §§ 431 ff. 47   For references and critique, see Hart and Honoré (n. 3) 123 f., 235 ff.; Moore (n. 5) 86 ff. 48   American Law Institute, Model Penal Code and Commentaries (1985), § 2.03, comment 2, p. 259. 49   For references and critique, see Puppe (n. 30) Vor §§ 13 ff. nn. 63 ff. 50   See Wright, “Causation in Tort Law” (n. 31) 1777 ff.; Puppe (n. 30) Vor §§ 13 ff. nn. 95 ff.

478   carl-friedrich stuckenberg A more radical solution abandons the sine qua non requirement as logically flawed and resorts to a weak necessity/strong sufficiency account like the NESS test which requires empirically determining, as far as is possible, which set of conditions is minimally sufficient for a certain causal process to occur.51 Here, A’s shot is sufficient for the death of V, regardless of whether there is another set of sufficient conditions present; the same is true of B’s conduct so that both A and B are causes of V’s death. Admittedly, such clear-cut cases of overdetermination may arise “most infrequently”52 in judicial practice, but the next classes of situations are more and even most frequent.

b)  Overdetermination II: redundant insufficient causes A different type of overdetermination involves multiple conditions which are in themselves insufficient to produce the relevant harm but together are more than sufficient. Common examples are that five units of pollution are necessary and sufficient for a particular injury and each of seven defendants discharged only one unit,53 or the German “leather spray” case54 where a company produced a spray to be used on leather clothing and later discovered that the spray was toxic for people with respiratory conditions; the relevant board of five executives voted unanimously to continue to market the product which subsequently caused bodily injury to a number of consumers; the voting rule required only a majority of votes. Each polluter and each board member could claim that their contribution was not causal because it was in itself insufficient to produce the harm and was also unnecessary because the remaining conditions were (even more than) sufficient to produce it. The unmodified “but for” test would again lead to the absurd result that no contribution was causal. However, if a cause is defined as a necessary element of a sufficient set then each unit of pollution and each vote can be regarded as the necessary ingredient of such a set (of five units of pollution/of the narrowest majority) and, again, it does not matter that more than one set of sufficient conditions is present or that those sets overlap.55 Does this mean that he who pours a teaspoon of water in the flood or throws a match into a raging fire is causal for the ensuing devastation?56 Yes, since the size of the causal contribution is irrelevant—for causal analysis. However, not every cause is imputable and it is a normative question whether trivial or de minimis causes should be exempted from liability.57   Wright (n. 32) 301; Puppe (n. 13) 73.    52  Model Penal Code and Commentaries (n. 48).   Wright, “Pruning the Bramble Bush” (n. 31) 1035 f.; also Jane Stapleton, “Unnecessary Causes,” 54 (2013) 129 LQR 39, 44.   BGHSt 37, 106, 126 ff. 55   Wright (n. 32) 303 ff.; Puppe (n. 13) 98, both with ample references. 56   David A. Fischer, “Insufficient Causes,” (2006) 94 Kentucky LJ 277, 290 f. 57   Wright (n. 32) 304 f. 51

53

causation   479

c) Pre-emption 58 Another variety of overdetermined events is the preemptive kind where the putative causes are temporally ordered. Suppose that A wants to kill V and places a bomb under V’s car bound to explode when the ignition key is turned. When V leaves his home, he is shot, 30 seconds before getting into the car, by B who was lying in wait. But for B’s shot, V would have died from the explosion. It seems that the counterfactual analysis fails to distinguish between actual59 (B’s shot) and residual causes (A’s bomb). For the proponents of the sine qua non account, this difficulty appears easier to dispel, for example again by asking for the “result as it came about” at a particular time or place: then B is the cause for V’s death at time t1 if A’s bomb had exploded a little later at time t2.60 A plainer version of this approach asks whether the result was accelerated by the cause,61 a traditional criterion in many jurisdictions and often employed in cases involving the killing of moribund victims but generally applic­ able to homicide because ultimately everyone dies. Alternatively, the counterfactual analysis may be supplemented with the rule that “facts must not be invented,” that is, the imaginary elimination of the alleged causal fact (B shot V) must not be accompanied by the invention of imaginary facts that did not occur (A’s bomb explodes).62 The NESS account has no trouble with preemption cases although both sets of conditions appear to be sufficient because the antecedents of the residual cause are not fully instantiated.63 Here, the ignition key was not turned so that A’s bomb was not a sufficient cause of V’s death, in contrast to B’s shot.

d) Omissions Most, if not all, criminal laws punish failures to comply with specific duties to act, and often distinguish two kinds of omissions:  simple omissions which form the counterparts of “conduct crimes,” and result-oriented omissions as counterparts to “result crimes.” Only the latter class is of interest here because it requires showing that the omission was causal for the harm. Legislators, courts, and common sense find little difficulty in treating omissions as (negative) causes because this corresponds to common experience:  the parents’ failure to feed their baby will cause its death, and the gardener’s failure to water the plants will make them wither. The counterfactual analysis seems to work well although the number of negative conditions is infinite, which leads to the so-called “Queen of England problem”:64 not   Also termed the problem of alternative, residual, potential, or hypothetical causes.   Sometimes also called overtaking, superseding, or intervening cause. 60   cf. Hart and Honoré (n. 3) 124 f., 249 ff.; Moore (n. 5) 87 f. 61 62   cf. Hart and Honoré (n. 3) 343 ff.; Moore (n. 5) 87 f.   Williams (n. 23) 77. 63   cf. Wright (n. 32) 297 ff. 64   Helen Beebee, “Causing and Nothingness,” in John Collins, Ned Hall, and L.  A. Paul (eds.), Causation and Counterfactuals (2004), 54, 291 ff. 58

59

480   carl-friedrich stuckenberg only the gardener’s failure to water the plants was a cause of their death but everyone else’s—including the Queen of England’s—failure, too. Since the criminal law is only interested in omissions by persons who have a specified duty to act, the proliferation of negative causes does not matter: only the gardener was duty-bound to water the plants, not the Queen. From the lawyer’s perspective, the main difficulty with omissions is a practical one of proof. In situations involving complex causal processes, it may be impossible to ascertain beyond reasonable doubt whether the required active conduct would have prevented the harm. A typical case is that the defendant failed to provide the proper medical treatment and expert witnesses testify that the proper treatment would probably, but not unfailingly, have saved the patient. These prosecutions tend to be doomed, which is why the English Law Commission65 as well as some scholars66 proposed—yet without success—indirectly lowering the standard of proof by requiring that only the (high) probability of harm prevention must be shown. While the legal practitioner’s world of omissions seems largely in order, some legal theorists and many philosophers believe that omissions cannot be causes, at least not positive causes.67 Omissions are absences, negations, and this gives rise to a widespread ontological intuition that, as John Stuart Mill put it, “From nothing, from a mere negation, no consequences can proceed.”68 Mill, however, accepted that a complex cause consists of positive and negative conditions which he understood as the “absence of preventing or countervailing causes.”69 It seems that a multitude of negative conditions—usually tacitly—forms part of any causal process which is the reason why generalists, like the proponents of the NESS account, see no difficulty here.70 “Negative conditions” should not be confused with “negative causation”71 which may involve omissions as well as positive acts as in the so-called “double prevention” situation (also known as Abbruch rettender Kausalverläufe): A throws a rock toward a window, B reaches out to stop the throw but C reaches out to grab B’s arm and prevents B from preventing the throw. The rock hits the window. A and C are causes of the broken glass.72 65   The Law Commission, A Criminal Code for England and Wales (Law Com No. 177, 1989), cl. 17(1) (b): “a person causes a result which is an element of an offence when . . . he omits to do an act which might prevent its occurrence” (emphasis added); very critical Glanville Williams, “What Should the Code Do About Omissions?,” (1987) 7 Legal Studies 92, 107. 66   cf. Claus Roxin, Strafrecht Allgemeiner Teil, Vol. II (2003), § 31 nn. 46 ff., who rejects this solution now, Roxin, “Probleme psychisch vermittelter Kausalität,” in Festschrift für Hans Achenbach (2011), 409, 430 f. 67   e.g. Moore (n. 5) 53 ff., 399 f., 444 ff., 460 f.; L. A. Paul and Ned Hall, Causation. A User’s Guide (2013), 173 ff; Ned Hall, “Two Concepts of Causation,” in Collins et al. (n. 64) 225 ff., 253, 260. 68   Mill (n. 18) Collected Works, Vol. VII, 330, 332. 69   Mill (n. 18) Collected Works, Vol. VII, 332. 70   For further argument, see Wright (n. 32) 311 ff.; Puppe (n. 13) 82 f.; Roxin (n. 66) 421 f. 71   Wright (n. 32) 315 with fn. 171; Puppe (n. 13) 99 ff. 72   See Hall (n. 67) 241 ff.; L. A. Paul, “Counterfactual Theories,” in Beebee et al. (n. 12) 158 ff., 170.

causation   481 If omissions are accepted as causes, scenarios of redundant causation like the overdetermination and preemption puzzles have to be solved here as well and, again, the NESS account appears superior to the “but for” test but this is still very controversial.73

e)  Interpersonal transactions Although criminal law punishes certain kinds of human interactions where one person influences another whose conduct results in harm—by instigation, deception, use of innocent agents, etc.—since time immemorial, many theorists have denied that these relations can be regarded as causal. This view can either rest on a bold claim of indeterminism that persons have free will or on the moderate observation that, even if human behavior is deterministic, the relevant causal laws are so exceedingly complex that it is impossible for us to specify all the conditions sufficient to produce a certain act in a certain situation. The first claim leads right to the abyss of the age-old free will debate which today is the subject of the philosophy of mind.74 In the strongest sense, freedom of will means that a person can start a causal chain “from nothing” which, from a religious perspective, is evidence of the divine spark in us because being prima causa non causata is a property usually attributed only to God. If this is so, a person’s unhampered use of her higher mental powers constitutes a novus actus interveniens which interrupts all previous causal sequences leading up to her: if A asks B for another cup of tea and B, upon brief reflection, agrees and pours the tea, A did not cause the filling of the cup because only B’s free will did. It will suffice here to say that this type of strong indeterminism which claims that human minds are indeterministic islands in an otherwise strictly deterministic universe, although this may seem flattering and corresponds to our intuitions, is highly problematic in many respects. Lawyers tend to prefer the moderate reasoning that, in any event, even if humans are subject to causal laws, we will never adequately know them.75 Some writers76 have adopted the philosophical stance popular in the 1950s77 that conscious mental processes and resulting human actions differ from physical events in that they are based on reasons and not determined by causes so that it is a “category mistake” to

  cf. Wright (n. 32) 316 ff.; Puppe (n. 13) 100 f.; but see Stapleton (n. 14) 477 ff.   The literature is abundant. A good start is Robert Kane (ed.), The Oxford Handbook of Free Will (2nd ed., 2011). 75   Hart and Honoré (n. 3) 22 f., 51 ff.; Honoré (n. 3) 116 ff.; Puppe (n. 30) Vor §§ 13 ff. nn. 125 ff.; Roxin 76 (n. 66) 416 ff.   Hart and Honoré, (n. 3) 22 f., 51 ff.; cf. Moore (n. 5) 266 ff. 77   This so-called “new” dualism of language (analytical/hermeneutical vs. causal/physicalist) origin­ ated with Gilbert Ryle, The Concept of Mind (1949), 109 f., and comes in many varieties, including one which allows for causal explanations, cf. Donald Davidson, “Mental Events” and “Actions, Reasons, and Causes,” both in Donald Davidson (ed.), Essays on Actions and Events (2nd ed., 2001), 207 ff. and 3 ff., respectively. 73

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482   carl-friedrich stuckenberg attempt a causal explanation of human action. Accordingly, the proven fact that a person acted for a specific reason is assumed to substitute the causal nexus.78 In many jurisdictions adhering to the theory of conditions, the formerly held doctrine that voluntary actions sever the causal chain (Regreßverbot)79 has long been abandoned and, for example, German courts are of the view that human conduct is subject to causal laws just like physical events.80 While it seems more plausible that causal chains do not “break” and that human mental processes are subject to the laws of nature like everything else,81 the alleged need and supposed impossibility of stating the complete causal laws obviously does not occur. It is most rare in legal practice that causal explanations require the full formulation of causal laws because incomplete statements based on average knowledge will usually suffice. Not surprisingly, the different accounts—whether human actions are free, or based on reasons, or caused—do not lead to different results in practice. There is, however, another and genuinely normative aspect to the alleged interruption of causation by voluntary conduct which is motivated by the perceived need to limit legal responsibility. Suppose that A hits V so that he lies unconscious and, after a while, some B, not acting in concert with A, takes advantage of V’s condition and stabs him. A’s action is certainly a sine qua non of V’s death. While some writers think that A did not cause V’s death because of B’s voluntary intervention,82 even for those who view him as a cause the question resurfaces on the next level whether B’s intervention hinders the imputation of V’s death to A’s action. This issue will be encountered later (see Section V.2.e).

V.  The Scope of Criminal Liability 1.  The need for normative criteria The sole function of the factual causation requirement is to exclude all those instances of conduct which are by no means considered legally relevant. If an act or omission is a (factual) cause then the further question arises whether it is also an imputable cause. All jurisdictions have developed criteria to select the legally significant causes from the infinite number of causes in fact. These limitations used to be applied within the causation formula (see Section III) which is terminologically   Hart and Honoré (n. 3); Puppe (n. 30) Vor §§ 13 ff. n. 131.   Reinhart Frank, Das Strafgesetzbuch für das Deutsche Reich (18th ed., 1931), § 1 n. III.2.a, pp. 14 ff. 80   See Hart and Honoré (n. 3) 457 f., 467 ff. 81 82   cf. Moore (n. 5) 268 ff.; Wright (n. 32) 308 f.   Hart and Honoré (n. 3) lxxviii f. 78

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causation   483 unfortunate because it conflates factual questions and normative analysis and results in much confusion.83 The claim that this corresponds to the popular meaning of causation84 is both dubious and normatively irrelevant;85 in addition, popular concepts are usually insufficient for the law.86 It is therefore a welcome development that the distinction between cause in fact and cause in law, or rather between caus­ ation and imputation/scope of liability etc., is gaining acceptance.87 The limiting principles used in various jurisdictions are remarkably similar in substance and reflect the purposes of the criminal law. They serve to delineate the individual’s sphere of causal responsibility and, conversely, the sphere of freedom to act. Yet, the most common criteria (see Section V.2) often form a haphazard assortment of unconnected considerations shaped by the vagaries of case law. The biggest challenge for legal theory in this area has therefore been to clear the doctrinal tangles and elaborate a principled and coherent approach as a solid foundation for court practice. An attempt at such a systematic account will be sketched in Section V.2.g.

2.  Common limiting principles The following overview is an incomplete selection of typical approaches to restrict factual causation. Though the core concepts are shared by many jurisdictions, details vary greatly and for obvious reasons are not included.

a) Proximity It seems a natural idea to restrict the legally significant causes to those that are closest to the harmful effect. Criminal law is concerned with the perpetrator himself and neither with his parents, grandparents, Adam and Eve, nor with the manufacturer of the weapon used, etc. This is expressed in requirements such as “proximate cause,” “direct cause,” “last human cause,” etc. Not least for procedural reasons, lawyers in earlier centuries preferred short and obvious causal chains, illustrated by particular requirements for homicide offenses, such as vulnus lethale (death must result from an evidently mortal wound) or the old common law rule that death must follow within a year and a day of the wounding. The proximity approach encounters two difficulties. First, it is unclear where to draw the line and for what criteria. The notion of “proximate cause” has long since been viewed as an “enormous difficulty” that vexes the law because of its “obscurity,”88 84   Hart and Honoré (n. 3) lii, 403.   Hart and Honoré (n. 3) lxvi. 86   Moore (n. 5) 254 ff.   Williams (n. 23) 69. 87   cf. the parallel development in U.S.  tort law where the terms of “proximate” and “legal cause” are substituted with “scope of liability,” American Law Institute, Restatement of the Law (Third), Torts: Liability for Physical Harm (Proposed Final Draft No. 1 (Apr. 6, 2005)), 574 ff. 88   Model Penal Code and Commentaries (n. 48) § 2.03, comment 1, p. 255. 83

85

484   carl-friedrich stuckenberg which is why the drafters of the Model Penal Code claim to have replaced it with a “fresh approach” (set out in Section V.2.f) although a vague and circular proximity element has nevertheless been retained as a kind of safety valve.89 The second problem is that there is no normative account of why proximity should matter in assigning liability and why even slightly more remote causes should always be irrelevant. The gradual disappearance of the “proximate cause” from modern law should therefore be welcomed.

b)  Foreseeability, probability, adequacy The cognate concepts of foreseeability, probability, adequacy, etc. operate to limit liability in view of the unavoidably limited causal knowledge of human actors. Usually, an objective standard is used to determine what was foreseeable in a given situation for an ordinary person. Abnormal results and freakish combinations of circumstances will be counted as misfortune and not give rise to legal responsibility. Ultimately, a normative evaluation must be undertaken of which efforts ought to have been made; that is, which risks should be avoided and the ensuing harm borne by the actor, and which risks should be tolerated and the harm dealt with differently (borne individually by the unlucky victim or collectively by insurance, etc.). This evaluation has, strictly speaking, nothing to do with (factual) causation and is commonly associated with the separate notion of (objective) negligence.90 If a subjective standard is employed and asked what this particular defendant was able to foresee in the relevant situation, this inquiry analytically belongs to the category of culpability.

c)  “Harm within the risk” A related concept is expressed by the notion of “harm within the risk” or “harm within the scope of the rule violated” which originated in tort law and asks whether the actual harm is of the kind which the violated rule was designed to prevent (Schutzzweck der Norm).91 The notion is cognate to “foreseeability” because a rule or standard of care can only be designed to prevent foreseeable harms but it is also distinct insofar as the rule may not be designed indiscriminately to prevent all kinds of foreseeable harm but only those which typically occur and not those which are coincidentally caused even though such coincidences are known. This is illustrated by a well-known torts case: when carriers by water were required to provide separate pens for transported animals and on the defendant’s ship the plaintiff ’s unpenned

  Model Penal Code and Commentaries (n. 48) § 2.03(2)(b) and (3)(b) require that the actual harm is “not too remote or accidental in its occurrence to have a [just] bearing on the actor’s liability or on the gravity of his offense,” see comment 3, pp. 261 ff. 90   e.g. Hart and Honoré (n. 3) 164 ff., 254 ff. 91   Hart and Honoré (n. 3) 6, 103, 208 ff., 284 ff.; Moore (n. 5) 161 ff. 89

causation   485 sheep were washed overboard which would not have happened had they been properly penned, it was held that the rule was aimed at preventing the spread of contagious diseases among the animals, not at their loss in stormy weather so that plaintiff ’s harm was not “within the risk.”92 The Model Penal Code accepts this test as a requirement for reckless and negligent causation only.93 There are a number of difficulties with the within-the-risk test,94 one of which is how to determine which risks a rule is “designed to protect” (see Section V.2.g).

d)  Ordinary hazard A limiting criterion known in many jurisdictions excludes “ordinary hazards” from the harms which give rise to liability. The notion which is sometimes inaptly called “exhaustion of danger” is based on the normative consideration that the defendant is not liable merely because his unlawful act has brought the victim to a position where he encounters an ordinary hazard of life, unless the unlawful act also imposes a handicap on him in meeting that hazard.95 Common examples are that D wounds V and V is transported by ambulance to hospital but dies on the way because the ambulance is struck by lightning or crushed under a falling tree. Being struck by lightning or crushed by a falling tree are common risks of ordinary life and there is a strong intuition that mere exposure to such risks should not support liability.96 However, in some cases ordinary risks are attributed, such as negligent medical treatment,97 so that the mere ordinariness of a risk, like foreseeability, is not a sufficient reason to exclude liability thus a more comprehensive approach is needed (see Section V.2.g).

e)  Intervening causes As mentioned previously, voluntary acts of persons who contribute to the harm for which the defendant is a condition sine qua non are often regarded as intervening causes which hinder the attribution of the harm, provided that they do not act in concert with the defendant. The reasons for the normative version of novus actus interveniens are basically the same as set out earlier in the context of factual causation: the free will of an informed, autonomous agent somehow neutralizes another’s preexisting liability. In contrast, involuntary contributions do not relieve the first actor from liability, such as the fraudster’s victim who enters into a transaction and suffers financial loss because he was deceived:98 coercion and error exclude voluntariness.   Gorris v. Scott (1874) LR 9 Ex. 125.   Model Penal Code and Commentaries (n. 48) § 2.03(3). 94   For an extended critique, see Moore (n. 5) 178–225. 95   Williams (n. 23) 81; Glanville Williams, Textbook of Criminal Law (2nd ed., 1983), 387 f. 96   Stapleton (n. 14) 461; see also Hart and Honoré (n. 3) xlv, 195. 97   cf. the cases in Hart and Honoré (n. 3) 357 ff.; contra Stapleton (n. 14) 462 f. 98   e.g. Hart and Honoré (n. 3) 41 ff., 74 f., 136 ff., 326 ff. 92 93

486   carl-friedrich stuckenberg All versions of novus actus interveniens suffer from inconsistencies, for example in the case of the creation of opportunities which are commonly exploited by wrongdoers (e.g. negligently leaving the door open so that a thief can enter a house and steal) or persons acting in self-defense (e.g. shooting back at robbers and killing a bystander) where the interventions, albeit free, deliberate, and informed, are considered irrelevant.99 Obviously, additional aspects like foreseeability are involved. Also, the concept of “voluntariness” is equivocal100 and easily stretched too far, for instance if moral obligations are said to render acts of assistance or rescue “involuntary.”101 In sum, the metaphysical as well as normative justifications of the doctrine of intervening causes seem doubtful.102 The Model Penal Code neither accepted nor rejected it explicitly103 but many jurisdictions implicitly reject it by recognizing liability for negligent creation of opportunities of voluntary wrongdoing such as that of the father who forgets to lock his weapons cabinet thereby enabling his son to use the guns in a shooting spree at his school.104

f) Culpability In jurisdictions committed to causal minimalism, the culpability requirement may in many cases act as the sole limiting principle. It is the actor’s mental states like intent, foresight, or ability to foresee which select the relevant causes from the infin­ ite causal web. This may work reasonably well in practice but upon closer inspection seems both implausible and theoretically flawed. Suppose A kills B; A’s parents are causes sine qua non for A’s existence and B’s death. Is the only reason that they cannot be prosecuted for murder the fact that they lacked the intent to kill B when they fathered A? What if they had that intent? If C suggests to his rich uncle D that he should go for a walk in the hope that D will be struck by lightning, should C be liable for murder? It is sometimes said that C cannot intend D’s death because he does not control the lightning, but that obviously introduces normative restrictions on the notion of “intent.” In sum, it seems unsatisfactory to have only culpability as a corrective of factual causation. In some legal traditions, culpability even seems to have an influence on the limiting principles of legal causation; consider the tort law maxim that “intended consequences can never be too remote.”105 In the effort to get rid of the obscurities of “proximate cause,” the Model Penal Code treated the issue of limiting causation as a question of culpability106 and provided rules for situations where the actual harm   e.g. Hart and Honoré (n. 3) 59, 81 ff., 125 ff., 195; contra Moore (n. 5) 146 ff. 101   Foot (n. 41) 513 f.   Hart and Honoré (n. 3) 326 ff., 335. 102   For a fundamental critique, see Moore (n. 5) 145 ff., 231 ff. 103   Model Penal Code and Commentaries (n. 48) § 2.03, comment 3, p. 262. 104 105   e.g. BGH NStZ 2013, 238 (Winnenden case).   cf. Hart and Honoré (n. 3) 170. 106   Model Penal Code and Commentaries (n. 48) § 2.03, pp. 256 ff.; David J. Karp, “Causation in the Model Penal Code,” (1978) 78 Columbia LR 1249 ff. 99

100

causation   487 deviates from the harm intended, foreseen, or foreseeable by the actor. Strangely, rules on “transferred intent” or error in persona and aberratio ictus, conventionally categorized under “mistake,” are now reborn as rules on causation; this corresponds to earlier views that the greater the actor’s culpability, the more harm is attributable to him. Nonetheless, the drafters of the Model Penal Code acknow­ ledged that culpability is not sufficient and supplemented it with a proximity formula (see Section V.2.a).107 While it is true that questions of attribution of harm are comparatively rare when the defendant intended that harm, it is a (legal) category mistake to confuse prin­ ciples of causation and culpability. Neither does culpability affect causation nor does increased culpability justify more generous attribution of harms otherwise regarded as too remote or accidental.108

g)  “Objective imputation” The so-called doctrine of “objective imputation” (objektive Zurechnung, imputación objectiva) represents an attempt to give a principled account of “legal causation.” Originally based on Hegel’s doctrine of imputation, its current form109 has become the dominant doctrine in Germany110 and Spain and is discussed in some other countries (Italy, Korea, Latin America), notwithstanding a host of controversies over the detail. In the broad sense, “objective imputation” encompasses factual and legal causation, that is, the entire actus reus/objective elements of a result crime; in a narrow sense, “objective imputation” refers only to the normative principles that supplement and limit the minimalist “theory of conditions.” The adjective “object­ ive” stresses that the actor’s mental state, hence considerations of culpability, are irrelevant to this inquiry. The proclaimed aims of the doctrine are to distinguish between wrong (Unrecht) and misfortune (Unglück) and to exclude excessive attribution of harm to unlawful conduct (as expressed in the early canon law maxim versanti in re illicita imputantur omnia quae sequuntur ex delicto). The doctrine focuses on the congruence between risk-creating activity and materialized risk and employs a two-pronged test: (a) did the defendant’s conduct create the unlawful risk that the relevant forbidden harm (death, bodily injury, etc.) will ensue, and (b) is the actual harm the materialization of precisely that risk? Many of the foregoing criteria have a place in this test:  a “risk” requires the establishment of ex ante causal probabilities; a causal sequence that no one could   Model Penal Code and Commentaries (n. 48) § 2.03, comment 2, 3, pp. 258, 261.   Moore (n. 5) 135 ff.; Mueller (n. 22) 184 ff. 109   For the development of the doctrine, see Christoph Hübner, Die Entwicklung der objektiven Zurechnung (2004). 110  For a model exposition, see Claus Roxin, Strafrecht Allgemeiner Teil, Vol. I  (4th ed., 2006), § 11 nn. 44 ff. 107

108

488   carl-friedrich stuckenberg foresee is no relevant risk. Apart from that, considerations of probability or adequacy are mostly deemed irrelevant so that even rare types of harm are attributable. The creation of the risk must be unlawful and this requirement is one of the main insights of the doctrine: that society tolerates a large number of risks as side effects of otherwise useful and desired activities (e.g. production of cars, kitchen knives, or procreation, although it is evident that in some instances harm will be caused). In other words, the unlawfulness of an activity is not a function of its causal potency. Whether a risk is unlawful or not can often be determined by consulting the relevant legislation such as road traffic laws, safety regulations, etc., or it is up to the courts to draw a line according to policy considerations. For example, irrespective of potential harms, it is neither unlawful to produce cars, kitchen knives, and children nor to expose someone to ordinary hazards nor to facilitate a self-harming activity (always provided that the person at risk is an informed and reasonable adult). The second prong of the test consists of several steps. First, it is asked whether the harm can be regarded as the materialization of the risk created or of some other risk (Risikozusammenhang); intervening causes are discussed here albeit in a still less than satisfactory manner. The next step concerns the causal relevance of the unlawful aspect of the conduct (Pflichtwidrigkeitszusammenhang), usually by employing a counterfactual (would rightful conduct—“rechtmäßiges Alternativverhalten”— have prevented the harm?). In a third step, it is verified whether the actual harm belongs to the type of harm which the rule is designed to prevent (Normzweck- or Schutzzweckzusammenhang) which is best understood as the class of harms that can be strategically avoided by complying with the rule. The ongoing doctrinal debate demonstrates that this is a work in progress with a number of active construction sites and residual pockets of intuitive rather than principled reasoning. Nonetheless, it has the advantage of a true fresh start, unburdened by misleading causal metaphors and “Stone Age metaphysics,” which allows for openly addressing the normative issues of the scope of criminal liability. It also shows the difficulties of looking behind the intuitions to find out what the guiding principles of liability really are (or should be).

References Beebee, Helen, Hitchcock, Christopher, and Menzies, Peter (eds.), The Oxford Handbook of Causation (2009) Engisch, Karl, Die Kausalität als Merkmal der strafrechtlichen Tatbestände (1931) Hart, H. L. A. and Honoré, Tony, Causation in the Law (2nd ed., 1985) Mackie, John L., The Cement of the Universe (1980) Moore, Michael S., Causation and Responsibility (2009) Paul, L. A. and Hall, Ned, Causation. A User’s Guide (2013)

causation   489 Puppe, Ingeborg “The Concept of Causation in the Law”, in Benedikt Rahmen and Markus Stepanians (eds.), Critical Essays on “Causation and Responsibility” (2013), 67 Williams, Glanville, “Causation in the Law,” (1961) 19 Cambridge LJ 62 Wilson, William, Central Issues in Criminal Theory (2002), ch. 6 Wright, Richard W., “The NESS Account of Natural Causation: A Response to Criticisms,” in Richard Goldberg (ed.), Perspectives on Causation (2011), 285 ff.

­c hapter 22

SUBJECTIVE ELEMENTS OF CRIMINAL LIABILITY thomas weigend

i.  The Requirement of a Mental Element Criminal punishment imposed on a person expresses blame for what the person did. In a rational system of law, it makes no sense to blame and punish a person for harmful occurrences that he had no possibility to prevent or that she was unable to foresee. It is therefore a universal principle that attribution of a harmful event to a person in criminal law requires not only a causal link between the person’s conduct and the event but also a mental link between the person and the occurrence. Thus, if A returns to his home at night and switches on the light and thereby causes an explosion that kills B, A cannot be held criminally responsible for B’s death unless he knew or could have known, through use of due diligence, that the light switch was connected to an explosive device. If A were punished for merely causing B’s death without this minimal mental link, he would be treated not as a responsible human agent but as a mere causal factor. This would contradict the very basic idea that the criminal law imposes personal responsibility. In other words, it is respect for a person’s autonomy that excludes holding her responsible on the basis of an event she had no choice to avoid.1

  cf. Andrew Ashworth and Jeremy Horder, Principles of Criminal Law (7th ed., 2013), 155–156.

1

subjective elements of criminal liability    491 In the English-speaking world, the necessary link between a person’s conduct in violation of a criminal prohibition (actus reus) and the person’s mind is called the requirement of mens rea (a guilty mind). Terminology differs in other legal systems, but there is agreement that some mental link is necessary for the imposition of criminal liability; often intention and negligence are the terms used for describing the subjective element in criminal wrongdoing.2 In some legal systems, notably in the United Kingdom, the United States, and France, there exists a category of criminal offenses that do not require proof of mens rea and sometimes do not even allow for a defense of due diligence; they are called strict liability offenses3 or contraventions purement matériels in French. These offenses are typically limited to the areas of health, traffic, and product safety, where misconduct can create grave risks to others and where it may be difficult to prove the actor’s knowledge of the relevant facts. The idea behind dispensing with proof of intention or negligence is to increase the pressure to conform with safety rules on the part of those who act in these areas. Typically, French law provides an exception from punishability in these cases where the harm has been brought about by force majeure, that is, causes beyond human control.4 In England, courts have recognized a “constitutional principle” that mens rea is required unless the statute in question clearly determines otherwise,5 and the U.S. Model Penal Code has established a rule that strict liability offenses can only be “violations,” which do not carry sentences of imprisonment.6 Many legal systems reject the idea of criminal responsibility without a mental element. They regard the requirement of mens rea as a basic principle of criminal law which should not suffer any exception. The requirement of mens rea is often linked to the principle of culpability or personal fault, which allows for criminal punishment only where the defendant has been proved to be individually blameworthy.7 It seems fundamentally unfair to hold a person criminally liable for a harm or risk that he was unable to foresee. Moreover, abandoning the principle of personal fault as a precondition for criminal punishment blurs the lines between criminal law, on the one hand,   In this chapter the terms “mens rea” and “mental element” are used interchangeably for connoting the mental link between the person and his act or the harm caused. 3   See Andrew P. Simester (ed.), Appraising Strict Liability (2005); Ashworth and Horder (n. 1) 160–168; A. P. Simester, J. R. Spencer, G. R. Sullivan, and G. Virgo, Simester and Sullivan’s Criminal Law: Theory and Doctrine (5th ed., 2013), 173–195. 4   Art. 121-3(5) Code pénal. See also Jean Pradel, Droit Pénal Géneral (18th ed., 2010), 426. 5  See Sweet v. Parsley [1970] A.C. 132; B v. DPP [2000] 2 A.C. 428. But see also later cases recognizing exceptions to this principle, cited in Ashworth and Horder (n. 1) 166–167. 6  American Law Institute, Model Penal Code (1962) § 2.05(1)(a) and (2)(a) in connection with § 1.04(5). But state legislatures have not generally adopted this approach; see Wayne R.  LaFave, Substantive Criminal Law (2nd ed., 2003), 392 fn. 47. 7   On German law, see Joachim Vogel in Heinrich Wilhelm Laufhütte, Ruth Rissing-van Saan, and Klaus Tiedemann (eds.), Strafgesetzbuch. Leipziger Kommentar, Vol. 1 (12th ed., 2007), vor § 15 n. 15. In Germany, the “culpability principle” has been held to be constitutionally protected as an element of the rule of law principle (Rechtsstaatlichkeit); see Judgment of the Federal Constitutional Court, BVerfGE 95, 96, 130–131. 2

492   thomas weigend and tort or administrative law, on the other hand. But even legal systems that insist on the necessity of proving mens rea in criminal law often find ways to facilitate the conviction of persons who may not have been at personal fault for the harm they caused. The legislature may make it a criminal offense intentionally to engage in (generally) risky conduct—such as drunken driving—rather than to bring about harm,8 some circumstances may be defined as “objective” conditions of punishability and thus need not be covered by the offender’s intent or negligence,9 or the defendant may be required to prove his own diligence or good faith at trial in order to avoid conviction. One might think that such legal rules conflict with the presumption of innocence, which places the burden of proving the defendant’s guilt on the prosecution. But the European Court of Human Rights has found that shifting the burden of proof as to some elements of a crime to the defendant does not violate the presumption of innocence as guaranteed by Art. 6(2) of the European Convention on Human Rights.10 It is an open question whether the principle of culpability will eventually prevail or whether some form of strict liability will be recognized by the majority of legal systems.11 In the latter case, the character of the criminal law may change; criminal law would then no longer be a separate branch of the law characterized by strictly personal fault but just another device for enforcing compliance with legal and administrative norms.

ii.  Distinction Between Intentional and Non-Intentional Offending Although the requirement of a mental element is often associated with the issue of culpability,12 mens rea does not characterize a person’s blameworthiness as such but her wrongful conduct. For example, the wrong of murder differs from   See Art. 223-1 Code pénal, providing criminal punishment for the intentional violation of any legal obligation to follow rules of safety or diligence where this violation has placed another person at risk of death or serious injury. It is sufficient for conviction under this law that the defendant knew that he disregarded the safety rule; he need not have foreseen the endangerment of any person. 9   See e.g. § 231 StGB (Strafgesetzbuch, German Criminal Code) making it a crime to participate in a brawl; the occurrence of death or serious injury to a person in the course of the brawl is regarded as an “objective” condition of punishability to which the offender’s intention or negligence need not extend; see Olaf Hohmann in Günther M. Sander (ed.), Münchener Kommentar zum Strafgesetzbuch, Vol. 4 (2nd ed., 2012), § 231 nn. 21–23 with references. 10  ECtHR, Salabiaku v. France, App. No. 10519/83, Judgment of 7 Oct. 1988, para. 28; Haxhishabani v.  Luxembourg, App. No. 52131/07, Judgment of 20 Jan. 2011, paras. 38–40. 11   Vogel (n. 7) vor § 15 nn. 21, 48. 12   See e.g. Paul H. Robinson, Structure and Function in Criminal Law (1997), 39–56. 8

subjective elements of criminal liability    493 negligent homicide only with respect to the mental element; it is thus the actor’s mens rea that defines intentional murder and distinguishes it from negligent homicide.13 It is generally assumed that intentional fault is of greater gravity than non-intentional (negligent) fault. Yet, a negligent person can do as much harm as someone who commits an intentional offense, and a negligent person likewise fails in his obligation to take other persons’ legitimate interests into account when he acts.14 Why, then, do most legal systems impose greater punishment on intentional offenders, and why do they limit criminal responsibility for merely negligent conduct to a small number of offenses?15 Several explanations have been given for the claim that more severe consequences should be imposed on an intentional offender:16 he has taken a conscious decision to violate the interest protected by the law;17 his conduct is indicative of an attitude that consciously ignores the commands of the law;18 his knowledge of all relevant facts makes it easier for him to avoid the criminal conduct;19 and intentional violations of the law do more harm to the public feeling of security and therefore require harsher sanctions in order to restore the confidence of the public in the rule of law.20 With regard to preventive purposes of the criminal law, one might say that intentional conduct lends itself to being deterred more than mere inadvertence, and a person showing anti-legal tendencies may be in greater need of reform than someone who just does not pay attention. Because the law plausibly reserves the most severe punishment for intentional conduct, the issue of distinguishing between intentional and non-intentional conduct is of great legal relevance. This issue refers back to the question of what are the distinguishing characteristics of intentional conduct. When considering these “characteristics” of intention one should, however, not lose sight of the fact that what is regarded as “intentional” conduct is not an empirical fact but a matter of attribution or imputation. It is thus essentially a decision of criminal policy how far the law should extend the realm of “intentional” crime, which 13   See Günter Stratenwerth and Lothar Kuhlen, Strafrecht Allgemeiner Teil:  Die Straftat (6th ed., 2011), 88–89. 14   cf. Christoph Burchard, Irren ist menschlich (2008), 231–232. See also Section VII. 15  Under French law, e.g., the two most serious types of crime (crimes and délits) in principle only cover intentional conduct, but the legislature can create negligent délits (Art. 121-3 Code pénal). Similarly, in Germany and Switzerland negligent conduct is covered by criminal prohibitions only where that has been explicitly stated by the law (§ 15 StGB, Art. 12(1) Swiss StGB). 16   According to the principle of culpability, the law should provide for differentiated punishment according to the degree of blameworthiness; see Vogel (n. 7) vor § 15 n. 45. 17   See Claus Roxin, Strafrecht Allgemeiner Teil, Vol. I (4th ed., 2006), 446. 18   Carl-Friedrich Stuckenberg, Vorstudien zu Vorsatz und Irrtum im Völkerstrafrecht (2007), 428–432. 19   Bernd Schünemann, “Vom philologischen zum typologischen Vorsatzbegriff,” in Festschrift für Hans Joachim Hirsch (1999), 363, 371; Karsten Gaede, “Auf dem Weg zum potentiellen Vorsatz?,” (2009) 20 121 ZStW 239, 267–268.   See Wolfgang Frisch, Vorsatz und Risiko (1983), 47–49.

494   thomas weigend draws the heaviest penalties. In making this decision, the reasons for punishing intentional crime more severely than mere inadvertence (see earlier) certainly play an important role. Sentencing and its purposes are thus inseparably linked to the divide between intentional and non-intentional crime, whereas cognitive psychology has surprisingly little to say about what to treat as intentional conduct in criminal law.21

1.  Knowledge and will as elements of intention Keeping this in mind, there is some agreement that intention (in a broad sense, i.e. including various “modes” of intentional fault) comprises both cognitive and volitional elements. The murderer who intentionally shoots and kills the victim both knows that she is terminating the life of a human being and wishes that effect to occur. By contrast, the careless motorist who backs up his car and thereby hits and kills the victim standing behind the car neither knows that he is terminating the life of a person nor wishes to do so. But what about situations where the cognitive and the volitional elements go different ways? In an old German hypothetical case, A and B stand at a shooting gallery, where a young lady (V)  supervises the operations and hands the guns to customers. A asks V to take a glass ball in her hand. A then makes a bet with B, betting a large sum of money on his ability to hit the glass ball in V’s hand without hurting her. A  knows that he is not a good marksman and that there consequently exists a high risk that the bullet will hit V’s hand. In fact, A’s shot misses its intended mark and injures V’s hand. Charged with intentional assault, A objects that he had no intention whatsoever of hitting V because that outcome made him lose a large sum of money on his bet, hence his will was only to hit the glass ball. Few people would, however, acquit A on the basis of this defense; they would argue that he consciously took a serious risk as to V’s health. The shooting gallery hypothetical demonstrates that the volitional element of intent (the actor’s motivation or his “wish” to cause harm) plays at best a minor role in assessing intent; it is the actor’s awareness of the risk involved in his conduct, and the fact that he fails to refrain from the risky conduct in spite of this knowledge, which shows that he consciously puts his own interests before those of others. This is true even in the shooting gallery case:  A  decides to create a serious risk to V’s health in order to enjoy the thrill of the bet, regardless of his (actual or assumed) chances of winning the bet.

  See Stuckenberg (n. 18) 145–150.

21

subjective elements of criminal liability    495 There are also situations where there is will but no knowledge. Assume that A fervently wishes to kill his enemy V. Although V normally hides from A, one day A sees V walk by in the distance. Wishing to see V dead, A picks up a small rock and hurls it at V, knowing that—due to the long distance—it is highly unlikely that the rock will hit V and that it is even less likely that V will be killed. But the rock by chance hits V and causes a deadly injury. Charged with murder, A points out the minimal chance that throwing the rock might cause V’s death. Still, most judges would convict A of murder because he consciously “desired” the result, regardless of the low probability that his desire may be fulfilled.22 Although finding A guilty of murder would be in line with many people’s intuition, this outcome does not comport with the prevalence of the cognitive element in intention that we have found to exist. If intention requires knowingly taking a serious risk of harm, then A in the second hypothetical cannot be blamed with having acted intentionally (but only with having acted on an irrational desire).23 Traditionally, the potential dissonance between the intellectual and the volitional aspects of intention has been resolved by recognizing two modes of intention—one where the actor’s will is dominant24 and one where it is the actor’s knowledge or expectation of fulfilling the objective elements of a criminal statute that makes his conduct intentional. In the latter case, the actor’s will is often inferred from his actions: if A shoots a pistol at V’s head from a very close distance, A will not be heard with the claim that he did not “wish” to kill V.25 This is true even where the law requires a “special” intention, for example to kill or to appropriate someone else’s property: the dol spécial required for murder and theft in French law26 can be inferred from the objective facts, so that it is not necessary to prove the actual state of the actor’s mind at the time of his relevant conduct.27 The actor’s will as a normat­ ive concept is thus distinct from any volition or approval in a psychological sense:28

22   See LaFave (n. 6)  341:  a person intends a result of his act “when he consciously desires that result, whatever the likelihood of that result happening from his conduct.” See also Paul H. Robinson, Criminal Law (1997), 214 (asserting an “instinct” that trying to cause a harm, whatever the likelihood, is more condemnable than acting with the belief that the harm will or might result without desiring it). 23   For a strictly cognitive theory denying A’s liability for intentional murder in this hypothetical, see Ingeborg Puppe, Vorsatz und Zurechnung (1992), 36–37. 24   Logically, a person’s will is not subject to gradation: one can only either wish or not wish a certain result to occur; see Ingeborg Puppe in Urs Kindhäuser, Ulfrid Neumann, and Hans-Ullrich Paeffgen (eds.), Nomos Kommentar zum Strafgesetzbuch (4th ed., 2012), § 15 n.  26. But in real life, one may say that a person wishes one outcome “more” than another; see Jochen Bung, Wissen und Wollen im 25 Strafrecht (2009), 136–153, 220–226.   cf. Stratenwerth and Kuhlen (n. 13) 104. 26   French law distinguishes between a perpetrator’s general intention to do an act in violation of the law (dol général) and his special intention to bring about a certain result (dol spécial) as required by some offense descriptions. The distinction between these two forms of dol, and the practical relevance of the distinction, are not entirely clear. cf. Frédéric Desportes and Francis Le Gunehec, Droit pénal 27 général (13th ed., 2006), 456–459.   Pradel (n. 4) 408–409. 28   The research findings on the neural functioning of the human brain have therefore remained largely inconsequential for the criminal law; for overviews of the discussion, see Reinhard Merkel, Willensfreiheit und rechtliche Schuld (2008); Gunnar Duttge (ed.), Das Ich und sein Gehirn (2009);

496   thomas weigend an actor who does an act that he knows is very likely to cause a result is legally presumed to have “willed” this result, because the law does not accept the self-contradiction that lies in his assertion that he foresaw the result of his conduct but did not wish it to come about.29 Although intention and mere inadvertent negligence as to the same facts are mutually exclusive, some offense descriptions require intention as to some objective elements of the offense but not as to others. For example, in some legal systems there exist crimes such as “assault causing death” or “robbery causing death.”30 For these crimes, it is sufficient that the defendant intended the assault or the robbery; with regard to the victim’s death, it is only necessary that he could have foreseen the lethal outcome, that is, negligence suffices for conviction.31 In common law jurisdictions, by contrast, a defendant in this situation will normally be convicted of murder because he will be held responsible for all “normal” consequences of his illegal assault or robbery, regardless of whether he foresaw them or even could have foreseen them.32

iii.  Modes of Intention In accordance with what has been said previously about the interplay of cognitive and volitional elements, most legal systems regard knowledge and intent (in a narrow sense of “wishing” something to happen) as separate but equally reprehensible

Rolf D.  Herzberg, Willensunfreiheit und Schuldvorwurf (2010); Christian Jäger, “Willensfreiheit, Kausalität und Determination,” [2013] Goltdammer’s Archiv für Strafrecht 3. 29   In a seminal case on intention decided by the German Federal Court of Justice in 1955, two young men (A and B) decided to rob an older man (V) who had been friendly with them in the past. A and B agreed that they did not wish to kill V but only wanted to make him unconscious so that they could take his money and a suit. When V defended himself, A and B fixed a leather strap around V’s neck and pulled it tight in order to render V unconscious. As a consequence, V died of suffocation, although A and B did try to revive him. The Federal Court of Justice convicted A and B of murder, holding that they “approved” of V’s death “as a matter of law” (im Rechtssinne) although they disliked the outcome; Bundesgerichtshof (BGH, Federal Court of Justice), BGHSt 7, 363. See on this case, Puppe (n. 24) § 15 n. 24. 30   See e.g. § 86 Austrian StGB; arts. 222-7, 311-10 Code pénal, §§ 227, 251 StGB. 31   cf. § 7(2) Austrian StGB, § 18 StGB. With respect to robbery causing death, § 251 StGB requires a heightened degree of carelessness (Leichtfertigkeit) as to the victim’s death. For similar rules in French law, see Pradel (n. 4) 408. 32   On the so-called felony murder rule in U.S.  law, see LaFave (n. 6)  444–474. On “constructive liability” in English law, see Ashworth and Horder (n. 1) 74–75, 156–157; Simester et al. (n. 3) 196–200.

subjective elements of criminal liability    497 modes of intention.33 In each case, the perpetrator takes a clear mental position against the interest protected by the law.

1. Knowledge A definition of the “knowledge” mode of intention can be found in § 5(3) of the Austrian Criminal Code: The offender acts knowingly if he regards the realisation of the circumstance or result that the law requires not only as possible but regards its presence or occurrence as certain.34

By treating “circumstances” and “results” together, this definition camouflages the fact that “knowledge” can only refer to circumstances past or present, not to the future. It is therefore preferable to distinguish between “circumstances” (including the actor’s own conduct), where “knowledge” can indeed be certain or almost certain, and “results,” where one should rather talk about expectation or prediction. A definition that makes this distinction can be found in § 2.02 (2) (b) of the Model Penal Code published by the American Law Institute in 1962: A person acts knowingly with respect to a material element of an offense when: (i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and (ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.35

The Model Penal Code wisely allows for a small margin of uncertainty when it declares further that a person is deemed to have knowledge of the existence of a particular fact if he “is aware of a high probability of its existence, unless he actually believes that it does not exist.”36 The same must apply to results of one’s conduct:  since we can never be certain about future developments, knowledge can and must be assumed if the actor is “practically” certain about the result of his conduct or, as Art. 30(3) of the Statute of the International Criminal Court (ICC) puts it, if he is aware that the consequence “will occur in the ordinary course of events.”37 This also means that a person’s willful blindness does not exclude his liability under the “knowledge” mode of intention: a man who forcefully throws

33   On the comparison of intent and knowledge with regard to moral reprehensibility, see Ashworth and Horder (n. 1) 170–171. 34  Author’s translation.   35 See n. 6. 36   Model Penal Code § 2.02(7). 37   In English law, “knowledge” is not regarded as a distinct species of intention but rather as possible grounds on which to base a finding of intention; see Ashworth and Horder (n. 1) 173.

498   thomas weigend a baby against a wall and—even honestly—claims that he did not foresee that this act would lead to serious injury or death, will still be held to have “known” about the outcome.38

2. Intent Intent, expressing a person’s wish or desire, cannot easily refer to attendant circumstances—a person can, for example, not “intend” for his sexual partner to be less than 16 years old.39 This mode of intention can therefore refer exclusively to future developments, most frequently to the consequences of one’s own conduct. Theoretically, a person’s intent must be distinguished from his motives (which are generally irrelevant for the issue of intention):40 the reason why the perpetrator shoots at the victim plays no role in determining whether he kills the victim intentionally. But there may still be some link, in the perpetrator’s mind, between the motive for his action and its purpose: if it can be shown that A deeply wished to see V dead, this motivation makes it more likely that he also desired (intended) his shot to kill V.41 Yet, intent may still be present even where the actor has no strong motive to act: if A on the spur of the moment kicks V, who sits on a quayside wall above the seashore, he may well have intent to kill V, if A  wishes V to fall and drown in the sea.

3.  Intermediate modes: recklessness and dolus eventualis In reality, instances where an actor knows exactly what will happen, or where he has a strong desire to bring about a certain (criminal) result, are exceptions rather than the rule. More often, a person knows that she is creating a risk, which may be great or small, and is more or less indifferent as to whether the risk will actually result in harm. For example, if motorist A crosses an intersection without looking out for cars that would have the right of way, he knowingly takes the risk that an accident may happen which could lead to the injury or even death of another driver. But A neither knows that his car will crash into someone else’s car, nor does he desire that

  cf. LaFave (n. 6) 345–346.   Model Penal Code § 2.02(1) nevertheless applies the term “purposely” to the actor’s conduct and to attendant circumstances, requiring with respect to the latter that “he is aware of the existence of such circumstances or he believes or hopes that they exist.” For a critical view of this provision, see Markus D. Dubber, Criminal Law: Model Penal Code (2002), 64–65. 40   For a thorough discussion of the relationship between motives and intention, see Stuckenberg (n. 18) 269–279. 41   Accordingly, § 5(2) Austrian StGB states that a person acts with intent whenever it is important for him (wenn es ihm darauf ankommt) to bring about the circumstance or result defined by the law. 38

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subjective elements of criminal liability    499 to happen. Assuming that driver V, who had the right of way, cannot avoid crashing into A’s car and V is killed, would it then be fair to hold A responsible for intentional homicide of V? Legal systems take two different routes in dealing with this issue. Some jurisdictions, especially in the common law world, have developed a mode of subjective responsibility especially for this type of advertent risk-taking, whereas most legal systems in the continental legal tradition try (more or less awkwardly) to fit these cases into the intention vs. negligence dichotomy.42

a) Recklessness In the tripartite system of fault prevalent in the English-speaking world, recklessness is regarded as a distinct mental state giving rise to criminal liability whenever a statute or judge-made law so provides. Although recklessness is generally deemed less blameworthy than intent or knowledge, legislatures may provide for the same sentencing range for reckless and intentional conduct causing harm. Again, the Model Penal Code provides a useful definition: A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.43

The conscious disregard of a substantial risk is the hallmark of recklessness:  the actor, as in the intersection hypothetical given previously, knows that his conduct may cause serious harm, and still insists on pursuing this conduct. Under what circumstances a risk is “substantial and unjustifiable” cannot easily be expressed in percentage points; as the second sentence of the Model Penal Code definition indicates, this issue depends on the amount of harm that may occur and on the (more or less legitimate) purpose that the actor pursues.44 Thus, it may not be reckless for a doctor to disregard a speed limit when driving to see a patient in acute distress, whereas the same conduct by a drunken youth on his way home from a party may well be deemed reckless. In England, there was an attempt by the House of Lords to extend the concept of recklessness to situations where the actor was not aware of the risk involved in his conduct but should have been aware of a “serious” risk he created. Lord Diplock in R. v. Caldwell proposed a form of recklessness which was to exist when the actor took an “obvious” risk and “has not given any thought to the possibility of there 42   For a strong argument in favor of the tripartite model in a European context, see Jeroen Blomsma, Mens Rea and Defences in European Criminal Law (2012), 134–166. See also Vogel (n. 7) vor § 15 nn. 43 44 26–27.   Model Penal Code § 2.02(c).   See LaFave (n. 6) 376–377.

500   thomas weigend being any such risk.”45 But the House of Lords in a later decision abandoned that route and returned to the requirement of conscious risk-taking.46

b)  Dolus eventualis Legal systems that do not recognize recklessness as a halfway house between intention and negligence need to decide whether conscious risk-taking should be treated as intentional or negligent fault. Typically, national systems allow for both solutions and then face the difficulty of having to distinguish between “intentional” and “negligent” risk-taking.47 As has been pointed out previously, intention has cognitive as well as volitional aspects, and both have been suggested as the crucial criteria for distinguishing between intention and negligence in risk-taking cases. The key phrase in this context is dolus eventualis, which literally means “intention in the event that . . . ” The idea of dolus eventualis is that the actor does not know whether his conduct will bring about a harmful result but accepts the occurrence of that result “in the event that” it comes about. In the intersection hypothetical noted earlier, the driver who crosses the intersection without looking would be held to act with dolus eventualis with respect to V’s death if he mentally embraces (approves of, accepts, resigns himself to, acquiesces in) that outcome. By contrast, if A mentally rejects the idea that he might cause a fatal accident, or does not take this possibility seriously, he is said to act not intentionally but with “conscious negligence” (luxuria). The words used above for describing the actor’s mindset in dolus eventualis cases seem to indicate that it is his volition that makes the difference: if he “accepts” the harmful outcome, he decides against the legal interest involved and thus should be held liable for intention; if he “rejects” the harmful result (but nevertheless takes the risk that it occurs), or unreasonably hopes that “everything will be all right” in spite of his risk-taking, his attitude is not hostile to the protected interest and therefore does not seem to merit liability for “truly” intentional conduct.48 In line with this reasoning, German courts have so far insisted on the existence of a “real” volitional element in dolus eventualis, thereby recognizing a margin of appreciation for trial courts in attributing intention or negligence to a defendant who is acting in a manner that involves a serious risk to someone’s life.49   Caldwell [1982] A.C. 341.   R. v. G. [2004] 1 A.C. 1034. For a discussion, see Ashworth and Horder (n. 1) 179–181. 47   It should be noted that the Statute of the ICC has opted against recognizing recklessness or dolus eventualis as a sufficient mental element for international crimes under the jurisdiction of the ICC. Art. 30(1) of the Statute limits criminal responsibility to persons acting with intent and knowledge, and intent with respect to consequences requires at least that the actor is aware that the consequence “will occur in the ordinary course of events” (Art. 30(2)(b) of the Statute). For a thorough analysis of Art. 30, see Roberto Wenin, La mens rea nello statuto di Roma (2012). 48   In France, this attitude of an actor is (confusingly) called dol éventuel but is treated as a mode of negligence; Desportes and Le Gunehec (n. 26) 464–465. 49   e.g. the German Federal Court of Justice decided a case where a young man had killed his girlfriend’s 1-year-old baby by hitting his head in karate style. The Court emphasized the generally good 45

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subjective elements of criminal liability    501 Yet, the emphasis on the volitional element for defining dolus eventualis has several flaws. First, it is based exclusively on the actor’s psychological mindset and leaves normative issues aside. It may well be that a value-based assessment of an actor who unreasonably denies an obvious risk or refuses even to take a closer look before he acts, shows that he is as hostile to the interests involved as any other “intentional” perpetrator and therefore should be punished as severely.50 Secondly, the actor’s mental and emotional attitude with respect to the possible result of his conduct is almost impossible to determine from outside, and even less so at a trial which takes place months after the event. The court’s efforts to find out whether the defendant had “accepted” the harmful outcome when he acted must therefore lead to an evaluation of the defendant’s overall character—an evaluation which is difficult to perform at trial and which should not in any event be determinative of the defendant’s culpability with respect to a particular act. Thirdly, the actor’s emotions, that is, her desires and wishes with respect to the result of her conduct, have little relation to the purposes of the criminal law. The law needs to protect life, health, safety, and other important interests; and it makes no difference whether the actor feels pleasure or reluctance when she consciously places these interests at serious risk. For these reasons, there exists a strong tendency toward drawing the line between intention and negligence in risk-taking cases not according to the actor’s volition but according to her knowledge: a person who consciously takes a grave risk that harm will occur is deemed to act with intention; a person who takes only a minor risk—without clearly “desiring” to bring about the harmful result—is treated as (or rather, like) a negligent offender.51 The Austrian Penal Code contains a definition that captures the essence of this approach: A person acts intentionally if he wants to bring about a set of facts that corresponds to the statutory definition of an offence. It is sufficient that the perpetrator regards this as seriously possible and acquiesces therein.52

character of the defendant and the fact that he had been kind and gentle when he had previously babysat the deceased and his siblings, and thus came to the conclusion that the defendant did not intentionally kill the baby but that he was only negligent. See BGH, Judgment of 25 Nov. 1987, StV 1988, 388. For criticism of this case law, see Ingeborg Puppe, “Begriffskonzeptionen des dolus eventualis,” [2006] Goltdammer’s Archiv für Strafrecht 65, 77–78. But see the more recent decision BGH, Judgment of 22 Mar. 2012, BGHSt 57, 183, emphasizing that dolus eventualis will normally be present when the actor consciously does an act that creates a serious risk to the victim’s life. For a useful discussion of this decision, see Franz Streng, “Hemmschwellentheorie, Vorsatz und Schuldfähigkeit,” in Festschrift für Hans-Heiner Kühne (2013), 47.   cf. Günther Jakobs, “Gleichgültigkeit als dolus indirectus,” (2002) 114 ZStW 584, 595–597.   For proponents of this view in German literature, see Wolfgang Frisch, Vorsatz und Risiko (1983), 162–206; Rolf D. Herzberg, “Die Abgrenzung von Vorsatz und bewußter Fahrlässigkeit—ein Problem des objektiven Tatbestandes,” [1986] Juristische Schulung 249; Günther Jakobs, “Altes und Neues zum Vorsatzbegriff,” (2010) 1 Rechtswissenschaft 283, 286–290; Puppe (n. 24) § 15 nn. 67–71, 79. For a concise overview, see Stratenwerth and Kuhlen (n. 13) 106–108. 52   § 5(1) Austrian StGB (author’s translation). 50 51

502   thomas weigend Note that the volitional element in this definition has been watered down significantly—it is sufficient that the actor “acquiesces in” (sich abfindet) the harm he causes. Moreover, this strongly reduced volitional element will as a rule follow from the fact that the actor chooses to take the risky action although he is aware of the risk.53 The law does not permit him to dissociate his “will” from his act; his action speaks louder than words.54 In conclusion, the lack of a distinct category of recklessness in continental legal systems has had the effect that most cases of serious risk-taking—at least where eventually harm occurs—are labeled intentional fault, thus stretching this label such that it covers very different mental attitudes on the part of the actor.

iv.  Timing of Intention Intention permits the attribution of the act to the actor by creating a mental link between the actor and his act. It is therefore necessary that intention is present exactly when the actor is engaged in the relevant conduct. Neither a prior desire to bring about criminal harm nor subsequent approval of its occurrence will suffice.55 If, for example, motorist A is inattentive and accidentally hits and injures pedestrian V, the fact that A, recognizing V as his enemy, congratulates himself on having injured V will not turn A’s negligent driving into an intentional assault. Yet, if A fails to call for medical assistance for V after having run him over negligently, and V dies as a result, his lack of action may make A criminally liable for intentional homicide since he consciously omitted to avoid V’s death.56 It should be noted that intention only needs to accompany a person’s act (or omission), not the occurrence of the harmful result: if, for example, A shoots at V with the intention of killing him and V is seriously injured and spends several days in hospital before he eventually dies,

  cf. Helmut Fuchs, Strafrecht Allgemeiner Teil I (8th ed., 2012), 140 (intention if actor knows of a serious risk and does not trust that harm will not occur). 54   In 2012, the Spanish Tribunal Suprema declared that an actor is deemed to accept a harmful consequence of his act when he knows about an easily foreseeable risk that the harm will occur; Tribunal Supremo, Judgment 1014/2011 of 10 Oct. 2011 [2011–2012] Doctrina de la Sala de lo Penal 201. For an overview of the development of the case law, see Gonzalo Quintero Olivares, Parte General del Derecho Penal (4th ed., 2010), 359–364. See also Maria Inmaculada Ramos Tapia, “Die Entwicklung des Vorsatzbegriffs in der spanischen Strafrechtswissenschaft,” (2001) 113 ZStW 401. 55   See Roxin (n. 17) 478–479.    56  cf. Ashworth and Horder (n. 1) 157–158. 53

subjective elements of criminal liability    503 the fact that A is gripped by remorse while V is in hospital and fervently wishes that V will survive, does not alter the fact that A intentionally killed V.

v.  The Object of Intention Intention of committing a crime exists only if the perpetrator is aware of all facts that comprise the actus reus of the crime, that is, the conduct, result, and attendant circumstances of which consists the definition of the offense.57 This means, conversely, that any ignorance or affirmative misconception as to the existence of these facts negates a person’s intention. This consequence has been termed “belief principle,” meaning that a person should be judged on the facts as he believed them to be.58 One may well accept that principle but should keep in mind two points: first, even an “honest” mistake can be caused by a culpable lack of diligence, which may lead to the actor’s criminal liability for negligence; second, acts done by a person acting on a reasonable and honest mistake may still be objectively wrongful and may thus allow the person affected by them to repel the mistaken attacker in self-defense, even though the actor cannot be blamed for acting as he did. Some crime definitions require an intent that goes beyond the objective elements of the offense. For example, in some jurisdictions the crime of forgery is defined as falsifying documents with the intent of making use of those documents, or with the intent of affecting someone else’s property or rights.59 With regard to this type of “excessive” intent, it is often not clear whether the law in fact requires a desire or purpose to bring about the “surplus” harm, or whether it is sufficient that the actor knows that the result will (or even may) occur.60

1.  Factual and normative circumstances It is often assumed that a person’s intention relates to facts, that is, circumstances that can be observed with the human senses and/or can be subject to proof in court.   See Vogel (n. 7) § 15 n. 23. Ashworth and Horder (n. 1) 75 speak of the “principle of correspondence.”   Ashworth and Horder (n. 1) 156. 59   See § 267 StGB, Art. 270(1) Polish Kodeks Karny (Criminal Code), Art. 251 Swiss StGB. 60   With regard to forgery with “intent” to use, German courts and scholars think that knowledge is sufficient; see Thomas Fischer, Strafgesetzbuch und Nebengesetze (60th ed., 2013), § 267 n. 42 with further references. 57

58

504   thomas weigend But legal norms create their own universe. They sometimes speak of “documents,” of “property,” or of “public servants”; and even where they use seemingly everyday words such as “person” or “weapon,” the legal definition of these words may differ from what a layperson would assume, or may be more controversial than he would think. Does a perpetrator’s intention have to extend to the correct legal meaning of these words? And does he, conversely, act without intention if he misinterprets the legal terms in his favor? For example, the term Urkunde (document) in the provisions of the German Penal Code on forgery has been given a very broad interpretation, covering any durable incorporation of a human thought with potential use as evidence.61 Does A lack intention of forgery if he falsifies a sign stamped on a log of wood indicating that this log belongs to a particular person, if A thinks that a “document” needs to be in writing and that he therefore does not falsify a “document”? The answer has to be that A’s intention need not extend to the courts’ interpretation of the word “document,” because if it were otherwise only (good) lawyers could commit crimes intentionally.62 But does that mean that knowledge of the law is generally irrelevant to a person’s intention of committing a crime, and that an actor only needs to be aware of the brute empirical facts to which the crime definition relates? Assume that an administrative agency issues a driving license to A but that the agency was, for some legal reason, not competent to issue the license so that the license is not valid. If A is unaware of the legal problem, does he then commit the offense of intentionally driving without a valid license? Most people would think not, even though his mistake as to the validity of the license concerns the legal situation, not any empirical fact. There has been much scholarly debate on the issue of whether “normative” mistakes affect a person’s intention.63 A reasonable guideline might be that a misinterpretation of the criminal law and its terms does not absolve the actor of intentional fault, but that a mistake as to legal norms outside the criminal law—such as the law on driving licenses—may negate his intention if the criminal law implicitly refers to such other legal norms. A similar rule can be found in Art. 32(2) of the Statute of the ICC, which provides that a mistake as to whether a particular type of conduct is a crime does not negate the necessary mental element, but that any other mistake of law may exclude criminal responsibility if it negates the mental element required by the crime.64 The rationale behind this rule is that, in a world determined by norms   Fischer (n. 60) § 267 nn. 2–7.   See Roxin (n. 17) 486–487; Vogel (n. 7) § 16 nn. 30, 108. 63   Examples of the extensive German literature on the subject are Lothar Kuhlen, Die Unterscheidung von vorsatzausschließendem und nichtvorsatzausschließendem Irrtum (1987); Urs Kindhäuser, “Zur Unterscheidung von Tat- und Rechtsirrtum,” [1990] Goltdammer’s Archiv für Strafrecht 407; Roxin (n. 7) 485–497; Christoph J. M. Safferling, Vorsatz und Schuld (2008), 126–147. 64   See also Model Penal Code § 2.04(1), stating that “ignorance or mistake as to a matter of fact or law is a defense if: (a) the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense” . . . 61

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subjective elements of criminal liability    505 as much as by facts, a person can easily be forgiven for not being familiar with all norms indirectly relevant for the lawfulness of her conduct; but that the prohibitions of the criminal law themselves are so basic to social life that a person who is aware of all relevant facts but is mistaken about the reach of the criminal law may, in principle, be held liable for intentional wrongdoing.65

2.  Conduct, result, and causation A person acts with intention if he is aware of his own conduct as well as attendant circumstances and foresees any result that is part of the offense definition. Hence, if A is to be convicted of murder it must be proved that he knew what he did (pulled the trigger of the gun) and what were the relevant circumstances (the object he was aiming at was V, a human being) and that he foresaw (at least a serious risk) that the relevant result would occur (V would be dead). Often, however, things do not happen quite as we expect them to do. This common experience leads to the question whether a divergence of the real facts from the actor’s expectation affects or even negates his intention. For example, does it matter if the person whom A shot dead with his gun turns out to be not A’s enemy V—as A had believed—but W, an innocent bystander whom A had neither desire nor reason to kill? A will certainly claim that he had no “intention” whatsoever of shooting and killing W. Yet, the law generally ignores mistakes about the victim’s identity (so-called error in persona) because the law equally protects all persons’ lives.66 A’s idea of the victim’s identity is, moreover, regarded as merely his motive for shooting, not as an essential part of his intention. As long as A kills the person at whom he consciously aimed the gun, he is said to have intentionally killed that person. Matters are more complicated if the actor does not see the intended victim but acts from a distance: if A, wishing to kill V, addresses a letter containing explosives to V, and while V is at work his wife W opens the letter and is killed—is that a case merely of mistaken identity, so that A may be convicted of murdering W?67 One may argue that the killing happened exactly as A had foreseen: the person who opened the letter was killed by the explosives, and it is just that the name of the victim was not V (as A had hoped) but W. But A could argue that it was an essential part of his plan that V, as the addressee of the letter, and not W would open the letter; hence things did not happen quite as he had planned and intended.   For the legal effects of a mistake of law, see Section V.3.   Legal systems seem to be in agreement as to this result; see e.g. Ashworth and Horder (n. 1) 189; Desportes and Le Gunehec (n. 26) 673; LaFave (n. 6) 478; Roxin (n. 17) 530–535. 67  In a similar case, the French Cour de cassation found the defendant guilty of murder; see Desportes and Le Gunehec (n. 26) 673; Pradel (n. 4) 397 (citing cases). 65

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506   thomas weigend But should it make a difference if things go differently from the actor’s plan as long as a person’s death has been caused? Imagine that A shoots to kill V, who stands at a short distance from A, but the bullet misses V and instead hits and kills W, who happens to pass by. In that situation of aberratio ictus,68 most German lawyers would think that A cannot be convicted of murdering W because he did not intend to shoot any person other than the one he saw standing before him.69 A would therefore be held liable for attempting to kill V and possibly (depending on the circumstances) for negligently killing W.70 According to this view, A’s intention is defined not by the class of objects (any human being) he plans to kill but by the specific human being he selected as his target (however, regardless of that target person’s identity).71 In the common law world, by contrast, the gunman’s intention is said to travel with the bullet: under the doctrine of transferred intent, A is held responsible for intentionally killing W.72 An exception may be recognized only if the result that eventually occurs could not possibly have been expected.73 This exception leads to the question whether the actor’s intention also needs to cover the way in which the result is brought about. If, for example, A shoots V with intent to kill him on the spot but V is only injured and taken to a hospital where he catches scarlet fever from a doctor, and eventually dies of the fever,74 one might say that this chain of events was not foreseen by A. But the courts generally hold that the perpetrator only needs to intend his act and the result; it need not concern him how the result eventually comes about, as long as the chain of causation is generally foreseeable. To the extent that unforeseeable “remote” results are not attributed to the person who started a long and convoluted causal chain leading to the result (as in the scarlet fever case), this is not a matter of limiting intention but of cutting off the “objective” attribution of results that are deemed to have happened fortuitously and are no longer regarded as the “product” of the original act. Similar considerations apply where an actor brings about the desired result himself, but in a manner different from what he anticipated. If, for example, A strangles V with intent to kill her and   This Latin phrase used in German discourse means “aberration of the thrust.”   This is different if A actually sees W and, knowing that he is not a good marksman, acquiesces in possibly killing W. Then A would have dolus eventualis as to W’s death. 70   For a thorough explanation of this view, see Roxin (n. 17) 515–519. 71   For an opposing view, see Puppe (n. 23) 10–20. 72   See Ashworth and Horder (n. 1) 189–191; LaFave (n. 6) 473–478. For a critical view of the transferred intent doctrine, see Anthony M.  Dillof, “Transferred Intent:  An Inquiry into the Nature of Criminal Culpability,” (1998) 1 Buffalo Crim. LR 501. 73   See the English case Attorney General’s Reference (No. 3 of 1994) [1998] 1 Cr. App. R. 91, where a man stabbed a pregnant woman and thereby brought about the premature birth of the child, who died a few months later. 74   See the early U.S. case Bush v. Commonwealth, 78 Ky. 268 (1880), discussed in Jerome Hall, General Principles of Criminal Law (2nd ed., 1960), 263–264. 68

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subjective elements of criminal liability    507 then throws V into a pond, believing her to be dead, whereas she was only unconscious and dies of drowning, most courts would find A guilty of murder, arguing that the chain of events he triggered by strangling V led to her death in a foreseeable way.75

3.  Knowledge of the legal norm There is widespread consensus that the actor’s intention does not comprise know­ ledge of the fact that his act is prohibited by the criminal law.76 Thus, if A buys marihuana in a state where this is a criminal offense, thinking that the prohibition has been abolished by the legislature, A will nevertheless be held to have intentionally bought marihuana. The reason for the strict distinction between mistakes as to fact (negating intention) and as to law (not negating intention) is not quite clear. The best explanation might be that factual circumstances are sometimes not easy to grasp, whereas the moral offensiveness of penalized conduct should be obvious to everyone who wishes to interact with others in civil society.77 Yet the proliferation of criminal prohibitions in modern life, especially in business law, makes that assumption dubious, and one can no longer expect everyone to be familiar with all legal norms providing for criminal punishment.78 It is therefore questionable whether an honest mistake about the applicable criminal law should be totally irrelevant, as the traditional maxim ignorantia iuris nocet (ignorance of the law is detrimental [to the perpetrator]) suggests, or whether the actor’s belief that his conduct is lawful—though not negating intention—should provide an excuse. Several jurisdictions still retain the ancient rule that everyone is irrefutably presumed to know the (criminal) law,79 but there is a trend toward recognizing an excuse where the actor could not even with reasonable effort have become aware of the relevant prohibition. Such exceptions for “unavoidable” mistakes of law can be found, for example, in Austrian,80 German,81 Polish,82 and Spanish83 law, and even the Model Penal   cf. Ashworth and Horder (n. 1)  158–159 (explaining the “continuing act” approach of English courts); Roxin (n. 17) 522–526, discussing the judgment of the BGH of 26 Apr. 1960 (BGHSt 14, 193), where the defendant had strangled the victim and then, believing her to be dead, had thrown her into a manure pit. But see for an opposing view (only attempted murder and subsequent negligent killing), Fuchs (n. 53) 134; Kristian Kühl, Strafrecht Allgemeiner Teil (7th ed., 2012), 451–452. 76   In France, the concept of dol général includes the fact that the actor does an act that is against the law. But since everyone is presumed to know the law, the fact that the actor was unaware that his conduct was prohibited does not negate his dol général; see Desportes and Le Gunehec (n. 26) 454. 77   cf. Günther Jakobs, “Über die Behandlung von Wollensfehlern und von Wissensfehlern,” (1989) 78 101 ZStW 516, 524–527, 533–535.   Se Vogel (n. 7) vor § 15 nn. 30–34. 79 80   As to other mistakes about legal provisions, see Section V.1.   § 9 Austrian StGB. 81 82   § 17 StGB.   Art. 30 Polish Kodeks Karny. 83   Art. 14(3) Spanish Código Penal (Criminal Code). 75

508   thomas weigend Code provides for a defense where the enactment in question was not reasonably made available before the defendant acted, or where he relied upon an official statement of the law later found to be erroneous, such as a judicial decision or a public prosecutor’s interpretation of the law in question.84 It would, indeed, be unfair to blame and punish someone for doing an act where he was precluded from knowing that the act was prohibited by law. The difficult issue is, however, to determine what effort a person must undertake to learn about the law. This would depend on the context—a person who enters unfamiliar territory, for example by opening a business, may be expected to research the applicable law or to obtain reliable legal advice, and acts at his peril if he refrains from doing so.

vi.  Proof of the Mental Element Generally, it is for the prosecution to prove (or, in inquisitorial systems, for the court to convince itself of the fact) that the defendant acted with the requisite mens rea. Such proof appears to be difficult to obtain, because it is hard to determine—and even harder to prove—what went on in the defendant’s mind at the time the offense was committed. But whether or not the law explicitly says so, proof of intention can often be inferred from the objective facts: when it has been proved that a man used violence and thereby forced a woman to have sexual intercourse with him, the court need not take extra evidence for proving his intent to rape, unless very exceptional circumstances suggest that the woman may have consented. Even in less obvious cases, a person’s intention can be inferred from his acts and common experience. If, for example, the defendant shot a gun at the victim’s upper body at close range, these facts are sufficient to demonstrate that he had an intention to kill the victim. Sometimes the law expressly establishes assumptions of bad faith,85 or places the burden of disproving intent on the defendant.86 Such special rules make proving intention even less difficult, so that on the whole proving intention does not create insurmountable problems.

  Model Penal Code § 2.04(3).   See Mikael Benillouche, “La subjectivisation de l’élément moral de l’infraction:  plaidoyer pour une nouvelle théorie de la culpabilité,” [2005] Revue de science criminelle 529, 533–534 (citing statutes and case law). 86   See e.g. Model Penal Code § 2.04(4) (burden of proving mistake of law on defendant). 84 85

subjective elements of criminal liability    509

vii. Negligence Criminal negligence is a concept that exists in all legal systems, but the scope of its application as well as the definition of negligence vary.

1.  Types of negligence Many legal systems that do not have a special category of recklessness87 recognize a mental element called conscious negligence (bewusste Fahrlässigkeit, dol éventuel).88 This mode is characterized by a self-contradictory state of the offender’s mind: she knows that a serious risk exists but does not take it seriously; instead she “trusts” that nothing bad will result from her conduct. If this situation exists, it implies that the perpetrator is intellectually aware of the risk that an offense will be committed; it is thus appropriate to categorize this kind of “conscious” negligence as a type of mens rea. It would be better, however, to treat it not as a special case of negligence (with significantly lesser sanctions than intention) but to put it on the same level of seriousness as dolus eventualis, preferably under the common heading of recklessness. Where the perpetrator acts with “conscious negligence,” he recognizes the relevant risk and still decides to act; this demonstrates his lack of respect for the integrity of the legally protected interest in question. His attitude toward the risk is identical to dolus eventualis, except for the—irrelevant—emotional and unwarranted optimism that the actor displays. The situation is fundamentally different where a risk exists but the actor is unaware of it, for example where motorist A does not see that drunken V is lying in the road and therefore drives his car over him, killing V.  In that instance, the law cannot reproach the actor for having a “guilty mind,” because he is not even aware of the possibility that his conduct might be harmful to another person. Because mens rea in a proper sense is lacking, some writers have doubted whether these cases should be covered by the criminal law at all.89 But legislatures nevertheless tend to provide for criminal liability for inadvertent negligence in a variety of areas, typically relating to serious harm (negligent killing and wounding) but also to business misconduct.90   See Section III.3.a.   See for France, Desportes and Le Gunehec (n. 26) 464–465; for Germany, Roxin (n. 17) 1086–1088 and Kühl (n. 75) 591; for Switzerland, Günter Stratenwerth, Schweizerisches Strafrecht. Allgemeiner Teil I: Die Straftat (4th ed., 2011), 499–500. 89   See e.g. Hall (n. 74) 138; see also Simester et al. (n. 3) 158–159. 90   See for England, Ashworth and Horder (n. 1) 181–184. In Germany, there also exist a few criminal offenses which do not presuppose the occurrence of harm, e.g. negligent drink driving (§ 316(2) StGB). But such provisions are exceptional and owe their existence mostly to the legislature’s desire to avoid problems of proving intention. 87

88

510   thomas weigend In some legal systems, liability is restricted to gross negligence,91 but in many legal systems criminal responsibility for simple negligence is widespread. Criminal liability for inadvertent negligence rests on a similar rationale as responsibility for omissions. In inadvertent negligence cases, the actor is made responsible because he failed to pay sufficient attention to factual indicators that would warn a diligent person of impending harm to others. In the example of the motorist given above, the driver did not see V lying in the road, but most likely he could have seen him if only he had observed the road ahead with sufficient diligence. The driver is to be blamed for driving without paying sufficient attention to the possibility that another person might be harmed by his car. Although the driver demonstrates less disrespect than an intentional murderer for the victim’s life, he still does not show proper care for V’s vital interests. It is therefore legitimate to hold him criminally responsible.92

2.  Prerequisites of liability for criminal negligence In parallel with tort theory, it has often been said that a violation of a duty of care is the main element of negligence.93 But it is difficult to define duties of care in the abstract. Since the rationale of liability for negligently causing harm is a lack of advertence to one’s fellow person’s interests (see previously), foreseeability of harm is the key defining element of negligence: whenever (and only if) a reasonably diligent person in the perpetrator’s position would be able to foresee that his intended conduct might cause harm to another person, a duty to avoid this harm arises; this duty is normally fulfilled by refraining from or adapting the conduct in question. In the motorist example, it would thus not be useful to search the road traffic code for a general rule on how to drive with respect to drunken persons lying in the road, but the fact that it is foreseeable that A’s car might hit V gives rise to a duty for A to stop his car or to steer it such as to avoid running over V.

  For England, see Ashworth and Horder (n. 1) 289–294; for the United States, see LaFave (n. 6) 369–375. See also the definition in the Model Penal Code § 2.02(2)(d):  91

A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.   For a more detailed exposition of this view, see Thomas Weigend, “Zum Verhaltensunrecht der fahrlässigen Straftat,” in Festschrift für Karl Heinz Gössel zum 70. Geburtstag (2002), 129; Gunnar Duttge in Bernd von Heintschel-Heinegg (ed.), Münchener Kommentar zum Strafgesetzbuch, Vol. 1 (2nd ed., 2011), § 15 nn. 105–187. 93   See Ashworth and Horder (n. 1) 183; LaFave (n. 6) 367; Kühl (n. 75) 576–577. 92

subjective elements of criminal liability    511 Since criminal liability—in contrast with tort liability—may only be based upon personal responsibility, it is not enough to show that an ideal or average person could have avoided the harmful result, but it must be proved that the individual defendant could have done so. In other words, due diligence is what can be required of “this” person. This means that the actor’s individual defects need to be taken into account; for example, a severely short-sighted driver cannot in fairness be expected to see an obstacle from afar. However, a diligent person with individual defects must avoid situations that are potentially risky, given his defects. For example, a motorist afflicted with night-blindness must refrain from driving his car at night; if he drives at night it is foreseeable for him that he might harm others; for him, driving at night is therefore per se negligent conduct. It is a matter of policy (and not of great practical consequence) whether the criminal law exempts instances of slight negligence from its reach and limits responsibility to gross negligence. Doing so creates a margin of appreciation for prosecutors and courts, but if serious harm has been caused by a person courts are likely, for psychological reasons, to find that he behaved in a grossly negligent manner (if that is the legal requirement for liability). Liability for negligence is, after all, greatly result-oriented—its role is to satisfy the victim’s and society’s need to hold someone responsible when disaster strikes. It is for that reason that individual responsibility in practice plays a very minor role in determining negligence.

References Blomsma, Jeroen, Mens Rea and Defences in European Criminal Law (2012) Burchard, Christoph, Irren ist menschlich (2008) Duff, R. A., Intention, Agency and Criminal Liability (1990) Frisch, Wolfgang, Vorsatz und Risiko (1983) Jakobs, Günther, “Über die Behandlung von Wollensfehlern und von Wissensfehlern,” (1989) 101 ZStW 516, 524–527, 533–535 Jakobs, Günther, “Altes und Neues zum Vorsatzbegriff,” (2010) 1 Rechtswissenschaft 283, 286–290 Puppe, Ingeborg, Vorsatz und Zurechnung (1992) Safferling, Christoph J. M., Vorsatz und Schuld (2008) Schünemann, Bernd, “Vom philologischen zum typologischen Vorsatzbegriff,” in Festschrift für Hans Joachim Hirsch (1999) Stuckenberg, Carl-Friedrich, Vorstudien zu Vorsatz und Irrtum im Völkerstrafrecht (2007)

­c hapter 23

INCHOATE CRIMES michael t. cahill

i.  Understanding the Category of Inchoate Crime Commentators on criminal law regularly refer to “inchoate crimes,” yet the meaning of this category is rarely explained and its boundaries rarely defined. Scholars typically define or categorize inchoate crimes—sometimes also described as “nonconsummate” or “anticipatory” crimes—only in the negative, as crimes that are not consummate, and even this distinction (along with the exact nature of the “consummate” category itself) is unexplained.1 Accordingly, a preliminary task of this chapter is to draw out the meaning, or competing possible meanings, of the inchoate-crime category (remaining open to the possibility that it has no coherent meaning at all), and also to assess its significance. Because the category is an intellectual construct that does not reflect some preexisting reality, what is needed is not merely a “definition” but also an affirmative account supporting the claim (or intuition) that recognizing this category can advance our understanding of how criminal law works or should work.2 In offering such an account of inchoate crimes, it is necessary to explain both what makes them inchoate and what makes them crimes. That is to say, the account 1   Douglas N. Husak, “The Nature and Justifiability of Nonconsummate Offenses,” (1995) 37 Arizona LR 151 ff., 165–166. 2   See Michael T. Cahill, “Defining Inchoate Crime: An Incomplete Attempt,” (2012) 9 Ohio State Journal of Crim. Law 751 ff., 753–754.

inchoate crimes   513 must identify what features inchoate crimes possess that distinguish them from non-criminal “mere preparation” or other lawful behavior, as well as what features inchoate crimes lack that distinguish them from consummate crimes. In everyday language, “inchoate” refers to something that has just begun—or at least, is not yet complete—and the notion of an inchoate crime seems to rely on that common usage of the term. Inchoate crimes are often explicitly or tacitly understood to comprise partial, truncated, or otherwise incomplete versions of some other defined crime, sometimes called the “target” or “object” offense.3 In keeping with this understanding, criminal attempt, which is defined and understood by reference to the crime being attempted, is generally acknowledged to be the inchoate crime par excellence. Yet there are at least three senses in which a crime might be “incomplete,” each of which leads to a slightly different understanding of both what is present, and what is absent, in an inchoate crime. The first option relies on the classic mens rea/actus reus distinction, taking the view that inchoate crimes are those where the offender’s subjective culpability (mens rea) is present, but the target offense’s objective elements (actus reus) are at least partially absent. This might be described as the culpability-based understanding of inchoate crimes: on this view, criminal liability for the inchoate offense is justified by the offender’s subjective blameworthiness. The second option, which might be associated with an objectivist understanding of criminality (as opposed to the subjectivist bent of the culpability-based view),4 focuses more specifically on the target crime’s gravamen or underlying basis. On this view, inchoate crimes involve conduct that generates the potential for, without the actual occurrence of, the harm or wrong with which the target crime is concerned. This might be described as the risk-based view of inchoate crimes: criminal liability for the inchoate offense is justified by the risk of harm or criminality that the offender has unleashed or generated, even though that risk did not come to fruition. The third option adopts a temporal perspective, viewing inchoate crimes as those that have begun, but are not yet finished—that is, those that are interrupted while in progress. In terms of legislative offense definitions and categorizations, then, inchoate offenses would be those that authorize law enforcement officials to step in, and even to impose criminal sanctions, although no fully defined crime has yet occurred. We might describe this as the intervention-based view of inchoate crime. Another name might be the apprehension-based view, as the sense here is that inchoate crimes arise when there is enough evidence of criminal activity to justify “apprehension” by the state, in all three common senses of that word: (a) fear   See e.g. Ira P. Robbins, “Double Inchoate Crimes,” (1989) 26 Harvard Journal on Legislation 1 ff., 3.   For discussion of objectivism and subjectivism, see e.g. Paul H. Robinson and Michael T. Cahill, Criminal Law (2nd ed., 2012), § 3.0.2. 3

4

514   michael t. cahill or anxiety; (b) perception or recognition (that crime is underway); and of course (c) the act of arresting or detaining the offender. For reasons discussed later, I find the third, intervention-based view to provide the most useful lens through which to view the distinction between consummate and inchoate offenses. Of course, these understandings of inchoate crime are not mutually exclusive or even sharply distinct:  many of the same crimes would be inchoate under multiple, or all, views. At the same time, there are definite differences. Taking perhaps the clearest example, the views reach different conclusions as to the status of so-called “completed attempts,” where the offender has engaged in all of his or her planned conduct, but the target crime has nonetheless failed to eventuate.5 Such attempts are inchoate under both the culpability-based view and the risk-based view, but not the intervention-based view (which would view them as consummate offenses). Recognizing the nature and basis of inchoate crimes facilitates a better understanding of their relation to other crimes and points toward a more general typology of criminal offenses. The classic or paradigmatic consummate offense prohibits conduct that is categorically or inherently wrongful; every instance of such conduct constitutes wrongdoing (at least on a pro tanto or presumptive basis) and therefore merits punishment (unless some defense applies). Inchoate crimes, by contrast, are a variety of what might be called penumbral offenses, reaching beyond per se or pro tanto wrongdoing to cover conduct that is not inherently wrongful. Despite what might be seen as their overbreadth, these crimes are, under the intervention-based account, arguably justifiable as—though also, perhaps, only justifiable if they truly represent—a necessary concession to the demands of real-world crime prevention and enforcement. If only per se wrongdoing were prohibited, officials would lack the authority to arrest and detain dangerous would-be offenders pursuing serious criminal projects. Inchoate crimes establish preliminary-conduct offenses that authorize such intervention. Inchoate crimes are not the only category of such penumbral offenses. In addition to crimes prohibiting preliminary conduct, there are proxy-conduct crimes prohibiting activities thought generally to correlate or coexist with wrongdoing or harm, even though not every instance of such an activity is wrongful pro tanto (or perhaps even prima facie). These crimes can reduce or eliminate problems of fact-gathering or evidentiary proof that might arise for crimes defined to require a demonstration of wrongdoing in each individual case. For example, proof that a person was driving under the influence of an intoxicant might be considered highly suggestive of, yet much easier to ascertain and prove than, subjective recklessness 5   By contrast, an “incomplete” attempt is one where the offender has not yet performed all the conduct that would, if successful, constitute the target offense. The classic completed attempt is the shoot-and-miss scenario, where no further act is needed beyond firing the shot; the attempt fails only because the shot proves inaccurate. An incomplete attempt would be one where the shot has not yet been fired, but the actor has done enough to be liable for an attempt—say, buying the gun, loading it, pursuing the victim, aiming, and preparing to fire.

inchoate crimes   515 or objective endangerment. Accordingly, legislators may enact a driving-under-theinfluence (DUI) offense even though not every instance of the criminalized behavior will involve culpability or significant risk. Preliminary-conduct and proxy-conduct offenses share some similar object­ ives, but they pursue differing means to achieve those objectives and often have highly distinct features. Inchoate, preliminary-conduct offenses—such as, most obviously, attempt—often describe the conduct they prohibit in broad or vague terms based on its relation to some other, consummate offense. At the same time, they often impose rigorous culpability requirements that might even be more demanding than those for the target offense. Proxy-conduct crimes, on the other hand, often describe the prohibited conduct using a concrete, bright-line rule, while also relaxing or even obviating the need to prove culpability as to the harm or wrong that motivates the blanket prohibition of the conduct in question. The significance of the category of inchoate crimes, then, is that such crimes rest on a distinctive basis for the exercise of criminalization authority. This has two significant implications. First, inchoate liability, where allowed and pursued, expands the permissible scope of criminal liability beyond conduct that is wrongful per se. Secondly, because inchoate crimes rest on a different underlying justification than wrongful-conduct crimes, they demand a different type of normative analysis. When assessing the merits of a “standard” wrongful-conduct offense, the proper inquiry relates to whether the conduct prohibited is indeed per se wrongful, meriting punishment in every instance. By definition, penumbral crimes will not satisfy that test, but of course this does not mean that they should be free from any scrutiny; the appropriate analysis is merely different. For preliminary-conduct crimes, the question is whether the desire to enable law enforcement to preempt or prevent crime before its harm is realized—as balanced against citizens’ liberty interests in engaging in conduct that is not per se wrongful, and also against the evidentiary or epistemic uncertainty regarding the likelihood of the criminal harm coming to fruition—justify the imposition of the criminal sanction for the conduct in question. The crucial issue with inchoate crimes, then, is determining how early in the course of a would-be offender’s conduct the law enforcement authorities should be empowered to intervene and not only to disrupt the activity, but to detain and even punish the nascent offender whose crime is underway but not yet complete.

1.  The culpability-based view One understanding of inchoate liability is that inchoate crimes are characterized by the offender’s intent to engage in harmful or wrongful conduct.6 Under this   See Husak (n. 1) 166.

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516   michael t. cahill view, a person’s affirmative desire or purpose to bring about some criminal harm or wrong defines and justifies inchoate liability.7 Yet understanding inchoate crimes in terms of an offender’s motivations or culpability poorly suits the task of specifying the nature and limits of that category or of the state’s criminalization authority. Subjective intent is both over-inclusive and under-inclusive as a criterion for crimin­ alization or for distinguishing inchoate crimes from consummate ones. Basing criminalization on intent is over-inclusive in that it allows liability grounded solely on the offender’s culpability, without requiring any showing of objective harm or wrong (or even risk of a harm or wrong). Such a focus is not without its adherents,8 but it would entail outcomes that strike many as troubling, as it either holds that culpability can make otherwise innocuous conduct wrongful without explaining when and why that is so, or else allows liability in the absence of wrongdoing without explaining when or why such liability is acceptable and proper. A culpability-based view cannot specify with any precision (descriptively or normatively) the point at which acceptable conduct, coupled with culpability as to future conduct, becomes criminal. If one’s resolve to do things in the future is the ground for considering one a wrongdoer, then that ground arises as soon as the resolution forms; whether one is apprehended and punished at an early or late moment in the course of enacting that resolution seems more a matter of timing and happenstance than anything else. In any case, it is hard to quantify the point at which the enactment of one’s resolve becomes wrongful. Yet it would be troubling to allow the resolution itself, standing alone, to support criminal punishment, in part because such a position denies the prospect of renunciation prior to completion of the contemplated conduct. In short, incomplete conduct, even if combined with a plan to engage in further conduct, does not itself constitute wrongdoing, and if only wrongdoing could properly be criminalized, it would be correct to conclude, with Alexander and Ferzan, that inchoate (in the sense of incomplete) conduct is not suitable for criminalization.9 Basing criminalization on intent is also under-inclusive because criminal liability can and should attach to non-intentional, though culpable, actions in the direction   R. A. Duff draws a somewhat similar distinction between what he calls “attacks,” which involve intentional efforts to violate others’ rights, and what he calls “endangerments,” which do not. See R. A. Duff, “Criminalizing Endangerment,” (2005) 65 Louisiana LR 941 ff., 942–952. For discussion of Duff ’s formulation, see Michael T. Cahill, “Attempt, Reckless Homicide, and the Design of Criminal Law,” (2007) 78 University of Colorado LR 879 ff., 903–905, 931–932. The distinction is not critical here, as he uses it not to define the boundary between consummate and inchoate crime, but rather to differentiate between two subcategories of inchoate crime. 8   See e.g. Larry Alexander and Kimberly Kessler Ferzan, “Culpable Acts of Risk Creation,” (2008) 5 Ohio State Journal of Crim. Law 375 ff. 9  Larry Alexander and Kimberly Kessler Ferzan, with Stephen Morse, Crime and Culpability: A Theory of Criminal Law (2009), 197–225; Larry Alexander and Kimberly Kessler Ferzan, “Risk and Inchoate Crimes:  Retribution or Prevention?,” in G.  R. Sullivan and Ian Dennis (eds.), Seeking Security: Pre-Empting the Commission of Criminal Harms (2012), 103 ff. 7

inchoate crimes   517 of a criminal offense. For example, conduct that recklessly creates a substantial risk of harm is a common, and proper, object of criminal sanction,10 and preliminary conduct that is likely to culminate in such a risk may merit intervention on the same basis as intentional but preliminary conduct tending toward a criminalized harm or risk. The intent-based approach to inchoate liability draws an arbitrary line between intent and other forms of culpability.

2.  The risk-based view A different account of the nature and proper limits of inchoate liability, suggested by Douglas Husak, characterizes inchoate offenses as demanding the creation of a sufficient risk of harm, though harm itself need not occur.11 While it is certainly plaus­ ible to distinguish harm-based from risk-based offenses, that distinction might ultimately be less sturdy or useful than it first appears. As a matter of positive law, many crimes that intuitively seem like consummate offenses (particularly in that it seems uncontroversial to punish an inchoate attempt to commit them) might as easily be considered risk-based as harm-based:  for example, theft violates property interests but, depending on how narrowly one frames the offense temporally, might not lead to harm insofar as the stolen property might ultimately be recovered or returned; fraud offenses involve deception but may not harm the person deceived; bribery risks, but need not entail, corruption in that a bribe might not actually affect the recipient’s official conduct; even arson is often defined in a way that requires conduct (starting a fire) but does not demand any resulting property damage.12 Hence, aside from a handful of offenses against the person that clearly require harm, such as homicide and battery, there may be many offenses for which categorization as harm-based versus risk-based, and thus (on this view) consummate versus inchoate, will be slippery and unclear. Moreover, such a distinction may not be especially helpful, as it does not change the underlying normative inquiry that would apply to assess the merits of recognizing a given crime. Even if not harmful, conduct that creates a significant risk of harm is wrongful, and the same general inquiry would apply for decisions to criminalize either harmful or risky conduct: does this conduct merit criminalization across the board, that is, does every provable case of a person engaging in this conduct provide a basis, without more, for punishment? That question can be answered in the 10   For references to various existing offenses that punish reckless (or even negligent) endangerment, see Cahill (n. 7) 922–936, and for a normative defense of liability for inchoate crimes of recklessness, see 890–903. 11   See Husak (n. 1) 164. In a more recent articulation suggesting a willingness to criminalize moral wrongs as well as harms, Husak says that inchoate offenses risk “harm or evil.” Douglas Husak, Overcriminalization: The Limits of the Criminal Law (2008), 160. 12   See Michael T. Cahill, “Grading Arson,” (2009) 3 Crim. Law & Philosophy 79 ff.

518   michael t. cahill affirmative even for clearly risk-based crimes, such as reckless endangerment, that nonetheless address conduct that is wrongful per se. The proper underlying distinction here is not between harm-based and risk-based crimes, but between crimes covering conduct that is wrongful in every instance (e.g. reckless endangerment) and proxy-conduct crimes covering conduct that is not wrongful in every instance. Proxy conduct is sometimes non-wrongful, not only because it sometimes fails to generate harm, but also, and significantly, because it sometimes fails even to generate a significant risk of harm (e.g. a DUI offense, which might apply to acts of driving that do not actually impose a significantly elevated risk of harm to others).13 Perhaps such conduct may nonetheless be properly crimin­ alized, but the inquiry necessary to assess the merits of its criminalization does not relate to whether it is categorically wrongful.

3.  The intervention-based view I have elsewhere tentatively defended the proposition that “inchoate crimes” are properly defined as those involving as yet incomplete conduct: On this account, the category of inchoate crimes is defined by two features:  (1)  incomplete conduct toward some ultimate offense (this is what makes the crime inchoate, rather than consummate); and (2) the actor’s firm commitment to the performance of the as-yet-unperformed conduct that would complete that offense (this is what makes the conduct worthy of punishment at all, rather than “mere thoughts” or “mere preparation”).14

The prior articulation of this position suggested that an actor’s culpability as to future conduct might provide a basis for considering otherwise neutral prelim­ inary conduct to be wrongful.15 As noted previously, that culpability-based view no longer strikes me as correct; rather, the better view is that preventive goals may support criminalization even though the actor’s preliminary conduct is not (yet) wrongful. As noted earlier, that view offers an explanation of why the category of inchoate crimes has meaning and significance. Consummate offenses are concerned with punishment, imposed as an ex post reaction to the offender’s harmful, risky, or other­ wise wrongful conduct. Inchoate offenses, by contrast, are concerned with prevention; they are designed to enable ex ante intervention to forestall the harm, risk,

13   For a discussion of ostensibly “risk-based” inchoate crimes that expresses some skepticism about the degree of risk they present, see generally Andrew Ashworth, “The Unfairness of Risk-Based 14 Possession Offences,” (2011) 5 Crim. Law & Philosophy 237 ff.   See Cahill (n. 2) 755. 15   Both Paul Robinson and Antony Duff have similarly focused on this sort of culpability in explicating the requirements of attempt liability specifically, but have not characterized it as a defining feature of inchoate liability more broadly. For discussion of Robinson and Duff ’s views, see Cahill (n. 7) 903–907.

inchoate crimes   519 or wrong before it arises. Because the underlying justificatory bases of consummate and inchoate crimes are different, individual offenses warrant different forms of scrutiny (and support) depending on whether they fit into one or the other category, or both. This conceptualization of inchoate crime also partially explains, while offering some reason to critique aspects of, the doctrinal distinctions that exist between inchoate and consummate offenses under existing law. For example, many modern criminal codes recognize a renunciation defense that may apply for, but only for, inchoate offenses.16 The defense applies where one engages in preliminary conduct sufficient to constitute an inchoate crime (e.g. attempt), but then abandons one’s efforts rather than pursuing the crime to completion. Yet no renunciation defense exists for consummate offenses such as, say, theft: one cannot undo one’s liability for a pre-occurring act of larceny by returning the stolen item, even if one does so before anyone realizes it has gone missing. The proposed understanding of inchoate crimes as penumbral, preliminaryconduct crimes explains why a renunciation defense is merited:  if the actor has not yet done anything wrong, and it also becomes clear that he or she has abandoned any effort to complete the criminal conduct, the preventive basis for intervention evaporates. Yet for wrongful-conduct (i.e. consummate) offenses, the actor’s offense conduct by definition already constitutes wrongdoing, providing a basis for punishment even if the actor later undoes or forestalls any ensuing harm(s). At the same time, the scope of the existing renunciation defense does not perfectly correlate with the implications of this understanding of inchoate crimes. Under the proposed view, completed attempts are not inchoate offenses: their punishment is not rooted in preventive concerns (as the conduct is complete), but arises because the actor’s completed conduct is wrongful even if unsuccessful. Indeed, many view completed attempts as equally wrongful, and thus deserving of equal punishment, vis-à-vis completed crimes.17 Accordingly, a better rule would make the renunciation defense available only for incomplete, and not completed, attempts. (This would also properly align with the lack of a renunciation defense for such crimes as reckless endangerment, which resembles a completed attempt in that it involves culpably wrongful conduct that causes no harm—and, like a completed attempt, is a consummate offense under the proposed view.) In addition to the renunciation defense, modern codes generally prohibit impos­ ition of liability for two distinct inchoate crimes (e.g. attempt and conspiracy)   See e.g. Model Penal Code and Commentaries (1985), § 5.01, 360 fn. 279, § 5.03, 459 fns. 259–60 (citing codes providing renunciation defenses). 17   See e.g. Alexander and Ferzan (n. 9) 171–196; Sanford H. Kadish, “The Criminal Law and the Luck of the Draw,” (1994) 84 Journal of Crim. Law & Criminology 679 ff.; Stephen J. Morse, “Reason, Results, and Criminal Responsibility,” (2004) University of Illinois LR 363 ff. 16

520   michael t. cahill toward the same “target” offense,18 and also prohibit imposition of liability for both an inchoate crime and its target offense.19 This accords with the intervention-based view: two distinct inchoate offenses do not reflect independent “wrongs” deserving independent punishment, but simply provide independent and overlapping bases for intervention; further, once the crime is completed, the basis for intervention disappears, and any ensuing liability is based only on the punishment merited for the completed offense. Having set out one possible understanding of the meaning of the general cat­ egory of inchoate crimes, the balance of this chapter discusses particular crimes that are generally understood to be inchoate, and that, with minor exceptions discussed later, are also inchoate under the proposed view: attempt, possession, conspiracy, and solicitation.

ii. Attempt 1.  Culpability (mens rea) a)  The role of intent In everyday language, to attempt means to try, and the notion of attempting or trying implies some purpose or objective. To a significant and possibly unfortunate extent, this colloquial understanding is reflected in the legal notion of an attempt, which historically required and still often requires at least some degree of intent or purpose as to completing the crime attempted. Yet there is reason to support the extension of inchoate liability to include situ­ ations where the actor has some degree of culpability falling short of an affirmative purpose to commit a crime. For example, it makes sense to facilitate intervention prior to a would-be offender’s sexual encounter with an underage victim, even though the actor did not “intend” his or her sexual partner to be underage. Liability clearly would be allowed for the crime if completed, and there is little reason to force the authorities to wait until its completion or to deny that the offender may be a fit candidate for criminal liability even before the act has occurred.20

  See e.g. Model Penal Code § 5.05(3).   See e.g. Model Penal Code § 1.07(1)(b). A number of states reject this rule for conspiracy, allowing liability for both conspiracy and the target offense, seemingly reflecting the contrasting view that conspiracy is not inchoate but involves distinct harm, as described in Section IV.1. 20  See Model Penal Code and Commentaries (n. 16) § 5.01, 301–302. 18

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inchoate crimes   521 There is, then, some tension between the lingering intuition that attempt involves intent and the more modern objective of facilitating inchoate liability for potential, but not purposeful, criminal activity. As a result, modern criminal codes have a difficult time establishing and expressing a clear or consistent set of culpability requirements for attempt liability. For example, the U.S. Model Penal Code’s attempt provision retains, for incomplete attempts, a requirement of intent (or “purpose,” in the Code’s language) as to any required result, even where the target crime requires something less than intent,21 but simultaneously allows liability based on a lower degree of culpability as to non-result (circumstance) elements. A more straightforward, and more appropriate, rule would be simply to abolish the intent requirement altogether and allow attempt liability for any crime based on the actor’s satisfaction of that crime’s culpability requirements. We need not be limited by our casual, everyday understanding of the word “attempt” when making decisions about the substantive content of criminal law. The offense could instead be labeled “inchoate crime” or “threatening (or risking) offense harm,” and the need to make its rules match an intuitive sense of the word “attempt” would disappear. There is no reason, in short, for criminal liability merely to track semantics rather than to provide a conceptually satisfying theory of what merits liability,22 and where a given degree of culpability is sufficient to ground liability for an offense, it should also suffice to authorize intervention and liability for equally culpable preliminary conduct toward that offense—assuming that the other dictates of inchoate liability are satisfied, that is, that the goals of prevention and law enforcement could not be optimized without extending liability to inchoate activity.

b)  “Impossibility” and the role of mistakes All attempts, by definition, comprise efforts that fall short of the target crime. Some are failed crimes: circumstances render the offender’s efforts fruitless or unsuccessful. Others are foiled crimes: the offender is stopped short because the law enforcement authorities intervene before the crime is perpetrated. In any event, all are cases where the crime did not happen. Yet some attempts seem to stand out as situations where the offender’s criminal project was not merely unrealized, but was incapable of realization: so-called “impossible” attempts. Unfortunately, much of the Anglo-American history of “impossible” attempts is more distracting than revealing, as it focused on a largely empty distinction between two categories of “impossible” attempts which were not ultimately meaningfully different from each other, or from other attempts for that matter. Impossibility at

 See Model Penal Code and Commentaries (n. 16) 301–305.   See Andrew Ashworth, “Criminal Attempts and the Role of Resulting Harm Under the Code, and in the Common Law,” (1988) 19 Rutgers LJ 725 ff., 756. 21

22

522   michael t. cahill common law was divided into two categories: legal and factual.23 Legal impossibility, which provided a complete defense, involved cases where, even if the defendant were to do everything she wanted to do, her conduct would still not constitute a crime. A person who buys a white powder that she believes is cocaine, but that is actually talc, could not be convicted of attempt: the conduct she sought to perform (and did perform), buying the white powder, is not a crime. Factual impossibility, in contrast, arose where the actor’s intended conduct was a crime but the actor could not complete that conduct or could not bring about the contemplated result. For example, an actor who shoots into an empty bed, or tries to pick an empty pocket, is trying to engage in criminal conduct but is unable to do so. Factual impossibility was not a defense at common law. This traditional distinction has been criticized, properly, as being difficult to apply and as generating results that are difficult to rationalize. Either of the cases described above could be characterized as fitting into either category; indeed, nearly any attempt could be described as fitting into either category, as all attempts involve situations where the actor seeks to commit a crime, but engages in conduct that is not a crime (and, based on some feature of the circumstances, could not have been a crime, as otherwise the attempt would have been successful). Because of the difficulty of establishing a practical or normative distinction between legal and factual impossibility, many modern codes and courts reject the distinction and provide no general defense for impossible attempts of either kind. Although the traditional distinction between legal and factual impossibility fails to shed meaningful light on the proper treatment of attempts, there are two categor­ ies of potential attempt—which can with some accuracy be described as, in turn, legally and factually impossible—that do create meaningful practical and conceptual issues. Each involves a genuinely held, but mistaken, subjective belief on the part of the would-be offender. The interesting cases of “legal impossibility” involve what might also be called imaginary offenses. Imaginary offenses arise when no applicable offense prohibits what the actor does, or intends—in other words, the actor makes no mistake about the conduct or situation, but makes a mistake about the law governing that conduct, thinking it is a crime when it is not. The foreign tourist who takes a picture of a U.S. military base may honestly believe that he is committing an offense because such an act is illegal in his native country. If there is no such crime in this country, however, his offense is an imaginary one. On some understandings of the proper basis for criminal punishment, liability for the perpetrator of an imaginary offense might be warranted. Such an offender manifests disrespect for, and a willingness to violate, the criminal law (as he or she perceives it), and might therefore be considered subjectively culpable in some sense.   For discussion of the distinction, with examples of situations falling in each category, see People v. Rollino, 37 Misc. 2d 14, 233 N.Y.S. 2d 580 (1962). 23

inchoate crimes   523 Yet liability in such cases is generally disallowed, in part because of the strictures of the legality principle. That principle, and the legal doctrines implementing it, require a prior, written, specific statement of a prohibition before its violation can be punished. In the case of an imaginary offense, no such prohibition exists. The interesting version of “factual impossibility” involves what the Model Penal Code describes as an “inherently unlikely” attempt. In such cases, the actor selects a means of accomplishing the crime that he or she believes will be effective, but that has little or no objective likelihood of succeeding. A commonly cited example, which sometimes arises in actual cases, involves the actor who tries to commit homicide or assault by sticking pins in a voodoo doll.24 Cases of inherently unlikely attempt involve tension between the retributive and utilitarian goals of criminal law. The attempter may be as subjectively blame­worthy as one who chose a more efficacious means; but there also might seem to be less need for deterrence of the behavior chosen, or incapacitation of the would-be criminal, than in other cases. Where the subjective belief seems less sincere—where the poor choice of means may reveal the weakness of the attempter’s will—the case for punishment is reduced. On the other hand, where the person seems dangerous notwithstanding the harmlessness of the initial attempt—where there is reason to think he or she will turn to other, more effective means after the first effort fails—the case for punishment is stronger. In many respects, the inherently unlikely attempt raises issues that parallel (in perhaps more extreme form) the concerns that arise for truly inchoate (i.e. incomplete) attempts. Such cases also demand that the perceived interest in crime prevention must be balanced against the possibility that the offender lacks serious commitment or will change his or her mind before completing the task. (Where the actor’s mistaken belief departs too far from reality, an insanity defense also may be available.)

2.  Conduct (actus reus) At some point in the chain of events from entertaining initial thoughts of committing an offense to completing that offense, an actor’s conduct becomes criminal: to use commonly employed terms, this is the borderline where mere preparation crosses over into a criminal attempt. Defining that border is an important part of criminal law, for it demarcates both when an actor becomes criminally liable and when authorities may lawfully intervene. Courts have defined the relevant line using several general types of legal test. Some, generally described as proximity tests, look to how close the actor has come to committing the offense, imposing liability only where the crime is nearly complete. Others, such as the Model Penal Code’s widely   For other examples of inherently unlikely attempts, see Leo Katz, Bad Acts and Guilty Minds (1987), 282. 24

524   michael t. cahill followed “substantial step” test, or the British test requiring acts that are “more than merely preparatory,”25 focus on how far from the beginning of the chain of activity the actor has gone, rather than on how close to the end. Still other tests—like the “res ipsa,” “unequivocality,” or “manifest criminality” approaches—require that the conduct must clearly and objectively evince the actor’s improper purpose. In theory, the substantial-step and similar tests are easier to satisfy than the other tests, marking the boundary between preparation and attempt at an earlier point. An actor may have taken a substantial step toward the crime, but still have a number of other steps to go, and thus may not yet be in proximity to it. The substantial-step test reflects a shift in the justification for attempt liability, away from a focus on objective danger and toward a focus on subjective dangerousness and empowering the author­ ities to intervene. Such tests also increase the likelihood of imposing liability on some actors who, if not caught, would have abandoned their criminal projects. Indeed, unless supplemented with an explicit renunciation defense, these tests would enable prosecution of one who has performed a substantial step, and hence committed a criminal attempt, but then thought better of the idea and desisted from completing the crime. Although the various tests are conceptually distinct—and even designed to reflect deliberate and divergent choices about the scope of attempt liability—their overlap, and imprecision, is such that for many specific cases factfinders may reach similar results under any available test. Because any general conduct rule for attempts must allow for possible application to any of the various possible substantive crimes that might be attempted, some flexibility, and hence ex ante indeterminacy, is a necessary feature of any such rule. Yet this lack of ex ante clarity might seem troubling given that the rules for attempt liability essentially demarcate the crucial boundary between criminal and non-criminal activity. Strong adherence to a principle of legality might favor more precise line-drawing, giving better notice of what conduct is prohibited, ensuring more consistent enforcement, and making prosecutions of violations more efficient and more uniform. One might, then, have reason to prefer an approach that prioritizes precision over concision, defining many particular inchoate offenses each of which pinpoints narrow forms of harmful conduct and takes pains to address only that conduct. Such a listing of particular offenses may lack the elegance or flexibility of a single attempt rule, which might be more adaptable to changing circumstances and unforeseen situations,26 but would have the virtue of offering clear notice as to which acts are prohibited.27 Its specificity might also make for less ambiguous, hence more easily implemented, provisions.28 The criminal code generated by this approach would   U.K. Criminal Attempts Act 1981, section 1(1).   cf. Stuart P. Green, “Prototype Theory and the Classification of Offenses in a Revised Model Penal Code: A General Approach to the Special Part,” (2000) 4 Buffalo Criminal LR 301 ff., 312. 27   cf. Douglas N. Husak, “Reasonable Risk Creation and Overinclusive Legislation,” (1998) 1 Buffalo 28 Criminal LR 599 ff., 623.   See Green (n. 26) 312. 25

26

inchoate crimes   525 also reflect a more muscular exercise of legislative power, as opposed to a delegation by the legislature to ex post decision-makers (prosecutors, judges, juries) of the decision as to when an “attempt” had occurred. Of course, the conduct test for an attempt is mainly significant only for incomplete attempts, where the actor has not yet performed all of his or her contemplated conduct. Completed attempts are easier to distinguish from mere preparation, involve little or no concern as to the offender’s commitment to the task and likelihood of abandoning his or her efforts, and are less controversial as objects of criminal­ ization. Indeed, as noted earlier, completed attempts are not even inchoate crimes according to the understanding of that category proposed herein.

iii. Possession Possession of a prohibited item or substance is a common,29 but controversial,30 basis of criminal liability. The reason for the controversy is that possession, by itself, seems a rather thin degree of conduct to support punishment: it is not clear whether possession should be treated as an affirmative act.31 Some writers characterize possession as an affirmative act,32 others as an omission,33 still others as possibly either (or perhaps neither).34 Even if possession is an act, it is not clear whether the act of possession per se is sufficiently harmful or wrongful, or sufficiently proximate to a harm or wrong, to merit criminal sanction.35 Like the ambivalence of possession’s status as an act or omission, there is some debate as to whether possession offenses are inchoate or consummate offenses. For example, criminal codes vary as to whether they locate possession offenses in the general part with inchoate offenses, in the special part with completed offenses, or both.36 It seems clear that in the vast majority of cases, possession of contraband is not itself wrongful conduct; its prohibition reflects the exercise of some measure of penumbral criminalization authority. What is less clear, or less consistent,

  See George P. Fletcher, Rethinking Criminal Law (1978), 198.   See Michael S. Moore, Act and Crime: The Philosophy of Action and Its Implications for Criminal 31 Law (1993), 22.   See Ashworth (n. 13) 240–243. 32   See e.g. Hyman Gross, A Theory of Criminal Justice (1979), 66. 33   See e.g. Alexander and Ferzan, with Morse (n. 9) 240. 34   See e.g. Markus D.  Dubber, “The Possession Paradigm:  The Special Part and the Police Power Model of the Criminal Process,” in R. A. Duff and Stuart P. Green (eds.), Defining Crimes: Essays on the Special Part of the Criminal Law (2005), 91 ff., 103–104; Moore (n. 30) 20–21. 35   See generally Ashworth (n. 13).    36  See Dubber (n. 34) 96–97, 101. 29

30

526   michael t. cahill is whether possession offenses are preliminary-conduct (i.e. inchoate) crimes, or proxy-conduct crimes. Possession offenses impose inchoate liability insofar as possession itself is not typically seen as inherently harmful or wrongful, but as a predicate to some other wrongful behavior for which the possessed contraband might be used.37 At the same time, many possession offenses resemble consummate rather than inchoate offenses in that they are not always defined as preparatory efforts toward some other offense, but may stand as offenses all on their own. Indeed, some jurisdictions allow liability for inchoate efforts toward possession itself, such that one can be held liable for attempt to possess or conspiracy to possess.38 Because possession offenses are defined as completed crimes, yet involve conduct that may be even more removed from ultimate harm than the “substantial step” required for attempt, one commentator has observed they are “both the most and the least inchoate of inchoate offenses.”39 At least some possession offenses are better seen as proxy-conduct crimes rather than inchoate crimes. Many such offenses do not explicitly require the offender to create a risk of any specified harm,40 or even to be engaged in preliminary acts toward some later harmful conduct, but simply ban a category of conduct that seems generally to correlate with a risk of harm, though specific instances of it may well be completely harmless.41 (Depending on the requirements of the offense, possession might also amount to a proxy for culpability as to that harm or wrong; the offense might not explicitly demand proof of culpability, effectively presuming that possession itself amply demonstrates the offender’s unlawful purpose. The appropriateness of this sort of imputation would depend in part on whether possession of the item in question were compatible with a lawful purpose.) Some materials may be seen as inherently dangerous, at least insofar as they have the potential to cause harm if they fall into the wrong hands,42 so possessing them might be viewed as a sort of per se risk-creation. Possession might also serve an evidentiary function, as possession is easy to discover and prove, whereas affirmative acts such as sale or use might be harder to establish (though likely to be occurring in many cases of possession). On such a theory, possession of large amounts of a prohibited drug might be good evidence of the likelihood of distribution, whereas a smaller amount would provide evidence of the likelihood of personal use. Proxy-conduct possession offenses typically, though not always, require conscious (i.e. knowing) possession, though the requirement of “knowing possession” may be satisfied where the possessor is aware only of the thing itself, but not its

  cf. Fletcher (n. 29) 198 (describing possession offenses as a subset of attempt liability).  See Model Penal Code and Commentaries (n. 16) § 5.01, 363–364. e.g. some jurisdictions recognize attempted drug possession and conspiracy to possess drugs as offenses. See Robbins (n. 3) 50 fn. 242. 39   Dubber (n. 34) 101. 40   See Alexander and Ferzan, with Morse (n. 9) 239–240; Ashworth (n. 13) 245–247. 41 42   See Husak (n. 27) 611–615.   See Fletcher (n. 29) 200; Ashworth (n. 13) 251. 37

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inchoate crimes   527 nature or properties. Thus one might knowingly possess a bag of white powder without knowing that the powder is cocaine. Possession offenses vary with respect to the culpability they require, if any, as to the nature of the thing possessed. Markus Dubber describes the minimal culpability requirements of modern possession statutes as follows: In many cases, possession statutes also save prosecutors the trouble of proving that other major ingredient of criminal liability in American criminal law, mens rea, or a guilty mind. This means that many possession statutes, particularly in the drug area—where some of the harshest campaigns in the war on crime have been prosecuted—are so-called strict liability crimes. In other words, you can be convicted of them if you don’t know that you are “possessing” a drug of any kind, what drug you are “possessing,” how much of it you’ve got, or— in some states—even that you are possessing anything at all, drug or no drug.43

In addition to relaxed culpability requirements regarding the nature of the possessed item, many proxy-conduct possession crimes require no direct culpability as to any danger posed by the contraband in question. Other possession offenses are inchoate or preliminary-conduct crimes, demanding, explicitly or implicitly, some purpose to use the possessed material toward some criminal end. Usually, as with other forms of inchoate liability, some degree of intent as to some future conduct, or as to causing some prohibited result, may be thought necessary (and sufficient) to justify imposition of punishment, and preventive intervention, where the offender has not yet consummated the criminal project. Indeed, some courts have rejected, as unconstitutional, possession statutes that do not explicitly require any form of intent as to future criminal conduct, at least where the nature of the materials possessed does not manifest such an unlawful objective on its own. Even if prohibition of possession itself is constitutionally acceptable, the usual purposes of criminal liability support a requirement of sufficient culpability to demonstrate the offender’s dangerousness or blameworthiness.44 Accordingly, many narcotics or obscenity offenses, for example, will prohibit possession with intent to distribute the good in question. Offenses criminalizing mere possession seem to lack both of the normal touchstones of criminal liability, in terms of its objective requirements:  action and harm. Accordingly, they combine the features of two distinct kinds of rules each of which seems to expand the scope of criminal liability: omission liability, which dispenses with the usual requirement of an act, and penumbral liability, which dispenses with the usual requirement of completed harm or wrong.45 Possession offenses may be controversial precisely because they fit into this category: they differ from other offenses not only because they prohibit conduct the status of 43   Markus D. Dubber, “Policing Possession: The War on Crime and the End of Criminal Law,” (2001) 44 91 Journal of Crim. Law & Criminology 831 ff., 859.   See Ashworth (n. 13) 252. 45  For discussion of other such inchoate-omission crimes, see Michael T.  Cahill, “Attempt by Omission,” (2009) 94 Iowa LR 1207 ff.

528   michael t. cahill which as action is dubious, or because they prohibit conduct that is either preliminary to or a proxy for genuinely wrongful conduct, but because they combine both of these features.46 The proper analysis of the merits of criminalizing possession depends in part on whether a given offense imposes proxy-conduct or preliminary-conduct liability. In the first case, criminalization is warranted only if possession itself, without any potential further conduct on the actor’s part, sufficiently and demonstrably correl­ ates with a harm or risk of concern to the criminal law, and only if there is no feasible way to criminalize imposition of that harm or risk directly rather than resorting to possession as a proxy for it. In the latter case, criminalization is warranted only if the state can (and is required to) prove that the offender was engaged in a course of conduct that would have culminated in some other crime, and only if there were no equally effective but less liberty-invasive method of preventing the crime in question other than enabling intervention on the basis of possession.

iv.  Inchoate Offenses Involving Multiple Actors 1. Conspiracy The offense of conspiracy, which addresses multiparty agreements or plans to engage in criminal activity, may serve any of three distinct roles, and sometimes more than one of those roles at once. First, conspiracy is an inchoate offense that enables punishment of preparatory conduct; in this respect, it is analogous to attempt. Secondly, conspiracy may be viewed not only as involving preliminary conduct toward some other offense, but as harmful or wrongful in itself. Finally, prosecutors frequently charge conspiracy not for the liability that it generates, either as an inchoate or a substantive offense, but rather for the procedural advantages that it gives. Lack of clarity about which of these is, or should be, the primary role of conspiracy accounts for much of the confusion surrounding the offense. The rationale of conspiracy as an inchoate offense is similar to that for attempt:  it authorizes punishment of actors who are committed to a course of criminal activity and who have engaged in some preliminary, but incomplete, 46   The same is true for so-called “status offenses,” which involve no overt action, but criminalize general traits—e.g. drug addiction or gang membership—that are not inherently wrongful or harmful. Pure status offenses, however, are typically held unconstitutional in the United States. See e.g. Robinson v. California, 370 U.S. 660 (1962).

inchoate crimes   529 conduct toward carrying out that commitment. The act of agreeing with another externalizes the actor’s culpability: it suggests that the actor has moved beyond mere fantasizing and also provides some evidentiary confirmation of the actor’s criminal intention. (The law frequently demands further confirmation by requiring proof of an overt act advancing the conspiracy.) In some regards, under the view of inchoate crimes proposed here, conspiracy is even more of a hallmark inchoate offense than some versions of attempt, for it commonly allows even earlier law enforcement intervention than that authorized for attempt. Thus, in its inchoate-offense dimension, conspiracy is often better than attempt not only at reliably identifying blameworthy offenders, but also at increasing the chances of crime prevention. Alternatively, conspiracy has also been viewed as a distinct substantive offense, capturing the increased danger and harm that attends group criminality.47 Under this view, where the conspiracy’s target offense does occur, there is no impropriety in convicting an offender for both that offense and conspiracy to commit it, as some states allow,48 for the latter conviction provides aggravated liability to reflect the aggravated harm of a group offense. A third role of conspiracy is found in certain collateral consequences of charging it, including unique procedural features of conspiracy prosecutions. For example, jurisdictional rules for conspiracy prosecutions give the state, especially for larger conspiracies, considerable choice in selecting a district in which to bring the prosecution.49 Additionally, though hearsay is generally not admissible in a criminal prosecution, an exception holds that hearsay statements made by a conspirator during, or in furtherance of, the conspiracy are admissible against all co-conspirators. Thus, larger and longer conspiracies allow more statements by co-conspirators to be admissible against all the conspirators.50 Further, defendants charged in a single conspiracy may be tried together, which may make it more difficult for the jury to focus on the particular facts and circumstances of each individual defendant’s situation and create the risk of guilt by association. Thus, in addition to being an inchoate crime that expands the substantive reach of the criminal law to cover more preliminary conduct, conspiracy also expands the scope of various procedural tools and of the state’s ability to introduce evidence.

  Conspiracy in its original form was a substantive offense criminalizing group conduct having an unlawful, but not criminal, object. Thus, even where the objective was achieved, there was no offense (other than conspiracy) for which the conspirators could be held liable. See Andrew Ashworth, Principles of Criminal Law (2nd ed., 1995), 453. Not until 1977 did England require that the objective of a criminal conspiracy itself be a crime. See Ashworth at 454. 48   See e.g. New York Jurisprudence Second, “Criminal Law: Principles and Offenses,” § 291 fns. 6–13. 49   See “Developments in the Law—Criminal Conspiracy,” (1959) 72 Harvard LR 920 ff., 975–976. 50   See John Wigmore, Evidence, Vol. 4 (Chadbourne rev. 1972), § 1079; Joseph H. Levie, “Hearsay and Conspiracy,” (1954) 52 Michigan LR 1159 ff. But see Lutwak v. U.S., 344 U.S. 604 (1953) (holding that acts do not come within exception). 47

530   michael t. cahill

a) Culpability As with attempt, there is a general sense that conspiracy, as a preliminary-conduct offense, should demand heightened culpability to offset the expansion of the scope of criminalized conduct to cover acts that are not wrongful per se. The common law viewed conspiracy as a specific-intent offense, and many modern criminal codes require the actor to have “the purpose of promoting or facilitating [the] commission” of the offense.51 While there is a surface appeal to the rationale of increasing the required culpability to offset the minimal conduct required, perhaps that reasoning is not ultimately sound. The underlying concern is presum­ ably twofold, worrying that the more preliminary the conduct, the more ambiguity exists as to (a) whether it is truly directed toward a criminal end, and (b) even if so, whether the actor truly intends to carry through to the completed offense. Yet conspiracy arguably presents a stronger case than many attempts for showing criminal intent, as the agreement element requires the actor to externalize his intent clearly enough for someone else to understand it, leaving little room for ambiguity about whether the intended objective is criminal. Most attempts— unless they satisfy a res ipsa or unequivocality test, such that the conduct can only be understood as criminal in its orientation—carry no such evidence of unlawful intent on their face. (Note as well that a renunciation defense is commonly available to prevent conspiracy liability for those with an intention too equivocal to carry through with the offense.) Accordingly, perhaps a sound culpability rule for conspiracy would require purpose only as to the conduct constituting the object offense, but not necessarily any results of that conduct. This more narrow interpretation of the “purpose” requirement generates different results. In an arson case, for example, the defendant would need only to intend that he or the other conspirator set the fire, but not that the fire destroy or damage the building. As to that result, he might only need to be reckless, depending on the definition of the substantive offense. This view would also enable liability for such crimes as conspiracy to commit reckless endangerment: a company whose executives plan to let their factory pollute the water supply, thereby endangering the public, would be liable even though the creation of the resulting danger was not their aim or purpose.

b) Conduct Conspiracy typically requires an agreement between two or more people that one, or some, or all of them will commit a crime. The agreement need not involve an overt declaration: speaking, writing, or nodding can signal agreement, but one can also agree through silence where, under the circumstances or custom, silence is meant to indicate positive agreement. A mutual understanding, even if tacit, shows   Model Penal Code § 5.03(1).

51

inchoate crimes   531 an agreement. One can become a conspirator by agreeing with a person whom one knows to be a member of a conspiracy with others. Historically the agreement requirement demanded a mutual, bilateral agreement on both sides, a genuine “meeting of the minds.” Thus, for an actor to be liable for conspiracy, the other conspirator must actually be agreeing, not just pretending to agree. An actor who “conspires” with an undercover police agent, for example, would have a defense under this requirement, because the officer does not in fact share the intention to commit the offense. The modern trend, however, is to adopt a unilateral agreement requirement, enabling liability for the individual actor who subjectively “agrees” with another person, whether or not the other person is actually agreeing back. Some such cases, where the proposed agreement is falsely accepted or even rejected, could support liability for solicitation, as discussed later, even if not treated as conspiracy cases. Perhaps because conspiracy’s agreement requirement is so slim, liability for conspiracy also typically requires an overt act by one of the conspirators in furtherance of the agreement.52 Even this requirement is not very demanding, however:  any overt act by any conspirator will suffice to support liability for all conspirators (as long as the agreement and culpability requirements are also satisfied for each conspirator). This demonstrates a fairly far-reaching exercise of the law’s penumbral criminalization authority, reaching to a possibly very early stage of criminal activity where no demonstrable wrongdoing has yet taken place and the completed offense may remain far from fruition.

2. Solicitation Where an actor solicits—that is, asks or requests—another to commit an offense and the other does so, the solicitor is liable as an accomplice.53 Where the other person agrees to commit the offense, and one of the two performs an act in furtherance of that agreement, both are liable for conspiracy. Where the person solicited fails in his attempt, or never attempts the offense, or even refuses outright to attempt the offense, the solicitor nonetheless may be liable for the inchoate offense of solicitation. Before the Model Penal Code, recognition of a general solicitation offense was rare, although solicitation (or incitement, as it was sometimes called) of certain specific offenses was sometimes recognized.54 An act of solicitation might support attempt liability:  for example, soliciting a bribe is itself an attempt toward bribery. In some cases, though, the solicitor’s own conduct may not amount to an attempt.55 However, an unsuccessful solicitation may 53   See e.g. Model Penal Code § 5.03(5).   See Model Penal Code § 2.06(3)(a)(i) and (ii).  See Model Penal Code and Commentaries (n. 16) § 5.02, 366–370. 55   On the other hand, the Model Penal Code’s attempt and complicity rules would allow any solicitation to be punished as attempt. Solicitation is included within the definition of complicity, and under 52

54

532   michael t. cahill be as deserving of liability as an unsuccessful attempt. In some respects, a solicitation is more dangerous than an attempt, for it brings another person into the crim­ inal scheme, and as noted earlier with conspiracy, group criminality is sometimes viewed as more dangerous than individual criminality toward the same end. Conspiracy liability also fails to cover all significant cases of solicitation, as it requires an agreement, or at least the actor’s belief that he or she has entered into an agreement. Solicitation thus extends to both attempt and conspiracy liability, or fills an intervening gap, to cover some middle ground between the two: as the Model Penal Code commentary explains, solicitation can be simply an “attempt to conspire.”56 The justification for this extension of inchoate liability is the greater blameworthiness and dangerousness of the instigating solicitor relative to the noninstigating co-conspirator. In many instances, but for the solicitor, there would be no conspiracy and no offense. Because solicitation punishes speech, it creates the danger of infringing freedom of expression. Modern codes use several means to avoid use of the solicitation offense to stifle lawful political dissent. Typically, liability requires that the solicitor promote “specific conduct” that would constitute a crime, so that the offense will punish only solicitation of “concrete action,” rather than a call for general lawlessness such as abstract advocacy of violent overthrow of the government or resistance to the draft.57 Another effort to contain the scope of the solicitation offense is found in its culpability requirement: typically, it is not enough that the actor knows his words will incite a criminal violation; it must be his purpose that they will do so.

v. Conclusion Both the content of individual inchoate crimes, and the parameters of the general category of such crimes, present significant conceptual challenges. This chapter has not sought to resolve those challenges, but merely to elucidate some of the major issues and to offer some possible, hopefully useful, avenues for further explor­ ation and debate. In doing so, it has offered a typology according to which inchoate offenses prohibit preliminary conduct toward some criminal harm or wrong. Further, inchoate offenses, so defined, combine with a category of proxy-conduct offenses—prohibiting conduct that correlates with, but does not constitute, a the Code’s attempt provision, an actor who would be an accomplice in an offense is liable for attempt even if the offense is not committed or even attempted. Model Penal Code §§ 2.06(3)(a)(i), 5.01(3).   Model Penal Code and Commentaries (n. 16) § 5.02, 381.   See e.g. Brandenburg v. Ohio, 395 U.S. 444 (1969); Hess v. Indiana, 414 U.S. 105 (1973).

56 57

inchoate crimes   533 criminal harm or wrong—to comprise a broader set of penumbral crimes deviating substantially from the paradigm of criminal offenses as addressing only conduct that is categorically or universally harmful or wrongful.

References Alexander, Larry and Kessler (Ferzan), Kimberly D., “Mens Rea and Inchoate Crimes,” (1997) 87 Journal of Crim. Law & Criminology 1138 Ashworth, Andrew, “Criminal Attempts and the Role of Resulting Harm Under the Code, and in the Common Law,” (1988) 19 Rutgers LJ 725 Ashworth, Andrew, “The Unfairness of Risk-Based Possession Offences,” (2011) 5 Crim. Law & Philosophy 237 Cahill, Michael T., “Attempt, Reckless Homicide, and the Design of Criminal Law,” (2007) 78 University of Colorado LR 879 Dubber, Markus D., “The Possession Paradigm: The Special Part and the Police Power Model of the Criminal Process,” in R. A. Duff and Stuart P. Green (eds.), Defining Crimes: Essays on the Special Part of the Criminal Law (2005), 91 ff. Duff, R. A., Criminal Attempts (1996) Husak, Douglas N., “The Nature and Justifiability of Nonconsummate Offenses,” (1995) 37 Arizona LR 151 Law Commission, Conspiracy and Attempts (Law Com No. 318, 2009) Wechsler, Herbert, Jones, William Kenneth, and Korn, Harold L., “The Treatment of Inchoate Crimes in the Model Penal Code of the American Law Institute: Attempt, Solicitation, and Conspiracy,” (1961) 61 Columbia LR 571 (Part One), 957 (Part Two) Yaffe, Gideon, Attempts: In the Philosophy of Action and the Criminal Law (2011)

­c hapter 24

COMPLICITY james g. stewart

Surveying complicity’s hazy theoretical landscape can, depending on the commentator’s nerve, temperament, and resilience, induce feelings running from hand-rubbing relish to hand-on-the-brow gloom. K. J. M. Smith, A Modern Treatise on the Law of Criminal Complicity1

I.  Introduction to Complicity Complicity is responsibility for helping. If I am planning to rob a bank, my chances of succeeding are appreciably increased if I enlist others to assist me. A division of labor enables me to take the cash from the bank vault, while a partner in crime detains the manager at gunpoint. Thus, from a consequentialist perspective, the criminal law should punish my assistants too, in order to deter would-be helpers who lower barriers to criminal offending.2 Likewise, on a deontological basis, accomplices share responsibility for the crimes they assist. If we are accountable for the harms we bring into the world, focusing on just the individual who makes the final contribution to the realization of a criminal offense overlooks the often import­ ant, sometimes decisive, difference accomplices make to criminal endeavors and, on occasion, their solidarity with the perpetrator. Accomplices deserve punishment   K. J. M. Smith, A Modern Treatise on the Law of Criminal Complicity (1991), 4 ff.   Gabriel Hallevy, The Matrix of Derivative Criminal Liability (2012), 33 ff.

1

2

complicity   535 to rebalance the moral ledger, express disapprobation in ways that shore up the community’s common condemnation of prohibited conduct, or to respect their own dignity. And yet, crafting standards of complicity that achieve these ends poses a set of beautiful conceptual problems. Perhaps most fundamentally, my confederate in the bank heist did not steal anything—I am the only one who takes property from the bank. This might not be an especially vexing problem if the wording of the criminal offense did not require “taking property,” which only I  did; or accomplice liability did not make my assistant responsible for one and the same crime. But to borrow John Gardner’s metaphor (which draws on murder not robbery), as far as complicity goes, it is as if the accomplice pulled the trigger herself.3 Of course, she often did not. But why the qualifier “often”? Now the real complexity begins; perhaps my confederate’s role was so dominant in the crim­ inal enterprise that she is the real perpetrator, and I her accomplice. Alternatively again, might we say that there are no accomplices here at all, since we jointly designed and executed the robbery in concert? Complicity is helping, but who is helping whom? In what follows, I offer an overview of the various answers to these questions. Throughout, I draw on comparative criminal law and theory, which proves helpful in exposing blind spots in the various schools of thought about accomplice liability. For instance, most Anglo-American scholarship on complicity assumes that I am inevitably the perpetrator in my hypothetical, and that my colleague’s responsibility is to be assessed using complicity, regardless of whether he is the real perpetrator, a co-perpetrator, or a more peripheral aid. German criminal theory, on the other hand, is not wedded to the idea that my colleague is an accomplice, although the analytical tools it develops to make that determination are sometimes more sophisticated than satisfying, and assume the need to distinguish between perpetrators and accomplices at all. In what follows, I take issue with both approaches. A disclaimer at the outset. Of necessity, I am unable to traverse an extensive terrain in this high altitude survey, so I have elected to limit my attention to the paradigm case of complicity: aiding and abetting. Thus, assume in my burglary scenario that I am able to convince a bank clerk to provide me with the code to the vault ahead of time in exchange for a cut of my takings at the bank. This clerk was not at the bank when the robbery took place, played no part in the planning, and has no ongoing relationship with me; she merely saved me the time, expense, and inconvenience of using explosives to open the safe. The question is, under what conditions can we hold her responsible for the armed robbery she assists? As we will see, 3  John Gardner, “Aid, Abet, Counsel, Procure: An English View of Complicity,” in Albin Eser, Barbara Huber, and Karin Cornils (eds.), Einzelverantwortung und Mitverantwortung im Strafrecht (1998), 228 ff.

536   james g. stewart the interweaving pathways we must tread to answer this question are elaborate, the conceptual terrain often treacherous, and where you end up very much depends on where you begin.

II. Preliminary Structural Issues So much of the content of complicity is contingent on core structural commitments, but too often, we rush into the intriguing controversies without having fully contemplated these core questions. In this section, I sketch the bare bones of four preliminary controversies, in preparation for the short journey through the labyrinth of accomplice liability that awaits.

1.  Complicity and perpetration There is a latent defect in the foundations of Anglo-American complicity theory, English-speaking scholars assume that the accomplice is always the person who assisted the physical perpetrator, and that the perpetrator was whoever personally performed the requisite verb in the crime’s definition (i.e. “taking” in burglary). Only part of that assumption is sound—complicity is the remainder of responsibility by participation left over once perpetration is subtracted. Thus, as Carl Erik Herlitz explains, the problem of defining complicity is broadly analogous to defining “night”; if you can adequately define “day” the project takes care of itself.4 For complicity, too, the meaning we attach to it is inexorably bound up in our definition of perpetration, which requires brief treatment by way of introduction. But at the risk of spoiling the plot, the idea that the accomplice never does the “taking” warps understandings of complicity. German criminal theorists call the assumption that the accomplice is whoever helps without satisfying the definition of the crime the “objective theory of perpetration.”5 On this theory, the perpetrator is someone who actually pulled the trigger, meaning that the individual wielding the weapon creates the object to which complicity attaches. The question becomes, who assisted the person with the gun? And yet, this view of the perpetration/complicity binary was abandoned in much   Carl Erik Herlitz, Parties to a Crime and the Notion of a Complicity Object: A Comparative Study of the Alternatives Provided by the Model Penal Code, Swedish Law and Claus Roxin (1992), 40–41 ff. 5   George Fletcher, Rethinking Criminal Law (1978), 654–655 ff.; Neha Jain, “Individual Responsibility for Mass Atrocity: In Search of a Concept of Perpetration,” (2013) 61 American Journal of Comparative Law 831. 4

complicity   537 of Europe in the first half of the nineteenth century, when theorists like Feuerbach exposed its hidden flaw.6 In cases where an actor pulling the trigger was merely an innocent proxy for a puppetmaster in the background, it seemed perverse to call the mastermind a mere accomplice when she was really the prime mover in the whole criminal affair. The puppetmaster did not satisfy the definition of the crime, and yet it was her undertaking. Therefore, the objective theory of perpetration failed to single out the real accomplice. Instead, continental theorists attempted to develop an integrated concept of complicity that was sensitive to a revised notion of perpetration (as compared with common lawyers, who were content to retain the objective theory and treat innocent agency as an exception to the rule). The initial step away from the objective theory of perpetration saw the rise of a subjective alternative—a perpetrator became someone who takes the crime “to be his own” and, by implication, an accomplice is a person who takes herself to be assisting “the act of another.”7 In time, this turn to the subjective also fell out of favor. The reasons were myriad, but the possibility that no one might think of themselves as playing the lead role in a joint crime was chief among them. In place of the subjective theory, a mixed objective/subjective test gained ascendancy based on an assessment of who has hegemony or control over the criminal act.8 Whatever the merit of these contrasting theories of perpetration, they highlight a point of monumental significance for the journey to come—Anglo-Americans’ theory of complicity is built on shaky ground. In particular, the idea that “all actors whose conduct does not satisfy the definition of the offense are accessories” is conceptually unsafe.9 This insight has major implications throughout the perilous path we will soon tread. If we cannot tell automatically whether the standards we are discussing attach to the mafia boss, the foot soldier in the prison camp, or the businessperson selling weapons, we should proceed with great caution that our intuitions about one category do not spill over into an entirely different scenario. Bald intuitions that overlook this point are sometimes damaging.

2.  Mode of participation, inchoate offense, or separate crime Complicity can be located in one of a number of places. Traditionally, it functions as a form of participation, meaning that it allocates responsibility to the accomplice for the perpetrator’s consummated offense. According to this orthodox understanding,  Hans-Ludwig Schreiber, “Problems of Justification and Excuse in the Setting of Accessorial 7 Conduct,” (1986) Brigham Young University LR 613–614 ff.   Fletcher (n. 5) 655 ff. 8   Fletcher (n. 5) 655 ff; Schreiber, (1986) Brigham Young University LR 626 ff; Héctor Olásolo, The Criminal Responsibility of Senior Political and Military Leaders as Principals to International Crimes 9 (2009), 30–33 ff.   Fletcher (n. 5) 655 ff. 6

538   james g. stewart complicity is a device within the general part of the criminal code that matches the helper’s agency with the crimes they assist. It is precisely this participation-type structure that creates many of the wonderful conceptual difficulties we later explore, from the verbal inconsistency between the requirements of the crime and the actions of the accomplice (the latter is held responsible for murder even though she did not personally “kill” anyone) to perceived difficulties with causation between accomplice and completed offense. The second option is to make complicity an inchoate offense comparable to attempt. This model enjoys some powerful support. For Christopher Kutz, for example, the quintessence of complicity lies in the risk-enhancing character of the accomplice’s act, meaning that the only real inquiry is whether the accomplice’s actions were “of the type to make a difference.”10 We return to these ideas in some depth momentarily, but at this juncture, observe how many leading scholars join Kutz in arguing that complicity is best reconstructed as a form of inchoate liability,11 in sharp contrast with the manner in which it presently functions as a matter of doctrine in most jurisdictions. On this inchoate account, the concept is transformed into culpable conduct that increases the risk of criminal harm, regardless of whether or not that harm occurs— the bank clerk is responsible for burglary, even if I do not use the code she supplied. The third option treats complicit as a separate offense. In a number of jurisdictions, lawmakers have enacted a separate crime that no longer couples with other offenses like burglary, effectively relocating accomplice liability from the general to the special part of the criminal code. On this vision of complicity, the bank clerk who provided the code for the safe would be convicted of a separate crime called “criminal facilitation,” not burglary. While these facilitation offenses are increasingly common,12 they invariably complement rather than replace traditional participation-type notions of complicity. These distinctions become salient as we proceed through arguments for and against different attributes some would assign to complicity. For now, note simply how there are credible reasons for situating complicity among forms of participation, these inchoate offences, and the special part of the criminal code, and that all models are reflected in extant doctrine somewhere in the world.13   Christopher Kutz, “The Philosophical Foundations of Complicity Law,” in John Deigh and David Dolinko (eds.), The Oxford Handbook of Philosophy of Criminal Law (2011), 5–6 ff.; see also Christopher Kutz, “Causeless Complicity,” (2007) 1 Crim. Law & Philosophy 289–305 ff. 11   See also Daniel Yeager, “Helping, Doing, and the Grammar of Complicity,” (1996) 15 Criminal Justice Ethics 25 ff. 12  For discussions of these new statutes in U.S.  jurisdictions and in England, see respectively, Robert Weisberg, “Reappraising Complicity,” (2000) 4 Buffalo Crim. LR 261–270 ff.; (note that some of the facilitation statutes discussed are not inchoate, in that they require the crime facilitated to have occurred); Andrew Ashworth, Principles of Criminal Law (6th ed., 2009) (discussing three genuinely inchoate offenses passed as part of the Serious Crime Act 2007 in England and Wales). The new crimes are labeled “Encouraging and Assisting Crime,” and do not require that the crime is consummated. 13  Of these options, inchoate versions of complicity are the rarest, but they do exist. See Jørn Vestergaard, “Criminal Participation in Danish Law—Uniformity Unlimited?,” in Raimo Lahti and 10

complicity   539

3.  Between unitary and differentiated models The next preliminary issue is existential—why have complicity at all when a broader notion of perpetration can envelop it? Put differently, is it really important that forms of responsibility mark the type and degree of participation, or could we just condense them into a single concept that ensures uniform standards? Thus, in addition to those arguments for uprooting then replanting complicity in different parts of the criminal code (forms of participation, inchoate offences, or special part), we must also consider whether we should not just remove complicity to the sentencing phase. According to advocates for what German theorists call the unitary theory of perpetration (Einheitstäterschaft), relegating form and degree of participation to the sentencing stage of a trial has a range of philosophical advantages.14 These arguments have great consequences for the content of complicity to which we turn subsequently, so warrant brief introduction here. The unitary theory of perpetration comes in three varieties, although some might contest whether the third species really fits within the genus.15 The first, known as a pure unitary theory, treats a causal contribution to a crime coupled with the requisite blameworthy moral choice as necessary and sufficient elements of responsibility (excuses and justifications aside). On this view, complicity is stripped of any autonomous existence outside a capacious notion of perpetration. So, instead of attempting to manufacture fine-tuned rules that define complicity in such and such a manner, a unitary theory of perpetration places it and all other modes of participation in a big pot, then boils them all down to their shared essence. Through this distillation, blame attribution involves deciding whether accused X is responsible for crime Y based on settled core principles that pay no regard to the form participation takes, leaving their moral significance to be assessed post hoc by judges at the sentencing phase of a trial. The second variant provides more detail, without compromising the unitary theory’s core commitments. Known as a functional unitary theory, it provides more detail without compromising philosophical commitments.16 The pure unitary theory has faced a barrage of criticism from differentialists, who object that cramming Kimmo Nuotio (eds.), Criminal Law Theory in Transition: Finnish and Comparative Perspectives (1992), 475–490 ff.   I have advocated for the unitary theory of perpetration in international criminal law. See James G.  Stewart, “The End of ‘Modes of Liability’ for International Crimes,” (2012) 25 Leiden Journal of International Law 165. For arguably the leading text in Germany, see Thomas Rotsch, “Einheitstäterschaft” statt Tatherrschaft: Zur Abkehr von einem differenzierenden Beteiligungsformensystem in einer normativfunktionalen Straftatlehre (1st ed., 2009). 15  Wolfgang Schöberl, Die Einheitstäterschaft als europäisches Modell:  Die strafrechtliche Beteiligungsregelung in Österreich und den nordischen Ländern (2006). 16  Diethelm Kienapfel, Der Einheitstäter im Strafrecht (1971), 22 ff. (explaining how a very formal notion of the unitary theory was displaced by a more functional or material view of unitary perpetratorship). 14

540   james g. stewart forms of participation into a single vessel does not forewarn would-be criminals of their exposure to potentially serious criminal responsibility, thereby violating the principle of legality. To address this concern, a number of states adopt a watered down unitary concept—criminal legislation at least articulates the different forms of causal connections that might apply within a unitary framework:  responsibility might involve carrying out the offense personally, instructing others to do so, providing necessary assistance, or assistance that is readily available elsewhere. On either the pure or functional unitary theories, however, complicity is just like perpetration not attempt. Thirdly, some argue that subjecting accomplices to the same range of punishment as perpetrators also constitutes a weak type of unitary theory. In Germany (and the many jurisdictions that follow its example), aiders and abettors are sentenced to a maximum of three-quarters of the penalty for the offense they facilitate, whereas the sentence for instigators is taken from the same sentencing range as principals.17 To a large extent, this discrepancy in maximum sentence drives the need for differentiating between perpetrators and accomplices, even if “Remarkably little effort is spent on justifying this differentiation.”18 Nonetheless, this approach generates a tendency to look upon systems that formally equate sentencing ranges for perpetrators and accomplices (e.g. in France and England),19 as a soft iteration of the unitary theory. If this third variant is accurately described as unitary, it places no restriction on the substantive elements of accomplice liability of complicity, whereas other unitary theories do so.

4.  Complicity and justifications Often, the core elements of accomplice liability are forced to accommodate anxieties about the guilt or innocence of would-be accomplices, when these anxieties are better processed elsewhere in a tripartite structure of crime. The justification of necessity is a prime example. How is it that necessity might ease some of the normative load complicity is frequently asked to shoulder, allowing for a more principled election from the various models previously identified? Might it be that where we position complicity in the architecture of criminal justice and the model we employ to achieve our objectives also requires an appreciation of justifications? 17   §§ 26, 27, and 49 StGB ((Strafgesetzbuch, German Criminal Code). For a modern English translation, see Michael Bohlander, The German Criminal Code: A Modern English Translation (2008), 43, 50 ff. 18  Markus D.  Dubber, “Criminalizing Complicity:  A  Comparative Analysis,” (2007) 5 Journal of International Crim. Justice 984 ff. For attempts to justify the distinction based on the perpetrator’s “important criminal energy,” see Claus Roxin, Strafrecht, Allgemeiner Teil. Bd. 2:  Besondere Erscheinungsformen der Straftat (1st ed., 2003), 231 ff. 19   The Accessories and Abettors Act 1861, section 8 (stating that the accomplice “shall be liable to be tried, indicted, and punished as a principal offender” (emphasis added)).

complicity   541 In a famous English case called Gillick, a group of doctors sold contraceptives to underage patients in a bid to prevent teenage pregnancies and sexually transmitted diseases.20 By implication, however, these doctors were also knowingly facilitating sexual intercourse among juveniles, making the doctors complicit in statutory rape. Although the issue arose in a civil not criminal trial, the House of Lords used the occasion to further the long-standing contest between purpose and knowledge as mental elements for complicity (subjects we return to in some detail later). But as leading British commentators suggest, the better approach was to consider this scenario as an instance of necessity,21 rather than allowing intuitions about guilt or innocence to corrupt the contours of complicity itself. How is this approach advantageous? By allowing necessity to function together with mental elements for complicity lower than purpose, we arguably create a model that is better calibrated to moral nuance. On the one hand, this combination avoids creating a safe harbor for indifferent assistants, who deliberately help sometimes massive criminal wrongs without desiring their occurrence in a strong volitional sense. Think of the suppliers of the chemical asphyxiant Zyklon B to the S.S. for use at Auschwitz,22 who would quickly point to their commitment to profit maximization as the true purpose of their supply. Surely this is inadequate, especially when indifference suffices for the perpetration of the crime with which they are charged. On the other hand, the necessity/complicity combination exonerates assistance that simultaneously promotes a set of laudable values that outweigh the harm inflicted.23 Whatever the case, the availability of justifications has major ramifications for the definition we assign to complicity.

III.  The Objective Element of Complicity In order to guard against thought crimes, guilt by association, or punish ment based on status, a wrongful act calibrated to the definition of the crime is widely regarded as “a primary candidate for a universal principle of criminal   Gillick v. West Norfolk and Wisbech Area Health Authority [1986] A.C. 112.   David Ormerod, Smith & Hogan’s Criminal Law (12th ed., 2008), 102–103 ff.; Ashworth (n. 12) 418 ff. 22   United Nations War Crimes Commission, Trial of Bruno Tesch and Two Others “The Zyklon B Case,” 1 LRTWC 93 ff. 23   For helpful discussions of the relationship, see Douglas N. Husak, “Justifications and the Criminal Liability of Accessories,” (1989) 80 Journal of Crim. Law & Criminology 491 ff.; Schreiber (n. 6). 20 21

542   james g. stewart liability.”24 But what action is required of the accomplice, particularly when someone else will frequently (but not invariably) complete the crime? In the abstract, the best we can say is that the accomplice assists, but once we move to concretize what this means, a range of thorny questions arise that have generated contradictory approaches in theory and doctrine. As we will see, these debates go to the heart of questions about where to situate complicity within the criminal law and touch on all the contextual issues we traversed in the previous section. As our journey proceeds, the path becomes narrow and steep, with sharp descents to guilt by association, thought crimes, and illiberal excess at every turn.

1.  Practical assistance and moral encouragement The conduct required from complicity can involve actions or omissions, practical assistance or moral encouragement. In other words, the assistance that might constitute complicity is not limited by type. In some systems, criminal legislation provides certain illustrations, chief among which is “providing the means,” but these references are never exhaustive of the forms help might take. After all, how could one catalog all types of assistance without creating loopholes for the imaginative? The conduct element of accomplice liability must therefore be open-ended—meaning that a whole raft of behaviors can assist crimes, ranging from providing weapons to driving getaway cars and cheering from the peripheries. In part, the perilous path the theory of complicity must travel stems from this breadth, especially when the accomplice’s conduct is “otherwise innocent.”25 Whether an action constitutes complicity is always context-dependent. According to Christopher Kutz, this characteristic of complicity produces a stark asymmetry—any type of conduct can constitute complicity but perpetration is circumscribed. The principal’s actions are only a basis for liability if they satisfy the relatively constraining templates of substantive criminal law: they are burnings or batterings or killings or rapings or robbings, or attempts thereof. By contrast, virtually any kind of act, speech or otherwise, can satisfy the act requirement of accomplice liability, for virtually anything one person does can be a form of assistance or encouragement to the other.26

While this reflection is insightful, we should also temper the sense that the asymmetry is unique to complicity; that view presupposes the objective theory of perpetration but other (more popular) alternatives reveal that all forms of participation 24   Fletcher (n. 5) 420 ff. But see Douglas N. Husak, “The Alleged Act Requirement in Criminal Law,” in John Deigh and David Dolinko (eds.), The Oxford Handbook of Philosophy of Criminal Law (2011). 25   Glanville Williams, “Complicity, Purpose and the Draft Code—2,” [1990] Crim. LR 101 ff. 26   Kutz (n. 10) 294 ff.

complicity   543 can sometimes involve this breadth. As we saw earlier, accomplices might be those doing the batterings and killings perpetrators mastermind. Moral encouragement can also constitute assistance. If I yell support to a stranger who is about to kill a common enemy, am I responsible for the murder that follows? Most jurisdictions rightly answer in the affirmative, but the hypothetical brings delicate problems in causation to the fore. Assuming that assistance must affect the realization of the crime, how do we establish that the encouragement made a difference to the perpetrator’s decision to carry out the offense? Worse, what if the perpetrator never heard my enthusiastic encouragements, meaning that I positively desired, endorsed, and supported the criminal wrongdoing, without contributing to it? Is a psychological disposition coupled with some action upon it sufficient for accomplice liability, or have we fallen down the precipice into the realm of thought crimes we feared at the outset? Omissions can form the basis for accomplice liability, too, where would-be accomplices labor under a legal obligation to act. If I rob a bank and a policeman stationed just outside decides not to apprehend me in order to help, he is potentially an accomplice, despite having done quite literally nothing. Of course, there is something of a fiction in the equation omission + duty = action, but that white lie is not particular to complicity,27 and therefore it offers no analytical leverage in the contest between the various models of accessorial liability. In fact, given the structural congruity of commission and complicity, one wonders with Michael Moore why accomplice liability is not subsumed within generic principles of attribution.28 This reasoning suggests one of the stronger versions of the unitary theory of perpetration, where complicity and perpetration are symmetrical, mirroring one another with perfection. At the same time, the argument is also vulnerable to the litany of criticisms differentialists offer against condensing responsibility into a single concept.

2.  The nature and extent of derivative liability The term “derivative liability” is frequently used to describe accomplice liability, but it is less frequently defined. What precisely is this derivative liability, and if we embrace it, are we safely fenced off against a collapse into vicarious liability, a.k.a. guilt by association? For Sanford Kadish, vicarious liability is (illiberal) punishment based only on a relationship between the parties, whereas derivative liability requires an action and blameworthy choice on the part of the secondary party, apt 27   Marcelo Ferrante, “Causation in Criminal Responsibility,” (2008) 11 New Crim. LR 470; Michael S. Moore, Causation and Responsibility: An Essay in Law, Morals, and Metaphysics (2009). 28   Michael S. Moore, “Causing, Aiding, and the Superfluity of Accomplice Liability,” (2007) 156 University of Pennsylvania LR 395 ff.

544   james g. stewart to “make it appropriate to blame him for what the primary actor does.”29 But here, too, the different models I presented earlier furnish a set of alternative understandings, which frequently pass under the radar in accounts that neglect comparative theory. Complicity can certainly embrace derivative liability with varying degrees of intensity, but it can also discard the derivative structure altogether.30 In what follows, I draw out several of these possibilities. How could complicity without derivative liability work? Could we really deny that complicity is responsibility “for what the primary actor does,” reimagining the concept as responsibility for one’s own actions (including their causal imprint occasioned through others)? True, few countenance this conceptual possibility, assuming it is axiomatic that complicity must take derivative form. For instance, George Fletcher defines accessorial liability as “all those who are held derivatively liable for another’s committing the offense,” without entertaining alternative possibilities. On this account, one is compelled to manufacture an act and choice that adequately bridge the distance between an accomplice’s agency and the perpetrator’s wrong­ doing (for which she is blamed), conscious all the while of the short distance to vicarious liability and other evils. Clearly, this engineering produces important downstream consequences. Most strikingly, the derivative nature of complicity dictates that even the most nefarious would-be accessory, who does everything in her power to facilitate someone else’s crime, is complicit in nothing if a perpetrator does not act wrongfully. No crime, no complicity. So, if X sends a crowbar to her friend Y in prison in order for Y to use it to break out of prison, there is nothing to be responsible for if Y dies before ever receiving the crowbar. This, once again, draws us back into the competing models of complicity we witnessed to begin, especially arguments that complicity should be reinvented as a form of inchoate liability. Why should the accomplice escape justice if her actions and moral choice are identical in both scenarios, but by a matter of pure chance the perpetrator does not act as she imagined? To at least minimize this apparent absurdity, observe the gradual diminution of derivative liability historically. Initially, derivative liability was so intense that the accomplice would escape prosecution if the principal perpetrator was never apprehended, prosecuted, and convicted.31 In England it was only in 1848 that it became possible to indict, try, convict, and punish an accessory before the fact “in all respects as if he were a principal felon,”32 regardless of whether the perpetrator   Sanford H. Kadish, “Complicity, Cause and Blame: A Study in the Interpretation of Doctrine,” (1985) 73 California LR 337. 30  Poland offers an example of complicity without derivative liability in existing doctrine. See Stanisław Frankowski, “Criminal Law,” in Adam Bodnar and Stanisław Frankowski (eds.), Introduction to Polish Law (2005), 355 ff. 31  Dubber, (2007) 5 International Criminal Justice 982 ff.; Francis Bowes Sayre, “Criminal Responsibility for the Acts of Another,” (1929) 43 Harvard LR 695 ff. 32   Sayre, (1929) 43 Harvard LR 695 ff. 29

complicity   545 was first brought to trial and convicted. Around the same time, continental systems made a similar shift, which reduced the principal’s perpetration of the crime to a contested issue within the accessory’s trial. With these changes, the formal reliance on derivative liability within complicity became less intense, although it still remained a central feature of the doctrine. Recently, the intensity of derivative liability has continued to dissipate. In most modern national jurisdictions, an accomplice can now be held responsible where the principal perpetrator’s crime is excused, say, when an accomplice assists someone insane to commit a crime. As a result, most contemporary notions of compli­city entail only a “limited or partially derivative character” (limitierte Akzessorietat).33 Although the moral basis for this dilution is plain enough (why excuse an accomplice if the perpetrator dies, disappears, or is insane?), it also gives rise to normative complications. How do we determine the responsibility of someone who gives you a gun intending that you kill W but, fortuitously, W attacks you first and you kill him with the gun in self-defense? Perhaps the derivative component of complicity should erode completely, making the person who provides the weapon responsible for murder even though you are not? This brings us back to the unitary theory of perpetration. According to a number of commentators, the unitary theory successfully unshackles itself from the binds of derivative liability, by asserting that “each causal contributor to the crime is individually liable for his own conduct.”34 Some even argue that “the central point of contention between unitarian and differentiated systems in regard to the criminal liability of accessories can thus be found in the question whether the liability of the accessory is derived from the wrong committed by the perpetrator, or whether it is autonomous.”35 So, instead of conceiving of a single murder as containing a discrete quantum of wrongdoing to be distributed between perpetrators and accomplices, a unitary theory posits as many murders as there are participants, even though they all involve the same dead body. These arguments are open to dispute on both sides. Why must the unitary theory do without the derivative structure anyway? Could it not be possible for a pure or functional unitary theory to harmonize objective and subjective elements for all types of participation in a crime, but still allow a partial derivation from the perpetrator in cases such as these? Most fundamentally, is it fair to convict the person who supplies me with a weapon I  use to defend myself of murder, just because he wanted the deceased dead? If these and other related questions require greater attention in the theory of accomplice liability, they at least caution against overly categorical avowals that complicity is responsibility for someone else’s offense or 33  Hans-Ludwig Schreiber, “Problems of Justification and Excuse in the Setting of Accessorial Conduct,” (1986) Brigham Young University LR 620 ff. 34   Albin Eser, Individual Criminal Responsibility (2002), 783 ff. 35   Johannes Keiler, “Actus Reus” and Participation in European Criminal Law (2013), 159 ff.

546   james g. stewart rushes to inchoate liability to deal with perverse results born of the derivative structure. As is frequently the case with complicity, any one problem has a variety of plausible solutions that heavily depend on prior structural issues.

3.  The causation quandary Causation is one of the central dilemmas in accomplice liability. The positions on whether an accomplice’s conduct must make a causal contribution to a completed crime are so highly disputed in theory and practice that the issue probably acts as a pivot for the different ways of constructing accessorial liability set out earl­ ier. One could write tomes on this issue alone, so I content myself with merely setting out core parameters of the debate(s) in broad strokes. As will become apparent, the initial tension concerns those who view the perpetrator’s voluntary human acts as an intervening cause that impedes the passage of causal power from accomplice through perpetrator to crime, but it also involves misgivings about situations where there are multiple sufficient causes for a single event. I deal with both in turn, highlighting a selection of issues that arise under the umbrella of each debate. Following the seminal work of H. L. A. Hart and Tony Honoré on causation, most English-speaking commentators have argued that the volitional actions required to convict the direct perpetrator preclude the claim that the accomplice, too, caused the harm.36 The perpetrator made a genuine decision; this interrupts all earlier causal influence, and acts as an intervening cause. On this account, the accomplice’s actions are no more the cause of a crime than the perpetrator’s genes, family history, and socioeconomic background, all of which undoubtedly provide influence, without overriding the perpetrator’s blameworthy moral choice.37 As a consequence, various accounts of complicity emerged that attempted to soothe the cognitive dissonance created by treating complicity as a mode of participation, when participation could not be established by the usual metrics.38 While Hart and Honoré’s masterpiece captivated Anglo-American views of the topic for several decades, there is much that now points in the opposite direction. First, instigation offers a clear counterpoint—if X pays a hitman to assassinate his wife, we have little trouble in declaring that both X and the hitman caused the wife’s death.39 Moreover,   H. L. A. Hart and Tony Honoré, Causation in the Law (2nd ed., 1985), 129 ff.   Kadish (n. 29) 333 ff. 38   Joshua Dressler, “Reforming Complicity Law:  Trivial Assistance as a Lesser Offense,” (2007) 5 Ohio State Journal of Crim. Law 427 ff. 39   Moore, (2007) University of Pennsylvania LR 422–423 ff. In fairness to Hart and Honoré, they viewed instigation as an exception to their general rule that voluntary action breaks causal chains, but as Joel Feinberg retorts “they put forward no more general principle to explain why the exceptions are exceptions.” Joel Feinberg, Harm to Others (2nd printed ed., 1987), 153 ff. 36 37

complicity   547 German understandings of cause, effect, and agency all deny voluntary human actions the ability to annihilate the enduring causal influence of the accomplice’s act,40 a position that coincides with Michael Moore’s more recent scholarship, which searched high and low for a metaphysical justification for the notion of intervening causes, coming up empty-handed.41 In all of these instances, we have grounds for thinking that causation matters for complicity if it matters for criminal responsibility at all. Indeed, an argument from the debate about whether causation matters for responsibility works for complicity, too. In this regard, Michael Moore draws on Susan Wolf—we would be appalled by someone who treated negligent driving that killed an infant as merely a question of poor driving, in the same way that we would view someone who blamed themselves for killing an infant when they merely drove negligently as psychically imbalanced.42 By extrapolation to complicity, when we try business representatives as accomplices in atrocity for selling asphyxiants to Auschwitz, we are not just concerned about their associations with the Nazis; we mean to single out a particular type of conduct and its unspeakable causal impact. Associating with the wicked is one thing, but offering a substantial causal contribution to a mass killing is altogether qualitatively different. Causation tracks this distinction. If this reasoning is sound, it sheds new light on the shortcomings of treating complicity as a separate offense. To return to Auschwitz, a separate offense approach to accomplice liability would convict the suppliers of Zyklon B of criminal facilitation— not murder, extermination, or genocide.43 This alternative may overcome evidential difficulties associated with proving complicity or anxieties about its possible overreach, but it also gravely understates guilt to convict the vendors of the chemical used to gas in excess of four million people of a crime labeled “criminal facilitation.” As I have argued elsewhere, the label of a crime is a key feature of the punishment inflicted upon a criminal, and accomplices are no exception.44 Therefore, even if one thinks that a new separate offense of complicity complements the more traditional participatory model nicely, when the crime (here genocide) does take place and the accomplice’s actions make an unequivocal contribution to it (here providing the means), convicting the accomplice of “criminal facilitation” seriously miscommunicates responsibility for what really transpired. What of overdetermined forms of complicity? In many instances, an accomplice provides assistance that makes no discernible difference to the occurrence of 40   See e.g. Wolfgang Joecks, in Wolfgang Joecks, Klaus Miebach, and Bernd von Heintschel-Heinegg (eds.), Münchener Kommentar zum Strafgesetzbuch, Band 1 §§ 1–51 StGB 2003, § 27, nn. 23–37. 41   Moore (n. 27) chs. IV ff. 42   Citing S. Wolf, “The Moral of Moral Luck,” in C. Calhoun (ed.), Setting The Moral Compass: Essays By Women Philosophers (2004), 6 ff. 43   United Nations War Crimes Commission (n. 22) 93 ff. 44   Elsewhere, I  argue that the principle of fair labeling frequently deserves no separate existence from culpability. See Stewart, (2012) 25 Leiden Journal of International Law 176 ff. On fair labeling, see James Chalmers and Fiona Leverick, “Fair Labelling in Criminal Law,” (2008) 71 Modern LR 217.

548   james g. stewart criminal harm, since the assistance provided was not essential to the crime’s realization.45 If the Nazis had access to a long line of willing suppliers of chemical asphyxiants, it would be difficult to argue that the suppliers of Zyklon B really caused the terrible ends to which their chemicals were put. As one of the defendants claimed, had he not agreed to supply the chemicals to Auschwitz, “the S.S. would certainly have achieved their aims by other means.”46 So if causation means “but for” causation then even if this firm did not furnish the S.S. with the means of exterminating humans en masse, the horror of Auschwitz would still have unfolded almost identically. Thus, many argue that complicity cannot require a causal connection between assistance and completed crime, leading us back into the case for alternative models. This dilemma also leads to at least one important strategy for sidestepping the problem without reinventing complicity as a concept. Sanford Kadish, for instance, argued that we need a new notion for measuring the “success” of an accomplice’s help, given two key features of the concept. First, assistance that has absolutely no impact on the crime is not culpable, say, when I  send a crowbar to a friend in prison in the hope he can use it to break out, but it arrives after the friend scales the prison wall (derivative liability). Secondly, accomplices frequently make no discernible difference at all, yet we insist on their responsibility (overdetermination). In response, Kadish suggests that the core question should be whether the accomplice’s help “could have contributed to the criminal action of the principal.”47 This thesis fails on two scores. First, raising the risk of an event will not suffice for causation if in fact the risk is not realized. The vendors of Zyklon B undoubtedly “could have contributed” to the Holocaust by supplying asphyxiants, but if we modulate the facts somewhat such that at the last minute all prisoners at Auschwitz were shot not gassed, it is undeniable that the company direct­ ors of Tesch & Stabenow did not play a causal role in the deaths that actually transpired.48 If causation matters to responsibility, risk-raising itself will not do. Secondly, overdetermined causes are universally considered a species of causation, even if philosophical justifications for that view are surprisingly difficult to come by.49 Excluding overdetermined causes would not only eviscerate a large portion of complicity, it would also lead to intensely counterintuitive results for perpetration—no one could ever cause murder. Everyone eventually dies, so the serial killer merely modifies the time, place, and manner of an inevitability. If these modifications matter for perpetrators, should they not for accomplices too? 45   James G.  Stewart, “Overdetermined Atrocities,” (2012) 10 Journal of International Crim. Justice 46 1023.   United Nations War Crimes Commission (n. 22) 102 ff. 47 48   Kadish (n. 29) 359 ff.   Moore (n. 27) 284 ff. 49   See Stewart, (2012) 25 Leiden Journal of International Law 176 ff.

complicity   549

4.  Substantial and de minimis contributions For many, the causal contribution an accomplice makes to an offense must be “substantial” in order to implicate her in the consummated crime. By insisting on substantial contributions, we erect a threshold that excludes de minimis assistance, viz. conduct that had little more than a trivial impact on the crime’s occurrence. To cite a neat and often-used example, consider the responsibility of a serial murderer’s grandmother—but for her decision to procreate the better part of a century earlier, the murder of numerous innocents would never have transpired at the hands of her progeny.50 But by including the grandmother in the pool of agents responsible for these crimes, we extend accomplice liability beyond the point of plausibility, to an extreme where it chills normal social interaction and undermines liberal agenda. While this is agreed theoretically,51 the boundaries of substantial contributions remain ill-defined and contested. Consider the reference to “substantial contributions” in the negotiations of the U.S. Model Penal Code (MPC). As is well known, these negotiations were domin­ ated by an acute anxiety about the relationship between complicity and commerce. One aspect of the reasoning is especially germane here—when reflecting on the objective element of complicity, commentators to the MPC reasoned that “A vendor who supplies materials readily available upon the market arguably does not make a substantial contribution to commission of the crime since the materials could have been gotten as easily elsewhere.”52 Unfortunately, this explanation is less than satisfying, and speaks to the troubles created by leaving “substantial” undefined. What is so problematic about this explanation? If assistance is only ever substantial when it is not readily available, the rule excludes all overdetermined contributions from complicity. But this reading of “substantial” would swallow the better part of complicity. If soldier A acts as a lookout while his colleagues rape women in a prison, is he really exonerated because another soldier in his platoon would certainly have filled his shoes had he defected? Surely not. As we saw earlier, overdetermined forms of assistance make up a core component of any defensible theory of accomplice liability, and excluding them from the scope of the doctrine is unthinkable. Even in practice, many criminal codes take it upon themselves explicitly to state that non-necessary forms of assist­ ance still amount to complicity,53 such is their commitment to punishing forms of sufficient assistance. In short, overdetermined contributions must still be substantial, otherwise the test cannibalizes an unacceptably large part of the concept. 50   J. Stapleton, “Perspectives on Causation,” in Jeremy Horder (ed.), Oxford Essays in Jurisprudence (2002), 67 ff. 51  For a discussion of the metaphysics of “substantial” causes, see Stewart, (2012) International Journal of Crim. Law 1207 ff. 52   American Law Institute, Model Penal Code and Commentaries (1985), Part 1, §§ 1.01–2.13, 318 ff. 53   For 13 examples from South America, e.g., see Juan Bustos Ramirez and Manuel Valenzuela Bejas, Le Système Pénal des Pays de L’Amérique Latine (1983), 128–130 ff.

550   james g. stewart We are left then, reluctantly agreeing with Joachim Vogel, who after surveying much of the voluminous literature arguing for one model of criminal attribution over another, concludes that “There is a clear and present danger that real and really important questions are neglected. For instance, a real problem is to define the ‘minimum threshold’ of participation and responsibility.”54 In other words, for all the energy expended debating unitary versus differentiated models of attribution and the tests for differentiating different forms of participation, the lower reaches of complicity remain under-theorized, in a world where globalization facilities crim­ inal offending at ever increasing rates. If accomplice liability is to be principled and not arbitrary, that situation is inadequate.

IV.  The Subjective Element of Complicity If there is anything approaching universal agreement in criminal theory, it might be that only the guilty should be punished. Punishment without culpability is anathema to liberal notions of criminal law, even if it does promote deterrence or other desirable utilitarian outcomes. This insight requires that an individual make a blameworthy moral choice that is perfectly calibrated to the meaning of the offense with which she is convicted. But what type of choice will suffice to blame the accomplice for “what the primary actor does,” if indeed this is the point of reference? In what follows, I rehearse competing solutions to this question, offering reflections on their comparative strengths and weaknesses. I consider the three dominant tests, bearing in mind that the unitary theory of perpetration will employ them all depending on the mental element in the crime with which the accomplice is charged.

1. Purpose The MPC requires that the accomplice helps with “the purpose of facilitating the commission of the offense.”55 Although the International Criminal Court and one or two other systems emulate this language, purpose is a serious outlier in comparative terms. As we noted earlier, a unitary theory of perpetration would require 54  Joachim Vogel, “How to Determine Individual Criminal Responsibility in Systemic Contexts: Twelve Models,” (2002) Cahiers de Défense Sociale 160 ff. 55  See Model Penal Code and Commentaries (n. 52) § 2.06(4), 296 (emphasis added).

complicity   551 the accomplice to have whatever mental element was required of a perpetrator, which would mean a dynamic not static standard. Later I set out how most other Anglo-American jurisdictions adopt knowledge as the relevant mental element for complicity (although this frequently, if not invariably, dilutes into recklessness in practice). Finally, the majority of criminal systems inspired by the civil law tradition allow dolus eventualis, an even lower standard, to suffice for complicity. The MPC, however, facially requires “purpose,” and many have interpreted this as bravely forging a new path that requires an accomplice positively to desire the criminal outcome her assistance helps to bring into the world. At the outset, let me suggest that this whole vision of the MPC is misguided. As I pointed out earlier, experts who participated in the negotiating of the MPC were most concerned about one thing: business. They worried that adopting knowledge as a mental element for complicity would embroil otherwise legitimate businesses in too many criminal offenses in which they had no personal stake. Sure, I know you will use these weapons to commit a crime, but it is no concern to me whether that crime occurs or not, and to borrow from Glanville Williams’s memorable objection, “The law of complicity makes me my brother’s keeper, but not to the extent of requiring me to enquire whether he is engaging (or proposing to engage) in iniquity, when my own conduct (apart from the law of complicity) is innocent.”56 Accordingly, the experts settled on “purpose,” presumably out of a desire to carve out a safe harbor for business. And yet, it is far from clear whether they achieved their goal. While the MPC certainly begins by stating that “A person is an accomplice . . . if with the purpose of facilitating the commission of the offense,” it goes on to insist that “When causing a particular result is an element of an offense, an accomplice in the conduct causing such result is an accomplice in the commission of that offense if he acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense.”57 For leading American scholars and the vast majority of state jurisdictions in the United States, this means that the purpose requirement goes only to the provision of the assistance (my purpose was to give you the weapon), leaving the mental element in the crime with which the accomplice is charged to determine the culpability requisite for the attendant consequences my actions caused (if I was reckless about consequences, I am complicit if recklessness is sufficient for the crime in question).58 Thus, the concept of complicity in the MPC is actually startlingly similar to the unitary theories of perpetration. Notice, for example, how the second component of complicity’s definition in the MPC is dynamic in tenor, requiring parity between the   Williams, [1990] Crim. LR 101 ff.  See Model Penal Code and Commentaries (n. 52) § 2.06(4), 296 (emphasis added). 58   Discussing the negotiating history of the MPC that supports this interpretation, Paul H. Robinson and Jane A.  Grall, “Element Analysis in Defining Criminal Liability:  The Model Penal Code and 56 57

552   james g. stewart mental element for the accomplice and that for the perpetrator. As I detailed earlier, this desire for equivalence of mental elements between accomplice and perpetrator is a hallmark of unitary theories of perpetration, which deny the need for the forms of participation differentialists hold dear (even while they struggle in vain to reach agreement on quite how to draw said distinctions). By no small coincidence, the authors of the MPC shared the skepticism about the differentialists’ program, denying complicity any autonomous significance.59 Surprisingly, then, the MPC actually enshrines a functional unitary theory of perpetration. But for the sake of analytical completeness, let us consider “purpose” as requiring a volitional commitment to the completed crime.60 According to the MPC, the term “purpose” denotes conduct that is undertaken with the “conscious object” of bringing about the criminal result.61 The point of delineation with knowledge is fine, but “conscious object” undeniably implies a stronger volitional disposition. As Jeroen Blomsma surmises of purpose (in a slightly different context), “The result is the reason for his conduct; it is what matters to the actor. As a consequence, it is characterized by the sense of having failed when the result is not achieved.”62 Thus, desires for profit often preclude application of this standard of complicity in commercial contexts, although at least conceptually, nothing prevents a corporate officer from wanting simultaneously to make a handsome profit from sales to Auschwitz and to destroy Jews. One point of clarification about purpose is necessary. In a helpful illustration, Antony Duff explains how one frequently does something purposefully, without actually wanting it in a strong sense. He describes scenarios where you reluctantly pay back a debt you have incurred or undergo a painful operation to cure an illness, wanting the end but not the means. Your purpose is still to have the painful oper­ation and pay the debt.63 Thus, I still satisfy the purpose standard by helping someone Beyond,” (1983) 35 Stanford LR 266 ff. As a matter of doctrine, John Decker’s comprehensive survey shows that only three of 50 state criminal systems in the United States adopts a strong purpose standard. See John F. Decker, “The Mental State Requirement for Accomplice Liability in American Criminal Law,” (2008) 60 South Carolina LR 237 ff. 59   Model Penal Code and Commentaries (n. 52)  299 ff., stating that, according to the section on complicity in the MPC:

As in the states that have abolished the common law distinctions between principals and accessories, it would suffice under this draft to charge commission of the substantive crime. It seems unnecessary, however, in framing an entire system to declare that the offender is a “principal”; such language has meaning only because of the special background of the common law and it has been abandoned in most recent legislative reforms.   Israel, e.g., is one of the very few states that use purpose as a mental element for complicity. Nonetheless, like the MPC and the vast majority of states in America, it interprets it as implying a unitary theory of perpetration. See Itzhak Kugler, “Israel,” in Kevin Jon Heller and Markus D. Dubber (eds.), The Handbook of Comparative Criminal Law (2010), 370 ff. 61   Model Penal Code and Commentaries (n. 52) § 2.02(2)(1) ff. 62   Jeroen Blomsma, Mens Rea and Defences in European Criminal Law (2012), 66 ff. 63   R. A. Duff, Intention, Agency and Criminal Liability: Philosophy of Action and the Criminal Law (Philosophical Introductions) (1990), 53–54 ff. 60

complicity   553 to kill their partner in order to take a share of the insurance monies, whereas I do not if I help that same person to burn down their house in order to collect the insurance monies we will share, even if I know that the wife will definitely perish in the fire.64 If the wife lives in the former scenario, my plans are thwarted; not so in the latter. Failure is therefore a helpful test for purpose in complicity (assuming purpose goes to the completed offense, which it does not as a matter of doctrine). So, should accomplice liability turn on this distinction? While an intense notion of purpose is often celebrated as a laudable liberal adjustment to normal principles,65 we should reflect momentarily on its implications—by this doctrine an accomplice who acts in such a way that she not only satisfies the mental element of the crime but makes an essential and unjustifiable contribution to its realization is absolved of liability. The danger is that this “elevation theory” gives an almost unattainable height to the subjective element of complicity, misapplying desert and miscommunicating responsibility. From a retributive perspective, helping the partner kill his wife for the insurance money when her death is virtual certainty is perfectly sufficient for a version of murder that only requires intent, so why require more? By demanding that the accomplice show a purpose when a perpetrator need not, “purpose” arguably over-corrects. A utilitarian view of complicity generates the same result. Since deterrence (and therefore crime prevention) is maximized by punishing those who are aware of even the slightest risk of harm, purpose is unattractive from a utilitarian perspective.66 Admittedly, here there are more complicated questions about overdeterrence, which require a careful calibration of complicity standards with the desire for free social intercourse. Nonetheless, utilitarian concerns tend to militate against adoption of the highest conceivable notion of blameworthy moral choice (i.e. purpose) across the entire panoply of crimes, since complicity can achieve greater deterrence for criminal harms by setting the mental element at levels much closer to that defined in a crime. In short, “purpose” underdeters accomplices by doing too little to offset the strong incentives for offenders to enlist assistants in the execution of their criminal plans. Moreover, empirical research suggests that in many instances members of the public believe that the accomplice is blameworthy even though they did not share the perpetrator’s criminal purpose. The subjects of one survey reported “stark disagreement” with the “elevation thesis” (viz. the idea that the mental element in complicity should be elevated to purpose, that is, beyond that required within the paradigm 64   I take the example from Jeroen Blomsma, modifying it slightly to emphasize complicity. Blomsma (n. 62) 74 ff. 65   The drafters of the MPC concluded that the purpose standard was the preferable mental element for accessorial liability in order to offset the indirect nature of the accomplice’s contribution to the criminal harm. See Model Penal Code and Commentaries (n. 52) § 2.06, 318–319. 66   I. H. Dennis, “The Mental Element for Accessories,” in Peter Smith (ed.), Criminal Law: Essays in Honour of J. C. Smith (1987), 60 ff.

554   james g. stewart of the crime itself).67 Instead, respondents assigned punishments to accomplices “who are knowing or even only reckless with respect to the criminal outcome in instances in which the elevation view would assign no liability.”68 While one cannot assume that these sentiments are invariably attributes of complicity everywhere, the study at least serves as further grounds for caution about adopting a strong notion of purpose—using this elevated standard as the mental element for complicity may fail to match law with popular notions of justice. Perhaps this explains why almost no American jurisdiction adopts it in practice, preferring a unitary theory.

2. Knowledge In the earlier example about helping someone to burn down a house to collect the insurance money, we concluded that the strong version of the purpose standard of accomplice liability would not extend liability to virtually certain side effects of the accomplice’s true objective. If burning the house down would almost definitely kill the partner’s wife, the purpose standard exonerates the accomplice of murder (even though the perpetrator is guilty of that crime). Knowledge, the second major mental element for complicity, assigns these virtually certain side effects to the accomplice too, when purpose would not. Put differently, knowledge diminishes the volitional commitment purpose insists upon in favor of a purely cognitive test. The result is a static mental standard for complicity within a differentiated system, that applies without regard to the mental elements required in the different sorts of criminal offenses it partners. To begin, note the comparative rationale for the purpose and knowledge tests for complicity. If the “purpose” standard is understood in its strongest volitional sense (which, at the risk of laboring the point, it almost never is in practice), purpose is said to promote autonomy by precluding criminal impediments to otherwise lawful activities that depend on social cohesion, whereas “knowledge” promotes social control and the prevention of crime by demanding that agents take interventionist action when aware that their actions are enabling offending.69 In its most (overly) ambitious guise, the knowledge standard posits that the potential aider “might be an educative or moralizing force that causes the would-be offender to change his mind.”70 To some extent, the Anglo-American systems of criminal law that adopt either knowledge or purpose as standards for complicity align themselves along these communitarian or individualistic axes. Knowledge promotes community; a strong notion of purpose is libertarian. 67  Paul Robinson and John M.  Darley, Justice, Liability and Blame:  Community Views and the 68 Criminal Law (1996), 103 ff.   Robinson and Darley (n. 67) 103. 69   Louis Westerfield, “The Mens Rea Requirement of Accomplice Liability in American Criminal 70 Law—Knowledge or Intent,” (1980) 51 Missouri LJ 178 ff.   Westerfield (n. 69).

complicity   555 So, how does this knowledge standard work? The first challenge lies in ascertaining just what knowledge attaches to—knowledge of what? That question is not as straightforward as it might seem, particularly when the offense itself fails to offer terribly much guidance. So as soon as one utters the word knowledge, a whole series of deeply complicated, highly debated, and ultimately inconsistent responses arise,71 born of “uncertainty as to whether the law should be concerned with [the] mental state relating to [the accomplice’s] own acts of assistance or encouragement, to his awareness of the principal’s mental state, to the fault requirements for the substantive offense involved, or some combination of the above.”72 But for present purposes, let us assume that knowledge goes to the consummated crime the accomplice’s assistance helps to produce, accepting that this is mostly an oversimplification for convenience. Knowledge presents epistemic troubles. How can someone know the future? Even if member X of a terrorist organization provides her colleague Y with a nuclear warhead for a specific terrorist mission, X cannot know with certainty that a crime will transpire. Short of knowing that water will flow downhill or that the sun will rise in the East, no one can know with certainty what the future will involve, and surely few human actions ever acquire a degree of predictability anywhere close to the direction of the Earth’s rotation or laws of physics.73 The obvious solution is to think of know­ ledge as implying appreciation of a virtually certain probability (akin to indirect intent), but as soon as a degree of probability becomes the touchstone, the temptation to surreptitiously slide into recklessness can prove irresistible. Is there a danger, then, that the ambiguities of knowledge open the floodgates to rampant illiberalism? This danger is most acute where a would-be accomplice provides forms of assistance that can enable a wide range of crimes. Take the classic English case of R.  v.  Bainbridge,74 where the defendant bought oxygen-cutting equipment for an individual named Shakeshaft, who later used it to break into a bank. Bainbridge indicated that he suspected that Shakeshaft would use it for something illegal, but he did not know what precisely this illegality would involve. The House of Lords held that it was essential to prove that the accomplice knew the type of crime the perpetrator would commit; knowledge of mere criminal propensities was inadequate. Conversely, if Bainbridge knew that burglary was likely to occur with his assistance, he need not know that it would involve a bank, the bank’s location, the proprietors of the bank, or the time of perpetration.75 71   Weisberg, (2000) 4 Buffalo Crim. LR 233 ff. (exploring different interpretations of these three elements); Grace E. Mueller, “The Mens Rea of Accomplice Liability,” (1987) 61 Southern California LR 2174 ff. (arguing that, because of these multiple points of inquiry, confusion has existed for years concerning the mens rea element of accomplice liability). 72   Wayne R. LaFave, Principles of Criminal Law (2nd ed., 2010), 324 ff. 73   Stephen Shute, “Knowledge and Belief in the Criminal Law,” in Stephen Shute and A. P. Simester (eds.), Criminal Law Theory: Doctrines of the General Part (2002), 186–187 ff. 74   R. v. Bainbridge [1960] 1 Q.B. 129, [1959] 3 All E.R. 200, Criminal Court of Appeal. 75   Ormerod (n. 21) 203 ff.

556   james g. stewart Before we begin to discuss this finding, note that it conforms to interpretations of knowledge in a number of other jurisdictions. In systems as diverse as France, England, Germany, and the United States, comparable rules do similar work,76 suggesting that knowledge of the type of offense might be sufficient for most understandings of complicity. But does this go too far? As Andrew Ashworth laments, this position “introduces reckless knowledge as sufficient.”77 So perhaps knowledge never meant knowledge at all. Still, if I throw a grenade at a car knowing with virtual certainty that there is someone inside the vehicle, it does not matter whether there is a lone 3-month-old girl from New Zealand, four elderly Japanese men, or a dozen pregnant Eskimos. If awareness of a virtual certainty of causing a human death is sufficient for murder, this is all the specificity needed for perpetration. Why would complicity be any different? The major concern, however, is that knowledge is a fixed requirement when the mental elements in crimes for which it assigns blame are not. Knowledge may suffice for complicity, but what happens when the crime in question requires a specific purpose?78 Intriguingly, the knowledge standard in complicity tends to overpower stronger mental elements in these crimes—in many jurisdictions, knowledge suffices for conviction of crimes of ulterior intent, allowing the weaker complicity standard to eviscerate the stronger character of the crime with which it joins. In David and Goliath fashion, the weaker mental element for complicity slays the stronger counterpart in the crime. This makes for good Biblical narrative, but it is less clear whether the story ends well for theories of complicity. By merely requiring knowledge as a necessary mental state for conviction, accomplice liability risks distorting responsibility, as distinct from attributing wrongdoing in line with the moral weight of the crime in question. A unitary theory corrects this problem, but arguably ushers in problems of its own.

3. Recklessness/dolus eventualis Unsurprisingly, recklessness is by far the most interesting and controversial standard for complicity. Can I really be responsible for the crime someone else commits, 76   See e.g. LaFave (n. 72)  725–727 ff. (discussing the “natural and probable consequence” rule in various U.S.  jurisdictions, which is very similar to that adopted in international criminal justice); Jacques-Henri Robert, Droit Pénal Général (6th ed., 2005), 350 ff. (setting out how an accomplice’s acts are unlawful if the crime actually committed injures of the same legal interest as that the accomplice considered). 77   Ashworth (n. 12) 419 ff. (pointing out that “the accomplice knows that one or more of a group of offences is virtually certain to be committed, which means that in relation to the one(s) actually committed, there was knowledge only of a risk that it would be committed—and that amounts to recklessness”). 78   For relevant discussions, see Jeremy Horder, “Crimes of Ulterior Intent,” in A. P. Simester and A. T. H. Smith (eds.), Harm and Culpability (1996); Whitley R. P. Kaufman, “Motive, Intention, and Morality in the Criminal Law,” (2003) 28 Criminal Justice Review 317.

complicity   557 by conducting myself in ways that are “otherwise lawful,” when I merely run a risk that the offense will occur? Is this not deeply illiberal, given the asymmetries Kutz points to between perpetrator and accomplice? In many jurisdictions the answer is a curt no: a concept vaguely analogous to recklessness suffices to make the accomplice responsible for the completed offense she assists in the many systems that employ dolus eventualis as the lowest form of intention; in countries that adopt a unitary theory of perpetration, recklessness suffices for complicity when it is adequate for perpetration; and if one follows Ashworth, many (maybe all) systems that formally require knowledge really demand recklessness. In what follows, I critically review recklessness as a standard for complicity, treating the term as a vague equiva­ lent of dolus eventualis. For one group of commentators, recklessness is at least refreshingly honest about its function—it avoids complicity being rendered “a dead letter.”79 The argument again hinges on the inability to know the future with certainty. To return to my earl­ ier example, even if member X of a criminal gang provides her terrorist colleague Y with a nuclear warhead for a specific terrorist mission, X cannot know with certainty that a crime will transpire. Thus, argue the recklessness advocates, we either deny that complicity exists for assistance in advance of the crime (because people can seldom know in a strong sense what others will do in the future) or we apply a standard closer to recklessness for accomplices who choose to undertake acts they know are inherently risky (providing nuclear weapons to terrorists).80 In all likelihood, this reasoning probably explains why knowledge dilutes to recklessness so frequently in practice. For many, reckless complicity is a bridge too far. Embracing reckless complicity would require us continuously to vet those with whom we have dealings so that we can ensure that our interactions do not lead to potentially serious criminal harm. This, according to many scholars, would have the unsavory consequence of creating “blank cheque responsibility,”81 where the aider becomes responsible for all foreseeable consequences of their daily public interactions.82 Beyond unduly infringing upon liberty and individual autonomy, a reckless standard of complicity would offend liberal notions of punishment and inhibit social intercourse.83 Especially in a world where we depend on markets to “stabilize the pursuit of individual conceptions of the good despite widespread moral disagreement,”84 inhibiting risky behavior by otherwise innocent third parties arguably goes too far. But is this always the case? Notice how the critics of recklessness seldom mention desert, even though the notion acts as a corner piece of any defensible theory of   Brent Fisse and Colin Howard, Howard’s Criminal Law (5th ed., 1990), 332 ff.   Fisse and Howard (n. 79) 332 ff. 81 82   Smith (n. 1) 13 ff.   Williams, [1990] Crim. LR 101 ff. 83   Sanford H. Kadish, “Reckless Complicity,” (1996) 87 Journal of Crim. Law & Criminology 383 ff. 84   Christopher Kutz, Complicity: Ethics and Law for a Collective Age (2000), 168 ff. 79

80

558   james g. stewart criminal responsibility. To conform with desert, recklessness should be appropriate as a standard of liability for the accomplice when it is adequate for the perpetrator. The argument conveniently dovetails with claims that using recklessness as a standard for complicity where recklessness suffices for the crime in question would not imperil an individual’s autonomy or chill normal social interchange any more than reckless perpetration already does.85 Consequently, there may be no generic difficulty for instances of reckless complicity as such; it is really the application of recklessness across crimes the mental elements of which are more onerous that is unduly harsh. The defense of reckless complicity becomes stronger again if this account of complicity is understood in conjunction with necessity as a justification. The result, of course, again recalls the unitary theory of perpetration, which pairs the mental element for complicity to that set out in the crime.

V.  Conclusion This short chapter highlights just some of the features of accomplice liability, in ways that reveal both the “hand-rubbing relish” and “hand-on-the-brow gloom” promised in the epigraph. Alas, there is so much that has had to go unaddressed. The chapter leaves out, for instance, the doubtful arguments by many leading theorists that the accomplice liability of vendors approximates to omission liability, because the vendor is required to depart from their “ordinary course of business.”86 Likewise, it makes no mention of the substantial body of literature governing so-called “neutral acts” (neutrale Handlungen),87 but in a forthcoming work, I disagree with the view in a portion of this literature that “typical,” “ordinary,” or “commonplace” actions are excluded from the scope of accomplice liability. And finally, I make no mention of what Sanford Kadish dubbed “non-proxyable crimes.”88 Can an accomplice who   Kadish (n. 29) 387 ff (“It is not evident to me that subjecting actors in these circumstances to liability for a crime of recklessness need greatly imperil the security of otherwise lawful activities, certainly not any more than holding actors liable for recklessly ‘causing’ harms, which the law regularly does. People aren’t all that unpredictable”); Larry Alexander, “Insufficient Concern: A Unified Conception of Criminal Culpability,” (2000) 88 California LR 944–947 ff. (defending reckless complicity against arguments of overreach). 86   R. A. Duff, “ ‘Can I Help You?’ Accessorial Liability and the Intention to Assist,” (1990) 10 Legal Studies 165; Glanville Llewelyn Williams, Criminal Law: The General Part (1953), 368–349 ff.; Fletcher (n. 5) 582–583 ff. 87   For just three books on the topic, see Hans Kudlich, Die Unterstützung fremder Straftaten durch berufsbedingtes Verhalten (2004); Peter Rackow, Neutrale Handlungen als Problem des Strafrechts (2007); Klaus Pilz, Beihilfe zur Steuerhinterziehung durch neutrale Handlungen von Bankmitarbeitern 88 (2001).   Kadish (n. 29) 373 ff; Gardner (n. 3) 127, 136 ff. 85

complicity   559 is herself not married be convicted of bigamy if she helps a married friend marry for a second time? These and the other problems set out here are difficult, but they are also deserving of our ongoing intellectual energies—complicity goes to the heart of our attempts to live honest moral lives, in this our very imperfect world.

References Dubber, Markus D., “Criminalizing Complicity: A Comparative Analysis,” (2007) 5 Journal of International Crim. Justice 984 Gimbernat Ordeig, Enrique, Autor y cómplice en derecho penal (2006) Kadish, Sanford H., “Complicity, Cause and Blame:  A  Study in the Interpretation of Doctrine,” (1985) 73 California LR 323 Kadish, Sanford H., “Reckless Complicity,” (1996) 87 Journal of Crim. Law & Criminology 369 Keiler, Johannes, “Towards a European Concept of Participation in Crime,” in André Klip (ed.), Substantive Criminal Law of the European Union (2011) Kutz, Christopher, Complicity: Ethics and Law for a Collective Age (2000) Kutz, Christopher, “Causeless Complicity,” (2007) 1 Crim. Law & Philosophy 289 Moore, Michael S., “Causing, Aiding, and the Superfluity of Accomplice Liability,” (2007) 156 University of Pennsylvania LR 395 Rotsch, Thomas, “Einheitstäterschaft” statt Tatherrschaft: Zur Abkehr von einem differenzierenden Beteiligungsformensystem in einer normativ-funktionalen Straftatlehre (2009) Roxin, Claus, Strafrecht, Allgemeiner Teil. Bd. 2: Besondere Erscheinungsformen der Straftat (1st ed., 2003), 231 ff. Smith, K. J. M., A Modern Treatise on the Law of Criminal Complicity (1991) Stewart, James G., “The End of ‘Modes of Liability’ for International Crimes,” (2012) 25 Leiden Journal of International Law 176 Stewart, James G., “The Accomplice Liability of Arms Vendors:  A  Conceptual Defense,” (forthcoming 2014) Williams, Glanville, “Complicity, Purpose and the Draft Code—1,” [1990] 4 Crim. LR 4 Williams, Glanville, “Complicity, Purpose and the Draft Code—2,” [1990] 4 Crim. LR 101

­c hapter 25

CORPORATE CRIMINAL LIABILITY susanne beck*

i.  Introduction to Corporate Criminal Liability Over the last decades, criminal law has undergone fundamental structural changes. One of the most important developments—as a result of an increase of criminological research in “white-collar” crime1—is the introduction of corporate criminal liability (CCL), which allows for direct sentencing of the corporation itself as the principal. Criminal law has traditionally applied to individuals, an emphasis reflected in its underlying premises, structures, dogmatic aspects, and sanctions. All these dimensions of criminal law have been affected by the adoption of CCL, a concept that allows for the penalization of a legal person representing aggregated individuals. In what follows, I will provide an overview of the main aspects of CCL with the focus on corporations, but also examining other relevant collectives.

*  Thanks to Verena Beck, Dr. Diana Hembach, Roswitha Jung, Christoph Kuhlow, Dominic Reitner, and Dr. Benno Zabel for support and inspiration. 1   For an overview, see James Gobert and Maurice Punch, Rethinking Corporate Crime (2003), 1 ff.

corporate criminal liability   561

ii.  Emergence and Expansion: Case by Case, Nation by Nation Human beings have always lived in a tension zone between individuality and social integration; the emphasis changing between the two in different eras. Still, the concept of the “corporation”—a separate legal person with its own rights and obligations—is rather new.2 From the outset, the introduction of these entities gave rise to legal philosophical debates, not only about their nature, but also about whether they should be held civilly or criminally liable for actions committed in their name.

1.  The inductive process in the United States and in England3 The modern form4 of CCL originated in the Anglo-American case law system,5 where it has been gradually expanded over many decades. Interestingly, although not surprisingly for an inductive system, this structural change was neither coord­ inated nor intentional and not grounded on a firm belief in its effectiveness or appropriateness.6 To the contrary, “The present state of corporate criminal liability is the result of a gradual expansion from a minor common law doctrine.”7 This doctrine stated that masters were, regardless of command or consent, criminally liable for their servants’ public nuisance. Governmental bodies were held criminally liable for acts of local officials, even though their capacity to give command or consent was doubted. From there, CCL expanded, case by case and analogy by analogy.8 2   With its roots going back to the property accumulation by the Church in the Middle Ages, already indicating the concept being connected to institutions with significant social influence. 3   To specifics of, e.g., the Scottish legal system, see Findlay Stark, “Corporate Criminal Liability in Scotland: The Problems with a Piecemeal Approach,” in Mark Pieth and Radha Ivory (eds.), Corporate Criminal Liability (2011), 113 ff. 4   For a deeper historical analysis—esp. pre-1800—and a critical discussion of “traditional” comparisons between Anglo-American and German perspective on CCL, see Markus D.  Dubber, “The Comparative History and Theory of Corporate Criminal Liability,” (2013) 16 New Crim. LR 203 ff. 5   A  tradition of CCL can be found in countries with similar legal systems, such as India, South Africa, Australia, New Zealand, and Canada, see Mark Engelhart, “Unternehmensstrafbarkeit im europäischen und internationalen Recht,” (2012) eucrim n. 1. 6  Thomas J.  Bernard, “The Historical Development of Corporate Criminal Liability,” (1984) 22 7 Criminology 14.   Bernard, (1984) 22 Criminology 12. 8   First, courts in the United States transferred the doctrine onto private organizations responsible for public functions. As soon as England faced a similar situation, courts adopted the practice, based on a statutory provision: the first Interpretation Act, according to which a “person” is to be constructed as including “a body of persons corporate or unincorporate” was enacted in 1889; an identical provision was enacted in 1827. On the history of CCL in England, see also Amanda Pinto and Martin Evans, Corporate Criminal Liability (3rd ed., 2013), 3 ff.

562   susanne beck In early judgments, there were clear-cut limits on the criminally liability of corporations, most importantly the “corrupted mind” requirement:9 intent could not be transferred to legal entities. But, in 1908, this limit was crossed10 by a U.S. court attributing criminal intention to a corporation and, as a result, holding it criminally liable for the actions of its agents.11 This judgment is explicitly based on effectiveness12 and also reveals the significance of the analogy system in the expansion of CCL, the judge explicitly stating the “difficulty of maintaining that a corporation could act through its agents, but not intend through them.”13 In the following years, the inductive system did not provide any substantial barriers against the expansion of CCL into all areas of criminal law—also characteristic for a legal culture mainly arguing consequentially and skeptical of deontological limitations.14 Or, from the opposite point of view, the common law system provided instant solutions to the problem of corporate misconduct without the need for strict coherence. Once intent of corporations was accepted, other limitations (e.g. restriction of CCL to specific crimes) were easily overcome: with the conviction of the Ford Motor Company for reckless homicide,15 the last barrier (“it is unlikely that the intention to commit . . . murder will ever be imputed to a corpor­ ation”16) was crossed. How CCL was incorporated into the existing legal system differed.17 In the United States, corporations were criminally responsible for the actions of employees through vicarious liability, and were punishable even if they had tried to prevent the crime.18   Bernard, (1984) 22 Criminology 8.   Starting with the judgment New York Central & Hudson River Rail Road Co. v. U.S., 212 U.S. 481 (1909). 11   Based on the Elkins Act (32 Stat. 847): “the act, omission or failure of any officer, agent, or other person acting for or employed by any common carrier . . . shall in every case be also deemed to be the act, omission or failure of such carrier, as well as of that person.” 12   New York Central & Hudson River Rail Road Co. (n. 10) 493–496: 9

10

We see no valid objection in the law, and every reason in public policy, why the corporation which profits by the transaction and can only act through its agents and officers, shall be held punishable by fine because of the knowledge and intent of its agents to whom it has intrusted authority to act in the subject matter . . . [T]‌o give them [the corporations] immunity from all punishment because of the old and exploded doctrine that a corporation cannot commit a crime would virtually take away the only means of effectually controlling the subject matter and correcting abuses aimed at.   Bernard, (1984) 22 Criminology 9.   For comparative observations on the European legal cultures, see Pierre Legrand, “European Legal Systems Are Not Converging,” (1996) 45 ICLQ 52 ff. 15   State v. Ford Motor Co., 47 USLW 2514, 2515 (Ind. Sup. Ct. 1979). 16   James R. Elkins, “Corporations and the Criminal Law: An Uneasy Alliance,” (1976) 65 Kentucky LJ 160. A major problem for charging corporations with homicide was often the statute’s wording; the possibility for convictions thus depends on statutes using “human being” or “person.” 17  Mark Pieth and Radha Ivory, “Emergence and Convergence:  Corporate Criminal Liability Principles in Overview,” in Pieth and Ivory (n. 3), 7 ff. See for details of these models, Sections III.2 and IV. 18   Pieth and Ivory (n. 17) 7; the discussion then focused on the detail, e.g. which agents could act and intend for the corporation, what it means to act “within the scope of his employment,” and if the intention of benefiting the corporation mattered, see Bernard, (1984) 22 Criminology 11. Including 13

14

corporate criminal liability   563 British courts applied the identification model, thus penalizing corporations for the acts, omissions, and mental states of their organs, with whom they were identified.19 Finally, in the Commonwealth countries, one can find comprehensive interpretations of the identification model,20 as well as adaptations of a holistic liability model,21 penalizing corporations with regard to their culture, thus focusing on the fault of the collect­ ive itself. As an interim conclusion, the emergence of CCL can be attributed to the similarity of the initial cases to an existing doctrine and, from there, a gradual expansion that occurred through inductive, analogy-focused argumentation. This might, inter alia, have been facilitated by the fact that the first criminal offenses for which corporations were held liable could hardly be regarded as such—as the degree of blameworthiness was almost negligible; the criminal offenses do, actually, resemble regulatory offenses. Still, it would be shortsighted to assume that CCL just “happened.” The fact that the Anglo-American legal system eliminated some difficulties other legal systems face(d) cannot fully explain the introduction of this concept. One reason for it is surely the rise of corporations’ social power during the industrial revolution.22 With corporations, the public was and is confronted with opaque and seemingly uncontrollable entities. They were a major force behind the so-called “risk society,” which saw to the mobilization of all available forms of state control, including the criminal law and penalizing individual members has become difficult, sometimes even impossible, because of improvability, but also because of the division of responsibility between the members.23 Finally, the shift in focus away from the powerful individuals in the background and toward the corporation might have played a role,24 in the tradition of “white-collar” crime.25 Powerful individuals who violate the rights and interests of others, as well as the general social acceptance of capitalism, facilitate a shift in criminal law’s focus onto others and onto hiding behind the righteousness of the general economic interests of corporations. Although public interest in illegal activities of powerful individuals has grown, they are still harder to detect, control, regulate, and even to politically ban than are the traditional crimes of the powerless.

compliance programs became of relevance only recently, see Ved P.  Nanda, “Corporate Criminal Liability in the United States: Is a New Approach Warranted?,” in Pieth and Ivory (n. 3), 84.   Pieth and Ivory (n. 17) 7.   Canada, New Zealand, see Mark Pieth “Criminal Liability and Compliance Programs,” in Pieth 21 and Ivory (n. 3), 8.   Criminal Code Act 1995, Australia. 22 23   Pieth and Ivory (n. 17) 7.   Pieth and Ivory (n. 17) 5. 24   For details, see Section VI.1. That the drive to exempt corporate conduct from criminal law intensified with the advent of neoliberalism (see Charles R. P. Pouncy, “Reevaluating Corporate Criminal Responsibility: It’s All About Power,” (2011) 41 Stetson LR 97 n. 2) is not necessarily a counterargument, because decriminalization is a different question to the one whether the individual or the collective 25 should be liable.   Gobert and Punch (n. 1) 1 ff. 19

20

564   susanne beck

2.  Adaption by other countries “[T]‌he concept of corporate criminal liability did not develop at all in civil-law countries, where all criminal liability is laid to individuals, and none to the corpor­ ation itself,” stated Bernard, 30 years ago.26 Rarely has a statement which was comprehensible from the perspective of that time become outdated so rapidly:  since 1991, various forms of CCL have been introduced in countless civil law countries,27 despite the obstacles their systems pose. This happened against the background of the growing relevance of the EU.28 Just to highlight some aspects in the field of criminal law: mutual recognition of judgments and judicial decisions was introduced by the Maastricht Treaty in 1992, the Convention on Mutual Assistance in Criminal Matters dates back to 2000 with the first instrument (the European Arrest Warrant) coming into operation in 2004, and finally the Lisbon Treaty of 2009 provides a legal framework for criminal legislation to a certain extent (e.g. the so-called “Euro crimes”). Important is the proposed Directive on criminal sanctions for insider dealing and market manipulation29 which requires the Member States to take all necessary measures to ensure that criminal offenses in this area are prosecuted and sanctioned effectively and proportionately. One intensively discussed issue is whether it postulates corporate criminal liability and whether it actually can do so.30 Also, the United Nations has aimed to punish corporations by various soft law initiatives; some agreements were reached in 1999, 2000, and 2003 requiring, similarly to the EU Regulations, effective, reasonable, and preventive measures and thus leaving the nations with a high degree of discretion to introduce criminal, administrative, or civil sanctions. The Organisation for Economic Co-operation and Development (OECD) has also issued nonbinding principles for multinational corporations. However, the most important international criminal treaty, the Statute of the International Criminal Court, does not—despite controversial discussions—include punishment of legal persons.31 The social changes of this era also help to understand this development. After the Cold War, the downsides of capitalist systems (previously suppressed by the common

  Bernard, (1984) 22 Criminology 3.   Norway (1991), Iceland (1993), France (1994), Finland (1995), Denmark (1996), Slovenia (1996), Belgium (1999), Poland (2003), Switzerland (2003), Austria (2004), Romania (2006), Luxembourg (2010), Spain (2010), Czech Republic (2012); see Günter Heine, in Adolf Schönke and Horst Schröder, Strafgesetzbuch Kommentar, Vorbem. zu den §§ 25 ff. n. 122 with further references; Engelhart, (2012) eucrim 110 fns. 2–4. For an overview of the situation in the late 1990s, see Albin Eser, Günter Heine, and Barbara Huber (eds.), Criminal Responsibility of Legal and Collective Entities (1998). 28   Pinto and Evans (n. 8)  4:  “In recognition that corporations conduct business trans-nationally, there has been international pressure to harmonise responses to some aspects of corporate misconduct.” 29   COM(2011)0654 – C7-0358/2011 – 2011/0297(COD). 30   In the Opinion of the Committee on Legal Affairs (20.6.2012) it is stated: “Insider dealing provisions in MAD [Market Abuse Directive] should only be applicable to natural persons, since the scope 31 of corporate liability should be left to national law.”   Engelhart, (2012) eucrim 119 ff. 26 27

corporate criminal liability   565 enemy “socialism”), like the increasing power and dangerousness of corporations, were brought to public attention by a number of scandals.32 Because of new international cooperation, international criminal law could be implemented, again drawing attention to the potential responsibility of groups (states and governments). In 1999, the euro was introduced, rendering corporations more international and thus more uncontrollable, while also increasing the importance of harmonized solutions for problems such as corporate misconduct. The various national implementations of CCL differ about included entities, crimin­ alized offenses, acts, actors, and failures leading to CCL.33 While the details on models and reasons for differences will be discussed later, it can be concluded that although the (almost) worldwide introduction of CCL has made cooperation easier and harmon­ ization more possible, the differences in detail present obstacles for joint control of corporate criminal behavior.

3.  The refusal: opposing countries Some countries uphold an individualistic criminal law system,34 and in Europe this is currently the case in Bulgaria, Germany, Greece, Italy, and Latvia. Nonetheless, corporations can be sanctioned for regulatory offenses in those countries. In Germany, for example, the Ordnungswidrigkeitengesetz (Act on Regulatory Offences)35 allows for the sanctioning of legal persons, while the Criminal Code does not provide for that possibility.36 §§ 30 and 130 of the Act play a crucial role in expressing the wrongfulness of a specific action and preventing further corporate misconduct. According to these provisions, a legal person37 is liable for the actions of its members including a failure to exercise control over subordinates. One condition for being sanctioned under the Act is to have acted reprehensibly (see §§ 1 and 12). Because of this, it is argued that the difference between regulatory offenses and crimes is only quantitative and also that Germany does already have a form of CCL.38 It is true that in all other areas responsibility under the Act and under the Criminal Code is not differentiated, which is an indication that the 32   Such as the BSE scandal (first reported cases: 1985/86; see Matthias Beck, Darinka Asenova, and Gordon Dickson, “Public Administration, Science, and Risk Assessment:  A  Case Study of the U.K. Bovine Spongiform Encephalopathy Crisis,” (2005) 65 Public Administration Review 396 ff.) or the Elf scandal in France (see Nick Cohen, “The Politics of Sleeze,” The Observer, Nov. 16, 2003). 33   Mark Pieth, “Ein europäisches Unternehmensstrafrecht,” in Eberhard Kempf, Klaus Lüderssen, and Klaus Volk (eds.), Unternehmensstrafrecht (2012), 397 ff. 34   For an overview of the German debate, see Gerd Eidam, Straftäter Unternehmen (1997), 91 ff. 35   For an English translation of the Act, see:  . 36   On the similar situation in Italy, see Christina de Maglie, “The Italian Solution,” in Pieth and Ivory 37 (n. 3) 255 ff.   Without restriction to corporations. 38   Hans J. Hirsch, Die Frage der Straffähigkeit von Personenverbänden (1993), 9 ff.

566   susanne beck difference between these sanctions may not be as relevant as the strong opposition to CCL deems it to be. The level of potential fines also supports this conclusion: in June 2013, the maximum fine was increased to €10 million.39 However, opposition to CCL emphasizes the “moral blameworthiness” included in and expressed through criminal sanctions as being the main difference, which is not transferable to a system including CCL. Thus, a country’s decision to criminalize corporations is connected to a specific understanding of criminal punishment. Therefore, the premises, understandings of law, and the social and moral backgrounds of the developments must be examined in order to comprehend the differences between various countries’ regulations and, perhaps, overcoming them.

iii.  The “Whether” and “How” of Corporate Criminal Liability In what follows I will give an overview of the way the debate is conducted today, especially the main arguments of efficiency, fairness, and the transferability of criminal law (and its premises) onto collectives. Subsequently, the main differences between existing models of CCL will be sketched out.

1.  The main arguments for and against corporate criminal liability a)  Advocacy of corporate criminal liability Advocates of CCL argue that corporations pose considerable risks, especially those resulting from organizational failures. It is therefore necessary to find effective means for reducing those risks to socially acceptable levels. According to this view, introducing CCL is more effective than exclusively penalizing individuals and other means of regulation40 because it should have a stronger preventive effect by addressing the real decision-maker(s). It is often argued, for example, that in the context of white-collar crime, criminal punishment has a greater deterrent effect than other measures;41 this   BGBl. (Bundesgesetzblatt, Federal Law Gazette), 2013, Part I Nr. 32, 1738.   Pinto and Evans (n. 8) 4: “The criminal law would be seriously deficient if harmful conduct carried on by those entities could not be prosecuted and punished.” 41  John Braithwaite, “The Limits of Economism in Controlling Harmful Corporate Conduct,” (1981–82) 16 Law and Society Review 481 ff.; Gobert and Punch (n. 1) 50 ff. 39

40

corporate criminal liability   567 argument is frequently based on a specific view of the corporate actor (as a rational criminal) and an optimistic assessment of the law’s capacity to control the behavior of these actors.42 For the effectiveness of CCL, the declaratory power of prosecutions could also be argued—only criminal judgments can communicate that the state regards the offense as (morally) wrong.43 Furthermore, CCL is said to overcome the problems of proving the actions and intentions of individual members of a corporation. These problems are not just a side effect of collaboration and can even be produced by the corporations themselves:  specific corporate structures facilitate the concealment of individual responsibility. In fact, this argument goes further than proving incidents within a corporation and is an expression of a broader problem—the liability shift. Division of work leads to the diversion of liability for harmful consequences. Corporations are, according to this argument, more than just the sum of individual actions and intentions. Although their precise nature is controversial (see Section IV.1), the development of a collective will can be established. It could therefore be argued that it is not just practically impossible, but actually normatively inadequate, (only) to penalize individuals for collective actions. CCL may not only punish the “real” actor by addressing the collective—especially if the offense results from criminogenic collective structures or organizational failure—but also the one benefiting from the crime. From this perspective, penalizing collectives is not just effective but also just and equitable.44

b)  Opposition to corporate criminal liability Both the effectiveness and the fairness of CCL are doubted by its opponents.45 It is questioned—for example, by doubting the deterrent effect of CCL46—whether the criminal law can actually change the dynamics and culture of a corporation,47 whether CCL is actually necessary, and whether it would not be more promising to focus on other legal areas or non-legal systems to control corporations.48  Which (see Section III.1.b) are regarded as unrealistic by opponents; see Sally S.  Simpson, Corporate Crime, Law and Social Control (2002), 5. 43   Pinto and Evans (n. 8) 5, quoting Celia Wells, Corporations and Criminal Responsibility (2nd ed., 2001), 30: “The public nature of criminal prosecutions plays an important role in conveying cultural messages about types of behaviour and offences.” 44   Richard Busch, Grundfragen der strafrechtlichen Verantwortlichkeit der Verbände (1933), 116 ff.; Hirsch (n. 38) 6; Harro Otto, Die Strafbarkeit von Unternehmen und Verbänden (1993), 8, 25. 45   For an overview Eidam (n. 34) 91 ff. with further references. Also questioning “whether the case for corporate criminal liability had been properly demonstrated” is J. C. Smith, quoted in Pinto and 46 Evans (n. 8) 3.   Simpson (n. 42). 47   Winfried Hassemer, “Die Basis des Wirtschaftsstrafrechts,” in Eberhard Kempf, Klaus Lüderssen, and Klaus Volk (eds.), Die Handlungsfreiheit des Unternehmers—wirtschaftliche Perspektiven, strafrecht­ liche und ethische Schranken (2009), 29 ff., 40, regards criminal law as the linesman, not the referee, in controlling economic dynamics. 48   It is a general criticism of “risk criminal law” that it creates symbolic criminal law. See e.g. Winfried Hassemer, “Symbolisches Strafrecht und Rechtsgüterschutz,” (1989) NStZ 558. 42

568   susanne beck In regard to fairness, the main concern is that CCL leads to punishment of members who were neither involved in the decision to commit the crime nor in the creation of the structures that supported the criminal behavior. Thus, collective punishment could lead to sheltering the decision-making individuals. Especially if the collective is divided into investing, profiting members and members who receive a salary without profiting from the growth of the corporation, equal division of the punishment seems to be problematic. Even if the non-profiting members are not directly responsible for payment of a fine, endangering the existence of the corporation or forcing cost-cutting measures could have substantial negative consequences for those members. Another, apparently more practical,49 argument considers the difficulties surrounding the criminal proceedings of collectives (e.g. representation, conflicts with the principle of ne bis in idem, or the distribution of fines within a collective). The critique goes beyond these consequentialist, practical aspects by stating that collectives cannot act or form intent and are therefore not culpable, in the strict sense of the word.50 According to this argument, effectiveness or fairness is irrele­ vant because it is systemically impossible to impose criminal sanctions on collect­ ives; the only system-compatible solution is exclusively to penalize individuals.

c)  The common counterarguments In this overview, the focus is on understanding the concept of CCL and its background; therefore, instead of drawing my own conclusions, I will give an account of the mutual ripostes. The “effectiveness” argument appears to refer to facts, but is nonetheless based on normative assumptions. First of all, the meaning of effectiveness differs depending on whether one argues for, for example, the retributive, preventive, or communicative purposes of criminal law. Secondly, in every criminal law theory a variety of potential criteria for measuring effectiveness of criminalization can be constructed: a decreasing number of convictions (as an indicator of fewer crimes by corporation members), an increasing number of compliance programs in corpor­ ations (as an indicator of growing awareness of the importance of complying with social norms), or even less dangerous behavior by corporations—the last being a far-reaching goal for the incorporation of one legal construct. Thus, it is not surprising that both advocates and opponents argue with (in-)efficiency. On the question of fairness, the fronts seem similarly irresolvable, again because of differing premises: while some argue that it is more just to punish the real profit­ eer or real cause for malfunctioning structures and group pressure (the collective   With a theoretical background referring to justification and intention of criminal proceedings.   Michael Sachs, “Ziele eines Unternehmensstafrechts und die Frage seiner Vereinbarkeit mit dem Verfassungsrecht,” in Kempf, Lüderssen, and Volk (n. 33) 195 ff.; different, Joachim Vogel, “Unrecht und Schuld in einem Unternehmensstrafrecht,” in Kempf, Lüderssen, and Volk (n. 33) 205 ff. 49 50

corporate criminal liability   569 itself), others find it unacceptable that innocent members, employees, customers, or even the economy will be punished by the high penalties imposed on large corporations.51 Underlying these differences are diverging views of responsibility, the nature of collectives and membership, and the purpose of punishment. The same holds true for doubts about fairness, which are based on possible violations of ne bis in idem: invalidating them by referring to the difference between individual and corporation52 is only possible if a specific understanding of the nature of a corpor­ ation is adopted. Suggesting that the penalties should be lowered to account for this double imposition conveys the idea that the most relevant consequence of criminal punishment is the amount of the fine.53 The arguments relating to action and intention based on conclusions about culpability, can also be traced back to differing premises. Although it is admitted that collectives do not act in the same way as individuals, advocates of CCL argue that there is a certain way to act or to refrain from acting (complying) which sufficiently resembles human actions in order to impose culpability.54 Again, this is connected to understandings of corporations and criminal law: if one regards corporations as independent entities, it is possible to regard group will as “intention,” group dynamics as “character,” and actions resulting from the organizational structures as “corporate actions.” One could also draw a comparison with the inadequate structure of a corporation which produces, promotes, or at least allows criminal acts. On the other hand, if one emphasizes the representative aspect, and regards a collective as an aggregation of individuals, one can interpret individual intentions and actions as attributable to the collective, especially if undertaken for the benefit of and/or under structural pressure from the corporation.55 Depending on specific understandings of criminal law, one could then argue that it is possible to assign criminal action to a collective56 as a form of vicarious liability or, if a more individualistic criminal law theory is assumed, that criminal liability cannot be based on assigning actions or intentions. This overview shows the interdependence of CCL and diverging understandings of corporations and criminal law. This is not the forum to decide which of the  See in detail, Toni Erskine, “Kicking Bodies and Damning Souls:  The Danger of Harming ‘Innocent’ Individuals while Punishing ‘Delinquent’ States,” in Tracy Isaacs and Richard Vernon (eds.), Accountability for Collective Wrongdoing (2011), 261 ff. (referring to states). 52   Hirsch (n. 38) 15; Hans J. Hirsch, “Strafrechtliche Verantwortlichkeit von Unternehmen” (1995) 107 ZStW 297 f. 53   e.g. if one regards criminal penalties as communication of wrongdoing, every penalty stands for itself. 54   Pinto and Evans (n. 8) 5: “The catalogue of criminal offences which a company cannot commit as principal is very small indeed”; to the rules of attribution, ibid., 50 ff. Doubting that for this one has to construct personhood but arguing with “responsible agency” is Tracy Isaacs, “Corporate Agency and Corporate Wrongdoing” (2013) 16 New Crim. LR 241 ff. 55   See e.g. for a summary, Steffi Kindler, Das Unternehmen als haftender Täter (2008), 213 ff. and 56 225 ff. with further references.   Hirsch (n. 38) 13 f.; Gobert and Punch (n. 1) 46. 51

570   susanne beck arguments is stronger, but to show that it is necessary to include these concepts in the debate. Otherwise, the argumentations are virtually irreconcilable. Besides reflecting on the perceptions of corporations and criminal law, the integration of interdisciplinary findings is important for comprehensively evaluating effectiveness and fairness, and for determining the best means by which to regulate corporate behavior on the broadest possible factual basis. The introduction and formation of CCL should include other forms of regulation, not just as one legal solution excluding another, but as an integrated concept. Criminal law should not—no matter how it is conceptualized—be used to distract focus from the broader difficulties that the state faces in regulating powerful collectives or from the fact that these collectives shelter individuals who are actually responsible for decisions. Specifically, CCL should ensure that the principles of criminal law are not given up too easily, even if the criminal law is necessarily changing (for an analysis of these changes, see Section V).

2.  Legal models of corporate criminal liability CCL as such means nothing more than the general possibility of penalizing corpor­ ations. It does not, by itself, account for which cases, actions or omissions, or conditions under which it is possible to punish corporations. It also does not answer the question of how to sanction collective entities. This uncertainty is the inevit­ able result of the numerous differences in the incorporation of CCL into the legal systems of specific states which renders the categorization or conceptualization of these models difficult.

a)  Conditions for criminal liability One way to approach them is, with Pieth, to ask the right questions about these differences:57 Which entities are made liable?58 Potential addressees are not only privately owned commercial corporations but also public institutions or non-governmental, non-profit organizations. Wide regulation can be found, for example, in the United States and Canada. Criminal liability is not limited to legal persons (which can themselves be different collectives) and it is at least possible to think of imposing it on other entities.59 To which offenses does corporate criminal liability refer? Some countries include all offenses, such as France, while others differentiate. An important benchmark

  Pieth (n. 33) 397 ff.; Pieth and Ivory (n. 17) 3 ff.   This chapter focuses on corporations; however, the debate’s focus can be questioned, see Section VI.2. 59   On the details of the choices made by countries, see Pieth and Ivory (n. 17) 14 ff. 57 58

corporate criminal liability   571 here is the required “mental state”: offenses requiring proof of such are sometimes excluded from the scope of CCL. Occasionally, CCL is restricted to offenses “typic­ ally associated with the economic, environmental, or social impact of the (modern) corporation”60 or to specific lists of offences (e.g. in Spain). How must the act and the purpose of the corporation relate? In some cases, certain actions of members of a corporation are not attributed to the corporation if they are committed solely in the interest of the individual offender or, from the opposite point of view, do not serve the collective purpose (excessive offenses).61 Whose acts lead to liability of the corporation? CCL cannot be constructed without attribution of individual acts/omissions and state of mind.62 Thus, the question whether one only refers to members of higher hierarchy-levels or to any agent is relevant for the extent to which CCL is applied in a specific legal system.63 It is also the criterion responsible for the biggest differences in the models of CCL:  while the identification model64 assumes that a corporation only acts through its organs, vicarious liability can be applied on the basis of the action of every agent. As mentioned, in the United States (at the federal level) corporations are not only liable for the criminal actions of all their members, but also in situations where the corpor­ ation has tried to prevent the crime. Is there liability for organizational failure? As this example of the United States reveals, some models only indirectly refer to attribution and focus on the inadequacy of the organizational structure. In exceptional cases, the neglect of duty to structure an organization in such a way that criminal acts are neither advocated nor facilitated is actually the sole basis for criminal liability.65 In these cases, no single action is the basis for criminal punishment, but rather the inadequacy of the structure itself. Depending on which of these questions one focuses, different categories of CCL can be constructed. All these categories and their interdependence express and shape understandings of collective responsibility. As previously mentioned, it is not only the “whether” of CCL that is a specific expression of the culture, social life, and the legal system of the state in question—the same accounts for the way it is put into practice. Focusing only on corporations and leaving other collectives aside allows for a different understanding of their specifics and importance, the purpose of criminal liability, and its ability to control economic mechanisms than can be found in legal systems which penalize all types of groups. Obviously, assignment of a specific mental state to a corporation is only possible if they are somehow regarded as independent entities. Also, only some criminal legal systems allow vicarious or 61   Pieth and Ivory (n. 17) 17 ff.   Pieth (n. 33) 398.   Even if it is only the building of criminogenic or malfunctioning collective structures. 63   Pieth and Ivory (n. 17) 21 ff. 64   On the restructuring of this model in order that the adequate structuring of the corporation becomes more relevant and the incorporation of compliance plays a role, see Pieth (n. 33) 400. 65   Pieth (n. 33) 399 f. 60 62

572   susanne beck even strict criminal liability—again, this is expressed in the specific models of CCL. The choice of members and acts which lead to CCL depends on the extent to which corporations are regarded as independent entities that develop structures which integrate all members in a certain way. Considering all potential influences, the countless differences in the incorporation of CCL into the legal systems of different states become less surprising. In addition, the supranational level must be considered. There, CCL is generally based on the offenses of employees and is mostly restricted to members of high-level management.66 But the OECD does mention the relevance of internal measures in corporations to prevent criminal offenses, and other documents also suggest restructuring CCL by focusing on organizational structures instead of the single offence (e.g. on the breach of obligatory supervision).67 International development has led to some approximation of the different models of CCL.68 Generally, the focus turns away from actions of the members toward adequate structuring of the corporation, implementation of compliance programs, etc. Sometimes organizational failure is the basis of liability, sometimes an adequate structure is regarded as justification, and at other times sentencing depends on the way the corporation is structured.

b)  Criminal proceedings and sanctions The possibility of sentencing according to an evaluation of the corporate structure shows that differences between the models are not restricted to the conditions for liability. Although not directly concerning responsibility, other differences between states have to be taken into account, namely, the way CCL is integrated into proced­ ural law and the sanctions imposed on corporations. Criminal proceedings against corporations pose many difficulties, such as adequate coordination of state and internal investigations,69 the transfer of the principle of nemo tenetur onto corporations (also in the context of internal investigations, especially the question whether corporations are obliged to undertake them),70 and the construction of the trial against collectives. Although these difficulties are not insurmountable, as experience has shown they indicate that essential areas of criminal law are significantly changed through CCL and may, as a result, lose its distinctiveness. 66   Any further requirements mainly exclude offenses which are directed against the corporation. See Engelhardt, (2012) 3 eucrim 121. 67   Convention on Cybercrime Nr R (88) 18; 2nd Protocol; see Engelhardt, (2012) 3 eucrim 121. 68   Pieth (n. 33). 69   Wolf Schiller, “Verdachtsschöpfung und Unternehmensberatung,” in Kempf, Lüderssen, and Volk (n. 33) 335 ff. 70   Eberhard Kempf, “Die Beschuldigtenrechte in einem Strafverfahren gegen Unternehmen,” in Kempf, Lüderssen, and Volk (n. 33) 347 ff. There is a general consensus that corporations have the right to be heard and to consult a lawyer.

corporate criminal liability   573 In relation to sanctioning of a corporation, the focus is generally on fines but in most countries these are not the only possible sanctions against corporations;71 limitations of freedom of action can also be induced by other measures, for example suspension of certain actions, exclusion from public mandates, or deployment of state control. Even dissolution of a collective is a possible state reaction to corporate wrongdoing. Roughly put, the solutions to the problem of sanctioning by different states can be classified into two groups. One focuses almost exclusively on fines with some accompanying measures,72 while the other uses a much wider range of sanctions.73 Again, the sanctions imposed and the structuring of proceedings are connected to certain understandings of corporations and criminal law, especially criminal responsibility.

iv.  Conceptions of Corporations and Criminal Law Understanding the versions of CCL requires analyzing the conceptions of corpor­ ations and of criminal law. In the following, I  will give an overview of the most important models and correlations.

1.  Conceptions of corporations The integration of corporations into criminal law depends on social backgrounds and theoretical approaches, their changing social roles, and how society deals with the responsibility of their members. Contemporary societies are characterized by organizations.74 Most socially important—and dangerous—decisions are not reached by individuals but by collectives; the way modern societies change depends on which kind of corporations acquire social power, their internal regulations and values, and the way they are integrated into existing regulative structures. And, while the power of collectives has expanded, the power of individuals has decreased. Individuals are members  Wolfgang Wohlers, “Strafzwecke und Sanktionsarten in einem Unternehmensstrafrecht,” in Kempf, Lüderssen, and Volk (n. 33) 238 ff.; Pieth and Ivory (n. 17) 38 ff. 72   e.g. Switzerland and—although not in a strict criminal sense—Germany. 73   e.g. France and Italy, see Wohlers (n. 71) 239. 74   Charles Perrow, “Eine Gesellschaft von Organisationen,” (1989) Journal für Sozialforschung 3 ff. 71

574   susanne beck of different collectives, their behavior regulated by divergent normative systems, and their intentions assimilated by collective goals. All these developments can be observed worldwide thereby increasing the need for global regulation. Some clues about the different perceptions of corporations can be found in the ordinary language75 of the societies in question, for example the English “corpor­ ation,” derived from corpus (body) emphasizes the entity whereas in Germany they are normally referred to as Unternehmen,76 literally meaning “undertaking,” focusing on the activity. The assessment of corporations also depends on the specifics of the national economy. For example, Germany’s social capitalism and its tendency to emphasize consensus (which is reflected in the way that corporations are often based on participation in decision-making)77 differs from the Anglo-American system of facilitating competitiveness between employees and the independent personality of corporations, which are often experienced as externally uncontrollable. Besides social realities, different perceptions of collectives can be found in theor­ etical discussions. Already in the early legal debate,78 traces of different models can be found, as it wavered between the perception of corporations as real collective bodies79 or as legal fictions.80 The former argument regards corporations as “living entities”—as actors comparable to humans—whose sphere of influence is represented by its organs. While its intention is reflected in the intention of its constituent members, it is—through them—able to act and to be responsible. However, the opposite understanding of corporations as “fictitious entities,” capable of owning but neither able to act nor to intend, does not allow for them to be penalized. These models are based on a legal focus on questions regarding the “ability to act.” Even if legislators do not explicitly refer to theoretical models81 such as the “institution model” or the “social system model,”82 these models are reflections of certain social perceptions of collectives. They are not mutually exclusive but focus on different aspects and facets of corporations that are all relevant to the expansion and evaluation of CCL. For example, models based on system theory or at least implying   Ludwig Wittgenstein, Philosophical Investigations (transl. G. E. M. Anscombe, 1953).   The debate in Germany, e.g., mainly concerns Unternehmensstrafbarkeit (the liability of corpor­ ations) rather than Verbandsstrafbarkeit (the liability of collectives). 77   Christel Lane, “Changes in Corporate Governance of German Corporations: Convergence to the Anglo-American Model?,” (2003) 7 Comparison & Change 86. 78   For an overview of the debate of “nominalism” vs. “realism,” see Katsuhito Iwai, “Persons, Things and Corporations: The Corporate Personality Controversy and Comparative Corporate Governance,” (1996) 47 American Journal of Comparative Law 583 ff. 47. 79   Otto von Gierke, Das Wesen menschlicher Verbände (1902). 80   Friedrich Karl von Savigny, System des heutigen römischen Rechts, Vol. 2 (1840), §§ 64 ff. 81   For connections between theoretical models and criminal law development, see in detail Benno Zabel, Die Ordnung des Strafrechts (forthcoming 2014). 82   Carlos Gómez-Jara Díez, “Grundlagen des konstruktivistischen Unternehmensschuldbegriffes,” (2007) 119 ZStW 290 ff. 75

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corporate criminal liability   575 some of its ideas, may be skeptical about the direct influence of the system of “law” on the system of “corporations,” but are, on the other hand, prepared to accept the independent existence of these entities as specific communication structures. Whether the corporation is only—morally83 or legally—liable for the actions of its organs or for the actions of all its employees is based on the perception of the corporation as either representing only some interests or as developing independent structures.

2.  Conceptions of criminal law Advocacy for and refusal of CCL, as well as the chosen model, also express a certain understanding of the nature of criminal law84 or, more generally, of law; such as whether legal argumentation is mainly deductive or inductive, consequentialist or deontological, individualistic or society-oriented. The most obvious difference is the one between natural law and positivism. In criminal law, this influences the extent to which law is regarded as securing freedom or as regulating interactions. To transfer existing regulations onto corporations is more plausible if the focus lies on society and positive laws; to secure individual freedom by law does not require the criminalization of corporations. Since criminal law is traditionally regarded as a limitation on the state’s power, it is based on the idea that freedom deserves protection. Corporations, especially if categorized as fictional legal persons, do not possess inherent freedom that must be protected by the state. Their rights are the consequences of the legislator’s decision to assign them, and are not inherent in their nature. From this point of view, efficiency becomes relevant in evaluating the penalization of corporations because if criminal law is mainly a means for solving social conflicts the legislator has to reason that it is being adequate and efficient in doing so. These perspectives are connected to the choice of theories for legitimizing punishment. The debate about the “function” of criminal law (i.e. retributive or consequentialist) has a long tradition.85 Although the retributive function has, for a short time, influenced the Anglo-American debate, in the public opinion and for the legislator, deterrence and rehabilitation were always the main reasons for enacting criminal laws. In other countries, opposition to consequentialist criminal laws is strong.86 Criminal law in these countries expresses a moral judgment over the   Matthias Maring, “Verantwortung von Kooperationen,” in Josef Wieland (ed.), Die moralische Verantwortung kollektiver Akteure (2001), 133. 84   Wells (n. 43) 14: “It is not possible to address the ‘why, how and whom’ questions about punishing corporations without initially confronting more general issues about criminal law and punishment.” 85   Nicola Lacey, State Punishment (1988), 16 ff. 86   The Bundesverfassungsgericht (German Federal Constitutional Court) connects criminal law to the guilt and moral responsibility of the offender. On the meaning of “criminalization” in German law, see Otto Lagodny, Strafrecht vor den Schranken der Grundrechte (1999), 279, 282 ff. 83

576   susanne beck action of the offender, and is closely connected to moral responsibility, personhood, and human dignity. For example, the arguments of German jurisprudence often represent a specific understanding of criminal law based on a special concept of personhood, human dignity, and moral guilt, combined with a clear emphasis on Rechtssicherheit (security of the law) and equality. In contrast to common law countries, there is a strong need to base judgments on existing laws and criminal convictions on moral responsibility. In the United States and England, on the other hand, the development of CCL started from the practical problem of corporations causing harm and developed, in a consequentialist way, on a case-by-case basis. Many differences between these theories become clear by analyzing the notions of guilt, responsibility, and liability. While “guilt” suggests a connection to personhood and retributive theories, references to “responsibility” indicate that there must be an entity that is able to “respond” to the judgment and, therefore, shows some connection to communication theories. “Liability” expresses a functional approach to criminalization and punishment. Without restricting the analysis to the usage of notions, it is still remarkable that in the Anglo-American system one normally uses “corporate criminal liability” (or e.g. vicarious liability) while in Germany one speaks of Schuld (guilt).87 These differences have implications for the offenses categorized under criminal law—the concept of strict criminal liability, for example, is only conceivable in some legal systems.88 The functional approach—which refers to liability—is based on the assumption that CCL is more efficient than exclusively punishing individual members. As previously mentioned, while it is true that it is not only difficult to find the responsible individual member(s) and to prove their decision-making or acting, it is also plaus­ ible that the guilt of collective members who act in the context of a collective is different from that of individuals, be it, for instance, due to group pressure, inscrut­ able decision-making structures, strong identification with the collective’s goals, or manipulation by other members. Even if one not only disagrees with the effectiveness of criminal law in the control of collective behavior, but also with fairness or even guilt for wrongdoing, the changing responsibility of individuals as collective members does imply the plausibility of changes in certain criminal law concepts. Considering all these aspects, it is not surprising that the concept of CCL first developed in countries with less dependency on the written law, less feeling of being threatened by the thought of a powerful state,89 legal systems open to fast adaptation by analogy to existing cases, and with less deontological barriers. On the other hand, civil law conceptions of criminal law are strongly affected by their historical   For some thoughts on (strict) liability and culpability, emphasizing the importance of readjusting the time frame in which culpability is assessed, see Wells (n. 43) 67 ff. 88   For some aspects of the debate, see Wells (n. 43) 69 f. 89   Also, perhaps, because most U.K./U.S. citizens have not experienced threatening abuses of state power during their lifetime; see Chris Pounder and Freddy Kosten, Managing Data Protection (1994), 1. 87

corporate criminal liability   577 background, certain philosophical influences, and social developments. What is harder to find are reasons, or at least indications, for the introduction of CCL in some civil law countries and the refusal to do so in others. At this point, instead of going into detail to explain the different developments, it will be more useful to analyze the general development behind the introductions of CCL in these particular countries.

v.  Reflections on Changes in Criminal Law Looking back a few years, concerns against penalizing collectives could have been found in many civil law countries. Even from an Anglo-American perspective, the concept of CCL is sometimes regarded as a challenge to the ideological and normative basis of criminal law.90 The analysis of the premises shows that the increasing importance of CCL represents a change in the understanding, purpose, and even the basis of criminal law but the description of changes does not imply a linear movement from or toward a specific conception of criminal law. Criminal law has always possessed all the characteristics that will be described in the following, just with different emphases.

1.  The tradition: criminal law of the Enlightenment Of course, there is no “one” traditional criminal law—to find an ideal criminal law as a standard of comparison is difficult enough in the history of one country and becomes even more difficult when analyzing the development in different countries. Still, there are some elements which can be connected to the notion “criminal punishment” and some which are based on the historical origins of modern crim­ inal law (especially in Western countries). Probably the most important aspect is the already mentioned connection between criminal law and individual freedom. In many ways, modern criminal law is based on the idea of autonomous human beings with intrinsic rights and freedom that have to be secured by restricting state power. In the context of punishment, this is intended by, for example, the formalization of proceedings, legal certainty, the principle of in dubio pro reo, etc. Also, criminal law   Eli Lederman, “Criminal Law, Perpetrator and Corporation; Rethinking a Complex Triangle,” (1985) 76 Journal of Crim. Law & Criminology 296. 90

578   susanne beck has traditionally been based on some concept of blameworthiness.91 Even dangerous citizens cannot readily be “tamed” or “locked away.” Thus, traditional criminal law emphasizes the wrongness of specific action as an expression of the actor’s capacity freely to decide for or against it.

2.  The transition: prevention and security The metaphysical concepts behind criminal law (e.g. “free will,”92 natural laws, etc.) have been challenged by the post-modern shattering of the grand narratives of modernity,93 such as the idealization of “man” and “state” or big concepts such as “justice.” Concepts that were once thought of as having to be “found” in nature are now regarded as socially constructed. This increased awareness about the social necessity of integrating these—originally metaphysical—ideas into everyday lives. As already mentioned, modern society is often characterized as a risk society, with the uncertainty and non-transparency of modern risks leaving citizens in an imperiled state. It seems as if the distrust of strong states is decreasing as an increase in safety needs occurs. One consequence of this is the growing relevance of functional legal constructions. Law—and, thus, also criminal law—is regarded as a solution for conflicts, a tool for preventing misconduct, and a safeguard against social risks.94 Modern risks are also characterized by the difficulty of finding one respon­ sible individual. Environmental damage, food scandals, and violations of political rights often cannot be blamed on one person but are the result of malfunctioning structures and the addition of many small, wrong decisions. Thus, the perception of individual responsibility has changed,95 not only regarding singular members of society but also members of collectives. The way membership of a collective is perceived morally and legally, for example if group pressure is regarded as justification, can differ from state to state, but the increasing difficulties of penalizing individual members are generally recognized. Thereby, criminal law has, in many states, become more open to expanding the circle of potential criminal offenders, to a more functionalist understanding of liability which allows a focus on the structures of the corporation, its values, its inner norms, as well as on the situation at the time of the wrongdoing. Transferring these categories onto corporations does not depend on the choice between different   Criminal law theories depend on this concept. This is obvious for retributive theories which explicitly refer to the moral guilt of the offender, but is also the case for communication and even consequentialist theories, see Lacey (n. 85) 59 f. 92   Although criminal law can be justified on the basis of indeterministic concepts as well as compatibilist concepts, there are differences in the basis for punishment. R. A. Duff, Law and Philosophy 93 (1993), 345 ff.   Jean-François Lyotard, The Postmodern Condition (1979). 94   Kenneth J. Gergen, An Invitation to Social Construction (1999). 95   Kurt Seelmann, Kollektive Verantwortung im Strafrecht (2002), 8 ff.; Wells (n. 43) 161 ff. 91

corporate criminal liability   579 conceptions of criminal liability but on the degree of its functional orientation. The more fundamental principles of criminal law are sacrificed for the sake of prevention and control, the more concepts (e.g. guilt) will vanish in favor of less loaded concepts such as liability. While this is not the forum in which to evaluate this development, it is important to point out that CCL has to be analyzed in this broader context, as part of a general change in criminal law toward a preventive control mechanism.

vi.  The Critical Perspective: Whose Fault? Whose Profit? 1.  Power structures: who is hiding? “When everyone is responsible, then no one is responsible, and the ethic of responsibility itself is imperilled.”96 The concept of CCL is said to allow for the expression of mixed feelings toward economic giants the structure of which appears to be uncontrollable by individual decisions97 and to blame them for their actions.98 But these conclusions can be challenged: the deterrent or rehabili­ tative effects are low,99 for example because of the high standard of proof of criminal law100 and the usually low sanctions. Also, the blaming effect against entities which balance “harms produced, costs imposed, and economic activities foregone”101 is at least questionable; communicative messages about corpor­ ate behavior could be sent in other ways.102 Therefore, it could be argued that the real reasons for introducing this concept might lie in the power structures behind corporations and in protecting power holders, owners, and managers from imprisonment and being morally blamed, as society has found someone else to blame—the corporation. 96   Jeffrey S.  Parker, “Criminal Sentencing Policy for Organizations:  The Unifying Approach of Optimal Penalties,” (1996) 17 Managerial and Decision Economics 393 f. 97   Eric Colvin, “Corporate Personality and Criminal Liability,” (1995) 6 Crim. Law Forum 1 ff. 98   Celia Wells, “Corporate Manslaughter: A Cultural and Legal Form,” (1995) 6 Crim. Law Forum 45 ff. 99   John T. Scholz, “Enforcement Policy and Corporate Misconduct: The Changing Perspective of Deterrence Theory,” (1997) 60 Law and Contemporary Problems 255. 100  CCL does not lower this standard, see Vikramaditya S.  Khanna, “Corporate Criminal Liability: What Purpose Does it Serve?,” (1996) 109 Harvard LR 1512, 1533. 101   Scholz, (1997) 60 Law and Contemporary Problems 258. 102   Parker, (1996) 17 Managerial and Decision Economics 383.

580   susanne beck From the outset, the construction of corporations has been to the advantage of those who already play powerful social roles. Although the construction opens up possibilities for the (potential) victims, this is not the main reason why the concept was introduced or expanded. Through this genealogical point of view, it becomes clear that the origin of CCL was partially due to the conscious limitation on owner and manager liability: the more independent the entity becomes, the less liable are the individuals.103 Of course, it is conceivable that CCL could be constructed in a way that diminishes these consequences, but insofar as its effectiveness depends on decreasing the necessity to prove the wrongfulness of individual actions, their complete prevention seems impossible.

2.  Groups, collectives, corporations—whose responsibility? Another aspect which raises criticism is that the main focus of the debate on collective responsibility has been, until now, on corporations. It has to be admitted that in international criminal law, there is some discussion about the collective responsibility of states or governments104 but, until now, the debate has not been primarily concerned with collectives pursuing immaterial goals, such as NGOs or other entities.105 Also, there is no dispute about transference of these arguments onto illegal collectives such as terrorist organizations or mafia groups. Even though it is true that NGOs or other entities are not engaged in dangerous actions as often as corporations, and prosecuting and convicting them would raise many practical difficulties, it is still worth noting how they are excluded from the debate. Especially if one considers the power corporations have in the worldwide society, it is almost suspicious that their criminal liability is discussed most extensively. Perhaps this concentration of power leads to the need for more control over these entities and an opposition in society against them. But this is just one side of the coin: it is very likely that if corporations did not profit from the introduction of this concept, it might not have happened so rapidly in an era predominantly shaped by corporations. Therefore, even the special position of corporations, which is actually problematic in terms of equality, is an indicator that they are in some respects useful to their individual members or at least to some of them.

  Gobert and Punch (n. 1) 253 ff.   For an exemplary account, see Otto Triffterer, “Prosecution of States for Crimes of State,” (1996) 67 International Review of Penal Law 345 ff. 105   Hirsch (n. 38) 23, points out that § 30 excludes organizations with criminal intentions, therefore they do not have to be treated as legal subjects. At least this intention could be questioned. 103

104

corporate criminal liability   581

VII.  The Future: Expansions and Inversions From this analysis, one could predict whether the importance of CCL will continue to grow and whether the countries that refuse to embrace it will suffer any drawbacks. Although criminal law is generally accepted as the legal area closest to national culture, it is unlikely that European countries will take divergent stances with regard to a concept that is so closely connected to economical developments, power structures, and the typical risks of modern society. On the other hand, the inner-systematic challenges in legal systems should not be underestimated. Especially if there is another effective way to sanction collectives, the pressure to introduce CCL could decrease if it becomes clear that differences in “efficiency” between the models are irrelevant. At present, the approximation between the different models of CCL with a strong focus on organizational failure seems to support this possibility: the development of such “liability sui generis”106 does not depend on the use of criminal law. It also seems promising to discuss the presence and the future of criminal law in general with the development of CCL as an indicator. Two aspects in particular should be highlighted: the focus on conflict instead of the offender and the domin­ ation of preventive aspects.107 The debate about CCL shows that the former focus on an individual offender, his guilt, and the blameworthiness of his actions, has shifted toward the conflict which reveals itself in the harm caused or at least in the dangerous situation which has resulted: as the concept of individual responsibility itself has changed because of membership in collectives, the possibility of finding a (plausibly) punishable individual decreases. Instead of the offender and the offense, criminal law now focuses on the conflict, which includes all parties involved. Criminal liability is constructed from there and no longer predominantly focuses on an individual’s responsibility—if no individual can be made responsible, one starts looking for other entities. Criminal law has become a means of solving conflicts by communicating the wrongfulness not only of actions but also of collective structures to the responsible entity, society, and victim. The introduction of CCL is based on this functional understanding of criminal law. Although law has to fulfill social functions to be regarded as legitimate, the exclusive focus on prevention is problematic because it allows the sacrifice of crucial rights and constitutional principles which are the basis of traditional criminal law. CCL is part of a broader development—it is not only the extensive restrictions on individual freedom in the context of terrorism that reveal that the priority has   Pieth (n. 33) 400 f.

106

  Zabel (n. 81).

107

582   susanne beck shifted from freedom toward safety. But even if one accepts this shift, the efficiency of CCL as a control mechanism can be doubted. Therefore, the preventive effects should be verified independently in every conflictual situation. CCL serves as a symbol for changes in criminal law. From a social point of view, it has certain advantages and decreases the practical and theoretical problems surrounding any attempt to pinpoint responsibility in complex social situations and collective wrongdoings. It is regarded as bringing about preventive effects (e.g. increasing awareness of the dangerousness of collectives and their uncontrollability), an increasing number of compliance programs, and for discussions about corporate social responsibility. But its introduction has negative consequences as well, such as allowing responsible individuals to “hide” behind the collective and, more generally, changing the concept of responsibility in a way traditional criminal law can integrate only by loosening some of its principles. Although the question may no longer be whether one is “for or against” the introduction of CCL, the legal construction has to be discussed in detail. In every case it must be asked not only how to integrate it into existing criminal law and which changes of principle should be accepted, but also whether other legal solutions are more appropriate solutions for the conflict in question, especially if they have less negative and more positive consequences. CCL is not the single or even best answer to all problematic situ­ ations involving inadequate corporate behavior. To solve the problems of corporate actions that pose excessive risks, of individual or structural wrongdoings within the corporation and of the increasing power of corporations, it is necessary to design comprehensive legal and social solutions.

References Arlen, Jennifer, “The Potentially Perverse Effects of Corporate Criminal Liability,” (1994) 23 Journal of Legal Studies 833 Bernard, Thomas J., “The Historical Development of Corporate Criminal Liability,” (1984) 22 Criminology 3 Busch, Richard, Grundfragen der strafrechtlichen Verantwortlichkeit der Verbände (1933) Fisse, Brent and Braithwaite, John, Corporations, Crime and Accountability (1993) Gobert, James and Pascal, Ana-Maria (eds.), European Developments in Corporate Criminal Liability (2011) Gobert, James and Punch, Maurice, Rethinking Corporate Crime (2003) Lipman, Abigail H., “Corporate Criminal Liability,” (2009) 46 American Crim. LR 359 Pieth, Mark and Ivory, Radha, Corporate Criminal Liability: Emergence, Convergence, and Risk (2011) Pinto, Amanda and Evans, Martin, Corporate Criminal Liability (3rd ed., 2013) Pontell, Henry N. and Geis, Gilbert (eds.), International Handbook of White-Collar and Corporate Crime (2007) Wells, Celia, Corporations and Criminal Responsibility (2nd ed., 2001)

­c hapter 26

NECESSITY/DURESS ulfrid neumann

i.  The Concept of Necessity in Criminal Law If someone commits a criminal act in a situation of emergency, criminal responsibility can be avoided in certain circumstances. The decisive point is not that the perpetrator finds himself in an exceptional mental state and is therefore not in a position to comply with the relevant prohibition. The basic idea is rather that the person who violates the criminal law in order to save herself or someone else from a situation of acute danger may deserve the forbearance of the legal order, and, in certain cases, may even have a claim that the legal order should recognize her action as a lawful one. The breadth of this formulation shows that the institution of necessity is a highly complex phenomenon, which must be structured by a number of differentiations. These differentiations concern the phenomenology of necessity situations (II), the legal assessment of the necessity action (III), and the possible arguments on which a justification of the necessity action can be based (IV). The criteria for deciding individual disputed questions in the doctrine of justifying (V) and excusing (VI) necessity can then be obtained from these arguments.

584   ulfrid neumann

ii.  Phenomenology of Necessity Situations 1.  Duress and necessity The causes of emergency situations matter. Legal systems distinguish between situations of danger that result from a threat by another person (“duress” or “duress by threats,” “coercive necessity”) and those that arise from natural causes and are therefore coincidental (“necessity” or “duress of circumstances”).1 This difference is ambivalent from a normative point of view. On the one hand, exculpation seems to be more appropriate when the perpetrator is forced to commit the crime by another person, compared to predicaments resulting from natural events or coincidental circumstances. At any rate, this view prevailed at an earlier time. In England, recognition of “necessity” as justification in the case law followed the recognition of “duress (by threats)” as an excuse;2 the excuse of “duress of circumstances” and “duress by threats” has only arisen in recent times.3 Even in Germany, coercive necessity had a wider scope than necessity not resulting from coercion (§ 52 StGB (Strafgesetzbuch, German Criminal Code (old version)) in comparison with § 54 StGB (old version)). Aside from justificatory “necessity,” the U.S. Model Penal Code (MPC) considers coercive necessity (“duress”) as a ground of excuse only, which is defined as the perpetrator being threatened with unlawful application of force. The privileging of coercive necessity might be explained with two arguments. First, the situation of danger is not the result of coincidence but the consequence of an unlawful attack by another person. The liberal legal principle that a person cannot transfer dangers that result from coincidental (“fateful”) circumstances on to other persons does not apply. Secondly, it is often possible to make the perpetrator who forces another to commit a criminal act responsible for this criminal act as well. Exculpation of the person coerced thus comes with criminal responsibility of the coercing person. On the other hand, even some legal systems which recognize necessity under certain prerequisites as a justification (and not merely as an excuse) refuse justification in the case of coercive necessity and merely accord an excuse. This is based on the consideration that a perpetrator acting due to the application of force nonetheless   Admittedly, excuse also encompasses “duress of circumstances” and especially constellations in which the perpetrator commits the crime in order to escape from a danger which proceeds from another person. In these cases, the distinctiveness of duress of circumstances in comparison with “duress by threat” lies in the fact that the other person does not demand the commission of the crim­ inal act by the person threatened (see Section VI.1). 2  A.  P. Simester, J.  R. Spencer, G.  R. Sullivan, and G.  Virgo, Simester and Sullivan’s Criminal Law: Theory and Doctrine (5th ed., 2013), 708 ff. 3   Richard Card, Card, Cross and Jones: Criminal Law (20th ed., 2012), 708 ff. 1

necessity/duress   585 crosses the line into wrongdoing.4 The question whether under certain circumstances (e.g. when regard is paid to the balance of the weight of the threat and the weight of the crime) a justification should nevertheless be considered is disputed.5

2.  Egotistic and altruistic rescue The question whether an emergency should be a reason to withhold punishment can be made dependent on whether the perpetrator wants to save himself or a third person. Whether, and to what extent, rescue actions for the benefit of others are taken into consideration depends on the basis for the exclusion of punishment. If the point is, in a utilitarian mode of argument, that an interest of higher value was preserved, then it does not matter whether this interest belongs to the perpetrator or any other third person. If, on the other hand, the motivation of the perpetrator who acts out of fear of injury to his own interests is crucial, it follows that dangers which threaten third persons should be left out of account. However, persons whose well-being is important to the perpetrator due to family ties or close personal relationships might be included (see § 35 StGB).

3.  Interests that can be taken into consideration There is another question associated with the arguments in support of the institution of necessity; namely, whether the relevant emergency must endanger some specific interests or any legally protected interest. In the history of theories about necessity in criminal law, cases of life-threatening situations predominate (Karneades case,6 Kant,7 Hegel8). If the focus is on the argument that the greater good is being served, there is no reason for limiting necessity to the preservation of some specific interests. But if the perpetrator’s motivation is essential, it is logical to limit exemption from criminal responsibility to cases when especially important legal interests are endangered. Besides   Theodor Lencker, Der rechtfertigende Notstand (1965), 117.   See for citations, Ulfrid Neumann, in Nomos-Kommentar zum Strafgesetzbuch (4th ed., 2013), § 34 n. 53. 6   In the case formulated by the philosopher Karneades (214–129 BC), which was received via Cicero and Pufendorf, two survivors of a shipwreck at first save themselves on a plank, but this can only support one human being, so the struggle for survival means certain death for the unsuccessful person. 7   According to Kant the impunity of the perpetrator who commits a crime to save his life is based on the fact that fear of punishment could not outweigh the fear of certain death. A justification for the crime is rejected; this is because there could “not be any necessity which could make what is wrong lawful” (Immanuel Kant, The Metaphysics of Morals (1797), AB 41). 8   Hegel, in the constellation of a conflict between life and material assets, bases the assumption of a right of necessity to save one’s own life on the view that here “on the one hand there is the unending violation of existence and in this respect total lawlessness and on the other hand only the violation of an individual limited existence of freedom” (Outlines of the Philosophy of Right (1820), § 127). 4 5

586   ulfrid neumann danger to life, dangers to physical integrity and personal freedom are to be considered. With this approach, dangers to property can be excluded from the area of necessity.

4.  Differences in the weight of conflicting interests Finally, necessity situations are to be differentiated according to the relative weight of conflicting interests. This fits in nicely with the argument that bases necessity on the more important interest (or, to put it negatively, the lesser evil). But even the argument that points to the perpetrator’s motivation does not exclude consider­ ation of the relative weight of the conflicting interests. Abandoning the preservation of one’s own endangered interests is all the more to be expected the less the value of these interests and the higher the value of the opposing interests. Statutory necessity rules (e.g. § 35 StGB) that do not explicitly demand a balancing test must therefore be applied with the stipulation that the harm which is caused by preservatory action must not be out of proportion to the weight of the interest preserved.9

iii.  Justification or Excuse 1.  Need for classification In the final decision about whether or not the perpetrator will be punished, the question as to whether the defense of necessity is classified as justification or as excuse might be left open.10 However, classification is useful.11 Behavior that is justified is judged differently than behavior that is merely excused.12 From the viewpoint of legal ethics, there is an important difference between conduct that is in conformity with the law and conduct that is unlawful (and merely excusable). Secondly, classification of the act as lawful or (only) excused prejudges the assessment of actions by which others may defend themselves. If the necessity action is lawful, the person making it has a genuine right and therefore a claim against the third person that he should accept the preservatory act. Self-defense against the necessity action is then excluded. Finally,   Kristian Kühl, Strafrecht Allgemeiner Teil (7th ed., 2013), § 12 n. 87.   On the tendency of English courts not to differentiate clearly in the defense of duress between justification and excuse, see Andrew Ashworth and Jeremy Horder, Principles of Criminal Law (7th ed., 2013), 209 f. 11   See e.g. Bernd Schünemann, “Die Abgrenzung von Unrecht und Schuld,” in Bernd Schünemann and Jorge de Figueiredo Dias, Bausteine des europäischen Strafrechts (1995), 149 ff. 12   Simon Gardner, “Necessity’s Newest Inventions,” (1911) 11 OJLS 125, 126. 9

10

necessity/duress   587 lack of differentiation between justification and excuse gives rise to the danger that an excusing necessity is denied with arguments which would only have persuasive power against a justification.13 It is for all these reasons that the MPC clearly differentiates between justifying necessity (“necessity”) and excusing necessity (“duress”). The institution of justifying necessity arose relatively late in legal history. This delay was caused by fears that the authority of the legal order might suffer from the recognition of such a justification14 (an example of this being the characterization of justifying necessity as a “mask of anarchy” in an English court judgment of 1971).15

2.  Differentiation theory Contrary to older views,16 there is no reason to classify all constellations of necessity uniformly either as justifying or as excusing. Whether the perpetrator in a particular necessity situation acts justifiably or excusably depends on the normative evaluations that stand behind the recognition of a justifying necessity situation and of a (merely) excusing necessity situation. On this point, there is a large degree of consensus regarding excusing necessity (see Section IV.2) and dispute regarding justifying necessity (see Section IV.1).

iv. Reasons 1.  Justifying necessity a)  Utilitarian reasons Structure The institution of justifying necessity (regardless of details in statutes or case law) is based on the argument that the more important interest has been preserved (choice of the lesser evil). From the viewpoint of utilitarian legal ethics, it is a matter of   On this, and the example of the case of killing innocent people for the saving of one’s own life, see Ashworth and Horder (n. 10) 212 f. 14   Reinhart Maurach, Kritik der Notstandslehre (1935), 80. This fear is less pronounced in states which have since institutionalized justifying necessity in statute law (in Germany in 1969 by the introduction of § 34 StGB). In legal systems without a corresponding regime (England, the United States) it is still reflected in the discussion as to whether the recognition of a justification of necessity established by case law could not harm the democratic principle. cf. George Fletcher, Rethinking Criminal Law (1978), 792 ff.; Simester et al. (n. 2) 787 ff.; Gardner, (1991) 11 OJLS 132 ff. 15   Southwark London Borough Council v. Williams [1971] 2 All E.R. 175, 181, quoted in Simester et al. 16 (n. 2) 779.   Evidence on the so-called “uniform theories” in Neumann (n. 5) § 34 n. 3. 13

588   ulfrid neumann consistency to justify necessity action that protects the more important interest.17 If the interest preserved is more valuable than that which was violated or destroyed, the overall balance is positive. Insofar as society as a whole benefits from this action, it would be illogical to assess this socially useful action as unlawful. In fact, the position of utilitarianism played a decisive role in the development of justifying necessity.18 Jeremy Bentham was an important catalyst and his utilitarian approach was taken up in Germany by the jurisprudence of interests (Interessenjurisprudenz)19 which proposed the introduction of justifying necessity (in civil law).20 Admittedly, the utilitarian position is somewhat ambivalent regarding the recognition of (justifying or excusing) necessity. One could also argue that an acquittal based on necessity could weaken the social validity of the prohibitory norm.21 But regarding the assessment of the actual conflicting interests, to justify the preservation of the more valuable interest appears compelling from a utilitarian position.

Critique The objections that are raised against a utilitarian basis for (justifying) necessity are not directed against logical inconsistency but rather reflect the general critique of the utilitarian position.22 The central objection is that it is not permissible to set off the interests of one individual against the interests of another; in a liberal society individuals’ interests ought not to be seen merely as an element within the overall social interest.23 This viewpoint of the “separateness of persons” is primarily emphasized when it comes to the question whether a balancing of human lives might be permissible.24 Outside this context, it plays a role whenever a question of the protection of individual (and not purely collective) interests is at stake.25   Joachim Hruschka, Strafrecht nach logisch-analytischer Methode (2nd ed., 1988) 111 ff. bases justifying necessity on the utilitarian view point of overall utility. On the legitimacy as well as the limits of this approach, see Gardner, (1991) 11 OJLS 130. 18   Michael Pawlik, Der rechtfertigende Notstand. Zugleich ein Beitrag zum Problem strafrechtlicher Solidaritätspflichten (2002), 33. 19   Helmut Coing, “Benthams Bedeutung für die Entwicklung der Interessenjurisprudenz und der allgemeinen Rechtslehre,” (1968) 54 Archiv für Rechts- und Sozialphilosophie 69 ff. 20   Joachim Renzikowski, “Solidarität in Notsituationen - Ein historischer Überblick von Thomas v. Acquin bis Hegel,” in Andreas von Hirsch, Ulfrid Neumann, and Kurt Seelmann (eds.), Solidarität im Strafrecht (2013), 13, 15. 21   On this point of view and on the role it played in the judgment in the Mignonette case (R. v. Dudley and Stephens (1884) 14 Q.B. 273), see Fletcher (n. 14) 825. 22   John Rawls, A Theory of Justice (1971), 22 ff., 161 ff. 23   For more detail on this, see Ulfrid Neumann, “Die rechtsethische Begründung des ‘rechtfertigenden Notstands’ auf der Basis von Utilitarismus, Solidaritätsprinzip und Loyalitätsprinzip,” in Andreas von Hirsch, Ulfrid Neumann, and Kurt Seelmann (n. 20) 155, 161 ff. 24   e.g. Claus Roxin, Strafrecht Allgemeiner Teil Bd. 1 (4th ed., 2006), § 16 nn. 33–42. 25   A distinction is partly made between necessity infringements of “property rights” on the one hand and of “rights of personal integrity” on the other, the infringement of property rights being assessed from the de minimis viewpoint and the infringement of “rights of personal integrity” only being permitted in special constellations (Simester et al. (n. 2) 783–787). 17

necessity/duress   589 This critique is supported and strengthened by the argument that the law (including the criminal law) does not protect goods as such but only their legal attribution to a certain person. Rights are protected and not (mere) interests. The conferring of a right means that the entitled person does not have to engage in a discussion as to whether another person possibly needs the object which has been legally allocated to the first person more urgently. The principle of “taking rights seriously” forbids interfering with the legal position of a citizen in order to preserve one’s own interests or the interests of a third person.26

b)  Solidarity principle Basic concept In contemporary German criminal law science, the institution of justifying necessity is not predominantly based on the utilitarian view but on the concept of solidarity with fellow humans.27 The principle of solidarity, which is understood as a legal duty, obliges the individual to accept an invasion of his interests for the preservation of the endangered interest if the endangered interest is substantially weightier than his own. For example, if the house of a neighbor is burning, it is necessary to allow entry onto one’s own land in order for fire-fighting to operate efficiently. The argument of the more important interest (or, negatively, the lesser evil) only plays a secondary rather than a fundamental role. The (significantly) greater import­ ance of the endangered interest is a prerequisite for a duty to tolerate based on solidarity, but is not a fundamental normative principle. That means that if the interest of the other person significantly outweighs one’s own, then (and only then) is it a requirement of solidarity to relegate one’s own interest in acute situations of necessity. To sacrifice one’s own interest where the interests are of equal value, or even where one’s own interest is more important, would be the expression of a “heroic” morality, which is unacceptable as a demand of the law. Differences of practical importance exist between this approach and the utilitarian explanation. Under the solidarity model, consideration can be given to who is responsible for the emergency. A person who has run into danger without any blameworthiness on his own part deserves the solidarity of his fellow citizens to a higher degree than the person who has brought about this danger carelessly.

Limitation of liberal principles Under this interpretation, necessity, which obliges persons to tolerate interventions, corresponds to the duty to aid which is recognized in Germany as a legal duty in the definition of a criminal offense called “failure to give assistance” (§ 323c StGB).28 27   Simester et al. (n. 2) 783 f.   For references, see Neumann (n. 5) § 34 n. 9.   On the question whether the introduction of a corresponding crime into English law would be sensible, cf. Andrew Ashworth, “Die Rettungspflicht im englischen Recht: Sinnvolle Einschränkungen oder ‘Island Mentality?’, ” in Andreas von Hirsch, Ulfrid Neumann, and Kurt Seelmann (n. 20) 115 ff. 26 28

590   ulfrid neumann Both regimes are based on a principle of solidarity, which is not only understood as a moral principle but also as a legal principle. This interpretation of the principle of solidarity as a legal principle is in tension with a liberal position according to which the law can forbid violating the interests of others but cannot require the furthering of others’ interests. The interpretation assumes that, contrary to a tradition of legal thought going back to Kant, duties of solidarity are not necessarily only moral duties (“duties of virtue”), but can be formulated as legal duties.29 From the liberal point of view, justifying necessity raises the question whether liberty rights of citizens are curtailed in an impermissible way. In fact, the institutionalization of justifying necessity limits liberal principles. The individualistic approach inherent in liberalism is, of course, not entirely abandoned: the duty of solidarity is a duty in the relationship of citizens to each other. But the duty of solidarity compromises liberal principles because the elemental principles of liberalism also include the principle of personal responsibility according to which no one is entitled to shift harm on to another person.30 Complementarily, according to the liberal model, individuals are not responsible for the repulsion of a danger which threatens someone else from a situation arising coincidentally. Legal responsibility for averting a danger can only arise from a special set of duties or from the fact that the person obligated by necessity has caused the danger himself, according to liberal principles. In this respect, the institution of justifying necessity belongs to a social, rather than to a liberal, legal model. It corresponds with the idea of the social state which supplements the principle of individuals’ personal responsibility with assistance based on solidarity.

Contractual reasons The institution of justifying necessity might, even on a liberal approach, find a basis in contract theory. The crucial question is which legal rules self-interested individuals would agree to accept. On the basis of Rawls’s model,31 under the “veil of ignorance,” the advantages which can result from the fact that an individual can legally claim the solidarity of others are to be weighed against the disadvantages which threaten him if he becomes obligated in a corresponding emergency for others. As no one knows the probability of him falling into a predicament (and thus the decision must be made on the basis of uncertainty),32 provisions should 29   On the difference between legal duties which can be the subject of legislation and duties of virtue for which that is not the case, see Kant (n. 7) AB 48. 30   Pawlik (n. 18) 122 conversely sees in the necessity regime a suspending of individual principles but not, however, a restriction of liberal ones. 31  Anna Coninx, Das Solidaritätsprinzip im Lebensnotstand (2012), 101 ff. On the significance of contract theory for the principle of justifying necessity, see Frank Saliger, “Kontraktualistische Solidarität: Argumente des gegenseitigen Vorteils,” in Andreas von Hirsch, Ulfrid Neumann, and Kurt Seelmann (n. 20) 61–76. 32   Rawls (n. 22) 150 ff. With reference to necessity, see Coninx (n. 31) 106 ff.

necessity/duress   591 be made for the worst possible case, that is, following the “maximin rule.” From this point of view, a rule can be seen as consented to if a necessity intervention requires the interest to be saved to significantly prevail33 over the interest which is harmed. Of course, a comparison of individual cases can reveal that the possible invasion of the rights of the person becoming obligated by necessity in one case is more serious than the harm which would result in another case from a dangerous situation without necessity interference. If the necessity interference leads (e.g. because of a risk to life for the person endangered) to a violation of bodily integrity, the disadvantage from the necessity intervention can be greater than the advantage which that person would attain if he is permitted briefly to enter the land of another for the preservation of his own goods. However, in relation to the totality of possible burdens and privileges which can arise from necessity rules, it would be a wise decision for every individual to agree to the legal institutionalization of necessity.

c)  Loyalty principle While the solidarity-based necessity model is grounded on the mutual legal duties of citizens, there is a competing approach which emphasizes a legal duty toward the state or the general public in order to found a duty for citizens to tolerate necessity interferences.34

Structure This model coincides with the solidarity model in that it rejects orientation toward social utility. Arguments about the maximization of utility miss the decisive dimension of the necessity problem, namely, that of the segregation of legal spheres. In this respect there is agreement with the individualistic solidarity model. However, under a loyalty principle, the bridge that links the respective interests and thereby enables a balancing of the interests, is constructed differently. The duty to tolerate the necessity intervention is not understood as a duty in the legal relationship between the citizens involved but as a duty toward the general public. According to reasoning based on the loyalty principle, the normative structure of justifying necessity is (in standard cases in which individual legal interests stand on both sides) formed by a deontic triangle. The starting point is the duty of the general public to give assistance to individuals in emergency situations. But as this assist­ ance is often not given by the responsible state institutions, an individual holder of the interest to be invaded is enlisted as a “representative of the general public” for   On the alternatives of “significant” or “simple” preponderance of the interest to be preserved, see 34 more detail in Section V.4.a.   Pawlik (n. 18). 33

592   ulfrid neumann the fulfillment of a “concern of the general public.”35 This conception of necessity, with its underlying structures of responsibility, represents a collectivist model.

Critique For the assessment of this “triangular model,” two components must be distinguished: the responsibility of the general public for the preservation of the threatened interest, and the duty of toleration by the person obligated by necessity, which is construed as a duty toward the general public. As far as the first component is concerned, the model is reconcilable with values of the modern liberal constitutional state. The liberal state sees itself as a social state which must not only respect the interests of its citizens, but also actively protect them to a certain extent.36 There are therefore scarcely necessity situations in which representatives of the state who were present would not be obliged to intervene.37 Assistance in necessity situations is in principle also a state task. It is more difficult to argue that the person on whom a duty to tolerate the interference is imposed should be enlisted for the fulfillment of a “concern of the general public” (and not a concern of his endangered fellow citizen). It does not follow from a duty of the state to intervene that the citizen, whose interests are violated by the endangered person (or a private helper), has to accept this interference in fulfillment of a concern for the general public. Why should the individual citizen be obliged to undertake tasks for the general public and preserve the interests of another citizen by sacrificing his own interests if he is not legally obliged to show solidarity towards that person? The citizen contributes to the fulfillment of public tasks in principle by payments (taxes) (special duties, e.g., conscription aside). Beyond this, forcefully enlisting him to fulfill state tasks would call into question the distinction between the responsibilities of the state and those of private persons.

2.  Excusing necessity (duress) In contrast to justifying necessity, the institution of excusing necessity is not based on a legal duty to show solidarity with the potential victim of a predicament. Instead, the decisive argument is that the perpetrator deserves forbearance if, in a particularly threatening situation, he preserves his life, his health, or similarly important interests by an unlawful invasion of others’ interests. The question of an excusing necessity only emerges when there is no justifying necessity. 36   Pawlik (n. 18) 123.   On this point of view, see Pawlik (n. 18) 115 ff., 186 ff.   In legal systems which recognize a crime of failure to give assistance, an interference for the purpose of preservation in favor of another person can be legally required even from a private person. A link between the institution of justifying necessity and the idea of a moral duty to take preservatory action is made in Jeremy Horder, “Self-Defence, Necessity and Duress: Understanding the Relationship,” (1998) 11 Canadian Journal of Law & Jurisprudence 155 ff. 35

37

necessity/duress   593

a)  Basic concept The basic idea behind excusing necessity is that in certain predicaments a perpetrator acts unlawfully when he frees himself or another from that predicament by interference with the legal positions of third persons, but that he nevertheless does not deserve criminal liability. Having regard to that situation, his act is understandable and should be excused. There are differing approaches to bolster this conclusion.38 The focus is partly on the fact that the perpetrator (or a standardized “sensible person”) is not capable of acting lawfully in such a situation. In this sense, the excuse of coercive necessity (“duress”) requires that “a person of reasonable firmness in his situation would have been unable to resist,” according to the MPC. This approach aims in particular at the constellation of coercive necessity (“duress”). It is supported with the utilitarian argument that punishment would be senseless and an unjustified evil because the threat of punishment could not have any effect due to the overpowering motivation for self-preservation.39 From the perspective of a “theory of fair social demands,”40 emphasis is placed on the notion that in certain situations it cannot be expected of the perpetrator to forego the preservatory action.41 Looked at in this way, there is no ground for limiting excusing necessity to cases in which the danger results from a threat by another person.42

b)  Preventative elements Both approaches correctly see the decisive reason for the excuse in the perpetrator’s motivating pressure. Admittedly, not all rules concerning excusing necessity can be completely explained accordingly. Some legal systems deny the excuse to perpetrators who are under a special professional duty (§ 35 para. 1 sent. 2 StGB). The reasons are preventative considerations: firemen, police, and others whose professional duties include taking dangers upon themselves, cannot, or can only to a limited extent, appeal to excusing necessity if they shift these dangers on to others. Society must be able to rely on these people, who should avert dangers from others, not expose others to additional dangers for the purpose of self-preservation.43

c)  Blameworthy creation of a necessity situation Legal rules about excusing necessity also limit or even exclude the excuse if the endangered person caused the danger himself. The assumption is that the person who has exposed himself to the dangerous situation deserves no forbearance if he shifts the   For more detail, see Ashworth and Horder (n. 10) 209–212. 40   This argument is reported in Simester et al. (n. 2) 725.   Fletcher (n. 14) 833–834. 41   This is similar to the argument that from the perspective of “just deserts” it would be a draconian measure to punish the perpetrator in cases in which he intended by his act to prevent a catastrophe for 42 himself or persons close to him (Simester et al. (n. 2) 725).   Fletcher (n. 14). 43   An interpretation orientated toward the punishment purpose of general prevention appears in Günther Jakobs, Strafrecht Allgemeiner Teil (2nd ed., 1991), Part 26 nn. 4 ff. 38

39

594   ulfrid neumann danger he created on to others. Problems arise where the rules for excusing necessity, as for instance in § 35 StGB, include preservatory actions that the perpetrator commits in favor of a relative or a person close to him. The question is whether responsibility for the necessity situation means responsibility of the perpetrator or responsibility of the relative (or person close to the perpetrator).44

v.  Justifying Necessity—Individual Questions 1. Constellation a)  Interests involved If the principle of the (significantly) more important interest (or the lesser evil) is accepted as the basis for the institution of justifying necessity, questions arise regarding which interests should be considered as interests to be preserved and which interests may be violated. A utilitarian perspective would not insist on limitations and would not differentiate between individual or collective interests, or personal interests (life, physical integrity, freedom) and property interests, when it comes to the “interests to be preserved” and the “interests to be invaded.” In this sense, the MPC focuses, without further distinctions, on whether the harm or the evil which is to be averted by the act under necessity is greater than the harm or the evil which is to be prevented by the criminal statute.45 However, an approach based on the concept of solidarity tends to introduce two limitations.

Individual/collective interests According to this approach, reciprocal obligations of citizens are crucial but not a duty of solidarity toward the state or the public. According to one convincing (but admittedly not undisputed) opinion, this means that preservatory actions which are undertaken in favor of collective interests can only be justified if these collective interests can be traced back to individual ones.46 That is, for instance, the case with the interest in safety of roads or air traffic. On the other hand, necessity assistance   For more detail, see Neumann (n. 5) § 35 nn. 38, 39.   § 3.02(1): “conduct which the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable, provided that . . . the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged” (cited in Markus D. Dubber, Einführung in das US-amerikanische Strafrecht (2005), 146 fn. 24). 46   Helmut Frister, Strafrecht Allgemeiner Teil (6th ed., 2013), ch. 17 n. 2. 44 45

necessity/duress   595 in favor of the state or in favor of fiscal interests is problematic for a conception of necessity based on the principle of solidarity.

Legally protected interests In contrast to the utilitarian model, the solidarity-based model points out that the interest violated by necessity interference not only factually exists but is also recognized by the legal order. The owner of a mountain cabin who has to tolerate a break-in if a mountain climber used the cabin in order to protect himself from severe frostbite not only has an interest in the integrity of his cabin but also a property right. This allows him, in principle, to prevent others from accessing the cabin. An interference with this right can only be considered when the person endangered can claim that his interest endangered by the emergency is under the protection of the legal order, too. This prerequisite is problematic if interference is justified by the need to keep one’s employment, insofar as the legal order does not guarantee continuity of employment.47 It also stretches the concept if necessity interferences are permitted for the protection of threatened (lawful) losses of one’s own assets.48 The decision of the Bundesgerichtshof (BGH, German Federal Court of Justice) which denied justifying necessity to a lawyer who embezzled clients’ money to rescue his law firm financially deserves approval.49

Conflicting interests of the same person It is debated whether justifying necessity applies if it is not the usual case of different persons’ conflicting interests, but of a conflict of interests of the same person. This question becomes relevant in non-consensual medical interventions undertaken for the welfare of the patient. In the case of a life-saving operation performed without the patient’s consent, his interest in life conflicts with his interest in the preservation of physical integrity and autonomy. Neither the utilitarian principle “protection of the higher interest”50 nor the concept of legally required solidarity with another citizen can account for this kind of situation. Nevertheless, English law relies on justifying necessity from the viewpoint of a “best interest principle” if the patient is not in a position to give legally effective consent.51 In other legal systems, such as the German one, if patients are temporarily incapable of consent (e.g. if a patient is unconscious), rules about “presumed consent” apply.52 If persons are generally unable to give effective consent (on the grounds of age or lack of mental capacity),

47   For the possibility of a necessity justification for action to maintain the workplace, see Roxin 48 (n. 24) § 16 n. 12.   See BGHSt 12, 299 ff. 49 50   BGH, NJW 1976, 680.      Gardner, (1991) 11 OJLS 130. 51   Ashworth and Horder (n. 10) 132; Gardner, (1991) 11 OJLS 127 ff. 52   Roxin (n. 24) § 18 nn. 3–18. It is not a question of presumed factual consent, but of the hypothetical question of how the person would decide if he were in a position to make a decision.

596   ulfrid neumann the decision of persons with care rights is paramount.53 Outside the realm of “presumed” and “representative” consent, the question whether there is still room for justifying necessity is disputed.54 In order to preserve patients’ autonomy rights, it is more appropriate to rely on presumed will and therefore personal preferences than a “best interest” that is determined objectively and in a paternalistic manner.

b)  Source of the danger Exclusion of social need Justifying necessity functions to enable the preservation of significantly more valuable interests at the cost of less valuable ones in an emergency, a typical situation. It is not an instrument for restructuring the social distribution of assets. The ironic remark that “the advocates of excusing necessity wanted to incite hungry servants to rob their masters,”55 which could be aimed a fortiori against justifying necessity, misses the point. Predicaments which do not arise from a situation created by a coincidental event but from societal structures cannot lead to justifying necessity. They belong to the general risks of life and may (or may not) be dealt with by claims against the social state. Even in cases of general social need (e.g. during wartime or other periods of crisis), dangers resulting from these circumstances cannot be shifted on to another with the institution of justifying necessity.56

Coercive necessity Even if the danger for the threatened interest results from unlawful coercive action by another person (duress, coercive necessity), justification is predominantly rejected. This is, at best, a case of excusing necessity.57 The question is, of course, disputed. Some differentiate according to the weight of the threatened interests and propose justification when weighty personal interests (in particular, life) are in danger and the action only violated interests of minor importance.58

2.  Currency of the danger Opinions differ on whether justifying necessity should only be considered when the occurrence of harm is directly imminent. While German criminal law requires present danger (§ 34 StGB), the MPC foregoes a corresponding prerequisite. However, according to the necessity rules of the MPC, proximity in time should have some influence in the balancing.59 As the Commentary on the MPC points out, in the famous Mignonette case,60 presence of the danger was problematic because the 54   Neumann (n. 5) § 34 n. 15.   Evidence in Neumann (n. 5) § 34 n. 19.   Quoted by Fletcher (n. 14) 822. 56   Frank Zieschang, in Leipziger Kommentar StGB (12th ed., 2006), § 34 n. 38. 57 58   Kühl (n. 9) § 8 n. 132.   Roxin (n. 24) § 16 nn. 67 ff. 59   Dubber (n. 45) 147.    60  Dudley & Stephens (n. 21). 53 55

necessity/duress   597 death of the surviving seamen was not imminent and it also was expected that the victim would not have survived for long.61 If imminent danger is expressly required by legal rules of necessity, two aspects must be considered. First, if the materialization of a threatened danger is not foreseeable (“long-term danger”), the necessary action can be undertaken immediately. Examples are the danger arising from a dilapidated house and the case of a latently dangerous mentally ill person who is temporarily confined in a room by his relatives. Secondly, it is not only a question of when the harm will occur but when it can still be averted. Insofar as coercive necessity is not excluded from justifying necessity, a case where a prisoner sentenced to a long term of imprisonment forces a warden to commit a crime by threatening to harm the warden’s daughter after his release might be included.62

3.  Necessity of the necessity action a)  Objective vs. subjective perspective As justifying necessity is substantially based on the positive “interest balance,” it assumes that the action is necessary in order to save the endangered interest. The necessity of the preservatory action is a central prerequisite. The danger must not be capable of being averted otherwise than through the action in question. The question whether the action must be objectively necessary or whether it suffices that the perpetrator assumes, without blame, that danger can only be averted in this way is disputed.63

b) Appropriateness Necessity of the act assumes that it is appropriate to its aim of preserving the endangered interest. It should not be required that the threatened interest will be preserved with certainty or with a high probability; on the other hand, a vague and distant chance of preservation does not suffice.64 Interferences which are highly likely to be useless would not be legitimate according to the logic of justifying necessity. How great the chance of preservation must be also depends on the degree to which the interest to be preserved outweighs the interest infringed.65

c)  Most sparing means Besides being appropriate, the actor must also choose the most sparing means. The action is only necessary when no means are available which promise less interference   Dubber (n. 45) 147.   Correspondingly for the excusatory ground of “duress,” see Ashworth and Horder (n. 10)  205 (threatening witnesses with danger to life or limb if they give evidence in court). 63   On regulation in the MPC, see cf. Dubber (n. 45) 148. 64 65   Roxin (n. 24) § 16 n. 23.   Neumann (n. 5) § 34 n. 60. 61

62

598   ulfrid neumann with other interests. According to the interpretation of justifying necessity put forward here (which is not utilitarian, but is rather based on solidarity), the person endangered must give priority to using his own goods in fighting the emergency. If the danger can be eliminated in this way, resorting to the interests of third persons is, in principle, not justified.66 On the other hand, the rescuer who acts for the bene­ fit of another person is not required to utilize his own legal interests (unless he has a special duty to protect the endangered interest).67

4.  Balancing: basic principles a)  Simple or significant preponderance The basic concept of justifying necessity: the preservation of the more important interest (or choice of the lesser evil) assigns special weight to the balancing of the interests involved. There are differing views on what result must follow from this balancing process. While a significant preponderance of the interest to be preserved is required in some cases (§ 34 StGB), for other necessity rules (such as in the MPC) a (mere) preponderance in favor of the interest to be preserved will suffice. Which view should be regarded as preferable depends on the interpretation of the institution of justifying necessity. If one understands it as the result of a utilitarian calculation, then any preponderance of the interest to be preserved will suffice. The determining factor is that the overall balance is positive, not the extent to which that is the case. If, however, one focuses on solidarity with a fellow citizen, it is reasonable to require a significant preponderance of the interest to be preserved. From this perspective, it must be remembered that for the victim of the necessity interference, it is a question of an interference with his rights. A surrender of legally protected interests can only be required where the other person has significantly more important interests at stake than the person obligated by solidarity.68

b)  Can the interests of different persons be aggregated? The interpretation of justifying necessity also involves deciding whether interests that belong to different persons should be added together in the balancing exercise. If, for example, a firebreak must be created to prevent a village center from being engulfed by a forest fire, and for this purpose the fire brigade must either destroy the residence of one owner or several stables of several owners—should the total value of the stables be taken into account, which is in excess of the value of the 66   Theodor Lenckner, “Das Merkmal der ‘Nicht-anders-Abwendbarkeit’ der Gefahr in den §§ 34, 35 StGB,” in Festschrift für Karl Lackner (1987), 95, 105 ff. 67   Volker Erb, in Münchener Kommentar zum StGB (2nd ed., 2011), § 34 n. 102. 68   Jakobs (n. 43) Part 13 n. 33.

necessity/duress   599 residence, or the lower value of the individual stables? On the utilitarian view, the total value ought to be determinative. But if one takes account of the sacrifice which is required of the individual citizen due to solidarity with the owners of the houses in the village center, it follows that this sacrifice is smaller for the owners of the stables than for the owner of the residence. Consequently, only the destruction of the stables could be justified.69 The problem of aggregation is of special importance for the question whether human lives ought to be sacrificed in order to save a greater number of human lives (see later).

5. Balancing: factors A number of factors should be considered in the balancing operation. First, it is a question of: (a) the quality of the interest affected (“legal interest”) on both sides; and beyond this (b) the extent of the threatened harm; (c) the probability of the occurrence of the harm; and (d)  how far blame for creating the emergency can exclude an appeal to justifying necessity.

a)  “Legal interests” An indicator for the weight which the legal system attributes to the different interests is the punishment laid down for unlawful and blameworthy violations of this interest. Comparison of punishment for killing a human being and for aborting a fetus reveals that the life of the born has priority over the life of the unborn.70 Beyond such examples, the question of how comparative evaluations can be made is disputed. In agreement with the values of modern constitutional states, personality values (life, corporeal integrity, freedom) tend to be given priority over property interests.71 Within personality values, protection of life is ranked first.72

b)  Intensity of the threatened violations The relative weight of the interests to be balanced not only arises from the abstract ranking of “legal interests” but also from the extent of the harm in the actual case. The violation of a “legal interest” which is abstractly of higher value can be justified for the protection of a legal interest of abstractly lower value when a substantially more intensive violation is threatened in the actual case. Thus, for instance, in combating a fire in a department store (rescue of assets) the deprivation of freedom which results from the closing of the street is justified under necessity rules.73 69   Emphatically against adding interests of different persons, see Weyma Lübbe, “Das Aggregations problem: Grundlagentheoretische Überlegungen zur Güterabwägung in Notstandslagen,” in Andreas 70 von Hirsch, Ulfrid Neumann, and Kurt Seelmann (n. 20) 201 ff.   Roxin (n. 24) § 16 n. 27. 71 72 73   Roxin (n. 24) § 16 n. 29.      BVerfGE 39, 43.      Jakobs (n. 43) Part 13 n. 27.

600   ulfrid neumann

c)  Probability of the interference Besides the weight of the conflicting legal interests and the intensity of the violations in the actual case, consideration should be given to the probability of the realization of the threatened dangers. Interference in favor of the threatened interest is all the more justified the greater the probability that without that interference the danger will materialize into a violation of the interest. If the result of the preservatory action is uncertain, then the question of how great the probability is that the preservation will succeed must be considered. In weighing all these risk factors, it should be borne in mind that the question of which risks are tolerable is only to be decided in consideration of the weight of the interests affected. Thus, for the rescue of a person whose life is threatened by acute danger, even small chances of rescue may be taken into account if intensive interferences with the weighty interests of others (e.g. of bodily integrity) do not come with it.74

d)  Blame for the predicament The question whether a justification can be excluded if the person endangered was himself to blame for the predicament is contested in doctrine and theory. On a strict utilitarian approach, possible blame for the predicament can play no role. From this perspective, the decisive question is how one can best escape the dangerous situation, not how one came into it.75 But an interpretation which focuses on the notion of solidarity will consider blame for the necessity situation within the balancing exercise. It influences the measure of solidarity which the endangered person can claim from his fellow citizens if the dangerous situation came about by his own fault.76 It has not yet been determined whether any or only qualified blame for the predicament (as in the MPC)77 should preclude appeals to justifying necessity.

6.  Special constellations a)  Life against life It is disputed whether the killing of one or several human beings can be justified by necessity rules if the lives of a greater number of human beings can (only) thereby be saved. In the decision in Dudley and Stephens (the Mignonette case),78 the court denied this and prepared the ground for the view that has long since been undisputed in English law: the killing of a human being is not justified for   Kühl (n. 9) § 8 n. 124.   Joachim Hruschka, Anm. zu BayObLG, Beschluss v. 26.5.1978–3 ObOWi 38/78, JR 1979, 126. 76   Jakobs (n. 43) Part 13 n. 27.    77  Dubber (n. 45) 148 f.    78  See n. 21. 74 75

necessity/duress   601 the preservation of several human lives.79 The MPC does not exclude the numer­ ical balancing of human life. It therefore follows that killing the cabin boy in the Mignonette case in order to save the lives of several seamen may be justifiable.80 This is also consistent with a utilitarian perspective, where the overall utility is decisive. On the other hand, if an individualist approach is followed, the question arises whether the life of a certain person may be sacrificed in order to save the lives of others. The fact that the right to life is a right of the individual and not of society militates against this. In the terminology of German criminal law doctrine, life is an individual legal interest. From this perspective, the lives of several human beings are worth no more than the life of an individual human being. There is no yardstick which would permit human lives to be aggregated not only arithmetically but also in terms of value. The legal duty of solidarity would also be overstretched if an individual were expected to sacrifice his own life for the sake of solidarity. Therefore, in German criminal law theory and practice, the offsetting of human lives within the framework of justifying necessity is—as in the tradition of English law—rejected.81 The killing of human beings for the purpose of saving other human beings is understood as an instrumentalization of the victims which violates human dignity. In a well-known (and admittedly disputed) decision, the German Federal Constitutional Court declared a statute to be unconstitutional which would enable the shooting down of a civilian aircraft hijacked by terrorists in order to prevent it from being intentionally crashed into densely populated territory.82 The intentional killing of aircraft passengers to save the lives of the inhabitants of the threatened city would violate the principle of human dignity guaranteed in constitutional law.83 The question remains whether there are special situations in which this conclusion must be qualified. The rejection of a justification seems convincing only in cases in which the danger to life is to be transferred to uninvolved persons. The much discussed case of a driverless train rushing toward a group of railway workers is a paradigmatic example. The train could be diverted by directing it to a track on which only one worker is working (“signalman case,”84 similar to the case of the “driverless tram”). It is arguable that every human being has only one life and there is no reason why he should be obliged to sacrifice his life to save the lives of others.

79  Presentation and critique of this case law in Michael Bohlander, “Of Shipwrecked Sailors, Unborn Children, Conjoined Twins and Hijacked Airplanes—Taking Human Life and the Defence of 80 Necessity,” (2006) 70 Journal of Crim. Law 147 ff.   Dubber (n. 45) 148. 81   Roxin (n. 24) § 16 nn. 33 f. 82   For more detail, see Bohlander, (2006) 70 Journal of Crim. Law 159 f. 83   BVerfGE 115, 118. 84   Hans Welzel, Anm. zu OGH, Strafsenat, Urteil v. 5.3.1949, StS 19/49, MDR 1949, 373, 375.

602   ulfrid neumann The decision is more difficult, however, when out of a group of human beings whose lives are all in danger, some could be saved at the cost of the others. Two situations are to be distinguished.85 First, cases in which the danger and the chances of rescue are symmetrically divided, and thus each individual could be saved if others were sacrificed (“symmetrical community of danger”). An example here is the case where some passengers in an overfilled lifeboat are thrown overboard because the boat would otherwise quickly sink and cause all of the passengers to drown. The other situation is distinguished by the fact that certain persons are beyond saving while others from the threatened group could be saved by the purposeful killing of those who are going to die either way (“asymmetrical community of danger”). In the case of the symmetrical community of danger, there is no rational decision process for the choice of the human beings to be sacrificed. At best, the casting of lots could be considered but that would have to be possible in the circumstances and supported by the agreement of all. If casting of lots is excluded for factual or (through lack of agreement) normative reasons, then it is hard to find a basis for justifying the killing of the victims. There only remains a resort to excusing necessity. However, in the case of an asymmetrical community of danger it can be argued that some of the endangered persons are inevitably lost and the choice thus only exists between the death of all and the death of some of them. With this reasoning, some authors propose to justify the rescue action.86 It does, of course, have to be considered that the point in time of the death of those irrecoverably lost is shifted forward. In the example of the shooting down of an aircraft captured by terrorists, even if the plane would have been crashed minutes later and all the occupants would thereby have been killed, the shooting down shortens the passengers’ otherwise remaining lives. It is therefore disputed even in cases of an asymmetrical community of danger whether this should be justified under necessity rules.87 These considerations also apply to the separation of Siamese twins if only one of the two children can be saved. If medical diagnosis established that only child A  could be saved and that without intervention both were destined to die,88 the constellation of an asymmetrical community of danger is present; the saving of A at the cost of B’s life is therefore justified. Different considerations would apply if each of the two could be saved, but not both together. The problem is highly disputed.89   For more detail on what follows, see Neumann (n. 5) § 34 nn. 76–78a.   Harro Otto, Pflichtenkollision und Rechtswidrigkeitsurteil (3rd ed., 1987), 83; Neumann (n. 5) § 34 87 n. 77.   Evidence in Neumann (n. 5) § 34 n. 77. 88   Thus, obviously the constellation in the much discussed case Re A ([2000] HRLR 721), in which the court affirmed justification for the separation (and the killing of the twin who could not be saved). On this, see Simester et al. (n. 2) 786; Bohlander, (2006) 70 Journal of Crim. Law 155 ff. 89   cf. Colleen Davis, “Separating Conjoined Twins: A Medical and Criminal Law Dilemma,” (2010) 17 Journal of Law & Medicine 594; Saskia Katrin Wolf, Trennungsoperationen siamesischer Zwillinge. Eine Untersuchung des deutschen, englischen und australischen Strafrechts (2012). 85

86

necessity/duress   603

b)  Defensive necessity In typical cases of justifying necessity, the danger stems from natural events or other coincidental circumstances. If the danger results from the conduct of a human being, the question arises whether the rules of necessity should be modified even if the prerequisites of self-defense are not present. An example is the case of the “family tyrant” who announces that when he has slept off his intoxication he will kill his wife whom he has bullied for years.90 If the wife kills the sleeping husband in order to forestall the attack, justification through self-defense is excluded because the expected attack is not imminent. If less invasive means of self-protection (e.g. flight or communication with the police) would not be available, the question arises whether a justification can be considered in spite of the equal value of the interests (the life of both parties). This would be denied by the general rules of justifying necessity. But having regard to the similarity of such cases to self-defense, it might be plausible, along with parts of German criminal law theory, to modify these general rules in the case of “defensive necessity.” In the balancing operation, the fact that the danger proceeds from the very person whose rights are violated would be considered.91 From this viewpoint, the killing of the husband by the threatened wife could be justified according to necessity rules. One could also include the situation of someone purposefully standing in the way of the rescue of others as a case of defensive necessity.92

7.  Subjective prerequisites Decisions about rescue actions are typically made under time pressure. The question whether the objective factual circumstances matter or the subjective perceptions of the person acting is of considerable practical importance. In the relevant legal rules, prerequisites are partly formulated objectively (§ 34 StGB) and partly subjectively (MPC). A certain convergence does, however, arise in the interpretation of these rules. Within the objectively formulated § 34 StGB, the feature of “present danger” can be affirmed on the basis of the information available at the time of the act, even if it subsequently emerges that the situation was harmless. On the other hand, the subjectively formulated MPC should exclude a justification if the perpetrator undertakes the balancing of interests in a defective manner.93   The German Bundesgerichtshof takes justifying necessity into account (BGHSt 48, 255).   Roxin (n. 24) § 16 nn. 74 f. 92   For justification for the violent (and possibly fatal) removal of a passenger who, in a state of shock, blocks a rope ladder by which other passengers could save themselves, see Ashworth and Horder (n. 10) 131; Simester et al. (n. 2) 784 f. cf. also Horder, (1998) 11 Canadian Journal of Law & 93 Jurisprudence 151 f.   Dubber (n. 45) 148. 90 91

604   ulfrid neumann

vi.  Excusing Necessity (Duress)—Individual Questions 1. Constellation If justifying necessity does not take effect, an excusing necessity may be considered if certain prerequisites are met. In relation to these prerequisites, there are substantial differences, but also important commonalities, between legal systems. A central point concerns the question whether the excusing necessity is limited, as in the MPC and the tradition of the common law,94 to cases in which the danger results from the threat of a third party whose threat compels the perpetrator to commit an unlawful act (“coercive necessity”), or whether excusing necessity also encompasses dangers which result from natural or other coincidental events (§ 35 StGB). An argument in favor of the first option is that another person can be made responsible in criminal law, whether as an indirect perpetrator of the necessity act or because of the coercion as such. It can be argued in favor of the second model that the motivation of the perpetrator of the necessity act is not affected by whether the danger results from another human being or coincidental circumstances. The current common law, with its recognition of “duress of circumstances” (besides “duress by threat”), takes the middle road: when a threat of death or a severe injury is present, the person threatened is excused even if he was not compelled to commit his crime, but did this on his own initiative in order to save himself from danger.95 Inherent in the logic of the institution of “duress of circumstances” is the consideration of dangers which proceed not from human beings but from animals or natural events.96 Consideration of the special motivation of the perpetrator marks the decisive difference between excusing necessity and the ratio of justifying necessity. While justifying necessity aims to protect the more important interest, excusing necessity focuses on the psychological plight of the person threatened. From these differing objectives, distinctions arise in respect of prerequisites.

2. Prerequisites a)  Personal legal interests Because the threatened violation of personal legal interests exposes the person to higher mental pressure than they would face if loss of property were threatened,   Simester et al. (n. 2) 726.   Simester et al. (n. 2) 726; Ashworth and Horder (n. 10) 205. 96   Fletcher (n. 14) 833 f.; Simester et al. (n. 2) 734. 94 95

necessity/duress   605 the excuse is typically limited to such legal interests. Protection of property does not fall under excusing necessity. In English law, the defense of “duress” assumes that a person is threatened with death or serious bodily injury.97 Similarly, although somewhat more generously, § 35 StGB limits the necessity situation to dangers to life, limb, or freedom.98 Also, according to the MPC “duress” does not come into consideration in defense of property.

b)  Group of persons With respect to the ratio of excusing necessity, some legal rules require that the danger must threaten a personal legal interest of the perpetrator or a person particularly connected with him. § 35 StGB mentions, besides the perpetrator himself, relatives and persons otherwise close to him. In contrast, the MPC, like the tendency in current English case law,99 dispenses with these limitations and is content with the perpetrator seeking to protect himself or any other person from harm.100

c) Proportionality As the excusing necessity is not based on the principle of the more important interest (the lesser evil) but rather takes account of the actor’s motivation, it is logical to dispense with a balancing of conflicting interests. Admittedly, the issue of proportionality comes into play indirectly in the question whether the perpetrator’s act in the actual situation deserves forbearance. Thus, the MPC focuses on whether a “person of average steadfastness” in the situation of the perpetrator would have been able to withstand the threat,101 while § 35 StGB excludes an excuse if the perpetrator was expected to accept the danger. According to the logic of excusing necessity, the weight of the threatened danger ought to play a greater role than the intensity of the violation resulting from the rescue operation. Thus, the killing of a human being even for preservation from an especially grave bodily injury can be excused.102

d)  Blame for the predicament As excusing necessity depends on whether the legal system should exercise forbearance against the perpetrator of an unlawful act, the consideration of whether the perpetrator is himself responsible for the dangerous situation acquires a substantially greater significance here than with justifying necessity (see earlier). Thus, the MPC excludes an excuse when the perpetrator recklessly “puts himself into a   Ashworth and Horder (n. 10) 206; Simester et al. (n. 2) 727.   Ashworth and Horder (n. 10) 206 indicate that according to a dictum in Steane [1947] K.B. 997 the danger of unauthorized detention should suffice. 99 100   Ashworth and Horder (n. 10) 207; Simester et al. (n. 2) 733.   Dubber (n. 45) 181. 101   Case law in the United Kingdom requires that the threats must be of such a nature “that a sober person of reasonable firmness would not have resisted them” (Ashworth and Horder (n. 10)  206; 102 Simester et al. (n. 2) 731).   Neumann (n. 5) § 35 n. 50. 97

98

606   ulfrid neumann situation in which it is probable that he will be the victim of coercion”; this would be the case, for instance, when the perpetrator has involved himself in criminal activities.103 Although the perpetrator does not intentionally bring about the coercive situation, punishment for an intentional act is also considered.104 Similarly § 35 StGB excludes an excuse if the perpetrator has “caused the danger himself ” (“causing” is to be understood as being responsible for the predicament). Whether, in the case of action in favor of another person who is endangered, the perpetrator’s blame or that of the person endangered should matter is disputed.

References Bernsmann, Klaus, “Entschuldigung” durch Notstand (1989) Bohlander, Michael, “Of Shipwrecked Sailors, Unborn Children, Conjoined Necessity,” (2006) 70 Journal of Crim. Law 147 Coninx, Anna, Das Solidaritätsprinzip im Lebensnotstand (2012) Davis, Colleen, “Separating Conjoined Twins:  A  Medical and Criminal Law Dilemma,” (2010) 17 Journal of Law & Medicine 594 Elliott, Catherine, “Duress, Necessity and Self-Defence,” [1989] Crim. LR 611 Foot, Philippa, “The Problem of Abortion and the Doctrine of Double Effect,” (1967) 5 The Oxford Review 59 Gardner, John, “The Gist of Excuses,” in John Gardner, Offences and Defences. Selected Essays in the Philosophy of Criminal Law (2007), 121 ff. Gardner, Simon, “Necessity’s Newest Inventions,” (1991) 11 OJLS 125 Horder, Jeremy, “Self-Defence, Necessity and Duress: Understanding the Relationship,” (1998) 11 Canadian Journal of Law & Jurisprudence 143 Hörnle, Tatjana, “Töten, um viele Leben zu retten. Schwierige Notstandsfälle in moralphilosophischer und strafrechtlicher Sicht,” in Festschrift für Rolf Dietrich Herzberg (2008), 555 ff. Küper, Wilfried, Darf sich der Staat erpressen lassen? Zur Problematik des rechtfertigenden Nötigungsnotstandes (1986) Merkel, Reinhard, “An den Grenzen von Medizin, Ethik und Strafrecht: Die chirurgische Trennung sogenannter siamesischer Zwillinge,” in Claus Roxin and Ulrich Schroth (eds.), Handbuch des Medizinstrafrechts (4th ed., 2010), 603 ff. Otto, Harro, Pflichtenkollision und Rechtswidrigkeitsurteil (3rd ed., 1978) Pawlik, Michael, Der rechtfertigende Notstand. Zugleich ein Beitrag zum Problem strafrechtlicher Solidaritätspflichten (2002) Schopp, Robert F., “Justification Defences and Just Convictions,” (1993) 24 Pacific LJ 1233 Wolf, Saskia Kathrin, Trennungsoperationen siamesischer Zwillinge. Eine Untersuchung des deutschen, englischen und australischen Strafrechts (2012) 103  Dubber (n. 45)  185. Corresponding considerations apply for English law (“doctrine of prior fault”); see Ashworth and Horder (n. 10) 208 f.; Simester et al. (n. 2) 732 f. 104   Dubber (n. 45) 186.

­c hapter 27

SELF-DEFENSE victoria nourse

i.  Introduction to Self-Defense Self-defense is controversial—in life and law. High-profile self-defense cases captivate nations. In the United States, the recent trial of George Zimmerman for the killing of Trayvon Martin elicited Presidential reaction. Before that, there was Bernhard Goetz, the New York City subway shooter, and Judy Norman, the North Carolina battered woman who killed her sleeping husband. Controversy is not limited to the United States: self-defense is just as easily able to generate public uproar around the world.1 There is more to this than media frenzy or cultural conflict: self-defense cuts to the core of national identity, sovereignty, and security. In the international sphere, questions arise about when a country may legitimately “defend” itself and its peoples.2 In the constitutional arena, the law of self-defense is now intertwined with 1   On Trayvon Martin and the Presidential reaction, see Tom Cohen, “Obama: Trayvon Martin Could Have Been Me,” CNN, July 19, 2013, available at: ; on Goetz, see Kenneth W. Simons, “Self-Defense, Mens Rea, and Bernhard Goetz,” (1989) 89 Columbia LR 1179 ff.; on Norman, see State v. Norman, 378 S.E.2d 8 (N.C. 1989); on infamous cases in other countries, see e.g. Antoinette Kelly, “Burglar Shooting to Test New SelfDefense Law on Intruders,” Irish Central, Apr. 16, 2012, available at: (describing the new Irish law on self-defense recognizing the constitutional position of a person’s home). 2  Kimberly Kessler Ferzan, “Defending Imminence:  From Battered Women to Iraq,” (2004) 46 Arizona LR 213 ff.

608   victoria nourse the American “right to bear arms.”3 At the outset, it is important to note that this chapter will focus on the self-defense law of the United States.4 In other countries, self-defense law may differ and is often, particularly in Europe, quite a bit narrower. This should not be surprising, however, given the ways in which self-defense reflects political norms and sovereignty. If self-defense generates controversy in the public sphere, it also generates controversy within the legal one. It is widely assumed that the law of self-defense is quite settled. In fact, the law of self-defense is not settled. Some issues remain old and unresolved, such as the status of self-defense as an excuse or justification, or whether honest, rather than reasonable, belief constitutes a defense. Other issues have emerged in the past few decades, such as the question of “imminence” in battered women’s cases or new state laws allowing the attacked to “stand” their ground.

ii. History As a general rule, a defendant makes out a claim of self-defense when he5 shows that he was confronted by a serious threat of bodily harm or death, the threat was imminent, and his response was proportionate. Some jurisdictions add to these requirements a more general rule that the violence must be “necessary.” More controversially, the defendant will lose a self-defense claim, in some jurisdictions, if he fails to retreat. These general rules are qualified by a “forfeiture” doctrine:6 if the defendant provoked the violence or was the “initial aggressor,” he loses the right to claim self-defense. Basic elements of self-defense remain contested. For example, scholars and jurisdictions do not agree whether self-defense is a subset of a more general necessity defense; is an excuse or justification; or is governed by “subjective” or “objective” standards. These theoretical questions are often related. Those who believe that self-defense is a form of necessity defense tend to embrace self-defense as a justification governed by objective standards. Those who believe self-defense is a form of excuse tend not to see it as a form of necessity and are willing to apply subjective elements of the defense.7   District of Columbia v. Heller, 554 U.S. 570, 603 (2008).   Of course, there are more than 50 different versions of U.S. criminal law, as the law of the states differs quite dramatically, and criminal law is primarily a matter of state law in America. 5   I use the pronoun “he” here because of the empirical fact that most self-defense cases in the United States involve male-on-male violence. 6   Stephen P. Garvey, “Self-Defense and the Mistaken Racist,” (2008) 11 New Crim. LR 119 ff. 7   See generally Victoria Nourse, “Self-Defense and Subjectivity,” (2001) 68 University of Chicago LR 1235 ff.; Victoria Nourse, “Reconceptualizing Criminal Law Defenses,” (2003) 151 University of Pennsylvania LR 1691 ff. 3

4

self-defense   609 At British common law, there were two prototypes8 of classic self-defense—in one, the defendant prevented a felony and was justified; in the other, the defendant was in the midst of a fight and was excused. The upstanding citizen who sought to prevent a felony was not only blameless but deserved commendation; as an agent of the law, he was unbound by special rules about “sudden” affrays or retreat. Not so the brawler whose claim was one of culpable necessity. The brawler had to kill for the right motives and without offense to legal authority to negate his partial responsibility for entering mutual combat. The sudden affray excused the brawler’s failure to seek “recourse to the proper tribunals,” suggested that he did not kill out of “previous malice,” and confirmed that the threat was serious.9 If the affray was serious, it was thought that there was no time for the defendant to call the constable or to contemplate revenge. Today, some jurisdictions still maintain the distinction between defending against a felony and self-defense as a mutual affray. Most, however, have merged these ideas obscuring the defense’s history: in most states, there is one doctrine of self-defense and this doctrine has elements borrowed from both ancient analogs. For example, modern law does not necessarily distinguish between the mutual affray and the law enforcer but requires both to retreat (in a minority of jurisdictions) or not retreat (in a majority). Similarly, necessity remains an element of the defense in some jurisdictions, applied both in cases of an unprovoked attack and mutual battle. Exaggerated elements of the ancient distinction remain, however, in the non-aggressor doctrine, which holds that one who is at fault for the battle forfeits his right of self-defense. If the doctrine remains unsettled, history suggests that there is one thing that remains clear: self-defense, like other defenses, demarcates a line between the use of private and public violence. The “justified” killer of old was the king’s man, a private enforcer of the law, pursuer of felons. The non-justified killer was a vigilante, taking “the law” into his own hands. Somewhere in the uncomfortably excused middle lay the sudden affray likened to the justified killing because there was no time for the law to prevent the fight.10 Today, this theoretical divide is expressed, in high-profile cases, in the vernacular: those who reject the claims of defendants, like Bernhard Goetz or Judy Norman or George Zimmerman, complain that they have “taken the law into their own hands.”11 In other words, those who have used deadly force in

  Analytically, the categories set forth in this paragraph are not mutually exclusive; they are illustrations of two prototypical fact-scenarios. 9   William Blackstone, Commentaries on the Laws of England, Vol. 4 (1979), 178 ff., 187. 10   One who killed to prevent a felony was “in no kind of fault whatsoever, not even in the minutest degree; and is therefore to be totally acquitted and discharged, with commendation rather than blame,” Blackstone (n. 9) 182 ff. By contrast, in the case of “quarrels both parties may be, and usually are, in some fault; and it scarce can be tried who was originally in the wrong; the law will not hold the survivor intirely [sic] guiltless.” ibid., 187. 11   See e.g. Richard Thompson Ford, “The Law that Acquitted Zimmerman Isn’t Racist:  But That Doesn’t Mean the Outcome Wasn’t,” New Republic, July 16, 2013, available at:  (“Florida’s stand your ground law all but endorses vigilantism, allowing private citizens to take the law into their own hands rather than call police”). 12   See generally Joshua Dressler, Understanding Criminal Law (2005), 261 ff. (discussing the necessity defense); ibid., 273 ff. (discussing the duress defense). 13  See Beard v. U.S., 158 U.S. 550, 561 (1895). 14   Nourse, (2001) 68 University of Chicago LR 1290 and fn. 258 (discussing the appearances rules).

self-defense   611 defendant’s response was truly necessary. In fact, most jurisdictions protect perceived threats as long as a reasonable person in the situation would perceive such a threat. The threat question may appear to merge into timing questions: for example, in the case of a battered woman who kills after the last attack, there has been a serious threat, but the question is whether the danger is imminent.15 Threat issues can be particularly difficult in cases where the defendant claimed he honestly believed that there was a threat, but there was no threat and no reasonable basis for the belief. For example, in the canonical Goetz case, where a defendant opened fire on four youths in a subway car, Goetz claimed an honest belief in a deadly threat. Some scholars have argued that an honest belief should be enough to sustain a self-defense claim, however, this is not the prevailing doctrine in U.S. law, which is focused heavily on the “reasonableness” of the defendant’s belief in the situation.16

2.  A proportional response by a non-aggressor The defendant’s response must be proportional to the threat. This requirement may be thought of as operationalizing a necessity requirement: the idea is that the defendant did not “need” to use disproportionate force to avoid injury. If the threat is slight, for example, then a deadly response is disproportionate. There is a substantial overlap between this requirement and the sufficiency of the threat. If the threat is slight, the defendant’s claim is likely to fail both the threat requirement and the proportional response rule. The proportionality requirement presumes the defendant has not been the primary aggressor. A defendant will lose his right to self-defense, even if resisting a deadly threat, if the defendant initiated the attack and the defendant’s deadly response is likely to be disproportionate. Like the proportionality inquiry, this exception can be considered to operationalize a necessity rule. A defendant does not “need” to use force—there are other alternatives—if he or she started the brawl. Of course, it is often difficult to determine the “primary aggressor.” Perhaps more importantly, the very definition of necessity remains unclear in the law of self-defense. The aggressor exception is considered a forfeiture rule: an actor who otherwise meets the requirements of self-defense forfeits his claim.17 The general idea is “an actor who culpably chooses to create or encounter a threat,” forfeits any defense, 15   Nourse, (2001) 68 University of Chicago LR 1266–1267 ff. (explaining how these categories can find themselves bleeding into one another). 16   Garvey, (2008) 11 New Crim. LR 126 ff. (distinguishing British law which Garvey claims holds that an honest belief negates the intent for homicide); George Fletcher, “The Right and the Reasonable,” (1985) 98 Harvard LR 949 ff. (distinguishing U.S. law from German and French law and noting that the these laws do not depend upon reasonableness, but allow for an “abuse of right”). 17   Garvey, (2008) 11 New Crim. LR 135 ff.

612   victoria nourse whether excuse or justification, because of his choice to create or encounter that threat. For example, the U.S. Model Penal Code provides that an actor who “provoke[s]‌the use of force against himself ” loses the defense, if using force with the purpose of causing death or seriously bodily injury.18 Forfeiture rules are theor­ etically controversial since they appear to punish the defendant for conduct that does not constitute the ultimate crime; a defendant who meets all the elements of self-defense but is the primary aggressor is effectively being punished for murder even though the original crime—intentional assault—was less severe.19

3.  Necessity: a separate requirement? Some scholars insist that self-defense is a particular type of necessity claim, by which they mean that the defendant “needed” to use deadly force.20 As we have seen previously, this does not automatically place self-defense within the doctrinal boundaries of the necessity defense. Nevertheless, it raises important issues, including the question whether “necessity” should be a separate element of self-defense. In some jurisdictions, but not in others, necessity is a separate element of self-defense. The theoretical question raised is whether a separate necessity requirement is essentially doing “double-duty” by proffering a general category that could potentially undermine more specific defense requirements. This “double duty” problem could have broad effect: in fact, each self-defense element may be reformulated in terms of necessity. So, for example, one could say that the defendant did not “need” to use disproportionate force, or “need” to defend against an insufficient threat, or “need” to make the first aggressive move, or “need” to use violence when retreat is safe. In relation to whether the necessity question should be a separate element of the defense, the risk is that, given the generality of necessity, it will supplant specific limitations on particular elements. So, for example, if one already has a proportionality requirement, why should a jury, under a necessity instruction, be permitted to reengage in the same inquiry albeit in different and potentially conflicting form under the “necessity” rubric. This critique may have important implications in cases where the underlying doctrinal element conflicts with settled norms or public intuitions. Imagine a case in which the jury believed that the defendant should have retreated, because this was more respecting of human life, but they were instructed that the jurisdiction had no retreat rule. In such a case, the jury could conclude that even if the defendant did not have to retreat, the violence was not necessary, effect­ ively nullifying the more specific no-retreat rule. The issue of a separate necessity element is most often contested in debates about imminence. Some scholars argue that the imminence requirement be eliminated in   Model Penal Code § 3.04(2)(b)(i).   Garvey, (2008) 11 New Crim. LR 139 ff.

18

19

20

  Dressler (n. 12) 204 ff.

self-defense   613 favor of a general necessity rule.21 Others maintain that a separate necessity requirement should take precedence over imminence.22 Imminence, however, can translate two opposing views of necessity—necessity as an aversion to violence and necessity as moral right. Under the first view, necessity demands that there is no alternative to the defendant’s violence. Under the second view, necessity privileges the “right” (the victim) to the wrong (the aggressor). These divergent views of necessity reflect larger questions about the basic political theory of the defense, whether it is grounded in pacifism and the refusal to use violence or the liberty to use violence to protect oneself.

4.  Imminence: time vs. alternatives The defendant must face an “imminent” threat. Legitimate self-defense “must be neither too soon nor too late.”23 If the violence is too soon, the defendant becomes a primary aggressor. If it is too late, the defendant fails the imminence requirement. For a threat to be imminent, it must occur “immediately,” or at the moment of danger.24 The standard barroom brawl satisfies this case easily. Imminence becomes an issue when any significant amount of time arises between the threat and the defendant’s response. This element of self-defense has become particularly controversial in cases involving battered women who “wait” to kill. Superficially, the imminence requirement should demand a straightforward assessment of the length of time between the threat and the defendant’s response. Perhaps more than any element other than necessity, however, the imminence requirement is confused with other elements of self-defense. For example, in some cases, courts have confused imminence with threat. Threat involves the seriousness of the attack; imminence should be about time—the time between threat and response. In other cases, imminence has been seen as a question of alternatives, another confusion. In such cases, the question being asked is not about time, but whether the defendant had an alternative to using violence.25 The latter question may be a question of necessity, but it is not a question of time. 21   Stephen J.  Schulhofer, “The Gender Question in Criminal Law,” (1990) 7 Social Philosophy & Policy 105 ff., 127 (arguing that “the traditional insistence on a literally ‘imminent’ infliction of great bodily harm must be abandoned outright”); Paul Robinson, 2 Criminal Law Defenses (1984), 76 f. (stating that the “proper application of the necessity requirement would seem adequate to prevent potential abuse of a justification defense in cases where the force is not imminent”). 22   Richard A. Rosen, “On Self-Defense, Imminence, and Women Who Kill Their Batterers,” (1993) 71 North Carolina LR 371 ff., 380 (“Because imminence serves only to further the necessity principle, if there is a conflict between imminence and necessity, necessity must prevail”). 23   George Fletcher, “Domination in the Theory of Justification and Excuse,” (1996) 57 University of 24 Pittsburg LR 553 ff., 556.   Dressler (n. 12) 206 ff. 25   Nourse, (2001) 68 University of Chicago LR 1246 ff. (surveying imminence cases).

614   victoria nourse Confusing imminence with other issues may have serious consequences. For example, if imminence is serving as a proxy for retreat, in a jurisdiction where retreat is not required, or in a case where the defendant had no opportunity to retreat safely, then imminence may impose rules a jurisdiction otherwise disavows. Historically, imminence has given legitimacy to norms or stereotypes that the law otherwise disavows. For example, imagine a battered woman being attacked. It is not appropriate to ask whether the threat was imminent if by imminent one means whether she could have “left the relationship” prior to the attack. Asking the “alternatives” question under the guise of imminence imposes, in effect, a pre-retreat rule that has never been imposed in other confrontational cases. A man at the O.K. Corral would not have had to leave town to claim self-defense in a shoot-out, nor should a woman be forced to divorce or separate to maintain a self-defense claim.

5.  Retreat: two common law traditions Retreat remains one of the most controversial questions in self-defense law. Thirty years ago, scholars assumed that, in Anglo-American jurisdictions, retreat was required. In fact, it is now clear that most U.S. states do not require retreat. Some have attributed this movement to questions about battered women. In the 1970s and 1980s, the battered woman’s movement did prompt some changes in retreat rules. More recently, the drive against retreat in the United States has been propelled by a growing political momentum for so-called “stand your ground” laws. Before addressing those laws, let us review the history of retreat and its modern transformations. At British common law, there was no consistent retreat rule. The law did not require retreat when the defendant was preventing a felony, thus acting as a law enforcer. The common law did require retreat in a mutual affray. The common law categories were prototypes, reflecting core situations, raising analytic questions. Is a defendant who resists an unprovoked assault a law enforcer or engaged in a mutual affray? The Blackstonian model applies the retreat rule based on fault. Law-defending non-aggressors were not required to retreat, but culpable or potentially culpable aggressors were required to show best efforts to avoid violence.26 Nineteenth-century U.S. law transformed the retreat rule in the image of a different time and culture, celebrating the “true man” ideal. A  “true man,” without fault, did not have to retreat from an actual or threatened attack even if he could safely do so. Some scholars attribute this rule to the influence of the Wild West, others emphasize its openly gendered quality. By the late nineteenth century, however, the notion that “fleeing” when assaulted was cowardly and dishonorable had been

  Blackstone (n. 9) 182 ff.

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self-defense   615 injected into U.S. self-defense law. As one of the premier doctrinalists of the early twentieth century put it: “it is abhorrent to the courts to require one who is assailed to seek dishonor in flight.”27 As the U.S. Supreme Court announced, a “true man, who is without fault, is not obliged to fly from an assailant.”28 An important corollary to the true man rule remains in the ancient “castle doctrine.” Recalling the saying that a “man’s home is his castle,” the doctrine qualifies the retreat rule in cases where the victim is attacked in his home. The home has always had a special status in the criminal law and so it should not be surprising to see such an exception. It fits well with the notion that one who is in a place he has a right to be—and surely a man has a right to be in his home—may use deadly force without retreating. The castle exception also resonates and partakes of the separate defense of habitation, based on the defendant’s interest in defending his property.29 During the twentieth century, enthusiasm for the true man doctrine waned. By the 1970s, many American scholars extolled the Model Penal Code’s more sympathetic embrace of retreat. For some, the Code itself suggested retreat was the norm. This led to questions about the castle exception, spawning further exceptions, including the rule that cohabitants retreat in the home. By the mid-1980s, however, these positions had come under attack, with increasing public awareness of “domestic violence.” In some jurisdictions, changes in the law and jury instructions were made to avoid confusing the duty to retreat with the duty to exit a marital relationship. Today, retreat and castle rules are the object of a new and controversial movement to eliminate retreat and embrace a “super-castle doctrine”30 known as “stand your ground” laws.

iv.  Theoretical Controversies 1.  Self-defense: excuse or justification? One of the great theoretical divides within the law of self-defense has been the question whether self-defense is an excuse or justification. The prototypical “justification”

  Joseph H. Beale, Jr., “Retreat from a Murderous Assault,” (1903) 16 Harvard LR 567 ff., 577.  See Beard v. U.S., 158 U.S. 550, 561 (1895). 29  See generally Christine Catalfamo, “Stand Your Ground:  Florida’s Castle Doctrine for the Twenty-First Century,” (2007) 4 Rutgers Journal of Law & Public Policy 504 ff.; on defense of habitation, see Dressler (n. 12) 235 ff. 30   Wyatt Holliday, “ ‘The Answer to Criminal Aggression Is Retaliation’: Stand your Ground Laws and the Liberalization of Self-Defense,” (2012) 43 University of Toledo LR 407 ff., 408 f. 27

28

616   victoria nourse concerns “the rightness, or at least the legal permissibility, of an act that nominally violates, the law . . . [T]‌he act is the one that ought to prevail in a situation of conflict.”31 The prototypical “excuse” is not about the “rightness or desirability of the act” but speaks to the “personal culpability of the actor.”32 Excuses typically acknowledge that the act is wrongful or unlawful, and then proceed to excuse the illegality for reasons about the actor’s control of the situation, such as insanity or duress. Scholars have staked out diverging views about whether self-defense is an excuse or justification. George Fletcher, a leading American commentator, insisted that the excuse/justification line was a “fundamental theoretical” and “practical” concern.33 For example, he stressed that this distinction determined whether a third party could assist the defendant: if justified, third parties could join in the action; if excused, third parties could not join—the defense would be personal to the defendant. Similarly, this distinction was claimed to determine whether a defendant could use violence against an innocent aggressor suffering from a mental illness.34 Other commentators, as Fletcher himself notes, have refused to make such fine distinctions. Some have even suggested that the inquiry is much ado about nothing.35 Those urging conceptual clarity along the excuse/justification line know that the actual doctrine of self-defense fits poorly into either category. The common law recognized both forms of the defense. U.S.  jurisdictions continue to struggle with the distinction, enforcing elements that sound in justification (necessity) and those that sound in excuse (a mistaken belief about a threat is sufficient to constitute a threat if the mistake is reasonable). Some jurisdictions have attempted to impose a similar kind of boundary by distinguishing between “perfect” and “imperfect” self-defense, the “perfect” variety being something akin to a justification, the “imperfect” variety, an excuse.

2.  Objective vs. Subjective standards for self-defense Another serious theoretical controversy surrounding self-defense is whether the legal standard should be objective or subjective. This dispute was occasioned, at least in part, by claims that battered women’s claims were increasingly “subjectifying” the law of self-defense, becoming what Alan Dershowitz and James Q. Wilson called a form of “abuse excuse.”36 In the Model Penal Code, the dichotomy between 31   Fletcher, (1985) 98 Harvard LR 954 ff.; see also Larry Alexander, “Self-Defense, Justification, and 32 Excuse,” (1993) 22 Philosophy & Public Affairs 53 ff.   Fletcher, (1985) 98 Harvard LR 954 ff. 33   Fletcher, (1985) 98 Harvard LR 955 ff. 34   George P.  Fletcher, “Proportionality and the Psychotic Aggressor:  A  Vignette in Comparative Criminal Theory,” (1973) 8 Israel LR 367 ff., 371. 35   Rosen, (1993) 71 North Carolina LR 408 ff., 409. 36   James Q. Wilson, Moral Judgment: Does the Abuse Excuse Threaten Our Legal System? (1997); Alan M.  Dershowitz, The Abuse Excuse:  And Other Cop-Outs, Sob Stories, and Evasions of Responsibility (1994).

self-defense   617 subjective and objective standards was highlighted by adopting a more subjectified version of self-defense than traditional doctrine.37 The question of subjectivity versus objectivity is frequently litigated, defendants claiming that jury instructions granted were too “objective,” and the state responding that they were “subjective” enough.38 Canonical cases frame the subjectivity debate. American casebooks juxtapose the battered woman who killed her sleeping husband, Judy Norman, with the subway vigilante, Bernhard Goetz. Students sympathetic to the battered woman are asked if they are willing to apply the subjective standard to which they are drawn to the less sympathetic subway shooter. This portrayal of the debate raises two issues. First, it raises an empirical issue: battered women do not typically “wait” to kill as did Judy Norman; the best empirical evidence suggests that, like men, they raise weak confrontational claims. Secondly, it raises a doctrinal issue: most jurisdictions adopt a composite subjective/objective form of self-defense. No jurisdiction, in fact, adopts a completely subjective standard reducing the “reasonable person” to the defendant. The most subjective rule can be found in “imperfect” self-defense jurisdictions, where an honest belief may reduce the verdict from murder to manslaughter.

3.  Normativity, individualization, and the reasonable man in self-defense In the United States, self-defense doctrine depends on the “reasonable man.” In fact, the term “reasonable” modifies each element of the defense. Reasonableness, however, deserves analytic inquiry. During the 1960s and 1970s, scholars asked questions about how to identify the reasonable man; more specifically, they asked what “characteristics” a reasonable person would have. It is not surprising, in this atmosphere, that the question in “hard” cases would seem to turn on the characteristics of the individual. High theory of the day, and still now, asks whether certain character traits of an individual, his age or perhaps his beliefs, should be included in defining the “reasonable” man.39 In the 1970s and 1980s, scholars began to debate this focus on “characteristics,” questioning whether it would lead to sound results. The more one adds characteristics to the “reasonable person,” the more the “reasonable person” looks entirely 37   Model Penal Code § 3.02(1) (“Conduct that the actor believes to be necessary. . . . ”) (emphasis added); and Model Penal Code § 3.02(2) (eliminating the defense if the defendant was “reckless” or “negligent” in bringing about the defense). 38   Nourse, (2001) 68 University of Chicago LR 1278 ff., 1279. 39   For a recent inquiry along these lines, see Garvey, (2008) 11 New Crim. LR 124 f. (asking whether being “a racist” is a characteristic that can be attributed to a defendant).

618   victoria nourse like the defendant, a result that may lead to strange normative results. For example, if one includes the characteristics of a batterer in the definition of a “reasonable man”—such as extreme sensitivity to a partner’s insult—then the “characteristics” question appears to embrace battering. And it does so as a matter of description— without asking the prescriptive question whether the law should embrace battering. In the scholarly literature, the critique of the “characteristics” frame was dubbed “the new normativity,”40 because it emphasized the embedded normative elements of the “characteristics” question. The central claim was that “reasonableness” was not only a question of describing an individual and her characteristics, but also how and when the law was embracing particular norms as “reasonable.” Scholars embracing this critique argued that the purportedly descriptive nature of the “characteristics” inquiry was analytically confused since it implied normative claims about the proper relationship of the parties to each other and to the state.41 In self-defense scholarship, this shifted analysis toward social norms and away from individualization. Take, for instance, the Goetz case. The individualization model asks which characteristics should be included in the definition of a reasonable person. One question frequently asked of the Goetz case is whether it should be relevant that Goetz was threatened in public places prior to the shooting. That question appeared important in other cases, most notably in cases involving a battered woman. If one’s intuitions were that prior threats were relevant to the Goetz case, presumably they should also be relevant in the battered woman case. If the “reasonable man” inquiry includes knowledge of prior violence, however, should the “reasonable person” be a person who has experienced prior violence? To answer that question is not to decide the case, of either the subway shooting or the battered woman, but it does raise serious questions from the perspective of “characteristics” analysis: should this “experience” be imputed to the “reasonable man”? Scholars looking to social norms do not ask the “characteristics” question when attempting to answer the prior threat question; instead, they ask about the proper norms governing the case. Put more concretely, the normative inquiry would ask about the traditional normative position of the law and then ask whether that normative position passed further scrutiny: was the position coherent, consistent across all cases, or a reflection of social norms no longer embraced by the law. In fact, trad­ itional doctrine answers the “prior threats” question in the affirmative: prior threats have always been admissible when relevant to the defendant’s perception. This was true in the late nineteenth century. The answer to the inquiry is not that “prior violence” is the experience of a reasonable person—as an empirical matter, it may be that most persons do not experience violence in their lives. The answer lies in the normative demand for equal protection: if prior threats were admissible in the O.K.

  Victoria Nourse, “The New Normativity: The Abuse Excuse and the Resurgence of Judgment in 41 the Criminal Law,” (1998) 50 Stanford LR 1435 ff.   Nourse, (1998) 50 Stanford LR 1463 ff. 40

self-defense   619 Corral, then they should be admissible in all cases. By separating the inquiry from a “reasonable person,” the answer to this question no longer slides into the larger and unanswered question whether a battered woman or subway vigilante who kills is in some way “reasonable”—and therefore should be acquitted—but instead focuses on the particular issue—prior threats—in the case. Critics have suggested that openly addressing social norms is likely to increase moral and public controversy as norms tend to “go in packs”—they tend to bring with them views on a variety of issues—and thus may tend to increase social anxiety and turmoil over self-defense cases.42 One response is that candor, alone, suggests that the law’s normativity should not be avoided but understood and interrogated. Another response is that the law of self-defense already leads to social turmoil. In a world where race and gender remain contested, it is not surprising to see these norms upwardly mobile not only in the great political issues of the day, but also in self-defense cases as well. In a world where many African Americans believe that they remain second-class citizens, there will always be the fear that they are unfairly associated with a criminal element; in a world where women are emerging as polit­ ical players but still normatively enjoined to care for the home, there will always be the fear that they are unfairly associated with preserving that home even at the expense of their own lives. One great risk of the new “normativity,” however, is that it too easily justifies the status quo ante. Normative argument alone is not enough, particularly in a world where the law has not taken account of changing social norms. If one takes as the baseline inquiry the notion of the law as establishing prior norms and privileges those norms then of course one is beginning the normative inquiry at a place that risks quietism. Only if one seeks to interrogate those norms and test them against the possibility of entrenched social inequality is this approach in any way “new.” It not only seeks to unearth basic norms, but critique them as well. The ultimate point is to recognize, as we will see later, that the law of self-defense is not inevitably just, and the reasonable man is more than mere characteristics. The reasonable man is a normative ideal, an ideal that can be skewed toward injustice by illiberal social norms.

4.  Pacifist vs. Libertarian theories of self-defense Two conflicting ideas of necessity inform great debates about self-defense; those ideas in turn reflect larger political theory, whereby political I mean theories of the relationship of the state to citizen: one theory I will dub “pacifist,” the other “libertarian.” The pacifist sees necessity as a need to avoid violence. Andrew Ashworth   See Donald Braman and Dan Kahan, “The Self-Defensive Cognition of Self-Defense,” (2008) 45 American Crim. LR 1 ff., 15 ff. 42

620   victoria nourse has dubbed this the “human rights” approach as it results in a “general duty to avoid the use of force where non-violent means of self-protection are reasonably open to the person attacked.”43 The libertarian counters that self-defense is necessary to protect personal autonomy. The libertarian impulse can be seen in social sentiments emphasizing the moral right to stand one’s ground.44 Historically, these two strands of self-defense have embedded themselves within differing claims of necessity. Empirically, neither the libertarian nor the pacifist has ever won the debate about self-defense: the doctrine embraces neither theory fully and never has. For some years, the pacifist position was highly influential among legal academics growing up in the law during the Warren Court years. They emphasized retreat rules, violence as last resort, and praised constitutional limitations on the use of violence to defend property. In fact, the law of self-defense does not now, and even in the late twentieth century, did not follow the pacifist model. If the law were to take seriously the notion that the defendant should always avoid excessive violence, it would not allow deadly violence in response to a non-deadly threat. Moreover, it would impose a duty, perhaps to warn, announce, or “shoot in the foot first” rule— and yet the doctrine has never openly endorsed such a rule. The libertarian view of necessity emphasizes the wrong inflicted on the defendant and his right to respond. The argument is that self-defense must recognize a polity’s aim to prevent “private warfare,” but if the law goes too far in discouraging self-help the citizenry will become the defense-less prey of the violent. As A. V. Dicey put it, “loyal subjects [will] become the slaves of ruffians.” Under the libertarian theory, the victim’s provocation is an assertion of superiority over the defendant which must be answered if for no other reason than to support the notion of the “right”—to acknowledge the defendant’s acts as those of the law-abiding. Recently, libertarian views have seen their ascendance in state legislatures adopting “stand your ground” laws. At least some of these laws were passed in jurisdictions that had no rule of retreat (in which case they simply repeat the law as it is); but in some jurisdictions, the “stand your ground” law goes far beyond where self-defense once lay, creating presumptions about charging and other matters addressed later. Just as the pacifist view does not account for modern doctrine, it would be wrong to say that the libertarian view describes current doctrine fully. For example, the law refuses to look solely to the “wrong” imposed on the victim. Instead, the law has littered self-defense with doctrines making clear that, despite the “wrong,” citizens cannot “take the law” proverbially into their own hands, but must defer to public authorities. Almost all the rules of self-defense can be redescribed in terms limiting   Andrew Ashworth, “Self-Defence and the Right to Life,” (1975) 34 Cambridge LJ 282 ff., 289.   In their empirical work on lay views of the criminal law, Robinson and Darley expressed consternation that “Americans, stereotypically, ‘stand their ground,’ and our subjects seem to want them to even when the legal codes say they should not,” Paul Robinson and John Darley, Justice, Liability, and Blame (1995), 60 ff. 43

44

self-defense   621 the wrongs the law of self-defense allows individuals to redress. A woman cannot open fire on an attacker a mile away, or respond with violence for a threat issued days earlier. Even in jurisdictions without a retreat rule, rules of substantial threat, adequate proportionality, and timely imminence protect society from “private warfare.” If the law were entirely libertarian in its views, then defendants would not be required to comply with these rules—any wrong might be redressed with private violence. Instead, the doctrine generally prefers that the defendant defer to the constable and refuses to “substitute the decision of the sword or the revolver” for the judge and jury.45

v.  Contemporary Controversies Two contemporary issues deserve special attention as their impact on self-defense law has been noted in public fora and sometimes contributed to public misunderstandings. Both are areas in which social norms have shifted over the past 50 years and so are likely sites of public and legal contestation. The first is feminism and self-defense; the second is “stand your ground” laws and the “right” to self-defense.

1.  Feminism and self-defense There is no question that feminism has had a significant impact on debates about self-defense whether in the public sphere or in the courtroom both in the United States and across the world. Prior to 1970, “the term ‘domestic violence’ referred to ghetto riots and urban terrorism, not the abuse of women by their intimate partners.”46 By the 1980s, newspaper readers could learn that high government officials had committed domestic violence and that police stood by, literally, as women lay prostrate before murderous husbands. In 1994, disclosure that football star and cultural icon O. J. Simpson had a history of battering his wife, who he was later alleged to have killed, was a “wake-up call,” for many.47 When this phenomenon first appeared in the national spotlight, public opponents rejected it as the extreme rhetoric of “women’s libbers.” Testifying before the   Nourse, (2001) University of Chicago LR 1274 ff.   Kit Kinports, “So Much Activity, So Little Change: A Reply to the Critics of Battered Women’s Self-Defense,” (2004) 23 Saint Louis University Public LR 155 ff. 47   Kinports, (2004) 23 Saint Louis University Public LR 155 ff. (“wake-up call”). On police, see Nancy Blodgett, “Violence in the Home,” (1987) 73 American Bar Association Journal 66 ff. (describing the 45

46

622   victoria nourse United States Senate in the late 1970s, now-Senator Barbara Mikulski acknowledged that there had been opposition to anti-battering legislation on the theory that shelters were havens for “runaway wives.”48 In 1979 and 1980, California’s Senator Alan Cranston’s efforts to fund battered women’s shelters failed. Opposition activists wrote that his funding law would create an “OSHA” for the family (referring to the Occupational Health and Safety Administration, a much-maligned bureaucracy governing workplace safety, seen as both hapless and overly regulatory).49 Howard Phillips, a think-tank pundit, warned that family violence had to be handled as it was in “the old days” by “private organizations, religious groups . . . families.”50 Conservative columnist James J. Kilpatrick went even further, expressing shock that the Senate would even consider an Act to “prevent domestic violence,” and declaring “I would like to commit some.”51 Today, this resistance is barely remembered because of the feminist movement’s success in changing the normative landscape, a landscape that inevitably affects the criminal law, and self-defense, through its “reasonableness” requirement. Today, violence against the vulnerable has been acknowledged and subject to various federal laws—including the Violence Against Women Act. In the international sphere, crimes such as rape and battering have been likened to human rights violations. Whether or not one applauds these developments, it is hard to say that, from 1970 to the beginning of the next century, feminism has not changed social norms about violence against women. Critics of feminism acknowledge this change, and even embrace it in some areas, such as rape law.52 During the 1970s and 1980s, the feminist critique painted with a broad brush. Feminists contended that self-defense, like rape, was governed by “boys’ rules,” built upon an image of a man fighting a barroom brawl and thus unable to comprehend the notion of repetitive, low-level, terroristic violence in the home.53 By the beginning of the twenty-first century, critics of feminism had come to acknowledge 1982 events involving the police and Tracey Thurman, a woman whose repeated requests for assistance were ignored, culminating in her brutal assault); on government officials, see Jerry Knight, “Passion, Pain in the Public Eye,” Washington Post (Mar. 4, 1985), WB1 (reporting the abuse of Securities and Exchange Commission Chairman John Fedders, arguably “the most important business regulator in Washington”). 48   Domestic Violence Prevention and Services Act, 1980:  Hearing Before the Subcommittee on Child and Human Development of the S. Committee on Labor and Human Resources, 96th Cong. 54 (1980) (statement of Representative Barbara Mikulski). 49   Victoria Nourse, “The Accidental Feminist,” in Martha Albertson Fineman (ed.), Transcending Boundaries of Law: Generations of Feminism and Legal Theory (2011), 339 ff., 341. 50   Judy Mann, “Help for Battered Wives Encounters Opposition,” Washington Post (May 9, 1980), B1. 51   James J.  Kilpatrick, “Wife-Beating and the U.S. Congress,” Baltimore Sun (Sept. 17, 1980), A19 (emphasis added). 52  See Joshua Dressler, “Feminist (or ‘Feminist’) Reform of Self-Defense Law:  Some Critical Reflections,” (2010) 93 Marquette LR 1475 ff. 53   Dressler, (2010) 93 Marquette LR 1480 ff.; Susan Estrich coined this term in rape law. Susan Estrich, “Rape,” (1986) 95 Yale LJ 1087 ff., 1091.

self-defense   623 this critique: it was deemed “uncontroversial” by one scholar that the “criminal law is, from top to bottom, preoccupied with male concerns and male perspectives,” because the “criminal law developed at a time when men, exclusively, served as judges and, later, legislators.”54 Feminists won the battle, but did they win the war? The real question was whether the law of self-defense put women in an unequal position. Feminists’ first attacked the “reasonable man” standard, arguing that it imposed unequal norms—that small women with lesser ability to use force were being judged by the standard of large men accustomed to using force. This crystallized into a claim that the law of self-defense should be more “subjective.” It is not at all clear whether “subjectification” was the proper strategy; on the one hand, it was criticized as giving women a “special” standard; on the other, that its subjectivity reinforced stereotypes about female vulnerability. A “subjectivity” approach left unanswered the question whether the law’s error was not its objectivity or subjectivity but enforcing social norms holding men and women to different legal standards. Given that the law of self-defense, like the law of almost every crim­ inal defense, depends upon the reasonable person, and the reasonable person is a proxy judgment about the norms of the day, it seems hard to believe that the law would not absorb stereotypical norms if, in fact, those norms allowed men to “commit some” domestic violence.55 In relation to whether subjectifying self-defense law was necessary to change social norms—to give one rather egregious example from this period—consider a case of a battered woman defendant who kills her husband in a battle. The only evidence at trial, including statements of an eyewitness, is that the parties are engaged in a struggle.56 This case should be easy: a “sudden affray” yields a viable self-defense claim. But, in this particular case, the trial judge instructed the jury that they had to decide the question of imminence. How is it possible that, in a mutual battle, a threat is not imminent? A careful reading of the opinion shows that the judge believed the defendant should have left the relationship earlier and, for that reason, the threat was not imminent. What is going on here is that certain norms about avoiding violence are being imposed on this woman: you should have gotten a divorce. The problem is that this norm is not the law; there is no duty to retreat from a relationship. If a man goes to a bar, knowing that there will be violence, no one asks whether he should not have gone to the bar in the first place, if he kills in self-defense during mutual combat. Unfortunately, the great debates about feminism and self-defense have tended to focus elsewhere—on a somewhat exotic, but troubling, prototype: the battered

  Dressler, (2010) 93 Marquette LR 1477.   55 Kilpatrick, Baltimore Sun (Sept. 17, 1980), A19.   The trial court’s judgment was reversed on appeal. Commonwealth v. Watson, 431 A.2d 949 (Pa. 1981); see Nourse, (2001) 68 University of Chicago LR 1246 ff. (discussing this case at length). 54

56

624   victoria nourse woman who kills a man during his sleep. There is fairly good empirical evidence that this kind of case is exceedingly rare. In general, the number of men who kill female spouses or partners exceeds the number of men killed by female spouses or partners; this is true today, despite a downward trend in killings perpetrated by women. More importantly, to the extent we have empirical evidence of legal cases involving domestic violence, they tend to be cases with analogs to standard male-on-male cases:  in both the barroom brawl and the domestic violence case, weak confrontational claims are asserted—the defendant is claiming he or she saw a gun or other weapon.57 Nevertheless, the image of the woman killing an innocent sleeping man has captivated the legal commentary on self-defense. Critics have claimed that, in such a case, to allow a claim of self-defense is to allow individuals the right “to execute dangerous people.”58 As is typical in heated debates, a serious question comes cloaked in flaming rhetoric. “Execution” is a term associated with the right of a “state” to execute an offender. To say that the law allows a woman the right to be an executioner is to damn her claim as acquiring the state’s power to determine who lives or dies. The rhetoric is doing more work than first appears. The problem in the rare sleeping man case is not whether the law is too subjective or what the reasonable woman would do—although the claim can be restated in these terms. The problem resides in the question whether the battered woman can be likened, in law, to the kidnap victim. We do not ask a kidnap victim to “wait” to kill her kidnapper. Why not? The kidnap victim cannot call the police and no one asks that she wait to kill until it would be safe to do so. Because the law has abandoned the victim, she need not defer to it; such is the claim of the battered woman who kills a sleeping man because the law had abandoned her. For example, in the infamous Judy Norman case, she sought help and was ignored. Norman suffered what can only be described as domestic “tyranny,” involving years of degrading abuse. She tried to commit suicide and the emergency responders refused to do anything when her husband threatened to kill her.59 In a world where the defendant is given the “right to commit” domestic violence (a world that existed at least up until the 1990s as a public norm), the victim claims she must be excused because she had no law to which to turn. This is not an easy question to answer, and can only be assessed in individual cases, but cannot be resolved by rhetorical flourish. Whether a defendant is an “executioner” is a conclusion, not an argument, and it is an argument about whether the defendant has wrongly taken from the state the power to use violence.   Holly Maguigan, “Battered Women and Self-Defense:  Myths and Misconceptions in Current Reform Proposals,” (1991) 140 University of Pennsylvania LR 379 ff., 397 (1991); Nourse, (2001) 68 58 University of Chicago LR 1235 ff., 1237 f.   Dressler, (2010) 93 Marquette LR Feminist 1490. 59   Victoria Nourse, “After the Reasonable Man: Getting Over the Subjectivity/Objectivity Question,” (2008) 11 New Crim. LR 33 ff., 38 f., 46 (describing this case). 57

self-defense   625

2.  “Stand your ground” laws and a “right” to self-defense In the United States, the feminist social movement to reform the criminal law, including the law of self-defense, began in the 1970s and reached its height at the end of the twentieth century. The social movement to enact “stand your ground” laws is one of the twenty-first century and is associated with the “gun rights” movement60 and the U.S. Supreme Court decision recognizing a “right to bear” arms. Even before the stand your ground movement reached full tilt, yielding over two dozen new laws in the first decade of the twenty-first century, these movements were linked in some minds. As one criminal law scholar explained in 2004, “the feminist war on crime,” has brought us to “ ‘strange crossroads’ in which femin­ ists and law-and-order advocates, such as the National Rifle Association and the Victims’ Rights movement seem at times to be—if you will pardon the expression— in bed together.”61 In fact, the stand your ground movement is widely controversial: its opponents claiming that the new laws make all homicides more difficult to prove, whether or not they involve domestic violence.

a)  “Stand your ground” laws and the common law In 2005, Florida passed one of the most notorious “stand your ground” laws, one which would later become the focus of attention because of a racially charged case involving the killing of a young black teenager, Trayvon Martin. Although purporting to codify the common law, there were significant departures from then-existent Florida law as well as the general doctrine of self-defense. The new law eliminated Florida’s duty of retreat; this in and of itself made Florida part of a majority of jurisdictions not imposing retreat. However, the law also added a “presumption” that a person using force in defense of home or automobile held a “reasonable fear of imminent death or great bodily harm.”62 This presumption has no common law analog—note the reference to cars. More importantly, even in the case of the home, there is no analog. The ancient castle doctrine never presumed imminent harm, only that the defendant did not have a duty to fly from his home in an unprovoked attack.63 Florida prosecutors and police officers claimed that the new law made the filing of charges in all homicide cases more difficult; given the presumption, it was difficult to determine probable cause to charge murder rather than manslaughter. This 60  Wayne LaPierre urged:  “It is both a liberty and a crime issue with a big political tailwind. Politicians are putting their career in jeopardy if they oppose this type of bill.” Andrew Metz, “NRA Axiom Now Fla. Law,” Newsday (Apr. 28, 2005), A27 (stating that the National Rifle Association (NRA) 61 planned to target 29 states).   Dressler, (2010) 93 Marquette LR 1476 (quoting others). 62   Catalfamo, (2007) 4 Rutgers Journal of Law & Public Policy 526. 63   Judith E. Koons, “Gunsmoke and Legal Mirrors: Women Surviving Intimate Battery and Deadly Legal Doctrines,” (2006) 14 Journal of Law & Policy 617 ff., 633.

626   victoria nourse raised questions about whether one should presume a reasonable fear of violence when the defendant was an aggressor or engaged in mutual combat. Although he had signed the law, former Governor Jeb Bush later explained that the law meant “stand your ground. It doesn’t mean chase after somebody who’s turned their back.”64 But the law’s terms were quite broad. That breadth fueled controversy when Florida prosecutors initially refused to charge George Zimmerman, a neighborhood watch volunteer, for the killing of young black man Trayvon Martin. It would be wrong to cast the stand your ground movement as a return to trad­ ition. First, the changes “stand your ground” laws made to the law of self-defense were not obviously necessary. In theory, it should be unnecessary to pass laws eliminating retreat in a majority of jurisdictions since those states do not have retreat rules. Even in jurisdictions requiring “retreat,” the defendant is only required to retreat when safe to do so; one trapped in the door of a car or in a small trailer, for example, has no duty to retreat because it is not completely safe to retreat. Secondly, there is no fixed tradition on retreat in the United States. The retreat rule, of all rules, has been the subject of enormous controversy. In the late nineteenth century, for example, no retreat was seen as “manly,” but this consensus came under scrutiny 50 years later as criminal law scholars wondered whether retreat was not the better view since it would avoid more violence, saving lives. Thirty years later, retreat came under attack by feminists who urged that it was often confused with retreat-from-the-relationship and imposed too great a burden on battered women. Thirty years after that came the stand your ground movement.65

b)  A right to self-defense? The stand your ground movement resonates with, but should be distinguished from claims that, after the Supreme Court’s decision in U.S. v. Heller,66 there is a “right” to self-defense. That decision held that there is a “right” to bear arms under the Second Amendment. Heller based that claim on frequent references to “self-defense,” appearing to affirm scholars’ inquiries about whether there is a constitutional “right” to self-defense.67 Some scholars have argued that such a right might be inferred from the Ninth Amendment, which reserves rights “to the people,” or through the due process clause (which more controversially allows the recognition of fundamental 64   “Jeb Bush: ‘Stand Your Ground’ Doesn’t Apply in Trayvon Case,” Newsmax, Mar. 24, 2012, available at: . 65   Manuel Roig-Franzi, “Fla. Gun Law to Expand Leeway for Self-Defense,” Washington Post (Apr. 26, 2005), A1; see also Jacqui Goddard, “Florida Boosts Gun Rights, Igniting a Debate,” Christian Science Monitor (May 10, 2005), 2 (noting that the NRA chose Florida to launch this gun initiative); 66 Metz, Newsday (Apr. 28, 2005), A27.   District of Columbia v. Heller, 554 U.S. 570 (2008). 67   Boaz Sangero, “Heller’s Self-Defense,” (2010) 13 New Crim. LR 449 ff., 481 ff.

self-defense   627 rights as a matter of substantive due process).68 Heller itself does not establish a right to self-defense. The legal question is whether it does or should by implication. The concept of “right” in U.S. jurisprudence tends, in popular discourse, to suggest an absolute freedom the law has never recognized. (One does not have the right, for example, to shout “Fire!” in a theater, even though there is a “right” to free speech.) Even if one had the “right” to self-defense, that would not mean that the right would not be cabined by principles of proportionality, imminence, and threat.69 In European criminal law, this distinction is a good deal clearer as defendants are often granted rights to self-defense which are then forfeited when the defendant has “abused” that right, thus allowing both for the recognition of the generality of a right and at the same time that individuals may not rely upon the right in all cases.70 U.S. law has not accepted an entirely libertarian theory of self-defense. Claims for a “right” to self-defense, based on tradition, should recognize that self-defense, at common law, was not unlimited.71 A short perusal of Blackstone should suffice to demonstrate this point. U.S. law has never allowed individuals to exercise rights to the detriment of others even in the most “conservative” of rights’ eras.72 There are good reasons grounded not only in liberty but also in political theory supporting self-defense as foundational. By the term “foundational,” it is meant that self-defense is basic to the nature of republican government. Long before the Supreme Court decided Heller, powerful theoretical arguments supported self-defense not only because it enhances individuals’ liberty, but also because a state refusing to recognize self-defense and protect its embattled citizens would become an intolerable dictatorship of the strong. If a state imprisons those who strike back when victimized, it sends a message to the strong that they may rule by violence. Political philosophers from Hobbes to Locke have warned of a life “of war”73 in a world where strength prevails. The constitutive nature of self-defense is not unlimited. A  state that puts aggressors in jail protects its citizens, laying the groundwork for peaceful coexistence and government. A state that puts innocents in jail (think of the former Soviet Union or Communist China) raises the possibility of dark and violent dictatorship. If this is correct, self-defense may be fundamental not only to individuals but also in a “constitutive”   Eugene Volokh, “State Constitutional Rights of Self-Defense and Defense of Property,” (2007) 11 Texas Review of Law & Politics 399 ff., 415. 69   Volokh, (2007) 11 Texas Review of Law & Politics 413 (“Like other rights, the right to self-defense 70 might also be subject to various regulations. . . . ”).   Fletcher, (1985) 98 Harvard LR 952 ff. 71   Accord Volokh, (2007) 11 Texas Review of Law & Politics 412. 72   See generally Victoria Nourse, “A Tale of Two Lochners: The Untold History of Substantive Due Process and the Idea of Fundamental Rights,” (2009) 97 California LR 751 ff. (distinguishing between the public discourse of right, on the one hand, and the legal discourse of right, on the other). 73   Thomas Hobbes, Leviathan ([1651] 1929), ch. XIII, para. 8 (“during the time men live without a common Power . . . they are in that condition which is called [war]”). Locke believed that if men were left to private punishment, they would exempt themselves, indulge their friends, and punish too severely. John Locke, The Second Treatise of Government ([1690] ed. Thomas P. Peardon, 1952), ch. 2, para. 13. 68

628   victoria nourse sense, which is to say that, when considering the law, we ask not only how the law affects the defendant (the individualization inquiry) or determines the relationship between the defendant and the victim (the normative inquiry) but also the kind of world and government the law is likely to constitute or create (the constitutive inquiry). To argue that self-defense, like other defenses, has constitutive effects, is not to argue that there is a “right” of self-defense. It is to argue that criminal law defenses, like all legal rules, have collateral institutional effects; in this sense, the individual’s fate is linked to the polity. In one of his most famous essays,74 John Rawls argued that the standard tools of punishment discourse—retribution and deterrence— reflect institutional assumptions: retribution tends to assume a retrospective, individualized inquiry while deterrence tends to favor the ideal of the legislator who looks forward to the general needs of the polity. To dramatize the difference, Rawls posits a political system dubbed “telishment”—a system of moral atrocity punishing the innocent. Rawls argues that rules of telishment are not only bad for individuals but also bad for everyone because they create offices and institutions governing the practice of punishment affecting those subject to the rule and the polity more generally. Once one sees that “one is involved in setting up an institution,”75 the systemic hazards become clear; not only do the innocent suffer but the entire political order suffers as institutions and offices are created to punish the innocent. This argument helps us to see how it is that self-defense implies something larger than a question about individuals and why it is likely to continue to give rise to controversy in the United States and around the world.

References Ashworth, Andrew, “Self-Defence and the Right to Life,” (1975) 34 Cambridge LJ 282, 289 Blackstone, William, Commentaries on the Laws of England, iv (1979), 178 ff., 187 Braman, Donald and Kahan, Dan, “The Self-Defensive Cognition of Self-Defense,” (2008) 45 American Crim. LR 1, 15 ff. Dressler, Joshua, “Feminist (or ‘Feminist’) Reform of Self-Defense Law:  Some Critical Reflections,” (2010) 93 Marquette LR 1475 Fletcher, George, “The Right and the Reasonable,” (1985) 98 Harvard LR 949 Garvey, Stephen P., “Self-Defense and the Mistaken Racist,” (2008) 11 New Crim. LR 119 Maguigan, Holly, “Battered Women and Self-Defense: Myths and Misconceptions in Current Reform Proposals,” (1991) 140 University of Pennsylvania LR 379, 397 Nourse, Victoria, “The New Normativity: The Abuse Excuse and the Resurgence of Judgment in the Criminal Law,” (1998) 50 Stanford LR 1435 Nourse, Victoria, “Self-Defense and Subjectivity,” (2001) 68 University of Chicago LR 1235 Robinson, Paul and Darley, John, Justice, Liability, and Blame (1995)   John Rawls, “Two Concepts of Rules,” in Samuel Freeman (ed.), Collected Papers (1999), 20 ff.   Rawls (n. 74) 27 f.

74 75

­c hapter 28

THE DEFENSE OF CONSENT vera bergelson

i.  Introduction to the Defense of Consent The concept of consent is central to many areas of law. In criminal law, consent of the victim may exonerate the perpetrator charged with an offense that involves intrusive, harmful, or offensive conduct with respect to that victim. That may happen in two sets of circumstances:  one, when consent of the victim negatives an element of the offense, and two, when it prevents the infliction of the harm or evil which the criminal statute seeks to prevent.1 In the first case, consent leads to the failure of proof defeating the charges of such offenses as rape, theft, or kidnapping. In the second case, consent serves as an affirmative defense to what would otherwise be a criminal act. For example, consent to a boxing match may shield its participants from criminal liability for assault and battery. Some jurisdictions explicitly recognize the general defense of consent by their statutes whereas other jurisdictions have incorporated the concept of consent in the Special Part of their penal codes, making non-consent an element of an offense or providing for the defense of consent with respect to specific crimes. Where the

  Model Penal Code (1980) § 2.11.

1

630   vera bergelson statute does not explicitly mention consent, case law usually explains in what circumstances the consent of the victim may function as a defense.2 In recent years, the question of the role of consent in criminal law has moved to the forefront of public, legislative, and academic debates in a number of countries due to a series of high-profile criminal trials, which involved consenting victims in various contexts—from sadomasochism (e.g. R.  v.  Brown)3 and cannibalism (the case of Armin Meiwes)4 to experimental medical treatment (e.g. People v. Brown),5 and mercy killing (e.g. People v. Kevorkian).6 In all those cases, courts disregarded the consent of the victims and convicted the defendants. Those decisions exposed the need to develop consistent rules of consent. For example, R. v. Brown, in the words of Law Commission for England and Wales, “cast fresh light on the unprincipled way in which [the rules of consent] had developed, and revealed considerable disagreement about the basis and policy of the present law, its detailed limits and its scope for future development.”7 This chapter has its goal in reviewing the current law and doctrine of consent and proposing some changes to both.

ii.  What Is Consent? Few doctrines of criminal law involve as many controversies as the doctrine of consent—starting with the very basic question:  what is consent? Is it one’s inner thoughts (attitudinal consent) or one’s act, manifestation of acquiescence (expressive or performative consent)? For example, in a prosecution for rape, what should determine the defendant’s guilt or innocence—the victim’s state of mind or the victim’s actions and words? Advocates of the attitudinal approach usually argue that criminal law should rely on the parties’ true feelings because those feelings determine whether or not the victim has been wronged. How can we say that a person was raped if that person tacitly welcomed the sexual act? Consent, they maintain, is like belief; and belief   Vera Bergelson, “The Right to Be Hurt:  Testing the Boundaries of Consent,” (2007) 75 George 3 Washington LR 165.   R. v. Brown [1994] 1 A.C. 212 (H.L.). 4   The Case of Armin Meiwes, BGH (Bundesgerichtshof, German Federal Court of Justice), May 26, 5 2004, 49 BGHSt 166.   People v. Brown, 01 S.O.S. 3877 (Ca. App. 2001). 6   People v. Kevorkian, 639 N.W.2d 291 (Mich. Ct. App. 2001). 7   Law Commission, Criminal Law: Consent in the Criminal Law (Law Com Consultation Paper No. 139), 1.  The Commission has analyzed numerous cases, attempting to develop general principles of the law of consent but the attempt proved to be largely unsuccessful. No legislative recommendations were issued. In 2001, the Commission admitted its inability to reach a consensus and terminated the consent project. 2

the defense of consent    631 may be present or absent regardless of its expression. This understanding of consent is reflected, for example, in the definition of sexual assault adopted by the Canadian Criminal Code. “In making it an offense for a person to have sexual intercourse with another without the latter’s ‘consent,’ the Canadian Parliament defines consent as a choice the latter person subjectively experiences—as opposed to a choice she objectively manifests.”8 The adherents of the expressive theory of consent disagree. In their view, consent is an act, not a belief. It is like “I do” in the exchange of marital vows. For them, consent does not describe the state of events but rather creates a new normative reality: patients may not give physicians consent to surgery without communicating their acquiescence. In the same sense, consent to a sexual act must be explicit, and not merely mental, in order to negate a charge of rape. This view has been incorporated into the definition of rape included in the Crimes Act adopted in Victoria, Australia.9 The difference between the two theories of consent has deep roots and essentially stems from the understanding of the goals and justification of punishment. The attitudivists focus on the wrongful harm to the victim and put the burden on the state. For them, criminal law is largely driven by the goal of protecting people’s autonomy. The state is justified in employing the harshest and most intrusive powers against an individual by the overarching need to enforce the rights and obligations of all members of society. Consent involves changing the balance of those rights and corresponding obligations. So, if a rational and responsible putative victim B mentally gave his free and voluntary approval (even without expressing it) to A’s act, then B was not wronged. B was not wronged, even if he was objectively harmed, that is, his interests were set back (say, upon B’s request, A destroyed B’s valuable stamp collection). And if the putative victim was not wronged, the perpetrator did not commit the crime charged.10 In contrast, the performativists focus not on the victim but on the perpetrator, and ultimately on society at large. For them, consent is relevant mainly because it changes the perpetrator’s reasons for action, in other words, for them the essence of the crime is not the violation of the rights of an individual victim but the perpetrator’s moral/social transgression. Regardless of the victim’s idiosyncratic choices, we, all of us, are harmed when the perpetrator acts for a wrong reason. Thus, in a prosecution for rape it is unimportant that the victim tacitly welcomed the sexual act. The defendant was not aware of the victim’s inner thoughts and acted, at a minimum, with reckless disregard for the victim’s autonomy. He is, therefore, subjectively culpable (wrong), and is as dangerous and deserving of 8   Peter K. Westen, “Some Common Confusions About Consent in Rape Cases,” (2004) 2 Ohio State Journal of Crim. Law 332, 336. 9   Simon Bronitt, “The Direction of Rape Law in Australia: Toward A Positive Consent Standard,” 10 (1995) 18 Crim. LJ 249, 253.   Whether the crime was attempted is a separate question.

632   vera bergelson punishment as any other perpetrator who was not so atypically lucky with respect to his victim’s feelings. In recent years, there has been a distinct trend in favor of the performativist model of consent, particularly in the area of sexual crimes. Many jurisdictions worldwide have revised their laws to define consent as an explicit affirmative permission given by words or actions.

iii.  The Requirements of Valid Consent To be valid, consent must be rational and voluntary, that is, freely given by a person legally competent to give consent and informed. Certain groups of people (e.g. children, mentally ill, intoxicated), in most instances, are deemed incapable of granting valid consent. Consent obtained by duress or fraud regarding the nature of the perpetrator’s act is void ab initio.11 Consent must be present and continuous; once given but later revoked consent is invalid. Finally, in many jurisdictions, consent to harmful conduct is deemed valid only to the extent that such conduct or harm does not violate public policy or good morals.

1.  Legal competence The requirement of legal competence is relatively uncontroversial and easier to classify legislatively than the other requirements. However, even that requirement raises questions of the degree of one’s competence. Those questions often arise when the victim is mildly to moderately mentally retarded or when the victim has given consent while under the influence of drugs or alcohol.12 Most states in the United States disregard the victim’s consent if the victim has been significantly incapacitated by drugs or alcohol given to the victim by the defendant. However, many U.S. rape statutes do not impose liability if the victim was in an incapacitated condition short of complete unconsciousness due to someone else’s actions. In the United Kingdom, too, “drunken consent is still consent.” The court in R. v. Bree held that this phrase “provides useful shorthand accurately encapsulating the legal position according to which a person who is very drunk is capable of consenting and when someone who has had a lot to drink is in fact consenting to intercourse, then that is what she   See e.g. American Law Institute, Model Penal Code and Commentaries (1980), § 2.11(d)(3), § 2.11, 3.   Deborah D. Denno, “Sexuality, Rape and Mental Retardation,” (1997) University of Illinois LR 315, 434; Alan Wetheimer, Consent to Sexual Relations (2003). 11

12

the defense of consent    633 is doing, consenting.”13 That position has been sharply criticized. One scholar has argued that, “As a matter of normative fact, one which is based on empirical and medical research, a drunken consent should not be recognised as legal consent.” In her view, in order to establish whether consent should be recognized, “two questions need to be asked: (1) was the victim drunk so as to make her incapable of giving a valid consent? If so, then (2) did she consent to sex before getting drunk? If no such consent was given, then it should be concluded that no consent to sex was given in accordance with [the law].”14 Another set of questions involving legal competence has been raised in connection with the age of consent. Currently, most countries specify it as a fixed age, which may be as low as 13 (e.g. in Japan or Spain) or as high as 20 (Tunisia) but is most commonly set between 16 and 18 (e.g. the United States). An argument has been made that the law needs to take into account the realities of sexual interactions among teenagers and shield them from criminal punishment for consensual sex.15 The story of an American teenager Genarlaw Wilson has been often cited as an illustration of the harshness of the existing laws regulating sexual behavior of minors: the young man was given a mandatory ten-year sentence for having had consensual oral sex with a 15-year-old girl when he was 17. Wilson’s sentence was eventually changed from a felony to a misdemeanor and he was released from prison but not before he had already served two years of his sentence.16 Some jurisdictions have addressed the issue by providing that sexual conduct with a minor is not to be punished if the partners are of similar age and development. For example, the age of consent in Finland is 16, but the law states that, even beyond that, the act will not be punished if “there is no great difference in the ages or the mental and physical maturity of the persons involved.”17

2.  Free, rational, and informed consent a) Force The circumstances under which consent is given must be free of force, duress, or deception. This requirement has had a more contentious history, particularly in   R. v. Bree [2007] EWCA Crim. 804, [2007] 2 Cr. App. R. 13.   Shlomit Wallerstein, “A Drunken Consent Is Still Consent’—or Is It? A Critical Analysis of the Law on a Drunken Consent to Sex Following Bree,” (2009) 73 Journal of Crim. Law 318, 344. 15  William Saletan, “The Mind-Booty Problem. Rethinking the Age of Sexual Consent,” available at: . 16   Brenda Goodman, “Georgia Supreme Court Hears 2 Appeals in Teenage Sex Case,” The New York Times, July 21, 2007, available at: . 17   Age of Consent, “FINLEX ®—Translations of Finnish acts and decrees: 39/1889 English.” Finlex.fi. 2009-05-29 (as at Jan. 14, 2013). 13

14

634   vera bergelson connection with allegations of rape and sexual assault. The major question in this regard has been how to define force. The diverging interpretations have ranged from viewing force as “physical compulsion necessary to overcome the resistance of the victim”18 to any compulsion, including “physical, intellectual, moral or psychological.”19

b)  Rationality and voluntariness From time to time, courts have refused to recognize the validity of consent, arguing that it must have been irrational or involuntary, even in the absence of direct compulsion. In People v.  Samuels, for example, the defendant was convicted of aggravated assault for whipping an apparently willing victim in the course of the production of a pornographic movie. The case was complicated by the fact that the victim could not be found to confirm his consent. However, the court dismissed the very possibility of such consent, saying: “It is a matter of common knowledge that a normal person in full possession of his mental faculties does not freely consent to the use, upon himself, of force likely to produce great bodily injury.”20 The Samuels’s logic is a disturbing example of circular reasoning: according to this court, a person who consents to X is insane because one has to be insane to consent to X. After the victim’s insanity is thus established, the conviction follows automatically because the consent of an insane person is invalid. Similarly, courts often distrust the rationality and voluntariness of the victim’s choice when they disprove of the consented to activity. In the British case of R. v. Brown, the defendants were members of a gay sadomasochistic club. Among the articulated reasons for their conviction was that the court perceived the consent of the masochists in the group as “dubious or worthless,” suggesting that those individuals were younger than the men on the sadist side and psychologically vulnerable.21 Yet the most serious debates about the rationality and voluntariness of consent arise in connection with assisted suicide and mercy killings. It is well documented that those who attempt suicide usually suffer from depression or other mental disorders. Frequently people feel particularly vulnerable due to constant pain, and this vulnerability may be exploited by others. Most penal laws proscribe euthanasia and assisted suicide. Voluntary euthan­ asia is currently legal only in the Netherlands, Belgium, and Luxembourg. Assisted suicide is legal in Switzerland and (in a very narrow form) in the U.S.  states of Washington, Oregon, Vermont, and Montana. In most countries, however, a person who helps another to die or who actually does the killing is subject to criminal

  Gibbins v. State, 495 S.E.2d 46, 48 (Ga. App. 1997).   State in the Interest of M.T.S., 609 A.2d 1266 (N.J. 1992). 20   People v. Samuels, 58 Cal. Rptr. 439, 447 (Ct. App. 1967). 18

19

  Brown (n. 3).

21

the defense of consent    635 prosecution for homicide and the consent of the dying person is not recognized as a defense in such prosecution. Those who support the current law maintain that the “difficulty in defining terminal illness and the risk that a dying patient’s request for assistance in ending his or her life might not be truly voluntary justifies the prohibitions on assisted suicide.”22 Others, however, argue that when the reason for a criminal ban lies in an uncertainty regarding the validity (voluntariness and rationality) of an individual’s consent, the law should be directed at those uncertainties by demanding persuasive proof of the valid consent and not by taking away the power to give it.23

c) Fraud Finally, courts have struggled with drawing the line between consent obtained by morally reprehensible but non-criminal psychological pressure or untruthfulness, on the one hand, and punishable threats or deception, on the other. All legal systems provide that fraud regarding the fact itself (fraud in the factum) vitiates consent; however, in most legal systems, consent is valid if the deception relates not to the thing done but merely to some collateral matter (fraud in the inducement).24 In the U.S. case of Boro v. Superior Court, the male defendant lied to the female victim that she had a life-threatening disease which could be cured by having sexual intercourse with a donor who had been injected with a “serum.” The defendant pretended to be such a donor and the victim consented under the mistaken belief that otherwise she would die.25 The defendant was prosecuted on several charges, including rape. That charge failed, however, as the court held that fraud in the inducement did not vitiate consent. The court characterized the defendant’s lies as fraud in the inducement because the deception related not to the nature of the sexual intercourse but merely to the incentive for having that intercourse. A different rule, such that invalidates consent in cases of any fraud, including fraud in the inducement, has been adopted in Israel. In 2008, the High Court of Justice set a precedent on “rape by deception” when it upheld the rape conviction of a defendant who had been impersonating a senior government official and who had been promising women apartments and increased social security payments in exchange for sex.26 The precedent was affirmed two years later in the case of a   Washington v. Glucksberg, 138 L. Ed. 2d 772, 738 (O’Connor, J., concurring) (1997).   See e.g. Franklin G. Miller et al., “Regulating Physician-Assisted Death,” (1994) 331 New England 24 Journal of Medicine 119, 120.   Perkins and Boyce (n. 1) 1079. 25   Boro v. Superior Court, 163 Cal. App. 3d 1224 (1985). 26   Tomer Zarchin, “Jurists say Arab’s rape conviction sets dangerous precedent,” Haaretz, July 21, 2010, available at: . 22 23

636   vera bergelson Palestinian man who had lied about his ethnic/religious background and marital status in order to have sex with a young Jewish woman.27 Some jurisdictions choose an intermediate approach and recognize fraud in the inducement in narrowly defined circumstances. For example, in the aftermath of Boro, California revised its Penal Code, and today sexual intercourse is qualified as rape if the perpetrator has obtained the victim’s consent through the “fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose.”28

3.  Duration of consent Suppose a person has waived certain rights by issuing valid consent, should that consent remain valid until the action to which he consented is completed? This question implies two separate inquiries—one dealing with the validity of remote consent, and the other with the revocability of consent. The first inquiry literally acquires life-and-death dimensions when it comes up in connection with decisions recorded in living wills. Standard forms of living wills are either silent on duration or explicitly provide for unlimited duration. Like wills of property, they become operative at some indefinite time in the future, thus the problem of remote consent is built into the very structure of a living will. As Kenney Hegland phrased it, the “root problem, the unsolvable problem, is that living wills are written long before they come into play: We are asked to decide now what we want then, and we don’t have much of a clue. The stuff of a Greek tragedy.”29 Indeed, a 30-year-old person signs a living will requesting to be allowed to die if he should ever be in a certain medical condition. At the age of 60, he suffers a stroke and finds himself in that exact condition, no longer capable of signing a new consent form. In the intervening 30 years, many things have changed, starting with the man himself and ending with medical prospects and methods of care for bedridden patients. Should his living will still be respected? Should the doctor who respected that will and refused to treat the patient with a simple antibiotic despite the pleas of the patient’s family be prosecuted? If so, should the doctor be allowed to raise the defense of consent even though that consent was given 30 years earlier? Many have argued that the terms of a living will should be respected even in these difficult circumstances: “In virtue of the extended temporal bounds of de jure sovereignty . . . , a competent autonomous person may consent for his future as well

  Rachel Shabi, “Arab rape-by-deception charge ‘was result of plea bargain’,” The Guardian, Sept. 8, 2010, available at: . 28   California Penal Code § 261(a)(4)(D). 29  Kenney Hegland, “Suggestions, Not Demands:  Rethinking Living Wills,” (2004) 41 Arizona Attorney 14, 15. 27

the defense of consent    637 as his present self.”30 This argument is persuasive. After all, prospective autonomy is well established in various areas of law. For example, if a competent person agreed to undergo surgery, his consent would remain valid while he is under general anesthesia the next day. The same would be true if the surgery were to take place in a week or a month. “Unless there were some material reasons to think that the patient had altered his or her decision, the initial, competently made instruction would govern.”31 The view that remote consent should be valid is not uniformly held, however. Consider a recent Canadian case, R. v. J.A., in which a couple had been experimenting with erotic asphyxiation. One night “J.A. placed his hands around the throat of his long-term partner K.D. and choked her until she was unconscious.”32 He then proceeded to engage in various sexual acts. Two months later K.D. made a complaint to the police and stated that while she had consented to the choking, she had not consented to the sexual activity that followed. She later recanted her allegation, saying that she had made the complaint because J.A. had threatened to seek sole custody of their young son. Nevertheless, J.A.  was convicted of sexual assault; the appellate court reversed the conviction and the case reached the Supreme Court of Canada on the issue “whether a person can perform sexual acts on an unconscious person if the person consented to those acts in advance of being rendered unconscious.” The majority affirmed the conviction stating that the Canadian Criminal Code protects the right of an individual “to consent to particular acts and to revoke her consent at any time,” and does not allow individuals to consent to sex if they are not conscious. The dissenting opinion, however, pointed out the far-reaching implications of such a rule, saying:  “Notably, it would criminalize kissing or caressing a sleeping partner, however gently and affectionately. Prior consent, or even an explicit request—‘kiss me before you leave for work’—would not spare the accused from conviction.” It appears that, in this decision, the Supreme Court of Canada had to choose between a person’s future and present abilities to make autonomous decisions—and preferred the latter. To support this choice, the Supreme Court relied on the statutory definition of consent which “does not extend to advance consent to sexual acts committed while the complainant is unconscious.” According to the majority, the legislation required “ongoing, conscious consent to ensure that women and men are not the victims of sexual exploitation, and to ensure that individuals engaging in sexual activity are capable of asking their partners to stop at any point.” As import­ ant as this objective is, the decision raises the question of permissible boundaries of state paternalism with respect to rational adult individuals: if a person desires   Hegland, (2004) 41 Arizona Attorney 14.   Norman L. Cantor, Advance Directives and the Pursuit of Death with Dignity (1993), 27. 32   R. v. J.A. [2011] 2 SCR 448. 30 31

638   vera bergelson temporarily to suspend his right to contemporaneous control over his body, what gives the state the authority to override his autonomy? The other important issue pertaining to the temporal boundaries of consent involves its revocation. All laws recognize a person’s power to revoke sexual consent at any time. In all jurisdictions, the defendant would not be allowed to claim the consent of the victim as his defense if that consent was later revoked. The consequences of such revocation, however, would not be uniform. In some jurisdictions, continued intercourse after the revocation of consent would qualify as rape; in other jurisdictions it would not.33 One court explained: The essence of the crime of rape is the outrage to the person and feelings of the female resulting from the nonconsensual violation of her womanhood. When a female willingly consents to an act of sexual intercourse, the penetration by the male cannot constitute a violation of her womanhood nor cause outrage to her person and feelings. If she withdraws consent during the act of sexual intercourse and the male forcibly continues the act without interruption, the female may certainly feel outrage because of the force applied or because the male ignores her wishes, but the sense of outrage to her person and feelings could hardly be of the same magnitude as that resulting from an initial nonconsensual violation of her womanhood.34

More recent decisions have criticized that reasoning as being based on archaic and outmoded social conventions and ruled that a defendant is guilty of forcible rape if, “during apparently consensual intercourse, the victim expresses an objection and attempts to stop the act and the defendant forcibly continues despite the objection.”35 The amount of time deemed reasonable following a request to stop unwanted activity certainly depends on the circumstances. It may be a few hours in the context of revoked permission to use a person’s car and a few moments in the context of unwanted sexual intercourse. In Re John Z., the defendant argued that the act of sexual intercourse arouses a male’s primal urge to reproduce; it is therefore, “unreasonable for a female and the law to expect a male to cease having sexual intercourse immediately upon her withdrawal of consent. It is only natural, fair and just that a male be given a reasonable amount of time in which to quell his primal urge.” The court rejected the primal urge argument and opined that the defendant’s failure to withdraw for four or five minutes after the victim’s first request was not reasonable.36 Similarly, in State v.  Bunyard, the court held that, “When consent is withdrawn, continuing sexual intercourse for five to ten minutes is not reasonable and constitutes rape.”37

  See e.g. State v. Way, 254 S.E.2d 760, 762 (N.C. 1979).   People v. Vela, 172 Cal. App. 3d 237, 243 (1985). 35   In re John Z., 29 Cal. 4th 756, 786 (2003). See also, State v. Robinson, 496 A.2d 1067, 1070–71 (Me. 1985); McGill v.  State, 18  P.3d 77, 84 (Alas. App.  2001); State v.  Bunyard, 75  P.3d 750, 756–757 (Kan. 36 37 App. 2003).   John Z. (n. 35) 763.   Bunyard (n. 35) 756. 33

34

the defense of consent    639 Douglas Husak has suggested that perhaps rape is too harsh a charge when “a woman agrees to have sex with a man, allows him to penetrate her, but changes her mind and asks him to stop in the midst of sexual intercourse.”38 Husak thought that, in those circumstances, the perpetrator’s fault might be mitigated due to the victim’s initial consent. This suggestion appears flawed. The perpetrator may be entitled to mitigation based on the victim’s conduct only when the victim is partially responsible for the resulting harm. The victim may be partially responsible when the victim either assaults an important right of the perpetrator (as in cases of provocation) or assumes the risks inherent in the consented to conduct (as, say, in drug race cases). Accordingly, a perpetrator in a post-penetration rape might be entitled to mitigation if he had a right that his sexual partner would continue the intercourse as long as the perpetrator desired or if his sexual partner had to assume the risk of forcible sexual intercourse. But the perpetrator does not have this right. By consenting to undergo root canal procedure or attend a friend’s poetry reading, one does not acquire the obligation to go through the painful experience until the very end. Moreover, one does not assume the risk that the dentist will continue drilling despite the patient’s desperate objections. It seems obvious that the same should be true for sexual contact, regardless of the reason for the request to stop—pain, psychological discomfort, or anything else.

4.  Public policy The requirement that the consented to conduct does not violate public policy allows courts or the legislature to deny the defendant a defense of consent if they conclude that such conduct is harmful or immoral. For example, the German Criminal Code provides: “Whoever commits bodily injury with the consent of the injured person only acts unlawfully if the act is, despite the consent, contrary to good morals.”39 Violation of an important public policy or good morals has been a traditional ground for legislation criminalizing such vices as gambling, prostitution, drug distribution, fornication, adultery, and incest, regardless of whether the prohibited conduct is consensual. A  commentary to the U.S. Model Penal Code lists more offenses to which an individual may not give valid consent. The most prominent among them is homicide—the victim’s consent to being killed does not exculpate 38   Douglas N. Husak, “Comparative Fault in Criminal Law: Conceptual and Normative Perplexities,” (2005) 8 Buffalo Crim. LR 523, 540. 39  § 228 StGB (Strafgesetzbuch, German Criminal Code), available at:  .

640   vera bergelson the perpetrator. Other offenses include riot, escape, breach of the peace, bribery, and bigamy.40 Interestingly, the reasons for denying the defense of consent in the case of homicide have little in common with the reasons for denying the defense in the other cases. If we look closely at the group of offenses from riot to bigamy and from gambling to prostitution, it will be clear why consent may not work as a defense. There is simply no identifiable victim who would be able to give consent and thus legitimize the defendant’s conduct. Or, put differently, the victim is the general public, and the general public has already spoken out by adopting a law proscribing the respective behavior. Homicide is unlike that. There is a specific victim in each act of homicide, the person who was killed. Therefore, it is not the lack of a subject capable of waiving his rights that explains why homicide may not be consented to. The reasons are probably partly historical and partly pragmatic. Historically, at least in Western culture, the non-recognition of consent to killing can be explained by the influence on criminal law of Christianity and the Christian moral philosophy that did not view the life of an individual as his own. Blackstone, for example, postulated that one’s natural life, being “the immediate donation of the great Creator, cannot legally be disposed of or destroyed by any individual, neither by the person himself, nor by any other of his fellow-creatures, merely upon their own authority.”41 Suicide was a crime; therefore, the victim of a consensual killing was, in fact, the perpetrator’s co-conspirator and accomplice. Naturally, consent of a co-felon did not suffice to obliterate the criminal nature of the act. This logic, however, holds little force today because, in the overwhelming majority of jurisdictions, suicide is no longer a crime. Accordingly, there is a strong argument that assisting in a legal act should not be a crime either. The other explanation for invalidating consent to homicide deals with the already discussed fear of abuse and manipulation of people in a situation or state of mind in which they are not capable of making rational choices of that magnitude. These concerns ought not to be lightly discarded. And the state certainly has an interest in protecting “vulnerable groups—including the poor, the elderly, and disabled persons—from abuse, neglect, and mistakes.”42 An argument can be made, however, that it is important to distinguish a rule from the abuse of that rule. The abuse is something that is not the rule, that is outside the rule. After all, anything, even a good thing, can be abused and turned into a bad thing, but that is not a reason to prohibit the good thing itself.

  Model Penal Code and Commentaries (1980) § 2.11, 1.   William Blackstone, Commentaries on the Laws of England (1765–1769), 133. 42   Glucksberg (n. 22) 731–732. 40 41

the defense of consent    641 One could say that, by criminalizing assisted suicide, society significantly reduces the number of instances when suicide is actually committed.43 But even if this were true, as much as the reduction in death is desirable, it certainly comes at a price: by denying individuals the power to exercise control over their end-of-life decisions, society imposes on them substantial pain and indignity. According to the recent U.S. Supreme Court jurisprudence, an individual has no constitutionally protected right to assisted suicide,44 yet he may have the right to starve himself to death.45 It is plausible that fewer people choose this torturous way of dying compared to the number of those who would choose death by lethal injection. Should that persuade us that criminalization of assisted suicide is justified? To answer this question, conduct a mental experiment. Suppose that a legislature considers a Bill promoting a new level of capital punishment for particularly egregious crimes: death by starvation. Assume further that the Bill is accompan­ ied by a convincing study, which shows that by this simple change in the form of the death penalty we can reduce the violent crime rate by 50%. Deterrence is one of the main priorities of criminal justice; however, it is highly unlikely that the reduction of crime (and even the accompanying reduction in the number of death penalties) would help such a Bill to pass. Accordingly, there is a strong argument that, if we are unwilling to make criminals suffer a painful and degrading death despite the potential decrease in the number of murders and executions, how can we use the same numerical argument to prohibit humane forms of dying to non-criminals? Finally, as Joel Feinberg has insightfully pointed out, denying an individual the right to assisted suicide leads to absurd results in any jurisdiction that recognizes the death penalty. A person wishing to die can achieve his goal only by murdering someone else and thus forfeiting the right to life which he cannot alienate voluntarily. And a person wishing to die with someone else’s help can receive that help from one person only, his executioner. The law’s rejection of consent to killing is the ultimate expression of a more general rule which does not recognize an individual’s consent to any serious self-regarding harm. Under this rule, one may not lawfully agree to be maimed or tortured. Thus, the defendant charged with maiming or torturing his consenting victim may not use that consent as a defense. Similarly, one may not agree to a fist fight or duel. Thus, the parties to such a fight or duel may not claim each other’s consent as a defense. To understand the true reasons for this rule, it would be instructive to look at its history, modern application, and rationales.

43   Glucksberg (n. 22) (“The State has an interest in preventing suicide, and in studying, identifying, 44 and treating its causes”).   Glucksberg (n. 22) 736 (O’Connor, J., concurring). 45  See Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 279 (1990).

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iv.  The Past and Present of the Defense of Consent Historically, the principle underlying the defense of consent, volenti non fit injuria (“no wrong is done to one who consents”), goes back to Roman law where it was recognized as early as the sixth century. The first reported case in England that mentions the volenti rule dates back to the beginning of the fourteenth century. By the seventeenth century, volenti had been established as a “maxim.” In Maxims of Reason: Or, the Reason of the Common Law of England, it is said that a person invited into a house to dine is not a trespasser for “volenti non fit injuria.”46 Originally, consent was viewed as a complete ban on prosecution. A person was free to consent to practically anything. As one fourteenth-century case said, “the law will suffer a man of his own folly to bind himself to pay on a certain day if he does not make the Tower of London come to Westminster. ‘Volenti non fit iniuria.’ ”47 Changes in the power of an individual to consent to personal harm came in the seventeenth century. They were a natural consequence of the monopolization of the system of punishment by the state. “In contrast to the understanding of crime as a violation of the victim’s interest, the emergence of the state developed another interpretation:  the disturbance of the society.”48 An increasing number of historically “private” offenses were reconceptualized as “public.” The state (or king) became the ultimate victim and the sole prosecutor of a criminal act49 and, as a result, an individual lost the power to consent to what the state regarded as harm to itself. In Matthew v. Ollerton, decided in the late seventeenth century, the court decided that the victim’s consent was not a defense to assault and battery “because ’tis against the peace.” The new rule was followed. Fifty years later, a court said that consent of the victim to participate in an unlawful fight does not bar his action.50 Similar considerations determined the adjudication of Wright’s Case, which involved the offense of mayhem. In that often cited case, a man asked his friend to cut off his hand, so that he would have “more colour to beg.”51 The consent of the victim did not exculpate the perpetrator because, by maiming a capable man, he deprived the king of the aid and assistance of one of his subjects. Today, U.S. law, as well as U.K. law, continues to maintain that one’s life and body do not quite belong to him. Accordingly, consent of the victim may not serve as a defense to homicide or serious injury, with two exceptions: recognized medical 46   Terence Ingman, “A History of the Defense of Volenti Non Fit Injuria,” (1981) 26 Juridical 47 Review 1, 4.   Ingman, (1981) 26 Juridical Review 1, 3. 48   Stephen Schafer, Victimology: The Victim and His Criminal (1977), 22. 49  Blackstone (n. 41)  5–6; Markus D.  Dubber, “Toward a Constitutional Law of Crime and 50 Punishment,” (2004) 55 Hastings LJ 509, 570.   Ingman (n. 47) 4. 51   Blackstone (n. 41) 205.

the defense of consent    643 treatment and athletic activities.52 This rule, which reflects the law in the absolute majority of common law jurisdictions, has been criticized for its narrow scope and arbitrary boundaries. As one judge remarked, it is “very strange that a fight in private between two youths where one may, at most, get a bloody nose should be unlawful, whereas a boxing match where one heavyweight fighter seeks to knock out his opponent and possibly do him very serious damage should be lawful.”53 Civil law jurisdictions tend to treat the defense of consent a bit more liberally. For example, the Danish Criminal Code allows the judge to reduce the penalty for assault and battery not resulting in death, as well as to remove any penalty for breach of peace, if the victim has consented to the crime. The German and Austrian Criminal Codes provide that bodily injury inflicted with the consent of the victim is not illegal unless the act is contrary to social mores. And the Italian Criminal Code contains a general provision under which a person who harms or compromises an alienable right of another person with that person’s consent is not criminally liable.54 Yet, in general, both in common law and civil law jurisdictions, consent to phys­ ical harm is recognized only in limited, narrowly defined circumstances. It is often puzzling why the line between lawful and unlawful conduct was drawn where it was in the existing rules. Consider some examples. Familial Breast Cancer Syndrome, Body Integrity Identity Disorder, and Gender Identity Disorder. A woman who carries a breast cancer gene may choose to have preventive mastectomy. Such radical surgery, although quite lawful, is considered controversial in medical literature: there is little proof that, for the purposes of cancer prevention, it is superior to less extreme and disfiguring alternatives. For women with “familial breast cancer syndrome,” a condition indicating a high risk of developing breast cancer, the primary advantage of the surgery is that it helps to relieve chronic stress and anxiety over the substantial likelihood of developing the disease. Yet no amount of emotional pain legitimizes elective surgery on a patient with Body Integrity Identity Disorder (BIID), a rare ailment whose victims seek to become amputees. The limited statistics seem to indicate that, if BIID patients succeed in their pursuit, their quality of life improves dramatically.55 A surgeon who agrees to perform such an amputation, however, opens himself up to criminal liability because his patients’ consent is legally invalid.56 BIID patients often compare themselves to those suffering from Gender Identity Disorders (GIDs), describing the common experience as “being trapped in the wrong body.” The law, however, treats the two groups very differently:  GID patients can consent to a sex-change operation, which often involves removal of healthy sexual organs, whereas BIID 53   Model Penal Code (1980) § 2.11(2).   Brown (n. 3) (per Lord Slynn).  Marie-Thérèse Meulders-Klein, “The Right Over One’s Own Body:  Its Scope and Limits in Comparative Law,” (1983) 6 British Columbia International & Comparative LR 29, 39–40. 55   Editorial, “When It Feels Right to Cut Off Your Leg,” Geelong Advertiser, July 4, 2005, 15. 56   But see, Tim Bayne and Neil Levy, “Amputees by Choice: Body Integrity Identity Disorder and the Ethics of Amputation,” (2005) 22 Journal of Applied Philosophy 75, 84–85. 52

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644   vera bergelson sufferers cannot consent to amputation of an arm or a leg. Rejected by the medical community, some BIID sufferers turn to self-help or illegal practitioners in order to achieve their goal—the amputation of unwanted limbs: In May of 1998 a seventy-nine-year-old man from New York traveled to Mexico and paid $10,000 for a black-market leg amputation; he died of gangrene in a motel. In October 1999 a mentally competent man in Milwaukee severed his arm with a homemade guillotine, and threatened to sever it again if surgeons reattached it. That same month a legal investigator for the California state bar, after being refused a hospital amputation, tied off her legs with tourniquets and began to pack them in ice, hoping that gangrene would set in, necessitating an amputation. She passed out and ultimately gave up. Now she says she will probably have to lie under a train, or shoot her legs off with a shotgun.57

To what extent all these restrictions are justified is an open question. On the one hand, the liberal tradition with its emphasis on personal autonomy opposes crim­ inal limitations on the decision-making power of rational adult citizens if their choices do not directly harm others.58 On the other hand, concerns over the rationality of certain irreversible decisions and untested medical technologies dictate caution. This conflict of fundamental humanitarian values has been at the center of bioethical debates in a number of countries. Sadomasochistic beating vs. Religious flagellation. In accordance with the current rules of consent, in practically every case involving consensual sadomasochistic encounters, the defendant has been convicted of assault. In People v. Jovanovic, for example, the New York Appellate Court held: Indeed, while a meaningful distinction can be made between an ordinary violent beating and violence in which both parties voluntarily participate for their own sexual gratification, nevertheless, just as a person cannot consent to his or her own murder, as a matter of public policy, a person cannot avoid criminal responsibility for an assault that causes injury or carries a risk of serious harm, even if the victim asked for or consented to the act.59

Similarly, in R. v. Brown, one judge stated that “the satisfying of sado-masochistic libido does not come within the category of good reason.”60 Religious flagellation, on the other hand, has enjoyed much more deferential treatment by authorities. In a nineteenth-century Scottish case, the court opined that “In some cases, a beating may be consented to as in the case of a father confessor ordering flagellation; but this is not violence or assault, because there is consent.”61 In its consultation paper, Consent in the Criminal Law, the Law Commission of England and Wales sympathetically describes a woman who belongs to the liberal edge of the Roman Catholic Church and “takes her religion seriously”:   Carl Elliot, “A New Way to Be Mad,” (2000) Atlantic Monthly 73, available at: . 58   See e.g. John Stuart Mill, On Liberty (1869), ch. IV, paras. 10–11. 59   People v. Jovanovic, 263 A.D.2d 182, 197 fn. 5 (N.Y. App. Div. 1999). 60 61   R. v. Brown [1992] 2 All E.R. 552 (C.A.).   Law Commission (n. 7) paras. 10-1–10-4. 57

the defense of consent    645 For many years she has occasionally found self-mortification the appropriate penance, if she has behaved in a way that falls gravely short of what a committed Christian faith involves. . . . Now that she is married, her husband helps her. He inflicts an adequate level of pain to ensure that the punishment is full and effective. As she put it, the threshold for “actual bodily harm” is clearly exceeded.62

People may approve or disapprove of the way this couple practices religion. However, under the current law, both in theory and in practice, the “religious” husband is not guilty of any offense. At the same time, if his primary motive for the infliction of pain were not religious but sexual gratification, he most likely would be convicted of assault. The different treatment of the two kinds of flagellation is disturbing:  in both instances the perpetrator may perform the exact same acts, with the consent of the victim, and for the purpose of satisfying an emotional need of the victim. Yet, if that emotional need has a sexual undertone, the perpetrator is likely to be convicted of a felony. It appears that this rule is a typical example of morals legislation intended to punish the perpetrator for causing the “wrong” kind of satisfaction. Boxing. “Consent of the victim is not generally a defense to assault or battery, except in a situation involving . . . blows incident to sports such as football, boxing or wrestling.” Thus, while infliction of pain during a sadomasochistic encounter constitutes assault, boxing remains entirely legal, despite the often severe battering caused by the fighters to each other. One court aptly described the sport as an “activity, in which participants excel by injuring their opponents. Indeed, the very acme of achievement for a boxer is to so batter the opponent as to induce a temporary coma—otherwise known as a knockout.”63 The court pointed out that permanent injuries and even death sometimes result from those fights and that, in any other context, “such an activity would be unacceptable, indeed, criminal.”64 Consensual transmission of HIV. Even though consensual beating constitutes a crime, consensual intentional transmission of HIV is not punishable in a significant number of jurisdictions. The phenomenon, known as “bug-chasing,” involves “bug-chasers” (HIV-negative men who actively seek out infection by having unprotected sex with infected partners) and “gift-givers” (HIV-positive men willing to infect “bug-chasers”). According to one source, this practice is the cause of 25% of all new infections among American gay men.65 These statistics have been questioned, but even if they are not entirely accurate, there is a general consensus that “bug-chasing” and “gift-giving” present a serious problem for the gay community.66   Law Commission (n. 7) 131.   Foronda v.  Hawaii International Boxing Club, 2001 Haw. App. LEXIS 117, *48 (Int. Ct. App. Hi 64 2001).   Foronda (n. 63). 65   Gregory A. Freeman, “Bug Chasers: The Men Who Long to Be HIV+,” Rolling Stone, Jan. 23, 2003, available at: . 66   Amanda Weiss, Comment, “Criminalizing Consensual Transmission of HIV,” (2006) University of Chicago Legal Forum 389, 389–390. 62 63

646   vera bergelson Nevertheless, many jurisdictions do not criminalize the act of knowingly exposing another person to HIV, whereas jurisdictions that do criminalize such an act often explicitly recognize the consent of the victim as an affirmative defense or reach the same outcome by making failure to disclose one’s HIV status an element of the crime. “Serious” harm. Since any harmful act that does not fit into the “athletic” or “medical” exception is, by definition, criminal, unless the inflicted injury is not serious, assessment of the seriousness of the victim’s injury determines the outcome of many cases involving the defense of consent. A typical penal statute classifies bodily injury as serious if it “creates a substantial risk of death or . . . causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”67 Pursuant to this definition, any short-term, non-life-threatening injury should not be deemed “serious.” Yet, as the Model Penal Code acknowledges, the assessment of the seriousness of harm is often affected by judges’ “moral judgments about the iniquity of the conduct involved.”68 Courts tend to inflate the risk and harmfulness of an activity they want to denounce. For example, in In re J.A.P., a group of eighth graders played the game of “passout,” the object of which is for one player to make a fellow player faint.69 The offender grabbed his friend around the neck and proceeded to choke him for a few seconds until the boy lost consciousness and fell to the ground. The victim suffered a few facial lacerations and chipped teeth. By the time of the trial, all his injuries had been treated and healed. Nevertheless, the juvenile court concluded that the offender had engaged in delinquent conduct by committing aggravated assault, an offense which required a finding of “serious bodily harm.” On appeal, the J.A.P court concluded that a rational juror could determine that the act of choking presented a substantial risk of death; thus, the “serious harm” element of the charged offense was established. Accordingly, since one may not give valid consent to “serious harm,” whether or not the victim had consented to the choking was irrelevant for the defendant’s liability. What the court apparently overlooked is that, under the state law, a “serious injury” was defined as an injury that created a substantial risk of death, not merely an activity that created such a risk. Otherwise, following the court’s logic, a driver who exceeded the speed limit and was stopped by the police before he had a chance to be involved in an accident would be automatically guilty of causing serious injury to his passengers even though none of them had suffered a scratch. Some penal codes include physical pain in the definition of “bodily harm.”70 In State v. Guinn, the defendant was convicted of inflicting “serious physical injury”   Model Penal Code (1980) § 210.0(3). Following the Model Penal Code, many states have adopted an identical or similar definition. See e.g. N.J. State Ann. (2005) § 2C:11-1(b); Tex. Penal Code. Ann. 68 (2005) § 1.07(46).   Model Penal Code and Commentaries (1980) § 2.11, 2 fn.8. 69   In re J.A.P., No. 03-02-00112-CV, 2002 Tex. App. LEXIS 7374, *3 (Tex. Crim. App. Oct. 17, 2002). 70   See e.g. Wash. Rev. Code (2004), § 9A.04.110(4)(a). 67

the defense of consent    647 in the course of a sexual encounter. There was no evidence that the victim “ever required any medical attention or suffered any wounds of any sort.”71 Yet the appellate court sustained the assault conviction, reasoning that the sadomasochistic para­ phernalia used by the defendant must have caused serious physical pain (candle wax was “hot and it stung” and nipple clamps were “tight and cutting”), and “phys­ ical pain” satisfied the definition of “physical injury.” Naturally, under a statute of this type, practically any sadomasochistic activity may be characterized as criminal. The current rule of consent to harm may be criticized on many levels: not only is it arbitrary and strict; it is also autocratic and absolute. People are allowed to consent to harm only if their activities are on the list of things approved by the state. The law envisions no balancing or accommodation of conflicting interests of an individual and society. The disregard for an individual, inherent in this rule, goes against the basic principles of autonomy and personal responsibility defining the liberal criminal law doctrine. Moreover, the authoritarian presumption that it is not the individual, but rather the state, that is the victim of every crime is flawed: were that so, consent would not be a defense to any harm, not merely physical harm.72 However, the law allows individuals to consent to various kinds of harm—emotional, financial, or reputational—as long as those harms are not physical. This critique prompts two questions: one, why do we perceive consent to bodily harm so differently than consent to any other activity, specifically, why does consent preclude such offenses as theft, rape, or kidnapping but not murder or battery; and two, if we were to revise the current law of consent, how should the defense of consent be defined? Before trying to answer those questions, it may be helpful to review the rationales usually invoked by courts as the reason for refusing to recognize the defendant’s defense of consent in cases of physical harm.

v.  Rationales for Disallowing the Defense of Consent in Cases of Physical Harm Traditional rationales for disallowing the defense of consent in cases of physical harm include: (a) public violence may disturb peace; (b) the injured person may become a public charge; (c) the harmful conduct expresses the parties’ disrespect   Guinn, 2001 Wash. App. LEXIS 502, *32 and *34.   See Dubber, (2004) 55 Hastings LJ 509, 570.

71

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648   vera bergelson for the law and social order or is immoral; and (d) certain harmful conduct violates people’s dignity. Breach of the peace. The reasoning behind this policy has been that when assaults are committed publicly or in the presence of others, they tend to incite riotous and disorderly or offensive behavior.73 Duels and prize fights have been held to threaten peace; therefore, an agreement to fight has been held invalid.74 Opponents of this rationale argue that the defense of consent is precluded not only for public actions but also for those carried out in private (e.g. assisted suicide). In addition, in the current era of a well-established police force and numerous statutory offenses directed at specific instances of public disorder, the “breach of peace” rationale for overriding people’s autonomy is outdated and unpersuasive.75 Public charge. A more general argument in favor of the state’s right to strike individuals’ consensual actions is based on the risk that those individuals would become a “public charge.”76 Courts have held that the state has an interest in preventing citizens who are capable of being productive members of society from disabling themselves if they or their dependents would be forced to rely either on the gifts of others or on the state itself for support.77 This argument has been criticized for the assumption that society is justified in restricting people’s rights solely on utilitarian grounds. Under the “public charge” rationale, for instance, the state could criminally ban those who live below the poverty line from having children. Critics of this rationale maintain that a society that respects its members may not use this logic as a basis for its social policies. Disrespect for law and social order. The rationale of social order and respect for law is typically used to explain why one set of rules is “good for all” and why the state may not permit individuals to contract around the law. As one court said, “To allow an otherwise criminal act to go unpunished because of the victim’s consent would not only threaten the security of our society but also might tend to detract from the force of the moral principles underlying the criminal law.”78 Those who disagree with this logic may argue that respect for law and social order would only suffer if citizens perceive laws applied in particular cases as unfair or unnecessarily intrusive.79 Polls show that the public’s view of   State v. White, 28 A. 968 (R.I. 1894).   Bissell v. Starzinger, 83 N.W. 1065 (Iowa 1900); Bundrick v. State, 54 S.E. 683 (Ga. 1906). 75   Attorney-General’s Reference (No. 6 of 1980) [1981] QB 715, 719. 76   State v. Bass, 120 S.E.2d 580, 586 (N.C. 1961). 77   Note, “Consent in Criminal Law: Violence in Sports,” (1976) 75 Michigan LR 148, 165. 78   State v. Brown, 364 A.2d 27, 31–32 (N.J. Super. Ct. Law Div. 1976). 79   Paul H. Robinson and John M. Darley. “The Utility of Desert,” (1997) 91 Northwest University LR 453–499. 73

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the defense of consent    649 consensual harm differs dramatically from the current law. As a result, jurors tend to use the power of nullification, disregarding both formal instructions and their own oaths to follow those instructions, when they perceive that the law goes against the community’s principles of appropriate liability and punishment. Immorality. Courts have used this argument primarily to ban perceived sexual transgressions, such as sodomy, fornication, bigamy, adultery, incest, sadomasochism, and prostitution. In State v. Collier, for example, the court opined: “It is obvious to this court that the legislature did not intend [to legitimize] an activity which has been repeatedly disapproved by other jurisdictions and considered to be in conflict with the general moral principles of our society.”80 In recent years, however, this argument has lost some of its ground as many jurisdictions struck their homosexual sodomy laws insofar as they applied to the private conduct of two consenting adults. In the United States, the Supreme Court held in Lawrence v.  Texas that the majority may not “use the power of the State to enforce [their] views on the whole society through operation of the criminal law.”81 Violation of dignity. This argument is more academic than judicial or legislative. In the view of its proponents, certain harmful actions violate their victims’ dignity regardless of the consent of the latter. Such actions may include: gladiator­ ial matches; deadly torture; or the barroom practice known as “dwarf tossing.” But perhaps the most dramatic and disturbing example that gives support to this rationale is the recent German case of Armin Meiwes who killed his consenting victim and ate his flesh “washing it down with a South African red.” His principal defense at the trial was the victim’s consent. Meiwes was initially convicted of manslaughter but on appeal and retrial he was found guilty of murder and sentenced to life in prison. Proponents of this rationale argue that the law should not allow people to consent to harm that violates their dignity because dignity is so essential to people’s humanity that, in cases of a conflict between autonomy (the ability to consent) and dignity, the former ought to yield.82 Opponents of this rationale usually cite the vagueness of the concept of “dignity” and express concern that the rationale would bring back all criminal bans based on the “immorality” rationale.

  State v. Collier, 372 N.W.2d 303, 307 (Iowa Ct. App. 1985).   Lawrence v. Texas, 539 U.S. 558 (2003). 82  See R. George Wright, “Consenting Adults:  The Problem of Enhancing Human Dignity Non-Coercively,” (1995) 75 Boston University LR 1397, 1399; Meir Dan-Cohen, “Basic Values and the Victim’s State of Mind,” (2000) 88 California LR 759, 777–778; Dubber, (2004), 55 Hastings LJ 509, 568. 80 81

650   vera bergelson

vi.  Two Models of Consent: One More Rationale for a Special Treatment of Physical Harm What distinguishes cases of theft, rape, or kidnapping, on the one hand, from cases of killing or maiming on the other? One obvious answer is that, in the first group of cases, the consent of the participants bars criminal conviction, whereas in the second group it does not. But why? I have argued elsewhere that the moral difference between the two groups of cases has to do with the character of the act in question and the message criminal law wants to send to the community.83 In the case of theft, rape, or kidnapping, the act itself does not violate a prohibitory norm. Having sex, transporting someone to a different location, or taking other people’s property is not bad in itself.84 It becomes bad only due to the absence of consent. In other words, using George Fletcher’s terminology,85 in the case of theft, rape, or kidnapping, non-consent is a part of the definition of the offense regardless of how a particular criminal statute is drafted. Its role is inculpatory. Therefore, the mere presence of consent defeats the charge against the defendant—the prosecutor simply would not be able to establish all the required elements of the offense. In contrast, causing pain, injury, or death is not morally neutral—it is regrettable. Bringing about a regrettable state of events is bad and should be avoided. Therefore, we would want a conduct rule that prohibits the very act of killing or hurting, providing, of course, for the necessary exceptions such as self-defense. However, the fact that a person may be legally justified in killing an aggressor in self-defense does not make the killing as morally neutral as borrowing a book—it is still regrettable. Similarly, consensual killing or hurting is regret­ table and prima facie prohibited. In certain circumstances consent may be able to overcome this presumption against killing and hurting. Accordingly, the role of consent here is exculpatory; it may only serve as an affirmative defense. Unlike the failure of proof, the affirmative defense shields the defendant from punishment only if there are special circumstances that may excuse or justify the prima facie prohibited act. We, therefore, need two distinct sets of consent rules— one, for offenses like rape, theft, or kidnapping, in which the mere presence of

  Bergelson, (2007) 75 George Washington LR 75, 165.   But see, Michelle Madden Dempsey and Jonathan Herring, “Why Sexual Penetration Requires Justification,” (2007) 27 OJLS 467 (arguing that sexual penetration is a prima facie wrong and therefore 85 requires justification).   See George P. Fletcher, Rethinking Criminal Law (1977). 83

84

the defense of consent    651 consent defeats the charge; and the other for offenses involving physical harm (e.g. homicide or battery) for which consent may only serve as an affirmative defense. By giving consent, an individual waives a right he used to have and gives other people rights they did not previously have. A person’s consent does not impose any obligations on other people; it merely provides them with an option. Even when the waiver of rights is combined with a request, these other people still have no duty to follow it. For example, a patient may request (and simultaneously consent to) surgery. If his doctor does not believe the patient needs it or does not want to perform it himself, he is under no duty to do so. In other words, consent or even a request creates a very weak contentindependent reason for action, compared to, say, threats or orders of authority. Consent by one person does not diminish another person’s capacity for free choice; it does not create a volitional or cognitive impairment of that other person; so, the defense of consent is not an excuse. Instead, being a waiver of rights, consent eliminates the violation of the consent-giver’s rights by the actor and thus eliminates (or at least diminishes) the wrongfulness of the actor’s conduct. Its function is, therefore, justificatory and the defense of consent may serve as a justification, provided the defendant can satisfy the minimal set of requirements essential to all defenses of justification. In a very general form those requirements include: (a) a valid basis for the defense—for example, necessity (for the choice-of-evils defense) or the immediate need to fend off an unlawful attack (for self-defense); (b) an objectively preferable outcome—for example, a positive balance of harms and evils (for the choice-of-evils defense) or avoiding the harm to an innocent victim (for self-defense); and (c) the perpetrator’s good faith, that is, his awareness of (a) and (b) and his subjective belief in the necessity of overstepping a prohibitory norm in order to achieve the preferable outcome. For illustration, consider self-defense. If the perpetrator used force in the absence of an immediate need to fend off an unlawful attack (no basis for the defense) or injured several innocent bystanders in order to immobilize the aggressor (not an objectively preferable outcome), he would not be justified. He also would not be justified if he did not realize that he was being attacked when he used force. Nor would his defense succeed if he merely used the attack as a ploy to harm the aggressor (bad faith). Similarly, a defendant raising the defense of consent would succeed only if he has the valid consent of the victim (the basis for the defense); his harmful actions result in a positive balance of harms and evils; and he is aware of the victim’s valid consent and is driven by the desire to bring about a preferable outcome (e.g. to respect the wishes of the victim).

652   vera bergelson The defense of consent structured in this way would have two normative consequences. One is that consent alone does not suffice to justify the victim’s death or injury even though it suffices to preclude conviction of rape, theft, or kidnapping. The other is that consent should always be at least a partial defense, because it defeats at least one aspect of harm, namely, violation of rights. A partial justification does not make a wrongful act right; it only makes it less wrongful compared to an identical but non-consensual act. The perpetrator should not be entitled to complete justification if any of the following is true: (a) the harmful consensual act has brought about more bad than good (e.g. the euthanized patient was not in pain and had excellent prospects of recovery); (b) the harmful consensual act has significantly set back both the victim’s interests and dignity (e.g. Meiwes’s case of murder and cannibalism); or (c) the perpetrator’s conscious goal was not benevolent (e.g. killing a consenting, terminally ill patient to put hands on his property). Under the so structured defense of consent, many of the cases cited in this chapter would be decided differently. For example, the members of the gay sadomasochistic club in R. v. Brown would be acquitted: the injuries involved were neither dangerous to life and health (no medical care was ever required) nor permanent; the harmful actions were directed at satisfying the emotional preferences of the victims; and the defendants were not motivated by a desire to set back their partners’ interests. Some other decisions would not change or would change only with respect to the level of punishment. For example, Armin Meiwes would still be convicted: he was motivated by the egotistical desire of experiencing killing and cannibalism and his actions clearly did not bring about more good than evil. However, under the revised rule, Meiwes may be entitled to partial justification and reduced punishment. After all, as bad as his offense is, it would be much worse had the same things been done to a non-consenting victim. The proposed rule makes sense both theoretically and practically. From the theoretical perspective, it places consent squarely within the family of justification defenses. All of them, from self-defense to necessity, seek to overcome the deontological constraint against intentional infliction of harm. These defenses may be granted to a person who chose a certain course of action despite its negative effects (as opposed to for the sake of its negative effects) and succeeded in producing a better outcome. From the practical perspective, this rule leaves room for balancing the harms and benefits caused by the perpetrator. This is an import­ ant difference from the current law, which is absolute in what it allows and disallows. Overall, adopting a rule based on a uniform principle common to other justification defenses would lead to more fair, consistent, and morally sustainable verdicts.

the defense of consent    653

vii. Conclusion Courts and legislatures in many countries have been struggling with defining the meaning and boundaries of the defense of consent. Some aspects of this defense are relatively noncontroversial (e.g. the requirements of free, rational, and informed consent), even though they include uncertainties and “gray areas.” Other aspects are less settled and explained. The biggest issue with this defense is whether it should be allowed in cases of physical harm. Since the consent of the victim eliminates the standard ground for criminal prosecution—violation of the victim’s rights—courts and legislatures needed to produce other rationales for disallowing the defense. Most of them have been criticized as inadequate, outdated, or autocratic. And still, not many people have argued in favor of allowing the defense in all circumstances. One thing is clear about the defense of consent—the debate about it is far from being over.

References Alexander, Larry, “The Moral Magic of Consent II,” (1996) 2 Legal Theory 165 Baker, Dennis J, “The Moral Limits of Consent as a Defense in the Criminal Law,” (2009) 12 New Crim. LR 93 Brett, Nathan, “Sexual Offenses and Consent,” (1988) XI Canadian Journal of Law & Jurisprudence 69 Dan-Cohen, Meir, “Basic Values and the Victim’s State of Mind,” (2000) 88 California LR 759 Dubber, Markus D., “Toward a Constitutional Law of Crime and Punishment,” (2004) 55 Hastings LJ 509 Green, Stuart P., “Offenses and Defenses: Consent and the Grammar of Theft Law,” (2007) 28 Cardozo LR 2505 Hurd, Heidi M., “The Moral Magic of Consent,” (1996) 2 Legal Theory 121 Ingman, Terence, “A History of the Defense of Volenti Non Fit Injuria,” (1981) 26 Juridical Review 1 Miller, Franklin G. and Wertheimer, Alan (eds.), The Ethics of Consent: Theory and Practice (2010) Roberts, Paul, “Philosophy, Feinberg, Codification, and Consent:  A  Progress Report on English Experiences of Criminal Law Reform,” (2001) 5 Buffalo Crim. LR 173 Simons, Kenneth W., “The Conceptual Structure of Consent in Criminal Law,” (2006) 9 Buffalo Crim. LR 577 Thomson, Judith Jarvis, The Realm of Rights (1990) Wertheimer, Alan, Consent to Sexual Relations (2003) Westen, Peter, The Logic of Consent. The Diversity and Deceptiveness of Consent as a Defense to Criminal Conduct (2003) Westen, Peter K., “Some Common Confusions About Consent in Rape Cases,” (2004) 2 Ohio State Journal of Crim. Law 332 Wright, R.  George, “Consenting Adults:  The Problem of Enhancing Human Dignity Non-Coercively,” (1995) 75 Boston University LR 1397

­c hapter 29

INSANITY AND INTOXICATION christoph safferling

I.  Introduction to Insanity and Intoxication Defenses against criminal allegations have several facets, as can been seen from the different issues addressed in this chapter. Acting in self-defense or with the consent of the victim is one aspect; acting under necessity or duress another. These aspects relate to the legal values which are protected by the criminal law. In the case of consent, the victim waives the protection of the norm in question. In the other cases, different legal interests conflict with one another in a specific situation, and the harm imposed by the perpetrator is either allowed or at least tolerated by the law as the perpetrator acts in order to safeguard the interest which has priority. The situations of insanity and intoxication are different: it is not the legal interests which are in the foreground, but the question whether the perpetrator was indeed capable of conforming to the legal standard because of his mental condition or whether, so to speak, he is to blame. In civil law systems, this phenomenon is often transcribed by the term “culpability.” The culpability of the perpetrator is understood to be one of the necessary requirements for his or her conviction (nulla poena sine culpa—no punishment without guilt). Criminal liability can only be imposed on a person who was actually able to conform his conduct to the law.

insanity and intoxication   655 A different aspect of mental capacity is addressed in other jurisdictions which focus on the ability of the accused to be sufficiently sane to stand trial.1 The underlying rationale is similar. Here, also, the mental status of the person is in focus and her capacity to understand the moral allegations brought against her. In both cases, the mental status of the person is crucial. Mental disorders therefore need to be addressed as the medical side of the culpability principle. Psychiatric and psychological expertise is necessary, which lawyers lack, therefore the medical or psychological examiners who support the court wield considerable influence. Nevertheless, insanity is a legal and not a medical category.2 Before we turn to the mental defects in question here (see Section II), it is necessary to say a few words on the theoretical foundations (Section I.1), the systematic framework (I.2), the historic development (I.3), the relation to other “defenses,” and the analytical structure (I.4) of insanity.

1.  Theoretical foundation a) General Responsibility for harm done could be attributed on a purely objective basis which would mean that responsibility would rest only on causality.3 This rather simplistic approach neglects the person’s will as the expression of personality. A moral wrong presupposes that the human wills the act to be wrong:  actus non facit reum nisi mens sit rea.4 An objective description of an act remains neutral, bloodless so to speak. Moral wrongdoing can only be established if the person knew or should have known the circumstances of the case. In the former situation, we would say that the person had intention; in the latter, we would say that the person showed negligent behavior. Beyond the mens rea requirements, English criminal law accepts a criterion often called “capability of crime” or “moral culpability.”5 The perpetrator is eligible for punishment if he is able to distinguish between right and wrong, and is able to foresee the consequences of his act. These conditions are mostly mentioned in the context of “infancy.”6 The capability of crime is generally presumed in the case of   A critical appraisal of this practice is given by Robert Burt and Naval Morris, “A Proposal for the Abolition of the Incompetency Plea,” (1972) 40 University of Chicago LR 66. 2   George P. Fletcher, Rethinking Criminal Law (2000), 801. 3   The aspect of causation has often be overestimated, see e.g. Naval Morris, Madness and the Criminal Law (1982), 63, and the criticism voiced by the most prominent anti-abolitionist Stephen J.  Morse, “Excusing the Crazy: The Insanity Defense Reconsidered,” (1985) 58 Southern California LR 777, 788 ff.; see also Mark Hathaway, “The Moral Significance of the Insanity Defence,” (2009) 73 Journal of Crim. 4 Law 310, 313 ff.   Institutiones ch. 1, Fo 10. 5   Michael Allen, Criminal Law: Textbook (8th ed., 2005), 115. 6   Fletcher (n. 2) 836 with a similar analogy. 1

656   christoph safferling adults; however, this presumption can be refuted. It is mostly counted among the “defenses” as an excuse for a wrongful act7 which is a logical consequence from a procedural perspective. However, substantively speaking, moral culpability is a requirement that is essential to crime.8 Nevertheless, the insanity defense has always been controversial in the common law9—more so in the United States than in England.10 The skepticism is nourished by the image of protracted trials, conflicting testimony by partisan forensic medical experts, and the complexity of the question of showing insanity.11 In German criminal law, on the contrary, culpability is a constitutive element of every crime.12 The German Federal Constitutional Court has underlined the importance of the culpability principle in several decisions, stressing its relevance for human dignity (Art. 1 GG (Grundgesetz, German Basic Law)) and the rule of law (Art. 20 GG).13 The individual can only be held responsible for the harm if she had a real option to act differently, that is, to conform the conduct to the requirements of the law. Abolishing the insanity defense would thus be unconstitutional according to German law.14 In any event, a verdict of “not guilty by reason of insanity” does not give the accused the right to leave the courtroom a free person. He will likely be detained for security reasons in a mental institution where therapeutic treatment will be on offer (see Section IV.3). Nevertheless, there seems to be an understanding among the majority of civil and common law scholars that the insanity defense “is essential to the moral integrity of the criminal law,”15 that the defense is “fundamentally just.”16

  David Ormerod, Smith and Hogan’s Criminal Law (13th ed., 2011), ch. 11.   Allen (n. 5) 115. 9   See e.g. Ake v Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L.Ed. 2d 53 (1985) (Rehnquist C.J. dissenting) (it is “highly doubtful that due process requires a State to make available an insanity defense to a criminal defendant”); see also Barbara Wootton, Crime and the Criminal Law (1964), 46; Thomas Szasz, Law, Liberty and Psychiatry (1963), 123–137. 10   Mark Hathaway, “The Moral Significance of the Insanity Defence,” (2009) 73 Journal of Crim. Law 310, 312. 11   See Fletcher (n. 2)  845; Morse, (1985) 58 Southern California LR 777, 795 ff. discussing several unsubstantiated criticisms against the insanity defense. 12   See Joachim Hruschka, “Imputation,” in Albin Eser and George P. Fletcher (eds.), Rechtfertigung und Entschuldigung, Vol. I (1987) 122 ff.; Brian Foley, “Same Problem, Same Solution? The Treatment of the Voluntarily Intoxicated offender in England and Germany,” (2001) 4 Trinity College LR 119, 128 ff. 13   See e.g. the so-called Lisbon decision of the Bundesverfassungsgericht (BVerfG, German Federal Constitutional Court), BVerfGE 123, 267 n. 364; see also Christoph Safferling, “A Criminal Law for Europe: Between National Heritage and Transnational Necessities,” (2009) 10 German LJ 1383; see also the so-called deal-decision BVerfG, NJW 2013, 1058 n. 103. 14   In contrast, most commentators consider the abolishing of the insanity defense to be in conformity with the U.S. Constitution; see Morse, (1985) 58 Southern California LR 777, 804 ff. 15   R. J. Bonnie, “The Moral Basis of the Insanity Defense,” (1983) 69 American Bar Association Journal 194; see also Mark Hathaway, “The Moral Significance of the Insanity Defence,” (2009) 73 Journal of 16 Crim. Law 310, 315.   Morse, (1985) 58 Southern California LR 777, 793. 7

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insanity and intoxication   657

b)  Dilemma of determinism The question which arises from the culpability approach is one of philosophy: do persons have a choice or is everything predetermined? If persons do not have a choice, it would be fairly pointless to require moral culpability for punishment. The philosophical debate on determinism and indeterminism is as old as human thinking. In the context of criminal law, however, the discussion is rather futile. In regulating our social life through criminal law, we perceive ourselves as having free will. The consciousness of freedom is a social experience17 and this presumption forms the basis of our legal system. The criminal law system must respect our social reality.18 More recent research in modern neuroscience about the functioning of the human brain, which supports the hypothesis that every human act is predetermined,19 therefore cannot unsettle the fundamentals of criminal law.20 Without blame, criminal and penal law would be a purely preventive security system, striving for social protection solely by identifying dangerous people. Even so, it must however be noted that “culpability” is a social construction and not an empirical truth,21 a criminal trial without issues of responsibility, blame, and punishment would not be acceptable to the general public.22

c) Intoxication This chapter covers not only insanity but also intoxication, the most prominent case of which is that of the drunken delinquent. In Western societies, alcohol is a socially accepted drug;23 yet, it is a drug that can have damaging effects on the human brain, it is highly addictive, and it has serious negative consequences for society.24 In the context of criminal responsibility, cases of intoxicated perpetrators are common. Indeed, alcohol plays a role in many cases of criminal assault or manslaughter. For example, in 2012, 32.1% of perpetrators involved in violent crimes in Germany acted under the influence of alcohol.25 The question is whether the law should acquit a person who is incapable of controlling himself due to intoxication, even when he has committed a grave felony.26 Or should drinking be punishable as such? Where the perpetrator’s ability to judge is affected by alcohol, he is usually punished more severely;27 but massive alcohol 17   See Franz Streng in Klaus Miebach and Wolfgang Joecks (eds.), Münchener Kommentar StGB (2nd 18 ed., 2011), § 20 n. 61.   See Fletcher (n. 2) 801. 19   See Michael Pauen and Gerhard Roth, Freiheit, Schuld und Verantwortung (2nd ed., 2008). 20   See Peggy Sasso, “Criminal Responsibility in the Age of ‘Mind-Reading’,” (2009) 46 American 21 Crim. LR 1191, 1212 ff., and 1220 ff.   Christoph Safferling, Vorsatz und Schuld (2008), 100. 22   See also Fletcher (n. 2) 844 ff. 23   Nicola Lacey, Celia Wells, and Oliver Quick, Reconstructing Criminal Law (4th ed., 2010), 296; 24 Safferling (n. 21) 121.   See BGHSt 16, 124, 125 ff. 25   Polizeiliche Kriminalstatistik (PKS) 2012, 10. In general, i.e. in violent and nonviolent crimes taken 26 together, only 19% are intoxicated at the time of the offense.   See Fletcher (n. 2) 846 ff. 27   Safferling (n. 21) 487, and Lord Denning, Attorney-General for Northern Ireland v. Gallagher [1961] 3 All E.R. 299.

658   christoph safferling abuse to the extent that the perpetrator has lost partial or total control over his actions can lead to a more lenient sentence or even a total excuse. In these cases, however, the offender is not allowed to go free; rather, he will be detained for secur­ ity reasons in a therapeutic clinic (see Section IV.3).

2.  Systematic framework As has already been pointed out, the question of mental fitness can be addressed at different stages of the criminal process. It can be addressed either as a procedural issue or it can be viewed as a question of substantive law.

a)  Procedural solution The “guilty plea” is a procedural peculiarity of the common law. The accused can avoid a full-scale trial by entering a guilty plea. Only a person who is mentally fit to plea, that is, who is capable of understanding the allegations, the defense options, and the procedural course of events, can enter a guilty plea.28 According to section 4(6) of the U.K. Criminal Procedure (Insanity) Act 1964, as amended by the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, the judge must hear two medical experts, one of whom needs to be a forensic psychiatrist. If the judge is of the opinion that the accused is “unfit to plead,” a summary evaluation of the evidence before the court can bring about committal of the person to a psychiatric institution.29 The rationale for the hearing is to establish whether the actus reus of a crime has been committed by the person declared unfit to plead. Thus, whether the person had a mental defect at the time of the committal of the crime is not in issue.30 If the person is fit to plead, and enters a plea of “not guilty,” the mental state of the accused can be made an issue under the insanity defense. It can be inferred, from the fact that it is a “defense,” that the mental fitness of the accused is presumed until mental capacity is made an issue in the defense case (see Section IV.1).

b)  Culpability principle in substantive law If viewed as a problem of substantive criminal law, the culpability principle becomes a prerequisite for the criminal act itself. The act can only be criminal if, at the time 28   See e.g. R. v. Pritchard (1836) 7 C. & P. 303 as the leading case about a deaf-mute accused and his capacity to follow the trial. 29   See e.g. R. v. Antoine [2000] 2 All E.R. 208; the dangers for the offender are discussed by Phil Fennell, “The Criminal Procedure (Insanity and Unfitness to Plead) Act 1991,” (1992) 55 Modern LR 547. 30   In continental criminal procedure, the accused can also be declared unfit for trial; yet this declaration is purely on humanitarian grounds and has nothing to do with the “plea,” see: Susanne Beck, “Does Age Prevent Punishment? The Struggles of the German Juridical System with Alleged Nazi

insanity and intoxication   659 of the conduct, the culpability of the offender can be established beyond reasonable doubt. In other words, “there is no just punishment without desert and no desert without responsibility.”31 The ability to conform to the requirements of the law thus becomes the bottom line of criminal accountability. In the words of the German Federal Constitutional Court: Criminal law is based on the principle of guilt. This principle presupposes a human being’s own responsibility, it presupposes human beings who themselves determine their actions and can decide in favour of right or wrong by virtue of their freedom of will. The protection of human dignity is based on the idea of Man as a spiritual and moral being who has the capabilities of determining himself and developing in freedom.32

3.  Historic development a)  Anglo-American law The relevance of psychological fitness to criminal law was developed in the eighteenth century, at which time “madness” or “lunacy” were terms used to describe what is now called mental disorder. In common law, an acquittal on the grounds of insanity was equal to a verdict of not guilty, as there was no law in place which would allow a sanction without a conviction. The U.K. Criminal Lunatics Act of 1800 first legalized strict custody in the form of preventive detention. Then, in 1883, the Trial of Lunatics Act allowed the verdict “guilty but insane,” so that the conviction could serve as grounds for further detention. It is interesting to note that both law reforms were warranted by attacks by mentally ill persons on the king and queen respectively. The House of Lords laid down the criteria for insanity with the M’Naghten Rules in 1843.33 Despite the fact that the rules were part of an advisory opinion and therefore did not create a binding precedent, they are still relevant today.34 The Law Lords, however, were of the opinion that they had restated common law and had not created new law. Insanity is thereby defined as:  “A defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing: or if he did know it, that he did not know he was doing what was wrong.” Criminals: Commentary on the Criminal Proceedings Against John Demjanjuk and Heinrich Boere,” (2010) 11 German LJ 347.   Morse, (1985) 58 Southern California LR 777, 783.   Lisbon decision of the Bundesverfassungsgericht (BVerfG, German Federal Constitutional Court) BVerfGE 123, 267 n. 364 (transl. by the Court, available at: ). 33   M’Naghten’s Case [1843–60] All E.R. Rep. 229. 34   Richard Moran, Knowing Right from Wrong: The Insanity Defense of Daniel McNaughtan (1981). 31

32

660   christoph safferling The M’Naghten Rules were also used in the United States until the 1950s, when the Durham/New Hampshire Test brought about modifications and widened the scope of insanity considerably by stating that “an accused is not criminally responsible if his unlawful act was the product of mental disease or defect.”35 The U.S. Model Penal Code chose a compromise between M’Naghten and the Durham approach, stating that “if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.” These wider approaches have often been criticized for creating for the judge an unwarranted dependency on medical experts.36 Another modification, however, was initiated by an attack on a head of state, this time on U.S. President Ronald Reagan. The Insanity Defense Reform Act 1984, which was passed after Reagan’s attacker was found not guilty by reason of insanity, went back to the rather strict M’Naghten concept.37 In addition, the burden of proof was passed from the prosecution to the defense and increased to the level that there must be clear and convincing evidence that the accused was indeed insane.

b)  Continental European law In continental Europe, criminal law developed differently and is based on philosophical concepts and not so much by individual cases. Germanic law, which was originally based on an objective attribution of responsibility, incorporated an idea of culpability through the reception of Roman law. The Constitutio Criminalis Carolina of 1532 contained, in Art. 179, a provision which established a partial defense by reason of the immaturity of the person. It was mostly the Enlightenment concept of free will, in the tradition of Immanuel Kant’s concept of the autonomy of the offender,38 which brought the culpability principle into the codifications of modern times such as the Criminal Code of Prussia of 1794 and the German Criminal Code of 1871. An attribution of guilt was excluded in cases where the free will of the perpetrator was distorted by mental illness. There was already a considerable amount of skepticism concerning the influence of psychiatric and medical experts;39 nevertheless, in the law reforms of the 1960s and 1970s, the provisions concerning culpability were expanded to comprise not only the pathological mental defects (psychoses) but also serious psychoneuroses.40   Durham v. U.S., 214 F.2d 862 (1954); see also Markus D. Dubber, Einführung in das US-amerikanische 36 Strafrecht (2005), 198.   See Safferling (n. 21) 446. 37   See Jonathan Sallet, “After Hinckley, ‘The Insanity Defense Reexamined’,” (1985) 94 Yale LJ 1545, 1547–1552. 38   See Thomas Vormbaum, Einführung in die moderne Strafrechtsgeschichte (2nd ed., 2011), 87. 39   See Streng (n. 17) § 20 nn. 4–6. 40   2nd Reform of the Criminal Code Act (Zweites Gesetz zur Reform des Strafrechts, 2. StrRG) of 4 July 1969. 35

insanity and intoxication   661

c)  Differences and criticism There is a striking difference between the common law and continental law views of insanity. In the common law, mental illness is only acceptable as a defense if the perpetrator cannot differentiate between lawful and unlawful conduct due to his mental disability. On the continent, in contrast, the defense will also apply if the perpetrator cannot control his behavior due to his mental disorder. Common law judges could not understand such leniency: “If you cannot resist an impulse in any other way, we will hang a rope in front of your eyes, and perhaps that will help,” said a Canadian judge in the early twentieth century.41 Only in the context of diminished responsibility would the inability to control oneself be accepted as relevant. This view began to change with the Model Penal Code. In § 4.01 insanity is defined as follows: “A person is not responsible for criminal conduct if at the time of such conduct as the result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.” This approach largely conforms to the German concept of insanity.42 Also in England, the M’Naghten Rules provoked much criticism, with the Butler Committee, for example, asserting that “the M’Naghten test is based on an entirely obsolete and misleading conception of the nature of insanity.”43 The situation changed when the Homicide Act 1957 introduced the concept of diminished responsibility in regard to murder cases. Yet English law still follows a very strict approach and does not recognize loss of control due to a mental defect as an absolute defense.

4.  Relation to other grounds for excluding criminal liability It has already been shown that insanity is a special defense compared to other defenses such as consent, automatism, infancy, or mistake of law.

a) Automatism Under the heading of automatism, several cases discussed in the common law could be brought under the umbrella of mental disorder. Dogmatically speaking, automatism could deny the quality of human action altogether. Consequentially, no criminal liability—not even strict liability—can arise.44 Reflex actions, compelling force (vis absoluta), epilepsy, hyperglycemia, hypoglycemia, hypnosis, and somnambulism can form the basis of automatism. The common law seems 42   R. v. Creighton (1909) 14 CCC 349.   Fletcher (n. 2) 841.   Royal Commission on Capital Punishment, 1949–1953—Report (ed. Ernest Arthur Gowers, 1953), 80. 44   Andrew Ashworth, Principles of Criminal Law (6th ed., 2009), 99. 41

43

662   christoph safferling inclined to give the term automatism a rather broad scope of application. Under German law, in contrast, reflex action in a neurological sense, compelling force (vis absoluta), epilepsy, and comatose movements are accepted as denying the quality of a human act.45 In the other situations, named above, automatism would be denied and the case would be dealt with under § 20 StGB (Strafgesetzbuch, German Criminal Code) (insanity). The common law approach seems to be slightly broader. Thereby a partial compensation for the very narrow insanity defense is effectuated. Automatism is also applicable to strict liability cases, whereas the insanity test is not. In the modern criminal law systems of continental Europe, strict liability is seldom accepted as a form of criminal responsibility.46

b) Infancy Infancy is closely related to the insanity defense. Of course, it is not the case that the law treats an infant as “insane.” The concepts are interrelated because both pertain to the questions of who is immune from punishment, and who is incapable of crime. Moral maturity is the bottom line for criminal responsibility, and it excludes insanity and infancy.47 According to English law, an infant cannot be a party to a criminal offense;48 this is because a child is morally not mature enough to differentiate between right and wrong and therefore cannot act accordingly. In German law, the infant is deemed to act without guilt (§ 19 StGB) until he or she is 14 years of age.49 In English law, however, the presumption that the child is not morally mature enough can be refuted if the child is older than 10 years of age.50

c)  Mistake of law The difficult concept of mistake of law does have a lot in common with the insanity defense. The person who suffers from a mistake of law lacks insight into what is lawful and what is not. Under the common law, a mistake of law does not usually exclude criminal liability.51 The fact that the perpetrator did not know right from wrong is therefore only relevant if this inability is grounded in a mental disorder. In Germany, on the contrary, any mistake of law is relevant if it was unavoidable.52 If   See Claus Roxin, Strafrecht. AllgemeinerTeil I (4th ed., 2006), § 8 n. 65.   Vormbaum (n. 38) 87. 47   A different view is taken by Fletcher, who would identify infancy as a class exempt from criminal punishment and insanity as an excuse, see Fletcher (n. 2) 836. 48   Walters v. Lund [1951] 2 All E.R. 645. 49   Christoph Safferling in Holger Matt and Joachim Renzikowski (eds.), Strafgesetzbuch (2013), 50 § 19 n. 5.   See section 34 of the Crime and Disorder Act 1998. 51   See the classic Glanville Williams, Criminal Law. The General Part (2nd ed., 1961), 289. 52   See § 17 StGB and the leading case of the Bundesgerichtshof (German Federal Court of Justice): 2 BGHSt 194. 45

46

insanity and intoxication   663 the incapacity to differentiate between right and wrong is based on a mental defect, the law generally views this mistake as being unavoidable.53

5. Structure When looking at different regulations like the German StGB or the U.S. Model Penal Code and, with some deficiencies also, in the U.K. M’Naghten Rules, we can see that the culpability test is twofold. In the first step, it must be proven that the perpetrator suffers from a mental disease; whereas the second step evaluates whether this psychological situation has actually had such an influence on the perpetrator that she could not distinguish right from wrong, or could not control her behavior accordingly at the time of the criminal act. The first stage is an empirical test, while the second stage incorporates a normative aspect.54 These two stages overlap in several regards. What is important to note is the fact that it is not the mental disorder per se which excludes criminal responsibility. The question is whether the perpetrator’s psychological situation influenced him at the time of the conduct to such an extent that he cannot be blamed for it. Mental disease is therefore a necessary prerequisite for an insanity defense, but on its own is not sufficient. The normative stage which follows is whether the perpetrator could have been expected to conform to the legal requirements.

a)  Psychiatric aspects (mental defects) The term “insanity” is not a medical one. More useful and precise is the term mental disorder, or mental defect.55 The diagnosis has to be established by one or more medical and psychological experts and must follow international classification systems like ICD-10 (International Classification of Diseases) edited by the World Health Organization, or the DSM-V (Diagnostic and Statistical Manual of Mental Disorder) edited by the American Psychiatric Association in its latest version in 2013. Even if these classification systems are not legally binding, they are internationally recognized as standard-setting and must therefore form the basis of any professional exploration. The use of classification systems guarantees uniform terminology and— at least to some degree—makes the expertise more understandable and also controllable.56 These systems are thus important for easy communication between jurists and medical experts, as well as between other participants in the trial.   Safferling (n. 49) § 20 n. 63.   See Streng (n. 17) § 20 n. 15; see also Fletcher (n. 2) 841 f. 55   See Law Commission, A Criminal Code for England and Wales, Vol. 2, Commentary on Draft Criminal Code Bill (Law Com No. 177, 1989), para. 11.13; “mental abnormality” would be the term preferred by forensic psychiatrists, see M. Faulk, “Mentally Disordered Offenders in an Interim Regional Medium Secure Unit,” [1979] Crim. LR 686. 56   Axel Boetticher, Norbert Nedopil, Hartmut Bosinski, and Henning Sass, “Mindestanforderungen für Schuldfähigkeitsgutachten,” (2005) 25 NStZ 57 ff. 53

54

664   christoph safferling

b)  Normative aspects (cognitive and volitional capacity) On the basis of the mental disorder, the perpetrator must suffer from a functional defect.57 Either he is unable to differentiate between lawful and unlawful (cognitive capacity) or he is unable to act according to their insight (volitional capacity).58 As seen previously, the two forms of capacity have not historically been on an equal footing. However, a modern criminal justice system would accept both forms, the cognitive and the volitional capacity, as being relevant to the guilt of the perpetrator.59 This appears in the Rome Statute for the International Criminal Court (ICC). In Art. 31(1)(a) of the Statute it is laid down that a person is not criminally respon­ sible if, at the time of the conduct, the “person suffers from a mental disease or defect that destroys that person’s capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law.”60 If one of these capacities is missing, criminal responsibility is excluded. Systematically speaking, however, if the perpetrator lacks cognitive capacity the volitional capacity is irrelevant.61 Both tests are not in the abstract. The question which needs to be answered is whether the perpetrator had full capacity in both senses at the time of the conduct under the then-given circumstances. The capacities also need to be established with a view to the criminal norm.

II.  Psychiatric Aspects (Mental Defects) 1.  General remarks a) Defects As a primary condition for the insanity defense a mental defect has to be empiric­ ally proven. The M’Naghten Rules use the term “disease of the mind”; the Model

  Norbert Nedopil and Jürgen L. Müller, Forensische Psychiatrie (4th ed., 2012), 22.   For this differentiation, see also Dubber (n. 35) 200 and Fletcher (n. 2) 842. 59   Peter Krug, “The Emerging Mental Incapacity Defence in International Criminal Law:  Some Initial Questions of Implementation,” (2000) 94 AJIL 317, 324. 60   See Albin Eser, in Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court—Observer’s Notes, Article by Article (2nd ed., 2008), Art. 31 nn. 26 ff. 61   Safferling (n. 49) § 20 n. 61. 57

58

insanity and intoxication   665 Penal Code in § 4.01 uses “mental disease or defect”; German law in § 20 StGB gives four examples: “pathological mental disorder, a profound consciousness disorder, debility or any other serious mental abnormality.”62 Despite the fact that in all these definitions there is an empirical core, they also all have quantitative and normative aspects. Therefore the question whether a mental defect is present is not purely medical but also legal. In the U.K. Lord Devlin most prominently expressed this fact when he said: The law is not concerned with the brain but with the mind, in the sense that “mind” is ordin­ arily used, the mental faculties of reason, memory and understanding. . . . In my judgment the condition of the brain is irrelevant and so is the question of whether the condition of the mind is curable or incurable, transitory or permanent.63

This remark shows why the “(in)famous”64 M’Naghten Rules are “based on an entirely obsolete and misleading conception of the nature of insanity.”65 The breadth of the concept gets even worse if one follows Lord Denning: “It seems to me that any mental disorder which has manifested itself in violence and is prone to recur is a disease of the mind. At any rate it is the sort of disease for which a person should be detained in hospital rather than be given an unqualified acquittal.”66 This legal definition of a disease of the mind thus requires that (a) the mental disorder must lead to violence, and (b) the eruption of violence is due to be repeated. A final test is being introduced: whether it would be better if the accused were confined to a mental hospital rather than being acquitted and freed. These remarks by two influential Law Lords make clear that the insanity concept of the M’Naghten Rules is based on the evaluation of the judges rather than on medical expert opinion. The immense power of the judges to establish or refuse an insanity defense led to inconsistent and even contradictory decisions. Persistent criticism followed but did not as such lead to an amendment of the insanity rules.67 The sometimes absurd consequences of the verdict “not guilty but insane” were partially alleviated by the Mental Health Act 1983 which introduced the Mental Health Review Tribunal and the ability to conform therapy to medical diagnosis instead of to the court’s verdict.68 Any modern and scientifically up-to-date dealing with the moral capacity of the perpetrator, however, must appreciate developments in the areas of forensic psychiatry and psychology. It is therefore indispensable for judges to evaluate the culpability of the accused by starting with her medical and mental conditions. 62   Translation of the StGB provided by Michael Bohlander at:  (Nov. 13, 2013).   R. v. Kemp [1956] 3 All E.R. 249, 253. 64 65   Eser (n. 60) Art. 31 n. 23.   Royal Commission on Capital Punishment (n. 43) 80. 66   Bratty v. Attorney-General for Northern Ireland [1961] 3 All E.R. 523, 534. 67   See e.g. Alan Norrie, Crime, Reason, and History: A Critical Introduction to Criminal Law (2nd ed., 68 2001), 175 ff.; Ashworth (n. 44) 210.   See Safferling (n. 21) 450–451.

666   christoph safferling

b)  Time of defect It is also important to note that the mental situation needs to be the one at the time of the conduct even though it is sometimes difficult to reconstruct that mental state after the fact. Nevertheless, the conduct is the reason for the criminal sanction and not the personality of the person concerned. Some difficulties arise in cases in which the perpetrator has provoked the defect of reason intentionally. This would be the case if a person had consumed an amount of alcohol such that she was no longer in a position to control herself. An English judge would most certainly not hesitate to convict if the accused had intoxicated herself on purpose. The argument would be that of “prior fault,” and as Lord Denning stated, “[t]he wickedness of his mind before he got drunk is enough to condemn him, coupled with the act which he intended to do and did do.”69 Under the German StGB, the case is more difficult to argue. According to § 323a StGB, anyone who commits a crime while fully inebriated can be convicted for the drinking itself. To criminalize drinking itself is unthinkable in English law but not in U.S. law.70 However, the sentence for drunkenness under German law is much more lenient compared to that of the underlying crime which does not seem appropriate in many cases involving violent crime. Therefore the concept of actio libera in causa has been developed which refers to the situation of an act which is free in its origin even if in the end the act is no longer free due to alcohol intoxication. If the offender has been drinking with the purpose of committing the particular criminal act in a state of total drunkenness, he will be convicted for the crime and not just for the drunkenness itself.71 Even if the result remains essentially the same in English and German law,72 the systematic explanation of this outcome is heavily disputed among German scholars.73 Without going into further detail, several theoretical models have been developed in order to rationalize this result. It is interesting to note that the drafters of the Statute for the ICC found it necessary to incorporate a rule addressing the commission of a criminal act in a state of total drunkenness (Art. 31(1)(b) ICC Statute), which reads:

69   Attorney-General for Northern Ireland v.  Gallagher [1961] 3 All E.R. 299, 314; similarly, DPP v. Majewski [1976] 2 All E.R. 140, 150 (per Lord Elwyn-Jones). 70  See Powell v. Texas, 392 U.S. 514, 517 (1968), where the Court upheld a conviction of a purportedly chronic alcoholic under a Texas statute that provided: “Whoever shall get drunk or be found in a state of intoxication in any public place, or at any private house except his own, shall be fined not exceeding one hundred dollars” (citation omitted). 71   Safferling (n. 49) § 20 nn. 77 ff. with further references. 72   See Brian Foley, “Same Problem, Same Solution? The Treatment of the Voluntarily Intoxicated Offender in England and Germany,” (2001) 4 Trinity College LR 119 for a thorough comparison of German and English law in this regard. 73   See in great depth, Michael Hettinger, Die “actio libera in causa”: Strafbarkeit wegen Begehungstat trotz Schuldunfähigkeit? Eine historisch-dogmatische Untersuchung (1988).

insanity and intoxication   667 The person is in a state of intoxication that destroys that person’s capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law, unless the person has become voluntarily intoxicated under such circumstances that the person knew, or disregarded the risk, that, as a result of the intoxication, he or she was likely to engage in conduct constituting a crime within the jurisdiction of the Court . . .

Even if it is unlikely that this provision will ever be invoked at the ICC,74 it shows that the international community does not accept voluntary intoxication as a defense in criminal law despite dramatic controversies on attitudes toward alcohol.75

2.  Mental diseases Modern approaches to mental diseases do not follow an etiologically defined diagnosis. Classification systems like the ICD-10 and the DSM-V adhere to what can be called a descriptive diagnosis.76 The term “diseases” insinuates a somatic reason for the disorder. Even if it is a mental disease, it is assumed to be of an organic nature and defects of such a kind can form the basis of an insanity defense (see Section II.1.a). In addition to these pathological defects, an antisocial personality disorder can compromise the mental capacities of the offender. Yet not every mental health problem qualifies for an insanity defense; only a grave abnormality which is as serious as an organic disease can be taken into account (see Section II.1.b).

a) Insanity The classical form of a mental disorder is a psychosis. It is an abnormal condition of the mind, involving to a certain degree “a loss of contact with reality.”77 An important example is that of a schizophrenic person: hallucinations or delusions can originate from schizophrenia and can lead to a criminal act. It is also possible that the ordinary course of thought and judgment is affected by schizophrenia so that a psychotic person cannot differentiate between right and wrong. A manic depressive psychosis (bipolar disorder) can also be the medical basis for an insanity defense as well as meningitis, encephalitis, traumatic psychosis (post-traumatic stress disorder), epilepsy,78 arteriosclerosis, chronic degenerative defects of the central nervous system like dementia, and also in the form of alcoholor drug-induced dementia. Finally, some situations of diabetes (hyperglycemic or   “It seems absurd,” writes Kai Ambos, “Other Grounds for Excluding Criminal Responsibility,” in Antonio Cassese, Paola Gaeta, and John Jones (eds.), The Rome Statute of the International Criminal 75 Court. A Commentary, Vol. I (2002), 1003.   Eser (n. 60) Art. 31 n. 30. 76 77   See Streng (n. 17), § 20 n. 13.   For examples, see Safferling (n. 49), § 20 nn. 20–22. 78   R. v. Sullivan [1983] 2 All E.R. 673. 74

668   christoph safferling hypoglycemic fit) can establish a disease of the mind. Intoxication is also a form of psychosis. We will deal with this later amongst temporal inabilities (see Section III.1). A somewhat strange differentiation has appeared in English law—under the M’Naghten Rules—concerning offenders who suffer from diabetes. A  hypogly­ cemic fit was not accepted as constituting a disease of the mind, as the physical condition was induced by the injection of too much insulin as an external factor;79 whereas only internal factors could qualify as a disease of the mind. A hypergly­ cemic fit, where the condition originates in the lack of production of insulin and thus in the diabetes itself, would be acceptable as a disease of the mind.80 The differentiation between external and internal factors, however, does not mirror the state of the art and should be abolished. Under no circumstances is it justifiable to discriminate between the case of a hypoglycemic and a hyperglycemic fit.81

b)  Personality disorders A personality disorder or psychoneurosis is any of various mental or emotional disorder, such as hypochondria or neurasthenia, arising from no apparent organic lesion or change and involving symptoms such as insecurity, anxiety, depression, and irrational fears, but without psychotic symptoms such as delusions or hallucin­ ations. Three groups of cases can be differentiated:  (a)  addiction-type disorders; (b) perversion-type disorders; and (c) other personality disorders.

Addiction-type disorders Drug or alcohol addiction can lead to dementia, in which case we would have a psychotic situation. Similarly, acute intoxication could cause a temporary psychosis. In contrast, the addiction-type disorder is a specific form of personality disorder82 and can be the case if a manifest mental or physical addiction has been diagnosed. Current withdrawal symptoms or the fear of upcoming withdrawal symptoms can take possession of a person to such an extent that he is no longer able to control himself. This, of course, will mostly be the case in drug-related crimes. Likewise, addictions which are not related to substance abuse can be of relevance here:  pathological gambling, kleptomania, pyromania, and even shopping addiction. Yet their relevance depends on grave modifications of the personality or a direct influence of current withdrawal symptoms.

Perversion-type disorder Sexual abnormality as such, like pedophilia, does not qualify as a mental defect. However, it can be the case that a perverted sexual instinct destructs all natural 80   R. v. Quick and Paddison [1973] 3 All E.R. 347.   R. v. Hennessy [1989] 2 All E.R. 9.   Joachim Watzek, Rechtfertigung und Entschuldigung im englischen Strafrecht. Eine Strukturanalyse der allgemeinen Strafbarkeitsvoraussetzungen aus deutscher Perspektive (1997), 242 ff. 82   Safferling (n. 49) § 20 n. 43. 79 81

insanity and intoxication   669 repression (irresistible impulse).83 The sexual deviance must have modified the offender’s personality to such an extent that he cannot resist the instinct despite all willpower. Causes of such a situation in the behavior of the offender can be: (a) decline in sexual satisfaction; (b) growing frequency of sexual activity; (c) a more refined behavior; and (d) persisting intellectual engagement with the sexual activity.84 In order for a perversion to amount to a mental defect it must reach a pathological level, and this can only be inferred from a comprehensive survey of the personality of the perpetrator as a whole.

Other personality disorders A personality disorder can be accepted as a mental defect, but only if a serious deviation from a normal psychological accentuation can be diagnosed. It must be of a persistent nature and it must diminish the performance of the offender substantially and influence her social adaptability to a high degree.85 An antisocial personality disorder is characterized by a conspicuous loss of empathy, a visible and protracted irresponsibility, and the neglect of social norms. Other parameters can be the inability to sustain a long-term human relationship, a tendency toward violence and aggression, and an incapacity to experience a sense of guilt or to learn from experience, in particular from punishment received. Identifying a mental defect according to these categories is difficult because several of these parameters can also be observed in mentally “normal” people who commit criminal acts. In other words, the antisocial personality disorder describes the archetype of criminal.86 So-called borderline personality syndrome can also be included in these personality disorders. In general, borderline syndrome is accepted as a mental defect but whether it can be the underlying basis for an insanity defense depends on the gravity of the disorder in an individual case.87 Whether the offender suffered from a pathological mental disorder, or whether his personality is unusual but not pathologically disturbed, can only be found by weighing a comprehensive survey of his entire personality.88 Most relevant for this test are the consequences for the everyday life of the offender, his social contacts and his occupational competences. There are also counterindicators:  the more 83   As in the case R. v. Byrne [1960] 3 All E.R. 1, which of course was a case of diminished responsibil84 ity according to section 2 of the Homicide Act 1957 (see later).   Nedopil (n. 57) 168. 85   Safferling (n. 21) § 20 nn. 53 ff. 86  Franz Streng, “  ‘Komorbidität,’ Schuld(un)fähigkeit und Maßregelanordnung,” (2004) 24 Strafverteidiger 614, 616. 87   In favor of a cautious approach, Heinz Schöch, in Helmut Satzger, Bertram Schmitt, and Gunter Widmaier, Strafgesetzbuch: StGB. Kommentar (2009), § 20 n. 78. 88   Stephen J. Morse, “Excusing the Crazy: The Insanity Defense Reconsidered,” (1985) 58 Southern California LR 777, 820: “overwhelmingly predominant reason” to act. Safferling (n. 49) § 20 n. 54.

670   christoph safferling calculated and cold-blooded the offender acts, the less likely that there is a connection to a personality disorder. The “normal” behavior of members of the general public can serve as a point of reference, yet this reference is of course a “virtual reality” and not empirical “hard proof.”89 The test must thus be applied very carefully. Judgments about mental capacity often depend on more than one criterion. If a personality disorder by itself would not be grave enough to be of relevance, it might be that taken together with the alcohol intoxication at the time of the act, the test is fulfilled. Multiple defects can bring about a mental disorder which can lead to incapacity.90

3.  Temporal inabilities Some mental defects are of a temporary or reversible nature, like intoxication (see Section III.3.a), somnambulism (Section III.3.b), or to acts in the heat of the moment (affect, Section III.3.c).

a) Intoxication Alcohol or drug intoxication is a form of psychosis induced by external factors. English law differentiates between voluntary and involuntary intoxication. Voluntary intoxication has never been an excuse for criminal misconduct,91 but involuntary intoxication in theory can lead to an excuse. However, an acquittal is only possible if, as a result of involuntary intoxication, the offender lacks the mens rea of the offence92 but this can only be the case if the crime requires a “specific” (and not only basic) intent, as will be explained later. This differentiation started in the Majewski case93 in which the chance of a successful defense was reduced considerably, all the more so as no one knows which crimes require specific intent and which do not.94 This rather total consequence—with whether a defense will apply depending in some cases only on the definition of “specific” intent—is typical and unique to English law. It seems to be socially well accepted that the person who causes harm in a state of drunkenness will be punished for the harm itself and not for drinking too much.95 Other Commonwealth states have in the meantime abandoned the rule derived from Majewski. The principles of mens rea and voluntariness contradict punishing the person who in a state of drunkenness does not know what she is doing.96   Safferling (n. 49) § 20 n. 54.   See Streng (n. 86) 614, who calls the phenomenon “Komorbidität” (comorbidity). 91   DPP v. Beard [1920] All E.R. Rep. 21, 25. 92   Ormerod (n. 7) 240. Similarly DPP v. Beard [1920] All E.R. Rep. 21, 30. 93   DPP v. Majewski [1976] 2 All E.R. 142. 94   Critical Fletcher (n. 2) 851; Ormerod (n. 7) 243. 95   Jerome Hall, General Principles of Criminal Law (2nd ed., 1960), 529; Ormerod (n. 7) 251. 96   See Ormerod (n. 7) 251. 89

90

insanity and intoxication   671 In German law, drunkenness is accepted as an excuse if a comprehensive scrutiny of all the external and internal factors of the criminal act, as well as the personal constitution of the offender, reveals that the offender was unable to control himself at the time of the offense. A first indication of this is the blood alcohol content: if a medical test reveals more than 3.0 per mille alcohol in the blood of the offender at the time of the crime, the judge needs to evaluate the mental capacity of the offender in greater depth. The jurisprudence accepts the following criteria as further signs of mental incap­ ability:97 (a) memory loss—the less the offender remembers the details of her act the more likely she was not under control of her actions; (b) neurological deficits— if no neurological problems can be observed, it is highly likely that the offender could control his activity despite the level of intoxication; (c) the behavior after the criminal act—if the intoxicated person performed a number of complex tasks after the offense, it appears less likely that she was out of control. Purposeful and comprehensive behavior indicates culpability.

b) Somnambulism It is interesting to note that somnambulism does not play a role in German case law or scholarly writing. In an Anglo-American context, there are several spectacular cases and every textbook needs to have a chapter on somnambulism.98 In English law, somnambulism has been accepted as a disease of the mind in the sense of the M’Naghten Rules.99 In a Canadian case, however, somnambulism was counted as a form of automatism and the offender was, due to the lack of a relevant actus reus, acquitted.100

c) Affect To act in the heat of the moment is, generally speaking, no excuse as long as the affect stays within the limits of the ordinary. High emotions and excitement are normal reactions of human beings in situations of conflict. In principle, it is expected that despite these emotions one retains control over one’s actions. Nevertheless, extreme situations of excitement are of relevance to the question of mental capacity101 but only in rare cases will this lead to a total excuse. A partial excuse however, and a more lenient sentence, will be acceptable in serious cases.

  BGHSt 43, 66.   See Ashworth (n. 44) 103; Hall (n. 95) 175; Norrie (n. 67); Ormerod (n. 7) 39; Williams (n. 51) 482; Claire Finkelstein in Stephen Shute and A. P. Simester (eds.), Criminal Law Theory: Doctrines of the 99 General Part (2002), 143.   R. v. Burgess [1991] 2 All E.R. 769. 100   R. v. Parks (1990) 56 CCC (3d) 449. Parks was originally charged with murder. 101   Safferling (n. 49) § 20 nn. 32–37. 97

98

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III.  Normative Aspects (Cognitive and Volitional Capacity of Insanity) Even if the perpetrator suffers from a mental disease as discussed previously (Section II), the judge must still evaluate whether at the time of the criminal act the offender lacked the ability to understand the criminal nature of his act (cognitive capacity) and whether he could not conform his conduct to the requirements of the law (volitional capacity, see Model Penal Code § 4.01). Before looking at these different approaches in greater detail (Sections III.2 and 3) a few general remarks need attention.

1.  General remarks Criminal responsibility is excluded if either cognitive or volitional capacity is missing. The mental defect must have provoked a functional defect in the offender which manifested itself either on the intellectual side or on the operational side. It suffices if the perpetrator lacked either of the two elements. The cognitive side, that is, the ability to understand right from wrong, has systematic and logical priority over the volitional side.102 If the perpetrator is unable to understand the law, she cannot motivate herself to act in accordance with the law. The two capacities should not be evaluated in the abstract: rather, the specifics of different prohibitions must be taken into account. Different types of crimes might lead to different excuses.103 The perpetrator, for example, might understand that he is committing a fraud while he does not see that at the same time he is also committing a falsification of documents. We have already seen that the common law does not accept the volitional element according to the M’Naghten Rules. This can be seen as resulting from a misunderstanding of human choices and from a narrow focus on individual responsibility.104 Human nature, however, is not like that. Knowing right from wrong does not necessarily mean that one is in a position to motivate oneself to act according to one’s consciousness. The offender is not to be blamed if her mental condition has led to loss of control.

2.  Appreciation of the wrongfulness of the conduct If the perpetrator did not recognize that his act was contrary to a criminal norm, this is an unavoidable mistake of law, which is grounded in biological reasons.105   Streng (n. 17) § 20 n. 51.   Theodor Lenckner and Walter Perron, in Adolf Schönke and Horst Schröder, Strafgesetzbuch. Kommentar (2006), § 20 n. 31.    104  Ormerod (n. 7) 204.    105  Safferling (n. 49) § 20 n. 65. 102 103

insanity and intoxication   673 This lack of awareness of the law must originate in a mental deficit as discussed previously; for example, it may be due to a psychotic loss of contact with reality.

3.  Ability to conform the conduct to the requirements of the law Even if the perpetrator appreciates the law, she might not be able to conform her conduct to the law. The offender must bring all power of resistance available to bear in order to motivate herself in accordance with the law. It is, however, difficult to see under which circumstances a defect in the ability to control herself can be established.106 It has been suggested that the offender must have acted out of character.107 Of course, one then runs the danger of overemphasizing the character of the perpetrator and losing sight of the actual deed. In order to come to a decision, the entire personality of the offender together with his mental (in)abilities must be taken into account, to evaluate whether or not he was in a position at the time of the act to motivate himself to behave in accordance with the law.

IV.  Legal Consequences 1.  Burden of proof The “defense” approach leads to the consequence that the perpetrator has to argue insanity in order not to be punished. This means that: (a) if the accused does not raise the defense, she will be sentenced; and (b) that the accused has to bring evidence of her mental defect and to show that as a consequence she did not appreciate the law or could not motivate herself to conform to the law. The offender has to be diagnosed with the mental defect by a court-appointed mental health professional. According to the Model Penal Code the burden of proof would rest on the prosecution.108 In continental Europe, generally speaking, moral culpability needs to be established by the court as it is one of the prerequisites for a guilty verdict. The court appoints a forensic psychiatrist to diagnose the accused but often these experts

  Streng (n. 17) § 20 nn. 60 ff.   See e.g. BGHSt 1, 124, 126; BGHSt 37, 231, 242. 108   See Dubber (n. 35) 197. 106 107

674   christoph safferling overstress their expertise. Regularly they will not only present their psychiatric anamneses but will also give their opinion on the legal consequences. Yet the normative aspects of the gravity of the defect or the impact on the ability to know the law and act accordingly are exclusively for the judges to decide. In the case of doubt, the court has to decide in favor of the accused, although sometimes this is not as straightforward as it seems. As all the consequences for the accused must be evaluated, the court has to take into consideration that an acquittal by reason of insanity can lead to protracted residential therapy.109 Short-term imprisonment or parole might be more lenient compared to such therapy.

2.  Total or partial excuse Apart from the “insanity” defense, mental disorders can also be relevant for a “partial defense” of “diminished responsibility.” The defense is partial because it does not lead to the total excuse of the accused, that is, it is not followed by a verdict of “not guilty.” Rather, the consequence of diminished responsibility is a reduction in sentencing. An example of a partial excuse in English law is found in section 2 of the Homicide Act 1957. Where a person kills or is party to the killing of another, shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition or arrest or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being party to the killings.

Technically, the leniency of the sentence is arrived at by a reduction in the charge. The murder charge is decreased to a charge of manslaughter by reason of diminished responsibility. The most important consequence, however, is the reduction of the mandatory life sentence for murder110 and, in contrast to the narrow interpretation of the M’Naghten Rules, a broad interpretation is adopted. In Byrne, it was accepted that not only cognitive but also volitional capacity has to be taken into account under the Homicide Act.111 The traditionally harsh treatment of drunkenness also shows up here: intoxication is only rarely accepted as grounds for diminished responsibility by English courts.112 In Germany, a similar provision in § 21 StGB is applicable not only to murder but to all crimes. It reads as follows: If the capacity of the offender to appreciate the unlawfulness of his actions or to act in accordance with any such appreciation is substantially diminished at the time of the commission   Streng (n. 17) § 20 n. 30.    110  Allen (n. 5) 139.   R. v. Byrne [1960] 3 All E.R. 1, 4. 112   See D. J. Powers, Criminal Law and Psychiatry (1987), 26; Safferling (n. 21) 453 ff. 109 111

insanity and intoxication   675 of the offence due to one of the reasons indicated in § 20, the sentence may be mitigated pursuant to § 49(1).

No modification of the charge is affected by this norm; instead it allows an optional mitigation of the sentence. The option of such a reduction has to be taken into account in cases of an intoxicated perpetrator if the blood alcohol content exceeds 2.0 per mille. Milder forms of psychotic behavior, affect, and personality disorder also come within the ambit of the norm. In order to decide whether or not a sentence reduction is adequate, the judges have to evaluate all relevant factors concerning the criminal act and the character of the accused.113

3.  Psychiatric treatment Upon a verdict of not guilty but insane, the defendant is usually committed to a mental institution. Such a defendant is often confined for twice as long as if found guilty and sent to prison. Very few acquitted insanity defendants are given supervised release and even fewer are released directly following the verdict.114 The law limits the detention of an offender who was acquitted due to an insanity defense and ongoing detention must be periodically reviewed to determine whether continued treatment is necessary. In a U.S. case, for example, the court held that an antisocial personality cannot be grounds for indefinite confinement.115 The consequences that come with an insanity defense are thus most severe: the acquitted person may be hospitalized for observation and examination purposes and, after that examination, may be committed to a hospital through an order by a judge. The commitment is subject to periodic review. Nevertheless, the requirements for release are very strict. Only if reoffending is highly unlikely will the director of the mental health clinic and the court agree on release. For reasons of proportionality, however, the right to liberty might become more important than it is in ongoing non-psychiatric detention.

4.  Alcohol or drug treatment According to § 64 StGB: If a person has an addiction to alcohol or other drugs and is convicted of an unlawful act committed while he was intoxicated . . . the court shall make a custodial addiction treatment order if there is a danger that he will commit future serious unlawful acts as a consequence of his addiction.   Safferling (n. 49) § 21 n. 17.    114  Allen (n. 5) 139.   Foucha v. Louisiana, 504 U.S. 71, 112 S. Ct. 1780, 118 L.Ed. 2d 437 (1992).

113 115

676   christoph safferling Such an order shall not be made unless ab initio there is a sufficiently certain prospect of success that the person can be healed by way of custodial addiction treatment or that a relapse into addictive behaviour and the commission of serious unlawful acts caused by that addiction can be prevented for a substantial period of time.

This specific measure of rehabilitation is directed first to protect the general public from recidivism, and second to cure the offender of her addiction as can be seen by the requirement that there needs to be a certain prospect of success.116 A similar provision is unnecessary in common law countries because an intoxication defense will not be successful as an absolute defense. In these countries, alcohol and drug treatments occur in ordinary detention facilities, which is certainly not the ideal method compared to being treated in residential treatment facilities.

References Eser, Albin and Fletcher, George P. (eds.), Rechtfertigung und Entschuldigung, Vol. I (1987) Fennell, Phil, “The Criminal Procedure (Insanity and Unfitness to Plead) Act 1991,” (1992) 55 Modern LR 547 Fletcher, George P., Rethinking Criminal Law (2000) Foley, Brian, “Same Problem, Same Solution? The Treatment of the Voluntarily Intoxicated offender in England and Germany,” (2001) 4 Trinity College LR 119 Hathaway, Mark, “The Moral Significance of the Insanity Defence,” (2009) 73 Journal of Crim. Law 310 Horder, Jeremy, Excusing Crime (2004) Jain, Neha, “Individual Responsibility for Mass Atrocity:  In Search of a Concept of Perpetration,” (2013) 61 American Journal of Crim. Law 831 Levy, Jonathan, “A Principled Approach to the Standard of Proof for Affirmative Defenses in Criminal Trials,” (2013) 40 American Journal of Crim. Law 281 Morris, Norval, Madness and the Criminal Law (1982) Morse, Stephen J., “Excusing the Crazy:  The Insanity Defense Reconsidered,” (1985) 58 Southern California LR 777 Pauen, Michael and Roth, Gerhard, Freiheit, Schuld und Verantwortung (2nd ed., 2008) Safferling, Christoph, Vorsatz und Schuld (2008) Sasso, Peggy, “Criminal Responsibility in the Age of ‘Mind-Reading’,” (2009) 46 American Crim. LR 1191

  Karl Lackner and Kristian Kühl, Strafgesetzbuch. Kommentar (27th ed., 2011), § 64 n. 1.

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SECTION B

SUBSTANTIVE CRIMINAL LAW: SPECIAL PART

­c hapter 30

THEORIES OF CRIMINALIZATION tatjana hörnle

i.  Introduction to Theories of Criminalization Legislatures’ decisions about offense descriptions in the Special Part of a criminal code (or in criminal laws) are at least as important as those about punishments. The scope of criminal prohibitions is an especially telling sign of a political community’s attitude toward citizens’ liberties.1 From the perspec­ tive of normative criminal law theory, it is clear that the principles that guide deliberations about criminalization are of high importance. It is therefore sur­ prising that for many years, criminalization theory has not been given as much attention as its twin sister, punishment theory, which is the subject of myriads of publications. Notwithstanding this persistent disregard, the interest in crimin­ alization theory does seem to be growing. Traditionally, criminalization theory was a matter for political philosophers and criminal law theorists who were concerned with the purpose of prohibitions in crim­ inal laws (see, e.g., the famous exchange between H. L. A. Hart and Lord Devlin 1   See Douglas Husak, Overcriminalization (2009), vii: “apart from waging war, no decision made by the state is more significant than its judgment about what conduct should be proscribed and how severely to punish it.”

680   tatjana hörnle regarding the protection of morality).2 Authors from both the Anglo-American and the continental European traditions devoted considerable attention to defining legit­ imate goals and excluding illegitimate goals, summarizing these considerations with terms such as “the harm principle” or “protection of legal good (Rechtsgüterschutz),” see Section III. The foundations for these concepts (John Stuart Mill’s “On Liberty” or works by German criminal law theorists, such as Paul Johann Anselm Feuerbach or J. M. F. Birnbaum) were laid down in the nineteenth century. In the last decades, constitutional lawyers increasingly participate in debates about criminalization. There are obvious reasons for the latter development. A comprehensive approach in the twenty-first century must take constitutional issues into account. After all, most modern legal systems are organized according to a pyramid scheme, with a constitu­ tion placed on the pinnacle. In a number of famous cases, constitutional courts have decided on matters of criminalization. However, upon closer examination, the con­ stitutionalization of criminalization turns out to be fragmentary (see Section II). The impact of constitutional law does not render the work done in criminal law theory and political philosophy superfluous.

ii.  Constitutional Aspects 1.  Constitutional norms Whoever is interested in the lawmaking framework of a given legal system should begin with the text of the constitution (if a written constitution is part of the legal system). One of the defining characteristics of a constitutional state is that constitutional law is the highest law.3 Criminal statutes therefore have to be com­ patible with positive constitutional law. In fact, one can often find some general requirements for criminal norms in constitutions, for instance requirements of clarity and strictness and prohibitions on ex post facto laws. Constitutions may also include a subset of provisions that preclude certain types of punish­ ments. The German Constitution, for example, bans the use of the death penalty.4 However, constitutional norms typically only address a few points that are specific to the criminal law field. Extended constitutional demands are conceivable in a model constitution. Notions such as “harm to others” or “protected legal good”   Patrick Devlin, The Enforcement of Morals (1965); H. L. A. Hart, Law, Liberty and Morality (1963).   Dieter Grimm, “Types of Constitutions,” in Michael Rosenfeld and András Sajó (eds.), The Oxford Handbook of Comparative Constitutional Law (2012), 98, 104. 4   Art. 102 GG (Grundgesetz, German Basic Law). 2 3

theories of criminalization   681 (Rechtsgut, see Section III.2.a) could be included (e.g. “criminal prohibitions are only permissible as far as they are necessary to prevent harm to others”). Or a basic framework might be formulated in a negative way (e.g. “criminal norms must not be enacted in order to promote morality”). However, such guidelines are not customarily a part of constitutions (and, from the perspective of constitu­ tional theory, questions would arise regarding the appropriateness of detailed and binding restrictions on legislatures’ decision-making). Next, one should turn to the parts of constitutions that stipulate individuals’ liberties and rights in a general way that is not tailored to the criminal law. Such catalogs of liberties and rights are essential parts of modern constitutions. Whether they are able effectively to place limits on the criminal law will, however, depend on both the wording and constitutional interpretation. Constitutional courts do occasionally object to the description of an offense because of basic liberties. For instance, the strong position on freedom of speech in the First Amendment to the U.S. Constitution (“congress shall make no law . . . abridging the freedom of speech”) and as it has been enforced by the U.S. Supreme Court deserves attention. The U.S. Supreme Court has employed this right to declare speech offenses unconstitu­ tional.5 However, beyond such specific features of U.S. constitutional law, a search through constitutional provisions is not likely to uncover clear-cut restraints on the criminal law. This would presuppose a constitutional statement that a certain right must (almost) always prevail. But most rights in the majority of constitutions are either furnished with clauses allowing for statutes to restrict the right, or statutorily interpreted to include a range of implicit exemption clauses. Accordingly, constitu­ tional texts usually only provide a loose framework for criminal legislation. For this reason, studies on the relationship between constitutional law and criminalization theory usually turn to constitutional jurisprudence.

2.  Constitutional courts’ decisions Constitutional discourses about criminalization acknowledge that criminal pun­ ishment infringes liberty rights. The proposition that persons have a prima facie right not to be punished6 is inherent in important constitutional courts’ decisions.7 However, the outcome of constitutional scrutiny will depend on the standards that  See Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002); U.S. v. Alvarez, 132 S.Ct. 2537 (2012).   Husak (n. 1)  126; Dennis Baker, The Right Not to be Criminalized:  Demarcating Criminal Law’s Authority (2011). 7   The German Federal Constitutional Court acknowledges that criminal laws interfere with Art. 2 paras. 1 and 2 GG (“Cannabis Case,” 1994, BVerfGE 90, 145, 172); the Canadian Supreme Court cites section 7 of the Canadian Charter of Rights and Freedoms (R. v. Malmo-Levine, R. v. Caine [2003] 3 SCR 571); the U.S. Supreme Court (in Lawrence v. Texas, 539 U.S. 558 (2003)) refers to the liberty clause in the Fourteenth Amendment. 5

6

682   tatjana hörnle are applied when it comes to overriding a prima facie right not to be punished. When reading rulings from different jurisdictions, the following general impression emerges: constitutional courts tend to avoid declaring criminal prohibitions uncon­ stitutional and therefore do not effectively supervise the content of criminal prohib­ itions. Even if they, like the German Federal Constitutional Court, boldly state that the criminal law must be applied parsimoniously as ultima ratio or a last resort,8 this does not translate into a close-meshed review of substantive criminal law. Control of criminal legislation could take place at different stages. First, there is the doorway decision, that is, the determination of legitimate legislative purposes. Secondly, notions of a proportionality test (in a wider sense) could be invoked to declare a prohibition unconstitutional despite the legitimate purpose it serves. When constitutional courts leave the goals to be pursued with criminal prohib­itions up to the legislatures, they open a very broad doorway. This might then be narrowed in a second stage of constitutional scrutiny, but one should not underesti­mate the importance of the doorway decision. The less constitutional courts are willing to argue that some purposes are not acceptable, the less likely it is that constitutional review will have constraining effects. How do constitutional courts make decisions on this point? They tend to endorse concepts developed in their own legal and academic tradition (in the English-speaking countries, the “harm principle,” or in Germany, “legal goods,” Rechtsgüter). For instance, in R.  v.  Malmo-Levine9 the Supreme Court of Canada discusses the “harm principle” and in the “Cannabis Case,” the German Federal Constitutional Court refers to the protection of legal goods (Rechtsgüterschutz).10 However, the same courts have rejected the argument that the national legisla­ tures should be bound by these concepts. Of course, a comparative perspective does reveal some differences. In a case concerning incest between adult siblings, for example, the German Federal Constitutional Court backs away from criticizing legislative purposes. In Lawrence v. Texas, however, the U.S. Supreme Court takes a somewhat firmer position and declares the Texan anti-sodomy law to be a violation of the constitution.11 The German Court explicitly left open the question of whether the protection of morality might be considered a legitimate purpose for criminal laws,12 while the U.S. Supreme Court did not accept this as a legitimate purpose.13 If a constitutional court does not object to the purpose of a certain criminal pro­ hibition, this still leaves open the option of using proportionality tests to scrutinize the norm. The German Federal Constitutional Court emphasizes proportionality rules when it sketches general principles of its constitutional review. One element  “Abortion Case” (1975), BVerfGE 39, 1, 47; “Incest Case” (2008), BVerfGE 120, 224, 239–240. 10 11   See n. 7.  “Cannabis Case” (n. 7) 173; “Incest Case” (n. 8) 240.   See n. 7. 12  “Incest Case” (n. 8) 248. 13   Admittedly, it could be questioned whether the U.S. Supreme Court is the bolder court—different outcomes could be explained by the fact that incest is still widely regarded as objectionable while atti­ tudes toward homosexual relationships have changed considerably. 8

9

theories of criminalization   683 of the German proportionality test (which is the standard constitutional test14) is the requirement that the prohibition be necessary (erforderlich), meaning that the leg­ islature did not have another equally effective but less intrusive option for the legal regulation. A second element is proportionality in a narrower sense: the severity of the intrusion into potential offenders’ rights must be weighed against the import­ ance of the justifying purpose.15 In the end, however, the German Court’s propor­ tionality test turns out to be toothless when it comes to deciding specific cases.16 The necessity requirement is not a hurdle (the effectiveness of alternatives is dif­ ficult to assess, as it is not always clear what should count as less intrusive, and the Court insists that the legislature should enjoy a margin of discretion), and “propor­ tionality in a narrower sense” is not utilized to control the legislature because the weighing procedure allows for a high degree of discretion when assigning weights to different positions on the scales. Again, it appears that the U.S. Supreme Court allows itself somewhat more leeway to override legislative decisions—in cases when a strict scrutiny test is applied which demands compelling state interests (albeit not in others when a less demanding test is used).17 But the U.S. Court has also been criticized for failing to be more attentive to the difference between criminal and non-criminal legislation.18 In the end, it is doubtful whether the best approach to developing a theory of criminalization is to analyze constitutional courts’ decisions. It is essential to distinguish between a court’s ex post perspective and the ex ante perspective of legislatures. Emphasizing the ex post perspective has rightly been assessed as ineffective.19 Supervisory institutions usually eschew comprehensive control even within the same branch of state power. In order to avoid duplicating all processes of decision-making, they tend to propose wide boundaries. For constitutional courts, the need for restraint is amplified by the fact that they interfere with another branch of state power and, in particular, by the weight of the democratic principle. And it is not only judicial self-restraint in relation to democratically elected parliaments, but also (perceived) public sensitivities and case-specific political issues that shape both the formulation and employment of seemingly general principles. This complicates both the interpretation and comparison of constitutional courts’ decisions, and the task of extracting suitable principles for the ex ante perspective that is needed in a theory of criminalization. For these reasons, conclusive statements about the adequate goals of criminal laws and the constraints on pursuing these goals cannot simply be deduced from constitutional courts’ decisions.

  See Dieter Grimm, “Proportionality in Canadian and German Constitutional Jurisprudence,” (2007) 57 University of Toronto LR 383. 15  “Cannabis Case” (n. 7) 172–173; “Incest Case” (n. 8) 240–241. 16   Sabine Swoboda, “Die Lehre vom Rechtsgut und ihre Alternativen,” (2010) 122 ZStW 24, 46–49. 17 18 19   Husak (n. 1) 123.   Husak (n. 1) 125.   Husak (n. 1) 131. 14

684   tatjana hörnle

3.  Democracy as a substitute for criminalization theory? If neither constitutional texts nor constitutional jurisprudence are rich sources for criminalization theory, what are the alternatives? For some constitutional law theorists, the solution is plain: just leave the relevant considerations to the democratically elected parliaments. According to this view, criminal law theor­ ists should no longer insist that legislatures ought to respect philosophical or theoretical concepts. Legitimacy is provided by the democratic principle.20 One point in this reasoning must be conceded: legislatures are not under an obligation to adhere to philosophical concepts simply because they are venerable and well grounded in a country’s inventory of ideas. Constitutional courts are, of course, right in pointing out that lists of pre-constitutional principles or goods do not bind the democratic legislature.21 Within a legal system, theorists can­ not claim hegemonic power.22 But, while criminal law theory should not be superimposed on the political processes and narratives of legitimacy that are characteristic of democracies, criminal law theorists should interact with these processes by proposing substantiated guidelines. Criminalization theory should provide rational, coherent, and principled arguments, arguments which are (or should be) necessary in the deliberative stages that precede the casting of ballots in parliament.

4.  Relations between criminalization theory and constitutional theory Within the arena of national criminal politics, references to constitutional norms will be weighty arguments (how sweeping they are will depend on how unequivo­cal the wording and constitutional interpretation are). An academic exchange across legal systems obviously cannot be framed this way. But this does not preclude ref­ erences to constitutional theory in a more general sense, as part of a reflection on the common features that modern constitutions should have. Regarding foun­ dational questions, reasoning based on “liberal political philosophy” literature and arguments referring to constitutional theory can be expected to run parallel. Modern constitutions usually reflect classic liberal assumptions (concerning the importance of individual autonomy and individuals’ liberty rights rather than, for instance, obligations toward collectives or religious obligations). If it is possible to

 See Klaus F.  Gärditz, “Strafbegründung und Demokratieprinzip,” (2010) 49 Der Staat 331; Carl-Friedrich Stuckenberg, “Grundrechtsdogmatik statt Rechtsgutslehre,” (2011) 158 Goltdammer’s 21 Archiv für Strafrecht, 653, 658–660.  “Incest Case” (n. 8) 241–242. 22   Frank Saliger, “Was schützt der liberale Rechtsstaat?,” in Ludwig Siep et al. (eds.), Von der religiösen zur säkulären Begründung staatlicher Normen (2012), 183, 184. 20

theories of criminalization   685 demonstrate that a principle proposed by criminalization theory (e.g. that direct paternalism should be avoided) better fits within the constitutional framework than an alternative approach, this ought to be considered an important reason to approve the principle. Constitutional analysis cannot do the whole work. The foundations of criminalization theory (the concepts developed in political phi­ losophy and crim­inal law theory) retain their importance.

iii.  Criminalization Theory 1.  Preliminary remarks Authors of criminal law treatises occasionally assume that our topic should be seen as a definitional matter. They suppose that a universal definition of “crime” (a “sub­ stantive concept of crime”) would be useful to criticize legislation.23 However, a “one step” method that relies on one very general definition will not lead to satisfying results. The reasoning that precedes a final decision regarding criminalization must be complex and multi-layered. A more promising approach has to proceed with dis­ tinctions and in steps. The first step should be the identification of a purpose or goal (to be supplemented by other considerations, see Section III.3). The discussion of such purposes (see Section III.2.a–e for protection of “legal goods,” Rechtsgüter, or protection of individuals against harm, or defense of individuals’ rights, or protec­ tion of moral values, or protection of collective interests) brings us into the heart­ land of criminalization theory. A preliminary question that emerges at this juncture is how criminalization the­ ory (i.e. “what kind of conduct should be declared criminal?”) interacts with pun­ ishment theory (i.e. “how is criminal law and criminal punishment justified?”). A rough sketch of punishment theories reveals two different groups: the forwardlooking school, which justifies punishment through its preventative effects, and the backward-looking school (often labeled “retributive”). The same basic dis­ tinction applies to the purpose of criminal norms: they can either be viewed as instruments that deter and thus prevent undesirable outcomes, or, independent of preventative efficiency as a communicative message that provides fair warn­ ing of later punishment. Prima facie, one might assume that preference for either a preventative view or backward-looking approach in punishment theory will

  See on the notion of materieller Verbrechensbegriff, Claus Roxin, Strafrecht Allgemeiner Teil, Vol. 1 (4th ed., 2006), 13–14. 23

686   tatjana hörnle determine what the objects of protections should be. And, in fact, there is often a strong factual correlation between preferences in the area of punishment theory and preferences in criminalization theory. For instance, the notion that legal goods are to be protected (Rechtsgüterschutz) usually comes with a forward-looking, pre­ ventative understanding of criminal law’s functions. However, a closer look reveals that the nexus between punishment theories and criminalization theories is much more complicated. Consider “defense of moral values” as a possible purpose. One could claim that such criminal laws are effective in deterring immoral behavior, or one might concede that they are not effective but that nevertheless, immorality as such requires penal censure (which should, for reasons of fairness, be announced beforehand).24 Both prospective and backward-looking approaches to punishment theory are possible once “defense of morality” has been chosen in criminalizat­ ion theory. Also, theorists who have opted for a retributive punishment theory are not necessarily committed to legal moralism as criminalization theory. They could also argue that the blameworthiness of ignoring collective interests or harm­ ing others should propel legislatures to enact criminal prohibitions. Ultimately, neither punishment theory nor criminalization theory can be deduced from one another.

2.  What objects deserve the criminal law’s attention? a)  The doctrine of legal goods (Rechtsgüterlehre) Within the German and continental European tradition, it is often assumed that only the “protection of legal goods” (Rechtsgüterschutz) can justify criminal law’s prohibitions.25 One point is undisputed:  the notion of Rechtsgut has a heuristic function. It is useful for summarizing what the legislature had in mind in a suc­ cinct catchword and for categorizing offenses into groups. Also, framing the issue this way facilitates a distinction between so-called individual legal goods (health, bodily integrity, property, sexual autonomy, etc.) and collective or universal legal goods (the natural environment, a functioning currency system, a system of   R. A. Duff, Answering for Crime (2009), 84.   See Markus D. Dubber, “Theories of Crime and Punishment in German Criminal Law,” (2005) 53 American Journal of Comparative Law 679, 682–696; Kimmo Nuotio, “Theories of Criminalization and the Limits of Criminal Law: A Legal Cultural Approach,” in R. A. Duff et al. (eds.), The Boundaries of the Criminal Law (2010), 238, 244–252. Defending the Rechtsgutsdoktrin: Roxin (n. 23) 13–29; Claus Roxin, “Der gesetzgebungskritische Rechtsgutsbegriff auf dem Prüfstand,” (2013) 160 Goltdammer’s Archiv für Strafrecht 433; Bernd Schünemann, “Das Rechtsgüterschutzprinzip als Fluchtpunkt der ver­ fassungsrechtlichen Grenzen der Straftatbestände und ihrer Interpretation,” in Roland Hefendehl et al. (eds.), Die Rechtsgutstheorie (2003), 133; Winfried Hassemer and Ulfrid Neumann, in Urs Kindhäuser et al. (eds.), Nomos Kommentar zum StGB, Vol. 1 (4th ed., 2013), Vor § 1 n. 62. For a critical analysis: Stuckenberg (n. 20)  656–657; Günther Jakobs, Rechtsgüterschutz? Zur Legitimation des Strafrechts (2012), 16, 21. 24 25

theories of criminalization   687 military defense, etc.). The competing “harm to others” approach is somewhat vague on the question “who are the others,” see Section III.2.b. Whether the notion of a “legal good” has a critical function (beyond its heuristic purpose) that can be harnessed to evaluate criminal laws is disputed. Authors who dig into the history of ideas disagree on whether the emergence of the term in the first half of the nineteenth century (usually attributed to the criminal law theorist Birnbaum) was motivated by a liberal tendency.26 Proponents of the critical functions of Rechtsgut also point to the liberalization of German criminal law in the 1960s and 1970s (e.g. the decriminalization of homosexual acts) and attribute this to the insight that the crim­ inal law must protect Rechtsgüter.27 From the viewpoint of conceptual analysis, how­ ever, historical narratives are unsatisfactory. It is true that a liberal movement that was influential at certain periods of time integrated the term Rechtsgut into its vocabulary; but that was only a contingent terminology preference, which does not prove that the concept as such has the potential to restrain the scope of criminal law. Many states of affairs and expectations of conduct can be defended as a “good” worthy of protection because they are pleasant in interpersonal relations (e.g. punctuality) or because such arrangements are beneficial for a community. The notion of “good” covers an endless variety of collective interests, requirements of morality, and useful social conventions. How one is to draw the line between “goods” and a presumably narrower category of “legal goods” remains to be decided. Criminal law theorists who praise the critical potential of Rechtsgut add their own definitions, see, for instance, Claus Roxin’s defin­ ition: “given conditions or purposes which are necessary for the free development of individuals, the realization of their fundamental rights, or the functioning of the state based on these goals.”28 However, rather than taking the detour of introducing the term Rechtsgut, one might as well focus in a straightforward way on the individual and col­ lective interests that Roxin describes.

b)  Protection of individuals: the harm principle In the English-speaking academic world, the harm principle is widely regarded as the master principle of criminalization.29 References to the harm principle usu­ ally cite John Stuart Mill’s proposition in “On Liberty”: “that the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”30 Developed in the context of political 26   See Knut Amelung, Rechtsgüterschutz und Schutz der Gesellschaft (1972); Luis Greco, Lebendiges und Totes in Feuerbachs Straftheorie (2009), 316–333; José L. Guzmán Dalbora and Thomas Vormbaum 27 (eds.), Johann Michael Franz Birnbaum, Zwei Aufsaetze (2011).   Roxin (n. 23) 19. 28   Roxin (n. 23) 16. 29  Joel Feinberg, Harm to Others (1984); Joseph Raz, The Morality of Freedom (1986), 418–419; Andrew Ashworth, Principles of Criminal Law (5th ed., 2006), ch. 2; Husak (n. 1) 65–72 (non-trivial harm or evil); A. P. Simester and Andreas von Hirsch, Crimes, Harms, and Wrong (2011), 35–88; Baker (n. 6) 37–100. 30   John Stuart Mill, “On Liberty,” in On Liberty and Other Essays ([1859], ed. John Gray, 2008), 14.

688   tatjana hörnle philosophy, Mill intended for the harm principle to serve as a general principle that limits both a community’s power to coerce individuals (whether it be with legal measures or with moral pressure) and individuals’ interference with the lives of others.31 Criminal law theorists took this up in the narrower question of criminal­ ization (see, e.g., Joel Feinberg’s seminal four-volume work).32 Mill’s primary object­ ive was a negative one: he wanted to call attention to the wrong kinds of reasons for restricting liberty. To this end, he argued against paternalistic reasoning (the individual’s “own good, either physical or moral, is not a sufficient warrant”)33 and against moralistic thinking (conduct not being right does not suffice to coerce others to desist).34 But embedded within this criticism of paternalism and moralism is a positive judgment: coercion can be justified by the need to defend individuals against the harmful acts of others. This line of thought can be considered as the minimal core or nucleus of criminalization theory in contemporary secular states. Many details need to be worked out when switching from political philosophy to criminal law theory. Both the question of who the “others” in “harm to others” are and what “harm” means, need to be clarified. With regard to the first question, acts that directly interfere with others’ personal sphere should be distinguished from acts that concern a multitude of individuals in their collectively shared interests (e.g. administrations free of corruption, unpolluted air, or a currency system protected against counterfeited money). The focus of this subsection will be on personalized harm; collective interests are dealt with in the following section. What qualifies as “harm to individuals”? Many criminal law theorists agree that this means some kind of loss or being worse off. Feinberg offers the definition “thwarting, setting back or defeating of an interest.”35 Joseph Raz refers to making another worse off in a way which affects his future well-being.36 Simester and von Hirsch speak of “a diminution of the kind of things that make one’s life go well” and of an “impairment of resources” in the sense of longer term means or capabilities.37 It is beyond dispute among the proponents of the harm principle that one more qualifying element is essential. The mere fact of a loss or being worse off as such is not yet significant from the legal perspective; the negative effect must be the result of another person’s wrongful act (and not attributable to nature or bad luck or a legally permissible action of another person).38 For most cases, a future-oriented concept of harm in addition to the “wrongful­ ness” filter will describe the act’s objectionable character quite adequately. However,   Mill (n. 30) 14.   Joel Feinberg, The Moral Limits of the Criminal Law. Harm to Others (1984); Offense to Others 33 (1985); Harm to Self (1986); Harmless Wrongdoing (1988).   Mill (n. 30) 14. 34 35 36   Mill (n. 30) 14.   Feinberg (n. 29) 33.   Raz (n. 29) 414. 37   Simester and von Hirsch (n. 29) 36–37. 38   See Feinberg (n. 29)  105 f.; Gerald Dworkin, “Devlin was Right:  Law and the Enforcement of Morality,” (1999) 40 William and Mary LR 927, 930; Husak (n. 1) 71; Duff (n. 24) 126–135; Simester and von Hirsch (n. 29) 38–40, also 50–51 on “harm-independent wrongs”; Baker (n. 6) 45–49. 31

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theories of criminalization   689 such a positive evaluation does not apply in all cases. An increasing number of authors have drawn attention to the deficiencies of the harm principle.39 Those who criticize the harm principle can be sorted into two camps. Some attack the harm principle because it is used to justify the protection of vague and/or far-reaching collective interests (see Section III.2.e). But there are also reasons to question the reference to harm regarding conduct which targets individuals. This second line of criticism suggests that “harm” is not an accurate description if the act in question could not possibly have any adverse effect on the victims’ future lives. The notion of harm necessarily has a forward-looking aspect.40 But there are cases where someone has been wronged, but their resources or capabilities will not necessary be impacted in the future. Examples are unnoticed trespass or sexual acts with an unconscious person.41 By switching the issue from “harm to others” to “rights of others,” how­ ever, this criticism can be dealt with (see Section III.2.c). Among the proponents of the “harm to others” approach, it is debated whether other supplementary principles aiming at the protection of individuals are needed. One option would be to include “harm to self. ” Genuinely paternalistic prohibitions aim, after all, to protect individuals. Their own long-term interests might differ from their short-term preferences. Why then insist on “harm to others”? A common objec­ tion to paternalistic arguments is based on epistemological concerns. It is notoriously difficult to recognize what “true” long-term interests are; decisions should therefore be left to the individuals concerned.42 Another objection points to the importance of autonomy rights.43 Even if it seems plausible that the actor will severely damage his prospects in the long run, and later regret the action, interferences by criminal law are problematic if this choice is an autonomous choice. Obviously, the requirements for autonomous choices (knowledge, mental and intellectual abilities necessary for deliberation and judgment) deserve closer attention. If these conditions are missing, coercive measures do not conflict with autonomy; and in these scenarios of soft pater­ nalism,44 the room for legitimate interventions is somewhat larger.45 Regarding hard   Bernard E. Harcourt, “The Collapse of the Harm Principle,” (1999) 90 Journal of Crim. Law & Criminology 109; Arthur Ripstein, “Beyond the Harm Principle,” (2006) 34 Philosophy & Public Affairs 215; Duff (n. 24) 126–138; Alan Brudner, Punishment and Freedom (2009), 9; Hamish Stewart, “The Limits of the Harm Principle,” (2010) 4 Crim. Law & Philosophy 17; Alessandro Spena, “Harmless Rapes? A False Problem for the Harm Principle,” (2010) Diritto & Questione Publicche 497, 514–524; Danny Scoccia, “In Defense of ‘Pure’ Legal Moralism,” (2013) 7 Crim. Law & Philosophy 513, 517–519. 40   Raz (n. 29) 414. 41   John Gardner and Stephen Shute, “The Wrongness of Rape,” in Jeremy Horder (ed.), Oxford 42 Essays in Jurisprudence (2000) 193; Ripstein (n. 39) 218.   Mill (n. 30) 92–93. 43   See for a definition of autonomy, Gerald Dworkin, The Theory and Practice of Autonomy Rights (1988), 3–33. 44  For the distinction between soft paternalism and hard paternalism:  Joel Feinberg, “Legal Paternalism,” (1971) 1 Canadian Journal of Philosophy 105; Feinberg, Harm to Self (n. 32) 12–16. 45  For a more cautious approach: Thomas Gutmann and Bijan Fateh-Moghadam, “Governing [through] Autonomy. The Moral and Legal Limits of ‘Soft Paternism’,” (2013) 17 Ethical Theory and Moral Practice 383. 39

690   tatjana hörnle or genuine paternalism, there is an ongoing debate on whether respect for autonomy should preclude any interference under all circumstances. For our purpose, the inquiry must be narrowed down to the question of whether such paternalistic reasoning can justify criminalization. Even if one accepts fellow citizens’ and state officials’ paternal­ istic interventions under certain conditions (i.e. when an individual’s ability to lead an autonomous life in the long run is at stake),46 this conclusion is of limited relevance for criminalization theory. With regard to non-trivial criminal punishment, it is not likely that the imposition of such punishment would be in the interests of the person.47 “Harm to self ” should only be considered for minor restrictions and enforced with lenient sanctions when this kind of harm would have a disastrous impact on every­ body’s lives (typical examples are obligations to wear seat belts or motor helmets and comparable regulatory norms).48 Another debate concerns the question of whether the harm principle ought to be supplemented with an offense principle. Feinberg proposed such an addi­ tional category.49 The idea is that certain acts do not have a lasting impact on the lives of those witnessing them, but are nevertheless perceived as highly disturb­ ing. Feinberg’s examples include having to watch the consumption of feces and vomit, sexual acts and racist remarks in a cramped public space (in his scenario, a bus-ride).50 According to Feinberg, it matters that feelings of offense are “real, predictable, unpleasant and unmodifiable by argument.”51 This approach empha­ sizes psychological phenomena: the fact that people do react with strong feelings of disgust and embarrassment when confronted by certain behavior. Starting with a psychological understanding of “offense to others,” a theorist’s main work con­ sists in developing criteria to restrict the scope of the offense principle. Feinberg relies on criteria such as the magnitude of the offense, reasonable avoidability, and importance of the offending act, etc.52 However, the question remains:  why should the crucial first step, which opens the front gate to criminalization, rely on witnesses’ emotional reactions? Emotions might be based on prejudices and ill-reflected moral conventions.53 Some criminal law theorists therefore demand that reasons be given for why conduct affronts sensibilities and why others can legitimately claim that they ought not to be subjected to such conduct.54 However, 46   See John Kleinig’s position (Paternalism (1983), 67–73) which relies on protection of personal integrity. 47   Douglas Husak, “Legal Paternalism,” in Hugh La Follette (ed.), The Oxford Handbook of Practical Ethics (2003), 405; Simester and von Hirsch (n. 29) 157–159. 48   See Kleinig (n. 46) 73, 90–91; Husak (n. 47) 403–404; Simester and von Hirsch (n. 29) 160–161. 49   Joel Feinberg, Offense to Others (n. 32); for a revised version see Simester and von Hirsch (n. 29) 50 51 91–138; critically Baker (n. 6).   Feinberg (n. 32) 10–13.   Feinberg (n. 32) 36. 52   Feinberg (n. 32) 35–44. 53   See Ronald Dworkin, “Lord Devlin and the Enforcement of Morals,” (1965–66) 75 Yale LR 986, 1000–1001; for a critical analysis of disgust, Douglas Husak, “Metaphysical and Empirical Speculations,” in Andrew von Hirsch and A. P. Simester (eds.), Incivilities. Regulating Offensive Behavior (2006), 91. 54   Simester and von Hirsch (n. 29) 95–107.

theories of criminalization   691 such arguments depart from the naturalistic paradigm and venture into normative analysis. Once this step is taken, it is preferable to avoid the confusing category of “offense” and to ask straightforwardly: do people have a right not to be treated in a certain way?

c)  Protection of individuals II: rights of others The idea that the criminal law should protect the rights of persons against violations by others goes back to (at least) the nineteenth century (see, e.g., the German crim­ inal law theorist P. J. A. Feuerbach;55 the notion of Rechtsgut appeared later). In con­ temporary law theory, some defend “rights of others” as the preferable approach.56 Many authors who take the harm principle as a starting point also add “rights of others” to their framework.57 But it is arguable that “rights of others” should not just be one element. Asking whether the conduct in question is incompatible with the rights of others might substitute for the harm principle and the offense principle. Of course, “rights of others” is not a magic term that solves all problems—arguments referring to such rights are open to dispute, and a general explanation as to what is meant by “rights” is needed. The simplest arguments point to rights that are explicitly acknowledged in a given legal system (in a written constitution or in other legal documents). However, one disadvantage of this approach is that it does not leave room for a transnational criminalization theory.58 It will also not always be possible to point to an existing legal provision, even if there is consensus that the conduct seriously interferes with another person. For those who assume the existence of natural law and natural rights,59 the obvious move is to argue with natural rights. But if one is (with good reasons) suspicious about rights that are said to be independent of a legislative process,60 an obvious question remains: how can we speak about “rights of others” in a general way that is not restricted to a body of preexisting positive law? This puzzle can be solved if “preexisting natural rights” are distinguished from “rights claims within the political-legal process.” The latter are relevant in the deliberative stages that precede legislative acts. Criminalization theory’s task is to provide principled arguments for what should be protected as a defensive right.

  P. J. A. Feuerbach, Lehrbuch des gemeinen in Deutschland geltenden Peinlichen Rechts (1801), § 37.   Tatjana Hörnle, Grob Anstößiges Verhalten. Strafnormen zum Schutz von Moral, Gefühlen und Tabus (2005), 65–71; Spena (n. 39); Stewart (n. 39). 57   See Mill (n. 30) 83 “certain interests, which either by express legal provision or by tacit under­ standing, ought to be considered as rights”; Feinberg (n. 29) 144; Husak (n. 1) 71. 58   Hamish Stewart, “Harms, Wrongs, and Set-Backs in Feinberg’s Moral Limits of the Criminal Law,” (2001–02) 5 Buffalo Crim. LR 47, 65–66; Simester and von Hirsch (n. 29) 134. 59   John Finnis, Natural Law and Natural Rights (1980). 60   See John Leslie Mackie, Ethics. Inventing Right and Wrong (1977), 172–180. 55

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692   tatjana hörnle If rights claims are made out by pointing to human interests,61 it is necessary to explain why such interests are important enough to warrant giving them the status of a right. Such explanations will often follow an instrumental logic (tangible and non-tangible objects are needed for persons’ future lives), and then run parallel to the arguments used by proponents of the harm principle. But arguing with “rights of others” allows us to bypass the harm principle’s narrow consequentialist focus. Human beings have interests beyond the preservation of resources (e.g. not to be touched sexually without consent). Being attacked by another person will have a negative impact independent of future-oriented needs.62 With regard to attacks on bodily integrity and sexual autonomy, for example, defensive rights should be acknowledged as the basis for criminal prohibitions—even if the specific conduct in question will not diminish future well-being or hamper future autonomous choices.

d)  Protection of moral values Writing about criminalization from a historical or a broad comparative perspective would not lead to a focus on the well-being or the rights of individual human beings. A strong religious grounding or a strong commitment to traditions usually fosters the view that criminal norms ought to protect moral values and standards of con­ duct. It is only in modern political theory that the criminal law is justified in a secu­ lar and functional mode and individuals’ needs and rights take center stage. During the second half of the twentieth century, criminalization theory took a functional­ ist, individualistic, and anti-moralist turn, a development that is reflected, for exam­ ple, in Roxin’s definition of “legal goods.”63 But moralism never disappeared from criminal policy because citizens often intuitively translate the judgment “immoral behavior” into the demand for criminal prohibitions. And even within criminal law theory, legal moralism has recently regained some strength.64 Influential scholars in different countries, such as Michael Moore, Anthony Duff, and Günther Jakobs opt for approaches that can (despite considerable differences in detail) be labeled under the heading “legal moralism.”65 There are two schools of thought that advance the idea that moral values should be the objects of protection: one that admits to straightforward, open moralism and another that is clothed in functional garb. Straight moralism appears in two basic variations: the view that “true moral values” are to be protected (whether human beings appreciate them or not) or the position that conventional morality should be   At this juncture, we have another dispute among legal theorists. Should arguments about rights be interest-based or is a “Kantian” version, ie. a non-instrumental view, preferable? See 62 Stewart (n. 39) 23–26.   R. A. Duff, “Harms and Wrongs,” (2001) 5 Buffalo Crim. LR 13, 21–26. 63   See text accompanying n. 28. 64   See e.g. Steven Wall, “Enforcing Morality,” (2013) 7 Crim. Law & Philosophy 455; Scoccia (n. 39). 65   Michael S. Moore, Placing Blame (1997), 69–70, argues that it is always a legitimate reason to pro­ hibit conduct with criminal laws that it is morally wrong. For Duff ’s “partial defense of legal moralism” see Duff (n. 24) 84–89; for Jakobs’ position see n. 67. 61

theories of criminalization   693 protected as such (independent of functional benefits). Both variations of straight legal moralism are open to challenges. There are epistemological questions—who would be the one to identify “true morality”? Claims made by German philosophers in the early twentieth century about a hierarchy of material values in an ontological sense66 did not solve the problem (unless one believes that some professors of phil­ osophy have privileged access to the world of values). A second challenge concerns the force of morality as a reason for coercive measures. Why should a majority in society accept restrictions imposed on them for the sake of a few peoples’ visions of “true moral values”? And if a moral rule belongs to conventional morality, approved in principle and perhaps even obeyed by large segments of society, why should it be enforced with criminal prohibitions against minorities if there is nothing to be gained for the collective as a whole? Functional versions of moralism, such as the argument advocated for by Günther Jakobs, get around this objection. Jakobs assumes that the criminal law must safe­ guard the continued existence of society (and not “some goods of every Tom, Dick and Harry”).67 His argument suggests that widely shared opinions about values and behavioral standards (and even assumptions about “holiness,” if they are cen­ tral to a community’s founding narratives) ought to be protected because a lack of protection would be detrimental to society.68 But functional moralism rests on an uncertain empirical basis. Do provocations through speech and deviant conduct really have the potential to endanger the continued existence of society? This kind of causal relationship is not just difficult to test empirically, it is not even a plausible hypothesis because it underestimates the flexibility of societies in dealing with and adapting to even pronounced annoyances. Another version of straight legal moralism is the normative, non-functional approach proposed by Antony Duff. Duff argues that “if we are serious about the values by which we define ourselves as a political community, and about the demand that we show each other appropriate respect and concern as fellow citizens, we will take breaches of such values and of that demand seriously, and mark and condemn them as such.”69 Because of its emphasis on core public values, this is a narrower version of legal moralism. However, on a critical note, one could point to the deep structures of contemporary constitutions that emphasize individual rights (the same argument also applies to Jakobs’ disregard for “every Tom, Dick and Harry”). The law’s function in our constitutional contexts can be described, in a nutshell, as the demarcation of individual spheres of liberty against the intrusions of others.70

66   Max Scheler, Der Formalismus in der Ethik und die materiale Wertethik (1916); Nicolai Hartmann, 67 Ethik (1926).   Jakobs (n. 25) 28 (not the goods of “Hinz und Kunz”). 68   Jakobs (n. 25) 29–36. Jakobs uses the holiness argument with regard to denial of the Holocaust, 69 ibid., 31.   Duff (n. 24) 88. 70   Malcolm Thorburn, “Constitutionalism and the Limits of the Criminal Law,” in R. A. Duff et al. (eds.), The Structures of the Criminal Law (2011), 85, 97–102.

694   tatjana hörnle We can, of course, see endorsement of public values as an important task too—but this task can and should be assigned to civic society, rather than the state.

e)  Protection of collective interests This is one of the hot spots for criminalization theory. Those who warn of con­ temporary criminal justice systems’ propensity for overcriminalization worry about rampant references to shared interests in risk management.71 The widespread use of “harm to collective interests” arguments is fraught with several problems. First, some references to shared interests or collective goods are quite vague. Consider “public peace” or “security”: peace and security sound good (who would prefer the contrary?), but it is hard to say what a state of public peace or adequate security actually entails. Secondly, arguments pointing to collective interests lead straight into the area of endangerment offenses. With regard to genuine collective interests, a noticeable impairment typically only occurs if incidents would culminate and become widespread practice. Bribing one state official will hardly lead to a dysfunc­ tional administration—but a series of bribes can have that effect. Combinations of “vague collective interest” and “endangerment suffices” particularly invite sweep­ ing criminalization. The general problems of endangerment offenses are even more amplified if far-reaching causal connections are suggested, such as with the claim that disorderliness eventually leads to serious violent crimes.72 Assertions about remote harms can also lead back to legal moralism in functional garb if references to collective interests are made for the purpose of demanding prohibitions on con­ duct that would otherwise be considered a mere nuisance. Because such arguments sail under the flag “prevention of harm,” critical observers speak of a “collapse of the harm principle”73 or a “debilitating elasticity”74 of the harm principle. But what should we conclude from descriptions that alert us to the problem of an expanding criminal law due to references to collective interests? From the perspec­ tive of criminal law theory, the solution should not consist in rejecting the notion of “collective interests” altogether. Acts can substantially endanger very important collective interests, and such conduct could not be efficiently prevented if we were to renounce criminal norms (consider lack of punishment for counterfeiting of money, bribing state officials, or tax evasion). It is true that in its classical formula­ tion, the harm principle does not answer the specific questions relating to the mere risk of harm.75 However, this is not a fundamental obstacle but rather a reminder that the notion of “harm to others” is underdeveloped. 71  Husak (n. 1)  61; Andrew Ashworth and Lucia Zedner, “Prevention and Criminalization: Justifications and Limits,” (2012) 15 New Crim. LR 542. 72  See for the well-known “broken windows” theory, George L.  Kelling and James Q.  Wilson, “Broken Windows,” (Mar. 1982) Atlantic Monthly. 73 74   This is the title of Harcourt’s essay (n. 39).   Ashworth and Zedner (n. 71) 548. 75   Harcourt (n. 39) 113–114.

theories of criminalization   695 Criminalization theory needs accounts of what are genuine, clear, and import­ ant collective interests. Quasi-collective interests should be regarded critically. Quasi-collective interests have no meaning beyond the addition of individual interests. An example is “public health”—the state of “public” health consists in the (statistically recorded) healthiness of individuals. Contrast this with “non-corrupt public administration”—this is a state of affairs which cannot be boiled down to an accumulation of goods assigned to individual beings. Invoking quasi-collective interests might serve to circumvent concerns about paternalistic legislation (if, e.g., prohibitions on self-harming conduct, such as drug use, are justified with “public health interests”). Secondly, concerns about vagueness should be taken seriously. Consider again the arguments referring to “public peace.” It is easy to agree that people should not fire guns from their balconies, but such acts usually straightfor­ wardly endanger individuals’ lives and should be categorized accordingly. If “public peace” is to have a clear and distinct meaning, it must be invoked with regard to acts that are much further away from the endangerment of individuals, such as defamation of religion, for example.76 Such collective goods deserve critical scrutiny because they might serve as a disguise for moralistic lawmaking. Advanced criminalization theory should evaluate the importance of collective interests. One important collective interest is the continuance of the political com­ munity if it is a valued political system such as a functioning democratic state (but note that ultimate decisions about criminalizing acts of treasons and the like might depend on side-constraints, such as free speech). The assessment “important collect­ ive interest” is also adequate for other goods and state of affairs with high functional relevance for all citizens independent of their personal live plans. The coexistence of all citizens depends on natural resources (clean air, etc.) and on a variety of indispen­ sable public services (e.g. a non-arbitrary and efficient court system). Things become more challenging when we turn to other possible candidates that do not have an obvious functional aspect, such as aesthetic collective interests (which might sup­ port anti-graffiti laws—at a prima facie level only, before possible side-constraints are examined) or cultural interests. The more group-specific and idiosyncratic inter­ ests are, the less plausible is their status as an important collective interest.

3.  What kind of conduct should be prohibited? a)  Mediating principles I: ultima ratio and similar notions The identification of a worthy object of protection is only a first step. Criminalization theory needs to pay close attention to the next stage of necessary

  Speech offenses such as defamation of religions and denial of Nationalsocialist genocide often are justified with “protection of public peace,” see Hörnle (n. 56) 282, 343. 76

696   tatjana hörnle deliberations. A central question in this regard is: what kind of conduct should be prevented? The nexus between possible results (a rights violation, or harm to individuals or collective goods) and an act77 needs to be established. It is cru­ cial to draft the offense description in a detailed enough way, that is neither too wide nor too narrow, with view to the object of protection. At this stage, legislatures need to decide how far criminal prohibitions should be extended in two dimensions: the temporal dimension and the personal dimension. The latter concerns the question of which persons beyond the main actor should be included, while the former concerns offenses in the preliminary stages of actual harmful outcomes. These decisions are of high importance. Penalizing all kinds of contributions and all kinds of inchoate offenses, preparatory offenses, pos­ session offenses, membership offenses, and other endangerment offenses invites criticism,78 even if the general purpose (to prevent harm or to protect rights of others) would be approved of from a liberal perspective. The crucial question is where to set the cut-off points. Considerations in this context are often summarized with the terms “mediating maxims”79 or “mediating principles.”80 Familiar candidates are the ultima ratio prin­ ciple, the principle of subsidiarity, the principle of proportionality, and the notion of a “fragmentary penal law.” The premises of such principles can be quite different. They might take the perspective of (potential) offenders (e.g. when a proportional­ ity test requires that the importance of a collective interest be weighed against, for example, the individual’s right to religious freedom). Or citizens as a community have reasons to restrict the breadth of the criminal law. Such reasons could be prag­ matic (enforcing the criminal law is expensive). Or they can be principled: caution with the “sharp sword of the criminal law” can be recommended with an eye toward a political community’s general shape and climate. To what degree can concepts that are discussed as mediating principles guide legislation? Some are obviously useless. In the German discussion, the idea that the criminal law ought to be “fragmentary” enjoys some popularity.81 Using the term “fragmentary” does not, however, offer any guidance on substantive criteria. If every second offense description in a criminal code were repealed, the result would be fragmentary, but hardly adequate. When the term ultima ratio appears in a constitutional context of criminalization, as it does in rulings by the German Federal Constitutional Court, it is explicated with the sentence “the criminal law ought to be used in a cautious way”82 or with the sentence “the conduct in question has to be socially harmful in a particularly   For the purpose of this chapter, omissions will be left aside.   See Ashworth and Zedner (n. 71) 544–546 for a taxonomy of offenses. 79   Feinberg (n. 29) 187–217. 80   Andrew von Hirsch, Kurt Seelmann, and Wolfgang Wohlers (eds.), Mediating Principles (2006). 81   See Rainer Zaczyk, “Die Notwendigkeit systematischen Strafrechts—Zugleich zum Begriff ‘frag­ 82 mentarisches Strafrecht’,” (2011) 123 ZStW 691.  “Abortion Case” (n. 8) 47. 77

78

theories of criminalization   697 severe way.”83 There are good reasons to prefer this attitude over the opposite stance, which demands a liberal use of the criminal law. It is a reassuring gesture when state organs define the scope of the criminal law this way. However, from the perspective of criminalization theory, such general policy statements are nothing more than a rather imprecise “point in the right direction.”84 In the literature, the phrase ultima ratio is sometimes used interchangeably with “subsidiarity principle.”85 However, equating these two terms is not very helpful because the content of a subsidiarity principle can be defined in a somewhat more focused way. Subsidiarity—and the expression “necessity,” which is used to make the same point—refer to comparisons. The criminal law should not be employed if negative outcomes could be prevented with other legal means in an equally effective way.86 From a consequentialist perspective, it makes sense to ask:  could administrative or civil law achieve a similar preventative effect? And, if yes, which solution is less costly (for the state, for society and the economy, and offenders)? However, a purely consequentialist approach deserves scrutiny. Alternative regula­ tions will almost never entirely suppress conduct; they will at best minimize it. But what should be the reaction for the few cases which happen despite other regulative efforts? Even for rare cases, the criminal law is needed to censure serious wrong­ doings (a violation of important rights or disregard of important collective interests involving a substantial degree of unfairness).87 This leaves the subsidiarity principle with a narrower scope than what might have initially been thought. Invoking sub­ sidiarity should be restricted to offenses of minor severity, particularly disregard for collective interests without substantial wrongdoing. But even for such cases, a sober comparison of preventive efficiency will often lead to the conclusion that a civil or administrative regulation, in addition to a criminal law norm serving as back-up, promises better preventative effects than a civil or administrative solution alone.88 Therefore, we should not expect the subsidiarity principle to become a truly potent instrument for restraining criminalization. German constitutional jurisprudence also emphasizes “proportionality in the narrow sense,” requiring that the importance of the law’s purpose be weighed against countervailing reasons. On a positive note, this is to be understood (like references to ultima ratio) as a general policy statement reminding legislators not to succumb to protective perfectionism, and emphasizing that potential offenders  “Incest Case” (n. 8) 240.  See for skeptical views towards ultima ratio:  Nils Jareborg, “Criminalization as Last Resort (Ultima Ratio),” (2004) 2 Ohio State Journal of Crim. Law 521, 534; Douglas Husak, “The Criminal Law as Last Resort,” (2004), 24 OJLS 207; Markus D. Dubber, “Ultima Ratio as Caveat Dominus: Legal Principles, Police Maxims, and the Critical Analysis of Law” (July 3, 2013), available at: .   See Roxin (n. 23) 45; Hassemer and Neumann (n. 25) n. 72. 86   Feinberg (n. 29) 26; “Cannabis Case” (n. 7) 172–173; “Incest Case” (n. 8) 240. 87   Jareborg (n. 84); Husak (n. 84) 221–223; Ashworth and Zedner (n. 71) 552. 88   Husak (n. 84) 226–227. 83

84

698   tatjana hörnle are rights-bearers and that criminal prohibitions severely infringe liberty rights. But from a more skeptical perspective, the notion of “weighing” can be criticized89 as a too soft concept. There are no criteria for the crucial step of weighing. Which “item” on which scale will be judged to have more weight is ultimately a political decision. As an alternative, the notion of rights as side-constraints might be more adequate than a “proportionality in the narrow sense” test because it emphasizes that import­ ant liberty rights are more than just an indeterminate, unspecified weight on a big scale. Secondly, criminalization theory should insist on an additional rule regarding burden of proof. There are proposals for in dubio pro libertate (in doubt pro liberty) as a rule regarding burden of proof.90 It is to be applied when all prior consider­ ations did not result in a definite judgment that criminal prohibition would be either clearly proportionate or clearly disproportionate. In such situations, in dubio pro libertate demands that no criminal prohibition be made. To return to the question of how useful mediating principles, of the kind men­ tioned earlier, really are: it is worth noting that authors from different legal cultures accentuate their answers differently. Many European contributions to criminaliza­ tion theory are quite optimistic about the usefulness of ultima ratio, subsidiarity, and proportionality in a narrower sense,91 while English and American contribu­ tions tend to express more skepticism.92 But different evaluations might reflect dif­ ferent expectations. If one expects to have standards that will definitely restrain criminal legislation if legislators are willing to use them, some disappointment is unavoidable—too much leeway is built into these principles. However, one should not totally discard the relevance of general policy statements as reminders of central normative premises. Some influence can be expected as long as legislatures do not isolate themselves completely from their environment in constitutional jurispru­ dence and academia.

b)  Mediating principles II: attribution Another important set of considerations relates to normative questions regarding attribution. Under what conditions is it fair to attribute an outcome to a person? Could one answer (potential) offenders’ question:  “why am I made responsible?” in a satisfying way? At this juncture, the discussion intersects with core issues in criminal law doctrine. Attribution is not considered problematic in the standard constellation: the combination of direct causation (short and uncomplicated chain   See also Shonsheck, On Criminalization (1994).   See Saliger (n. 22) 209; Hassemer and Neumann (n. 25) n. 74. 91   See e.g. Hassemer and Neumann (n. 25) nn. 69–76; Nuotio (n. 25) 256–257; Ulfrid Neumann, “Das Verhältnismäßigkeitsprinzip als strafbegrenzendes Prinzip,” in Andrew von Hirsch et al. (eds.), Mediating Principles (2006), 128, 136; but see also for a more skeptical note, Wolfgang Wohlers, “Strafrecht als ultima ratio,” ibid., 54, 69; Gerhard Seher, “Kann Strafrecht ‘subsidiär’ sein?,” ibid., 70, 75–81. 92   See the references in n. 84. 89

90

theories of criminalization   699 of events) and intention. However, the more criminal prohibitions extend their reach beyond this constellation, the more attention must be paid to attribution (e.g. consider the novus actus interveniens doctrine as a possible reason not to attribute results).93 Questions of fair attribution become even more complicated in “collective interests as protected goods” cases when there is no immediate connection between a single act and the eventual occurrence of harmful results (e.g. measurable pol­ lution in a river, a corrupt administration, severely diminished tax revenue, etc.). A harmful outcome will often occur as a result of accumulative effects, and when this is the case, it is necessary to respond to the question of why a single actor can be made responsible. A response to this question might point to the unfairness of free­ loading.94 Mens rea and culpability also deserve closer attention (it has been argued that “real crimes” and mere “public welfare offenses” should be treated differently regarding mens rea requirements).95

4.  “May be punished” or “must be punished”? Criminalization theories usually take the question of whether the state may punish certain conduct as their starting point (either implicitly or explicitly). The point of developing arguments in this field is usually to contend that certain reasons for criminalizing behavior are wrong reasons. From the viewpoint of critical policy review, the question whether the state may punish has priority over the question whether the state must punish. Modern legislatures tend toward overcriminaliza­ tion rather than undercriminalization.96 However, from a theorist’s point of view, one should not exclude a priori the question of whether conduct must be prohibited with criminal laws, that is, whether the state has a duty of protection toward citizens whose rights would be infringed by the conduct in question. The premises of this perspective are disputed and must therefore be elaborated on. Should the role of constitutional rights be extended from their defensive functions (rights against the state) to protective rights, which is a categorically different right?97 And what does “protection” mean in this context: prevention only or is it also a right to have wrong­ doing correctly labeled? Consider the following thought-experiment: a state abol­ ishes its criminal laws on rape and introduces elaborate preventative and effective (e.g. educative) programs instead. Would there still be reason to demand criminal   See e.g. Brudner (n. 39) 158–165; Carl-Friedrich Stuckenberg, “Causation,” Chapter 21 in this volume.  Wolfgang Wohlers, Deliktstypen des Präventionsstrafrechts—zur Dogmatik “moderner” Gefährdungsdelikte (2000), 318–328. 95  See Brudner (n. 39)  173–178 and for the notion of public welfare offenses Darryl K.  Brown, 96 Chapter 38 in this volume.   Husak (n. 1) 3. 97   See for the discussion in constitutional law, Josef Isensee, Das Grundrecht auf Sicherheit (1983); Gerhard Robbers, Sicherheit als Menschenrecht (1987). Critically e.g. Simester and von Hirsch (n. 29) 134–135. 93

94

700   tatjana hörnle law norms? Defendants of protective rights take the following position: it is not only prevention that matters, but also categorizing the significance of certain behavior and the adequacy of reactions to the rare events of “lapses.” Moving away from thought-experiments to the realities of contemporary legal systems, it is hard to find examples where, all things considered, one could plausibly claim a strict duty to criminalize. If we examine existing criminal codes, we find that they tend to penalize conduct that violates others’ rights in a comprehensive way. Wrongdoing that violates important rights of others usually will be labeled a criminal offense in positive criminal law. If the argument of a gap within criminal law is nevertheless raised in policy disputes (e.g. with the argument that the state is under a duty to introduce criminal laws against abortion),98 the crucial point in such debates will be the issue of countervailing rights. When there are some doubts about which rights ought to prevail, a in dubio pro liberate principle should be applied (see Section III.3.a). A strict duty to criminalize would presuppose that countervailing rights are of much lesser significance. This constellation will hardly ever be present in those relatively rare cases where protective rights might be a prima facie case for protection—if one takes both side-constraints and in dubio pro liberate seriously.

iv.  Concluding Remarks Legal theorists should not expect to have considerable influence on lawmaking. Communication between academia and the political system is limited, at best, and the constraints and coercions in political processes radically differ from the legal theorist’s position. However, this should not stand in the way of continued work on a comprehensive theory of criminalization. It is particularly worthwhile to pay more attention to aspects that have been somewhat neglected because of criminal law theorists’ traditional focus on the notion of the “harm principle” (and its oppo­ nents “paternalism and moralism”) or, in the continental European discourse, on the concept of Rechtsgüter. Furthermore, criminalization theory’s interaction with constitutional theory deserves to be taken more seriously, as do the questions and

  The German Federal Constitutional Court stipulated that human fetuses have a right to life as a protective right (“Abortion Case” (n. 8) 41–42). Although the Court conceded that this does not amount to a strict duty to criminalize under all conditions (ibid., 48–50), the decision deserves criti­ cism because it did not pay sufficient attention to women’s reproductive autonomy rights—it clearly was not based on in dubio pro libertate. 98

theories of criminalization   701 issues regarding which collective interests might warrant criminal law protection, and the details of mediating principles.

References Baker, Dennis, The Right Not to be Criminalized (2011) Duff, R. A., Answering for Crime (2009) Duff, R. A. et al (eds.), Criminalization: The Aims and Limits of the Criminal Law (2014); The Constitution of the Criminal Law (2013); The Structure of the Criminal Law (2011); The Boundaries of the Criminal Law (2010) Feinberg, Joel, The Moral Limits of the Criminal Law. Vol. 1:  Harm to Others (1984); Vol. 2: Offense to Others (1985); Vol. 3: Harm to Self (1986); Vol. 4: Harmless Wrongdoing (1988) Harcourt, Bernard E., “The Collapse of the Harm Principle” (1999) 90 Journal of Crim. Law & Criminology 109 Hefendehl, Roland, Hirsch, Andrew von, and Wohlers, Wolfgang (eds.), Die Rechtsgutstheorie (2003) Hirsch, Andrew von, Seelmann, Kurt, and Wohlers, Wolfgang (eds.), Mediating Principles. Begrenzungsprinzipien bei der Strafbegründung (2006) Hirsch, Andrew von and Simester, A.  P. (eds.), Incivilities. Regulating Offensive Behavior (2006) Hörnle, Tatjana, Grob anstößiges Verhalten. Strafrechtlicher Schutz von Moral, Gefühlen und Tabus (2005) Husak, Douglas, Overcriminalization. The Limits of the Criminal Law (2008) Husak, Douglas, “The Criminal Law as Last Resort,” (2004) 24 OJLS 207 Roxin, Claus, “Der gesetzgebungskritische Rechtsgutsbegriff auf dem Prüfstand,” (2013) 160 Goltdammer’s Archiv für Strafrecht 433 Shonsheck, Jonathan, On Criminalization: An Essay in the Philosophy of Criminal Law (1994) Simester, A. P. and Hirsch, Andreas von, Crimes, Harms, and Wrongs. On the Principles of Criminalisation (2011) Stewart, Hamish, “The Limits of the Harm Principle,” (2010) 4 Crim. Law & Philosophy 17

­c hapter 31

HOMICIDE guyora binder

I.  From Judging Violence to Deterring Cost Regulating homicide is a central aim of any system of criminal law. Social groups cannot easily maintain cohesion if they accept the slaughter of their members without retaliation. Thus, without a state monopoly on redress, homicides tend to multiply in destabilizing cycles of revenge. The replacement of private revenge with public punish­ ment is therefore a defining feature of a rule of law. And yet, public punishment of homicide provokes resistance. In most societies the majority of homicides are the unlucky consequences of broadly tolerated routines of violence rooted in conflicting claims of social status and justified by norms of sociabil­ ity, loyalty, or honor. There is constant pressure to narrow liability to some imagined class of the essentially antisocial who kill for completely unsympathetic reasons. There is predictable political contestation over who will be thus demonized, and predictable invocation of the authoritative discourse of religion or science in justifying these judg­ ments. Disputes about punishing homicide are the continuation by other means of the status contests that generated violence in the first place. Historically, systems of criminal law have often emerged from paternalistic rela­ tions of protection. In England, for example, royal jurisdiction over crimes of violence was referred to as the “King’s Peace,” in effect transforming attacks on the king’s sub­ jects into affronts against royal authority.1 With the emergence of a modern state, such   John H. Langbein, Renée L. Lerner, and Bruce P. Smith, History of the Common Law (2009), 31–32.

1

homicide   703 personal protection is transformed into a status of civil dignity backed by the imper­ sonal authority of law. The regulation of homicide is fundamental to the proverbial monopoly on legitimate force that defines the sovereign state. Because of its centrality to social order and government authority, homicide law casts a long shadow over criminal law. It is the paradigmatic criminal offense and tends to influence the way all other offenses are defined. In early America, Pennsylvania’s legislative reform of homicide law initiated a wave of codification. In nineteenth-century England also, proponents of legislative reform of criminal law such as the Criminal Law Commission and Judge J. F. Stephen paid particular atten­ tion to homicide law. In twentieth-century America, the American Law Institute’s Model Penal Code applied a system of crime definition Herbert Wechsler had first proposed for homicide. Throughout this development, Anglo-American reformers remade homicide law in light of a utilitarian conception of law as a management technology rather than a traditional conception of law as the protection and patronage of a ruler. Over the course of 200 years, homicide shifted from a crime of malicious killing to a crime of culpable causing. In the seventeenth and eighteenth centuries, homicide was still conceptualized as unauthorized use of arms.2 Killing was a kind of conduct that manifested hostility to society and disrespect for law. By the end of the nineteenth century, homicide had become a crime of cognition and causation, an expected injury to welfare. The purpose of homicide law was less to vindicate the victim as the subject of a benign ruler, than to maximize utility by deterring choices predict­ ably causing death.

ii.  Origins of English Homicide Law For much of the Anglo-Saxon period, victims could seek redress in royal courts for acts of violence and other wrongs. The remedies were usually payments of com­ pensation to the plaintiff, and fees or fines to the court.3 Kings issued schedules of compensation, and encouraged victims to seek legal redress, rather than revenge. Yet stealthy killings or “murders” could not be rectified by compensation. They trig­ gered execution and forfeiture of property to the court. By the tenth century, the

2  Guyora Binder, “The Meaning of Killing,” in Markus D.  Dubber and Lindsay Farmer (eds.), Modern Histories of Crime and Punishment (2007), 91–95. 3   Thomas A. Green, Verdict According to Conscience: Perspectives on the English Criminal Trial Jury, 1200–1800 (1985), 5.

704   guyora binder adult male population had to swear to keep the king’s peace and report offenses against it. Capital offenses were dubbed “felonies.”4 Norman kings also bound the population to report crimes and produce suspects or face collective fines. Citizens were obliged to pursue suspects in a “hue and cry” and summarily to execute killers caught in the act.5 By the middle of the twelfth century, all killings were deemed offenses against the king, whether stealthy or not. Accordingly, they were subject to execution unless justified as exercises of law enforcement or pardoned by the Crown. A new system of royal courts was estab­ lished for these offenses, and by the early thirteenth century royal justices used jury inquests to adjudicate these charges.6 Clerics successfully resisted appearing before these courts to answer felony charges, however. The law of homicide developed in defining exceptions to the capital punishment of killers. The 1278 Statute of Gloucester provided for routine pardons of killings by accident or self-defense. Juries were thereby empowered to spare killers by issuing special verdicts finding these excuses.7 The thirteenth-century jurist Henry Bracton explained accident as an absence of intent to injure, and drew on canon law in argu­ ing that fault should turn on intent.8 Yet assailants were not excusable on the ground that they intended only to wound rather than kill. This rigor elicited resistance from juries: verdicts of accident often described improbable-sounding hunting accidents or self-impalements on another’s sword.9 Such verdicts show that an account of the death as the unintended outcome of armed combat would have had no exculpatory significance. Death from stabbing was not an accident. Judges could spare killers by finding them clergymen, exempt from royal juris­ diction. By the mid-fourteenth century this privilege was extended to any literate male, and sometimes extended further through a fictive finding of literacy. The Crown could issue pardons at its discretion until a 1390 statute disapproved pardons for stealthy “murders,” killings by ambush, and killings with “malice prepense.”10 This term probably invoked Aristotle’s conclusion that “acts due to sudden anger are rightly held not to be done of malice afore-thought, for it is the man who gave the provocation that began it, not he who does the deed in a fit of passion.”11 The sixteenth century brought passage of statutes eliminating benefit of clergy for various crimes, including all “murders.” Further limits were imposed by the   Naomi D. Hurnard, The King’s Pardon for Homicide before A.D. 1307 (1969), 1–8.   Green (n. 3) 79–80 fns. 40, 49. 6   John H. Langbein et al., History of the Common Law (2009), 3–83. 7   Hurnard (n. 4) 281–282. 8   Henry de Bracton, On the Laws and Customs of England, Vol. 2 (1968), 341. 9   Thomas A. Green, “The Jury and the English Law of Homicide, 1200–1600,” (1976) 74 Michigan LR 413, 448–450. 10   Statute the Second, 1389–1390, 13 Rich. 2, c.  1 (Eng.), reprinted in 2 The Statutes of the Realm (photo. reprint 1963), 68, 68–69. 11   Aristotle, “Nicomachean Ethics,” in Aristotle in 23 vols. (vol. 19, transl. Harris Rackham, 1934), 1135b.20. 4 5

homicide   705 “Statute of Stabbing,” which excluded benefit of clergy for those who killed by stab­ bing one who had drawn no weapon and struck no blow.12 Killings that remained subject to benefit of clergy were now referred to as manslaughters. Judicial deci­ sions treated killing as murder unless the defendant proved a “sudden quarrel,”13 or provocation.14 Courts assigned murder liability where death resulted from an armed attack planned in advance. The plan need not have contemplated death, as long as it included injurious violence. Thus Holloway’s Case15 in 1628 found the deliberately cruel but unintentionally fatal act of tying a child to a horse’s tail malicious. All participants in the planning would be liable, and malice could transfer to the deaths of unintended victims of the planned assault.16 Assailants who joined an ongoing affray and struck fatal blows were guilty only of manslaughter, as were participants in mutual combat who killed their fleeing antagonists.17

iii.  English Homicide Law in the Age of Blackstone Over the next two centuries, jurists explicated homicide law in treatises. They generally used “murder” to signify the entire category of nonclergyable felonious homicide and “manslaughter” to designate felonious but clergyable homicide. They defined murder as killing with malice aforethought. Matthew Hale defined killing as ordinarily a fatal “stroke” with a weapon.18 Malice aforethought involved a prior plan to “offer hurt to the person of the other,”19 but not necessarily to kill.20 Hale added that malice could be directed at a group or population as well as an individual. These authors divided malice aforethought into two categories. Malice could be manifested or “expressed” by threats, lying in wait, ordering an attack, or administering poison.21 It was “implied” by a sud­ den attack without provocation or mutual combat. Mitigation on the basis of mutual violence arguably reflected a classically inspired ethos of honor and martial virtue that

13   1603–1604, 1 Jac. I, c. 8 (England).   R. v. Oneby (1535) 92 E.R. 473. 15   MacKalley’s Case (1611) 9 Coke Rep. 65b.   (1628) 79 E.R. 715 (K.B.). 16   Lord Dacre’s Case (1535) 72 E.R. 458; Mansell & Herbert’s Case (1536) 73 E.R. 279; R. v. Saunders (1573) 2 Plowd. 473. 17   R. v. Salisbury (1553) 1 Plowd. 100; J. M. Kaye, “The Early History of Murder and Manslaughter,” (1967) 83 LQR 569, 589. 18   Matthew Hale, History of the Pleas of the Crown, Vol. 1 (1736), 426. 19   William Lambard, Eirenarcha: or Of the office of the justices of peace (2nd ed., 1581), 233–234. 20   Matthew Hale, Pleas of the Crown (1678), 41. 21   Michael Dalton, The Countrey Justice (2nd ed., 1635), 242. 12

14

706   guyora binder emerged during the Renaissance.22 Yet certain reasons for fighting were disqualifying. Thus lawful arrest and resistance to robbery did not qualify as provocations, so that killing arresting officers and robbery victims implied malice.23 A persistent problem in the treatise literature was the relationship between unlaw­ fulness and dangerousness of conduct. Michael Dalton held that acts obviously dan­ gerous to others implied malice whether or not unlawful. Fatalities resulting from unlawful acts without such danger were manslaughters. Conversely, an unintended death resulting from a lawful act, even an act of violence such as punishing a child, was nonfelonious death by “misadventure.” Although Edward Coke defined murder as killing with malice,24 he surpris­ ingly characterized unlawful act killings without malice (e.g. a shooting acci­ dent while poaching) as murders.25 Apparently Coke failed to distinguish murder from manslaughter. In calling unlawful act killings murders he meant only that they were felonious, not that they were excluded from benefit of clergy. A pair of mid-seventeenth-century cases rejected an unlawful act murder rule.26 In the eighteenth century, several jurists proposed a narrower “felony murder” rule. In a 1701 opinion, Chief Justice Holt tried to reconcile Coke’s unlawful act murder rule with the traditional requirement of malice by treating the commis­ sion of a felony as a form of malice.27 William Hawkins reasoned that killing in the course of any offense likely to provoke resistance implied malice, and then treated all felonies as provocative in this way.28 Hawkins limited this rule to felonies aiming at some purpose independent of physical harm to the victim. Michael Foster’s 1762 treatise viewed killing as presumptive evidence of malice, placing a burden on the defendant to prove accident or some other defense.29 This presumption made sense if “killing” meant striking a fatal blow with a weapon, and malice meant an intention to injure. Yet Foster also introduced a broader concep­ tion of malice as a defective moral sensibility, a “heart regardless of social duty and deliberately bent on mischief.” Foster supported both a felony murder rule, and an unlawful act manslaughter rule, but limited predicate crimes to those “malum in se.” He added that an unlawful act done heedlessly was manslaughter, but that an unlawful and fatal act done with the intent to inflict “mischief or great bodily harm” would be murder, because it manifested a depraved moral sense.30 Foster gave as an example, driving a cart through a crowd, knowing it would likely inflict harm.

23   Jeremy Horder, Provocation and Responsibility (1992), 5–59.   Dalton (n. 21) 238.   Edward Coke, The Third Part of the Institutes of the Laws of England (1644), 47. 25   Coke (n. 24) 57. 26   Chichester’s Case (1647) 82 E.R. 888 (K.B.); R. v. Hull (1664) 84 E.R. 1072 (K.B.). 27   R. v. Plummer (1701) 84 E.R. 1103, 1105–1107 (K.B.). 28   William Hawkins, A Treatise of the Pleas of the Crown, Vol. 1 (4th ed., 1762), 80. 29   Michael Foster, A Report of Some Proceedings on the Commission for the Trial of the Rebels in the 30 Year 1746 (3rd ed., 1792), 255.   Foster (n. 29) 261. 22

24

homicide   707 William Blackstone’s influential discussion of homicide in his Commentaries relied heavily on Foster. He divided homicide into three kinds: justified, excused, and felonious. Homicide was justified if required by law, or necessary in enforcing it. Homicide was excusable on grounds of self-defense and misadventure. Felonious homicide included murder with malice, express or implied, and manslaughter, which could be either voluntary or involuntary. Like Foster, Blackstone treated all killing as presumptively malicious, forcing the defendant to justify, excuse, or miti­ gate any killing or face execution. Malice aforethought embraced “any evil design” reflecting a “wicked, depraved, and malignant heart.” Voluntary manslaughter required an intent to injure arising from sudden anger. A  quarrel leading to a killing in mutual combat was manslaughter.31 Similarly, a homicidal response to a provoking blow, or to the sight of adultery, would miti­ gate murder to manslaughter, provided there was no “cooling time” for rage to be replaced with resolve. The provocation could not be a verbal insult. Involuntary manslaughter was distinguished from death by misadventure because the negligent and fatal act was unlawful—a trespass, such as dueling, throwing stones on a crowded city street, performing unlicensed surgery, or beating a pupil excessively.32 Such unlawful acts included an otherwise lawful act performed in a very careless fashion.33 Where the offender expected grievous injury to some unknown person, however, a resulting death to anyone would be murder. While a killing in the course of a trespass was manslaughter, a killing in pursuit of a felony was murder. Yet Blackstone illustrated this felony murder rule with cases in which the defendant unintentionally killed a bystander while targeting another vic­ tim.34 Thus it seems possible he understood the rule to transfer malice only among violent felonies. A study of homicide law applied in London’s Old Bailey court during the sev­ enteenth and eighteenth centuries offers a simpler account than the treatises. The concept of malice did not seem to be the focus of much controversy and trials rarely focused on proof of intent. What mattered was whether death resulted from the infliction of a wound with a conventional weapon, or some humble tool; and whether there was any evidence of provocation or mutual combat.35 The novel theor­ ies of murder with implied malice that appeared in the treatises—based on killing during a felony or recklessly dangerous conduct—were apparently not applied by courts. Homicide indictments typically charged that the defendant assaulted the victim with a certain weapon, with malice aforethought, causing a wound in a certain spot, from which the defendant died. They did not include allegations of intent to kill, extreme indifference to human life, or another felony. Nor did they describe killings   William Blackstone, Commentaries on the Laws and Customs of England, Vol. 4 (1765–69), 184–185. 33 34   Blackstone (n. 31) 197.   Blackstone (n. 31) 192.   Blackstone (n. 31) 201. 35   Binder (n. 2) 93. 31

32

708   guyora binder as having been committed in the course of a felony, or in resisting lawful arrest, although some of these killings clearly fit these scenarios.36 Almost all murder convictions were killings with a weapon.37 More than half involved a sword or knife; others used a gun, club or axe. Typically there was no evidence of intent to injure or kill other than the use of the weapon. Fatal assaults with a tool resulted in murder liability only if sufficiently persistent to manifest an intention to injure seriously. There were no murder convictions arising from child neglect, medical malpractice, traffic or construction accidents, or unintended fires. In sum, intent to kill, extreme indifference to human life, and killing in the course of felonies were not required for murder liability. When death resulted from an unprovoked armed attack, the participants were guilty of murder, whether or not they intended to kill. The intent to commit a felony did not substitute for the intent to kill, because none was required. On the other hand, a felony also did not turn accidental death into murder. Its only significance was to preclude provocation. Manslaughters were generally fatal assaults with weapons where victims had offered provocation. This provocation, in turn, could take three forms:  an unarmed blow; drawing on a defendant who could have retreated; or agreeing to armed combat. If the victim drew where retreat was impossible, or struck an armed blow, the defendant would be excused altogether on grounds of self-defense. Cases of witnessing adultery were rare but not unknown. Manslaughter liability was also the norm where there was no provocation, but the defendant attacked with a tool rather than a weapon, and the attack was limited to a single blow rather than a sustained assault. A third manslaugh­ ter scenario was an unprovoked but unarmed attack. Yet such cases could also lead to outright acquittals, particularly when the fatal injury resulted from a fall rather than directly from a blow. Physical chastisement of subordinates was common in early modern society, and juries probably had difficulty seeing unarmed blows as killings, even when they had fatal consequences. Carelessly inflicted fatal injuries sometimes led to manslaughter liability, and sometimes to outright acquittal.38

iv.  The Utilitarian Critique of Homicide Law Utilitarian reformers critiqued the homicide law described in treatises like Blackstone’s as irrational. For Jeremy Bentham, criminal law was fundamentally aimed at deterring harm through the threat of punishment rather than imposing   Binder (n. 2) 94.

36

  Binder (n. 2) 95–101.

37

  Binder (n. 2) 101–104.

38

homicide   709 a state monopoly on violence or suppressing private revenge. Thus he conceived crime as consisting of deterrable injuries to societal interests. In order to deter these injuries, it was important that each criminal offense be clearly and pub­ licly defined in advance.39 The conduct to be deterred was simply the causation of injury. Deterrable offenders would have to know that they would likely cause injury and therefore face punishment. Thus, it was sensible to define homicide as causing death with the expectation of doing so, rather than as killing without excuse. This expectation could be proven by showing that circumstances render­ ing death probable were apparent to the offender. The higher the expectation of death proven in this way, the more punishment was justified by a deterrent bene­ fit. John Austin would ultimately divide such expectations of harm into a hier­ archy of increasingly culpable mental states: negligence, recklessness, knowledge, and purpose.40 In the 1830s a Criminal Law Commission was appointed to study English criminal law and propose reforms. Greatly influenced by Bentham’s thought, the Commission critiqued homicide law as practiced and described in the treatises. The commissioners’ general strategy was to interpret traditional rules as legal presump­ tions that some fact could prove either causation of an injury, or the expectation of causing injury. In this way they could validate the Benthamite model of criminal offenses as rooted in tradition, and then use the model to critique that very trad­ ition as formalistic. Thus, the commissioners interpreted “malice” as an imprecise term for intent to kill; understood “kill” as meaning to cause death by any means; and so denied that malice could be presumed from killing. They critiqued the felony murder rule proposed in the treatises as a legal fiction substituting intent to commit a felony for the intent to cause death.41 A Benthamite Code was proposed for India by Thomas Macaulay in 1837 and enacted in 1862.42 Macaulay defined murder simply as causing death with know­ ledge one is likely to do so, absent provocation, unjustified defense, or consent (he elsewhere exempted justifiably defensive killing from liability). The same conduct was manslaughter when provoked, and an equivalent offense if committed in unrea­ sonable self-defense or with consent. Negligent homicide was a lesser offense. In the 1870s J. F. Stephen unsuccessfully proposed a penal code for England, in which he strove to make the law achieve the outcomes of the Benthamite approach while retaining the familiar vocabulary and categories of the common law. Stephen argued that malice, as developed in the common law, had referred to five alternative mental states: intent to kill, recklessness of a probability of death, intent to griev­ ously injure, intent to commit any felony, and the intent to resist arrest or lawful   Jeremy Bentham, Principles of Morals and Legislation ([1781] 1948), 172–173.   John Austin, Lectures on Jurisprudence, Vol. 2 (ed. R. Campbell, 3rd ed., 1869), 1093–1094. 41   Keith J. M. Smith, Lawyers, Legislators and Theorists (1998), 127–138. 42   Thomas Macaulay et al., A Penal Code Prepared by the Indian Law Commissioners (1837). 39

40

710   guyora binder confinement. He argued that only two of these, intent to kill and recklessness of death, were morally defensible as a basis for punishing homicide, because guilt for an injury should be based on the expectation of causing that injury. Since intent to kill entailed recklessness of death, murder should be conditioned simply on reck­ lessness of death, a standard similar to Macaulay’s. Stephen therefore proposed con­ ditioning intent to injure murder, felony murder, and resisting arrest murder on recklessness of death or enumerated reckless acts.43 Yet this elaborate argument obscured more than it illuminated. Intent to kill had not traditionally been required as proof of malice, for which intent to injure suf­ ficed. Recklessness of death was insufficient without an intent to injure. Finally, the intent to commit a felony or resist law enforcement were not substitutes for the intent to injure, but merely precluded claims of provocation and self-defense where intent to injure was present. Thus Stephen could have simplified existing law by defining malice as intent to injure. Yet his Benthamite premises made intent to injure an unacceptable measure of culpability for death.44 Stephen did not succeed in persuading parliament to adopt his definition of mur­ der, and it is not clear that English law ever did accept his view that recklessness with respect to death sufficed for murder. Nevertheless, Stephen promoted his approach to felony murder through his decision in R.  v.  Serné45 requiring that a predicate felony be manifestly dangerous to human life. Subsequent English decisions vacil­ lated between this requirement and a requirement that the felony involve violence.46

v.  Codification in the United States English criminal law was an important intellectual influence on early American homicide law. Yet English constitutional law did not make English criminal law binding on the colonies, and most charters left the colonies wide latitude to develop their own law. Many colonists viewed English criminal law as arbitrary and unduly harsh, and mistrusted lawyers and legal learning. By the time of the revolution, about half the colonies had enacted homicide statutes, usually simply imposing death for “willful” or “malicious” murder.47 After the revolution, Americans moved to codify their criminal law with sev­ eral jurisdictions initially adopting simple homicide statutes like those enacted   James F. Stephen, History of the Criminal Law of England, Vol. 2 (1883), 118–121. 45   Stephen (n. 43) Vol. 1, 112–114.   (1887) 16 Cox C.C. 311. 46   R. v. Whitmarsh (1898) 62 J.P. 711; DPP v. Beard [1920] A.C. 479. 47   Guyora Binder, Felony Murder (2012), 123. 43

44

homicide   711 during the colonial period. However, most eventually adopted statutes modeled on the Pennsylvania homicide statute of 1794.48 Influenced by Quaker religious senti­ ment and enlightenment reformism, Pennsylvania legislators sought to reduce capital punishment by dividing murder into degrees. Although the Bill’s original proponents hoped to limit capital murder to “deliberate assassination,” the ultimate legislation graded both “wilful, deliberate and premeditated” murder and murder “committed in the perpetration or attempt” of arson, rape, robbery, or burglary as first-degree mur­ der, subject to capital punishment at the discretion of the jury.49 All other “murder” was second-degree murder, subject only to terms of incarceration. The statute did not define murder itself, but merely incorporated prior understandings of the crime. By the 1820s Pennsylvania courts held that killings in the course of at least violent felonies were murders, although they probably still held a traditional understanding of killing as a fatal attack with a weapon.50 Pennsylvania’s grading scheme was adopted by about two-thirds of the states dur­ ing the nineteenth century.51 Some states added a simple definition of murder as kill­ ing with malice. Courts in most states interpreted these grading statutes to make unintended killing in the course of enumerated felonies first-degree murder. Some interpreted these statutes to make killings in the course of unenumerated felonies second-degree murder. A few imposed second-degree murder liability for maternal deaths in the course of illegal abortions.52 At mid-century, treatises by Joel Bishop and Francis Wharton read a felony murder rule into these grading statutes.53 Georgia’s 1817 homicide statute, which drew on Blackstone and Foster, also proved to be an influential model. Georgia defined murder as killing with malice aforethought, express or implied, adding that malice was expressed by intentional killing and implied by killing without provocation or under circumstances showing an “abandoned and malignant heart.”54 The Georgia code defined manslaughter as including voluntary killing with provocation and involuntary killing in an unlawful act, or a lawful act committed in an unlawfully careless way. It explicitly adopted a felony murder rule, defining involuntary killing in an unlawful act “which, in its consequences, naturally tends to destroy the life of a human being, or is committed in the prosecution of a feloni­ ous . . . intent” as murder.55 Illinois and several other states adopted such statutes and many western states, including California, combined Georgia’s provisions on malice, abandoned and malignant heart murder, and felony murder, with Pennsylvania’s on grading. In the late nineteenth century, courts began applying these statutes to impose murder liability where dangerous conduct caused death indirectly. In Mayes v. People,56   Guyora Binder, “The Origins of American Felony Murder Rules,” (2004) 57 Stanford LR 59, 119. 50   Act of Apr. 22, 1794, ch. 1766, § 2, 1794 Pa. Laws 186, 187.   Binder (n. 48) 145. 51   Binder (n. 48) 120. 52   State v. Smith, 32 Me. 369 (1851); State v. Leeper, 70 Ia. 748 (1886); State v. Minard, 96 Ia. 267 (1895). 53   Joel P. Bishop, Commentaries on the Criminal Law (1858); Francis Wharton, A Treatise on the Law 54 55 of Homicide in the United States (1855).   1817 Ga. Laws 95.   1817 Ga. Laws 96. 56   106 Ill. 306 (1883). 48

49

712   guyora binder the defendant angrily threw a beer mug at his wife, shattering an oil lamp she was carrying and causing her fatal burns. He was convicted of murder for killing with an abandoned and malignant heart, with no requirement of intent to grievously injure. In People v. Adams,57 several defendants were found liable for felony murder when they forced a robbery victim off a train, causing a fatal head injury. The court refused an instruction that murder required that death was intended or probable. Even jurisdic­ tions without such statutes developed the doctrines of abandoned heart murder and felony murder by statutory construction. By the end of the nineteenth century, the homicide law of most U.S.  jurisdic­ tions arrayed killings into a graded hierarchy of offenses of three different kinds. Intentional killings were voluntary manslaughters if provoked, second-degree murders if unprovoked, and first-degree murders if unprovoked and premedi­ tated. Fatally dangerous acts were involuntary manslaughters if merely careless, but became second-degree murders if they manifested depraved indifference to human life. Killings in the course of crime were involuntary manslaughters if committed in the course of a misdemeanor, second-degree murders if committed in the course of unenumerated felonies, and first-degree murders if committed in the course of enumerated felonies. This basic Blackstonian structure remains in place in most jurisdictions today.

vi.  Utilitarian Reform in the United States: the Model Penal Code From the utilitarian viewpoint, nineteenth-century American homicide statutes remained unsatisfying. Their traditional Blackstonian terminology did not make clear whether homicide was a crime of culpably causing death by any means, or a crime of causing death by particular forbidden acts. To a utilitarian, the only reason to punish deaths caused by felonies or dangerous acts was that these acts evidenced some degree of expectation of causing death. Thus it was preferable to condition liability on proof of such expectations rather than incorporating some inculpatory circumstance or conduct into the act element of the offense. Terms like “malice” and “abandoned and malignant heart” did not define the required expectations with sufficient precision, and invited juries to convict of killing where the defendant acted from bad motives, rather than with an expectation of death.   109 Ill. 444 (1884).

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homicide   713 The utilitarian approach to crime definition gained authority among American scholars in the late nineteenth century. Citing Stephen and Macaulay, Wharton repudiated his earlier support for felony murder liability and endorsed a modern reform movement that viewed malice as an actual mental state regarding the pros­ pect of death rather than a presumption of culpability from certain acts.58 Oliver Wendell Holmes also invoked Macaulay in disapproving felony murder liability.59 Holmes reasoned that felony murder liability would be applied too infrequently to deter the predicate felony and could not deter killing by felons who did not expect to cause death. Like Stephen, Holmes argued that malice could be reduced to a sin­ gle mental state of foresight of death, although Holmes preferred objective foresee­ ability rather than subjective or actual foresight. Similarly utilitarian ideas informed Herbert Wechsler and Jerome Michael’s celebrated article “A Rationale of Homicide” in the 1930s.60 Wechsler and Michael reviewed American homicide law and advocated its systematic reorganization in order better to achieve the goal of “prevention,” and with the express hope that their work would provide a model for criminal law reform generally. They began by invoking Stephen’s conclusions about the mental states required for murder at common law, and his rejection of felony murder. They proceeded to critique the division of murder into degrees, arguing that premeditation and deliberation were not distinguishable from simple intent to kill. They endorsed dis­ tinguishing abandoned heart murder from involuntary manslaughter on the quan­ titative basis of the expected probability of death, so that murder would require “gross recklessness,” while manslaughter would require recklessness or negligence. They disparaged alternative approaches that would condition abandoned heart murder on endangerment of multiple victims, or on a particularly antisocial motive. Next, they embraced Stephen’s proposal to limit felony murder to cases where the predicate felonies were committed in a way dangerous to life, but preferred replac­ ing felony murder with gross recklessness murder. They also rejected a requirement of a felonious purpose independent of physical harm to the victim for felony mur­ der. The only relevant form of culpability for harm was the expectation of causing that type of harm. Turning to manslaughter, Wechsler and Michael objected to the common law’s conditioning of mitigation on provoking acts such as assaults or unlawful arrests. They reasoned that strong emotion should be equally exculpatory regardless of its source. They insisted that involuntary manslaughter should be distinguished from non-criminal homicide by either subjective foresight (recklessness) or a higher quantum of objective foreseeability (gross negligence). They objected to unlawful 58   Francis Wharton, A Treatise on the Law of Homicide in the United States (2nd ed., 1875), iii–iv, 59 39–45, 153–154.   Oliver W. Holmes, The Common Law (1881), 48–50. 60  Herbert Wechsler and Jerome Michael, “A Rationale of the Law of Homicide:  I,” (1937) 37 Columbia LR 701.

714   guyora binder act manslaughter on the same basis that they rejected felony murder: the unlawful act was relevant only if it manifested an expectation of death. Finally, Wechsler and Michael discussed the act element of homicide which they conceived to be the causation of death. They concluded that causation required not only that the act was a necessary condition to the result, but also that it was of a kind that generally makes such a result more probable. These ideas provided the foundation for the Model Penal Code Wechsler drafted for the American Law Institute, ultimately promulgated in 1962. The Code required proof beyond a reasonable doubt of every offense element, although it permitted the jury to presume certain elements from proof of certain other facts. Offense elements included any required conduct and associated culpable mental states. All offenses had to include conduct elements, whether acts or omissions to fulfill duties.61 Yet for many offenses, including homicide, causing a harmful result was the only required conduct. The Code also required that offenders act with a mental state of negligence, recklessness, knowledge or purpose with respect to each required act, omission, circumstance and result element, and required a mental state of reck­ lessness where none was otherwise specified in the offense definition.62 These four mental states were conceived as a hierarchy, with negligence the least culpable men­ tal state and purpose the most culpable. The Code defined a cause as a necessary condition to a result for which the offender had the culpable mental state required by the offense definition.63 The Code’s definition and grading of homicide offenses reflected the positions taken in the Rationale. It defined the act element of all homicide crimes as simply causing death, by any means, and graded these offenses on the basis of the hierarchy of mental states. It conditioned murder on knowledge or purpose of causing death, or recklessness and “extreme indifference to the value of human life,” which it did not define. Recklessly causing death without extreme indifference was manslaugh­ ter. Knowing and extremely indifferent killing were also reduced to manslaughter if committed “under the influence of extreme emotional disturbance” reasonably excused by the circumstances as perceived by the killer.64 This defense replaced provocation, and was clearly a partial excuse based on the offender’s diminished self-control rather than a partial justification based on the victim’s wrongdoing. Manslaughter did not include negligent homicide, which was graded a lesser offense. Interestingly, the Code also mitigated murder to manslaughter (or negligent homi­ cide) on the basis of recklessly (or negligently) unreasonable self-defense.65 The Code gave only half-hearted expression to Wechsler’s disapproval of felony murder liability, providing that participation in enumerated felonies permitted an inference of recklessness and extreme indifference.66 This provision did not merely   American Law Institute, Model Penal Code (MPC), §§ 1.12, 2.01. 63 64   MPC §§ 2.02, 2.05.   MPC § 2.03.   MPC § 210. 66   MPC § 210.2(1)(b). 61

62

  MPC § 3.02(2).

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homicide   715 aggravate reckless killing from manslaughter to murder on the basis of the felony, because it allowed jurors to infer recklessness where it was not otherwise proven. Such an inference is dubious since Wechsler’s commentary acknowledged that kill­ ings occur in only about 1% of robberies and far less frequently in burglaries.67 On the other hand, the Code departed from prevailing doctrine in making accomplices in the felony liable for the killing only if they actually aided or encouraged the act causing death. Consistent with Wechsler’s views in the Rationale, the Code eliminated any dis­ tinction between first- and second-degree murder. Yet it created a category of capit­ ally punishable murder based on a finding of at least one of several enumerated aggravating circumstances involving recidivism, multiple victims, criminal motives, or unusual cruelty.68 The Code required the capital sentencer to weigh such enu­ merated aggravating circumstances against enumerated mitigating circumstances, and any other relevant evidence.

vii.  American Homicide Statutes After the Code The Model Penal Code reshaped the way homicide law was conceptualized and taught in the United States but had less effect on the substance of its rules. The Code provoked criminal code revision in over 30 jurisdictions69 with many of the new codes defining homicide in greater detail than their predecessors. They often defined the act element of homicide as causing death rather than killing, adopted the Code’s hierarchy of mental states, and replaced malice with particular mental states with respect to death. Yet most retained a felony murder rule, a distinction between first- and second-degree murder, and a distinction between voluntary and involuntary manslaughter. The Model Penal Code also influenced criminal law indirectly, through constitu­ tional law. Thus, the U.S. Supreme Court incorporated into due process the Code’s premise that criminal liability requires prosecutorial proof beyond a reasonable doubt of offense elements. Courts could no longer instruct juries that they must presume that the natural and probable consequences of an action were intended, or   American Law Institute, Model Penal Code and Commentaries (1980), Part II, 38 fn. 6.   MPC § 210.6. 69   Charles McClain and Dan M.  Kahan, “Criminal Law Reform:  Historical Development in the United States,” (2002) 1 Encyclopedia of Crime and Justice 424. 67

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716   guyora binder presume intent to kill from the use of a deadly weapon.70 Similarly, the Court held that if a statute defines murder as killing with malice, and malice as intent to kill without provocation, the prosecution must disprove provocation beyond a reason­ able doubt to win a murder conviction.71 This shows that the Court adopted not only the Code’s allocation of the burden of proof and its presumption of innocence, but also the Code’s premise that the function of a criminal statute was to define offenses by identifying their constituent act and mental elements. In another deci­ sion, the Court permitted New York to require defendants to prove extreme emo­ tional disturbance, in order to mitigate murder to manslaughter. The Court held that the statute defined the mental element of murder as intent to kill rather than malice, while classifying extreme emotional disturbance as an excuse rather than as disproof of the mental element.72

1.  The act element Today there are four general approaches to defining the act element of homicide offenses, roughly equal in popularity: (a) defining homicide as causing death, and defining causal responsibility by statute;73 (b) defining homicide or particular homi­ cide offenses as causing death, but leaving the definition of causation to judicial elaboration;74 (c) defining homicide as killing;75 and (d) leaving such offenses as “murder” and “manslaughter” undefined by statute.76 Thus, most states leave basic questions of causal responsibility for judicial resolution. For example, must a causal act have been a necessary condition to death, or could it have been one of several independent conditions, each sufficient to cause death (e.g. simultaneous gunshots to vital organs)? Must death also have been expected by, or reasonably foreseeable to, the actor? Is an act necessary to a foreseeable death still a cause if a subsequent independent voluntary act (e.g. the victim taking narcotics) was also necessary to the death? Does causal responsibility remain even if the subsequent independent act was unforeseeable or unlawful? Where a passive actor could have prevented death, courts must resolve the scope of the actor’s duties. In the still substantial number of jurisdictions with codes using the terms “kill” or “murder” rather than

  In Re Winship, 397 U.S. 358 (1970); Sandstrom v. Montana, 442 U.S. 510 (1979); Francis v. Franklin, 71 471 U.S. 307 (1985).   Mullaney v. Wilbur, 421 U.S. 684 (1975). 72   Patterson v. New York, 432 U.S. 197 (1977). 73   N.J. Stat. Ann. §§ 2c:11-2(A), 2c:2-3 (2013); 18 Pa. Cons. Stat. Ann. §§ 2501(A), 303 (2013); Tex. Penal Code Ann. §§ 19.01 (a), 6.04 (2013). 74   Ga. Code Ann. §§ 16-5-1 ff. (2013); N.Y. Penal Law § 125.00 (2013); Ohio Rev. Code Ann. § 2903 (2013). 75   Cal. Penal Code, § 187(A) (2013); Fla. Stat. § 782.04.(1)(A) (2013); 720 Ill. Comp. Stat. 5/9-1 (2013). 76   Mich. Comp. Laws. Ann. § 750.316 (2013);, Va. Code Ann. § 18.2-30 (2013); N.C. Gen. Stat. Ann. § 14-17 (2013). 70

homicide   717 “cause death,” the question arises whether these terms have some narrower mean­ ing excluding causation by omission, by assisting suicide, or by provoking defensive force.

2.  Intentional homicide A substantial minority of jurisdictions condition murder liability on the intent to grievously injure, including such populous states as Illinois, Michigan, New Jersey, and Texas.77 In these jurisdictions, a fatal intentional shooting would seem to be murder absent provocation or other mitigation. Yet most states condition at least some forms of murder liability on intentional killing. For example, California, New York, and Ohio punish intentional killing as second-degree murder.78 Florida, North Carolina, and Virginia define premeditated intentional killing as first-degree murder.79 Pennsylvania punishes intentional kill­ ing as first-degree murder, but defines it as requiring premeditation.80 Under the strict terms of these statutes, fatal intentional shootings are not murders. Yet juries are probably often willing to find intent to kill on such facts, even though only a small fraction of intentional gunshots lead to death.81 Moreover, many of these jurisdictions also punish depraved indifference murder,82 while others leave murder incompletely defined.83 Thus courts in such jurisdictions may still read intent to injure into the concepts of depraved indifference or murder itself. Most American jurisdictions continue to divide murder into degrees, and most of these grade premeditated murder as first degree.84 Such standards continue to draw criticisms like those offered by Wechsler and Michael. Since courts gener­ ally deny that premeditation requires any temporal interval between thought and action, it is unclear how an intentional killing could fail to be premeditated. On the other hand, if premeditation is taken to imply a calm or “cold blooded” affect, it is

77   720 Ill. Comp. Stat. 5/9-1(A)(1) (2013); N.J. Stat. Ann. § 2c:11-3(1,2) (2013); Tex. Penal Code Ann. § 19.02(B)(2) (2013); People v. Aaron, 409 Mich. 672, 709 (1980). 78   Cal. Penal Code §§ 188, 189 (2013); N.Y. Penal Law § 125.25(1) (2013); Ohio Rev. Code Ann. § 2903.02 (2013). 79   Fla. Stat. § 782.04 (2013); N.C. Gen. Stat. Ann. § 14-17(A) (2013); Va. Code Ann. § 18.2-32 (2013). 80   18 Pa. Cons. Stat. Ann. § 2502(A),(D) (2013). 81   Binder (n. 48) 190; Donald A. Dripps, “Fundamental Retribution Error,” (2003) 56 Vanderbilt LR 1383. 82   N.Y. Penal Law § 125.25 (2013); Cal. Penal Code §§ 187–189 (2013); Fla. Stat. § 782.04 (2013); N.C. Gen. Stat. Ann. § 14-17(B)(1) (2013); Ga. Code Ann. § 16-5-1(B) (2013). 83   18 Pa. Cons. Stat. Ann. § 2501(A) (2013); Va. Code Ann. §§ 18.2-30, 18.2-31 (2013). 84   Cal. Penal Code § 189 (2013); Fla. Stat. § 782.04 (2013); Mich. Comp. Laws. Ann. §§ 750.316, 750.317 (2013); N.Y. Penal Law §§ 125.27, 125.25 (2013): N.C. Gen. Stat. Ann. § 14-17 (2013); 18 Pa. Cons. Stat. Ann. § 2501(A) (2013); Va. Code Ann. §§ 18.2–32 (2013).

718   guyora binder not clear that the calmest killings are the most culpable. A mercy killing may result from calm resolution while a sadistic killing may result from a frenzied rage.85 While only a few jurisdictions mitigate murder on the ground of imperfect self-defense, most mitigate intentional killing (or fatal intentional injury) to man­ slaughter on the basis of strong emotion. They generally require emotion sufficient to impair self-control in reaction to circumstances that either justify or commonly produce such emotion.86 In applying such tests, courts confront a number of issues. Must the emotion be anger, or may it include other emotions such as fear or despair? Does a claim of “provocation” or “heat of passion” require that the victim have actually wronged the defendant? Does it suffice if the defendant reasonably believes such a wrong to have taken place? May the defendant base mitigation on upsetting circumstances unrelated to the victim? The Model Penal Code’s extreme emotional disturbance defense focuses more on the defendant’s loss of self-control than on the circumstances justifying it. While only a minority of jurisdictions have adopted this statutory language,87 the case law has moved toward more subjective standards of mitigation that resemble the extreme emotional disturbance standard. Feminist scholars have criticized this development as condoning domestic homi­ cides “provoked” by the victims’ efforts to escape abuse or resist control.88 Some scholars argue that mitigation is only merited for morally justifiable emotions, in opposition to the utilitarian view that motives should not be evaluated.89

3.  Homicide by risk-taking Most American jurisdictions continue to condition either unitary murder or sec­ ond-degree murder on extreme indifference to human life.90 Such provisions often leave unexplained how this form of murder differs from reckless manslaughter. Some jurisdictions have required endangerment of multiple victims,91 and some have required an antisocial motive.92 Where negligence suffices for manslaughter, recklessness might constitute extreme indifference. A majority of jurisdictions also punish involuntary manslaughter, either as a dis­ tinct lower grade of manslaughter, or as one form of a unitary manslaughter offense.

  Samuel Pillsbury, Judging Evil (2000), 101–106. 87   People v. Berry, 18 Cal. 3d 509 (1976).   e.g. N.Y. Penal Law § 125.27(2)(a) (2013). 88   Victoria Nourse, “Passion’s Progress: Modern Law Reform and the Provocation Defense,” (1997) 106 Yale LJ 1331–1448. 89   Dan M. Kahan and Martha C. Nussbaum, “Two Conceptions of Emotion in Criminal Law,” (1996) 96 Columbia LR 270; Kyron Huigens, “Virtue and Inculpation,” (1995) 108 Harvard LR 1423. 90   Cal. Penal Code § 189 (2013); Fla. Stat. § 782.04 (2013); Ga. Code Ann. §§ 16-5-1 (2013); 720 Ill. Comp. Stat. 5/9-1, 5/9-2 (2013); N.C. Gen. Stat. Ann. § 14-17 (2013); N.Y. Penal Law §§ 125.27, 125.25 91 (2013).   People v. Suarez, 6 N.Y.3d 202 (2005). 92   People v. Protopappas, 201 Cal. App. 3d 152 (1988). 85

86

homicide   719 Involuntary manslaughter is defined in three ways: as reckless killing,93 as negligent killing,94 or as killing in the course of an offense that is not a predicate for felony murder.95 Reckless manslaughter generally requires subjective foresight of death, as required by the Model Penal Code, but occasionally objective foreseeability of a very great risk suffices.96 Negligent manslaughter now usually requires objective foreseeability of death, rather than the simple violation of a duty of care.

4.  Homicide in the course of crime Few of the new codes abolished felony murder, but a handful of states now condi­ tion felony murder on extreme indifference to human life.97 Most felony murder rules are effectively conditioned on objective foreseeability of death. A majority of felony murder jurisdictions limit predicate felonies to a list that usually includes robbery, rape, arson, kidnapping, and burglary.98 These traditionally enumerated felonies are often described as inherently dangerous, but burglary is far less danger­ ous than the others.99 Jurisdictions with graded murder usually define killing in the course of enumerated felonies as first-degree murder. A substantial minority of felony murder jurisdictions permit felony murder predicated on non-enumerated felonies. This is often second-degree murder, and the predicate felonies are usually limited to those committed in a foreseeably dangerous way.100 Most jurisdictions also require foreseeability as a criterion of the actor’s causal responsibility for death, or of causal linkage between the felony and the death.101 These various requirements of danger effectively condition felony murder liability on criminal negligence, even though statutes rarely identify negligence toward death as the mental element of the offense.102 A substantial minority of jurisdictions employ an “agency” rule, excluding liability for deaths caused by actors resisting the felony. An agency requirement and a foreseeability requirement are compatible and several jurisdictions have both.103 Few jurisdictions impose felony murder liability for deaths of co-felons. An additional limitation on predicate felonies is a requirement that the felony be independent of the death. Thus, robbery aims at theft, rape aims at sexual violation, and arson aims at destruction of property. The danger to the person is incidental to these independent aims. About half of the jurisdictions that permit felony mur­ der predicated on non-enumerated felonies preclude predicate felonies like assault,   720 Ill. Comp. Stat. 5/9-3 (2013): N.J. Stat. Ann. § 2c:11-4(A.)(1) (2013): N.Y. Penal Law § 125.15(1) (2013): Tex. Penal Code Ann. § 19.04(A) (2013). 94   Cal. Penal Code § 192(B) (2013); Fla. Stat. § 782.07(1) (2013); 18 Pa. Cons. Stat. Ann. § 2504(A) (2013). 95   Cal. Penal Code § 192(C) (2013); Ga. Code Ann. §§ 16-5-3 (2013); Ohio Rev. Code Ann. § 2903.04 96 97 (2013).   Commonwealth v. Welansky, 316 Mass. 383 (1944).   Binder (n. 47) 184. 98 99 100   Binder (n. 47) 190.   Binder (n. 47) 193–194.   Binder (n. 47) 199. 101 102 103   Binder (n. 47) 209.   State v. Martin, 119 N.J. 2 (1990).   Binder (n. 47) 209. 93

720   guyora binder that aim at physical harm to the victim and therefore “merge” with the killing.104 Some jurisdictions include egregious forms of assault like aggravated child abuse or drive-by shooting as predicate felonies. Such felonies might be seen as entailing depraved indifference to human life even though they do not aim at a wrong inde­ pendent of the death. A particularly vexed issue is the responsibility of felons for killings by co-felons. Most codes impose felony murder liability only on those who kill or cause death. Accomplices in the felony are held liable for the felony murder only if they meet judicially developed criteria of complicity. The most common test holds co-felons of the killer responsible for deaths foreseeable as a result of the felony, and resulting from acts in furtherance of the felony.105 A substantial minority of felony murder statutes make all participants in a felony liable for any deaths caused by the felony.106 If applied to implicate co-felons for deaths foreseeable only to the killer, these pro­ visions would unfairly impose strict liability. But if understood to condition the liability of each participant on the foreseeability of death to him as a result of the fel­ ony, these provisions require the same culpability for killers and their accomplices. Several jurisdictions with such statutes offer an affirmative defense for unarmed accomplices who had no reason to expect the use of deadly force.107 While felony murder liability remains prevalent, most jurisdictions have dis­ pensed with the doctrine of unlawful act manslaughter and now condition invol­ untary manslaughter simply on recklessness or negligence. Nevertheless, some jurisdictions have defined homicide crimes predicated on violations of motor vehicle laws. A  recent development has been the legislative definition of special homicide crimes predicated on drug delivery. Thus far, charges under these statutes have been infrequent.

viii.  Death Penalty Law After the Code One of the areas of law where the Model Penal Code has had the greatest influence is on capital sentencing. Until 1972, juries in most states had largely uncabined dis­ cretion to condemn or spare defendants convicted of first-degree murder (or mur­ der in states without degrees). The National Association for the Advancement of Colored People (NAACP) charged that this system enabled race discrimination in 105   Binder (n. 47) 245–246.   Binder (n. 47) 216.   N.Y. Penal Law § 125.25(3) (2013).

104 107

  Binder (n. 47) 221–225.

106

homicide   721 sentencing, and that particularly in Southern states, capital punishment amounted to a system of authorized lynching. In a carefully planned litigation campaign, the NAACP argued that capital punishment violated the evolving standards of decency determining the meaning of the cruel and unusual punishment clause of the U.S. Constitution’s Eighth Amendment. The NAACP asserted that capital punishment was tolerated by the white majority only because it was used discriminatorily.108 This campaign achieved a major success with the Supreme Court’s 1972 decision in Furman v. Georgia, striking down all existing capital punishment statutes under the Eighth Amendment as excessively discretionary, and potentially discrimina­ tory.109 However, since the Court had not held that capital punishment was uncon­ stitutional per se, most states quickly repassed capital sentencing statutes which addressed the problems of arbitrariness and excessive discretion in one of two ways: either by making execution mandatory for all convicted of the highest degree of murder, or by following the Model Penal Code’s scheme of balancing aggravating and mitigating circumstances. In a series of 1976 decisions, the Court held that capital punishment could be jus­ tified by the legitimate penal purposes of retribution and deterrence;110 accepted the Model Penal Code’s guided discretion approach;111 and rejected mandatory execu­ tion of any class of murderers because it was insufficiently individualized.112 In a subsequent case, the Court required sentencers to consider any mitigating evidence offered by the defense, including evidence of the defendant’s rehabilitative potential and lack of dangerousness.113 The Court also required that each jurisdiction narrow the class of death-eligible murderers by requiring proof of at least one aggravating circumstance, either at the guilt phase or the sentencing phase.114 In addition to these procedural limits on the capital sentencing process, the Court has also imposed some categorical limits on the use of the death penalty. Thus, the Court has limited capitally punishable offenses against persons to murder.115 It has limited capital punishment of accomplices to felony murder to those who acted with intent to kill or who played a major role in the felony and acted with reck­ less indifference to human life.116 It has also limited capital punishment to normally functioning adults by precluding execution of minors and the mentally retarded.117

  Michael Meltsner, Cruel and Unusual (1973). 110   Furman v. Georgia, 408 U.S. 238 (1972).   Gregg v. Georgia, 428 U.S. 153 (1976). 111   Jurek v. Texas, 428 U.S. 262 (1976). 112   Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts v. Louisiana, 428 U.S. 325 (1976). 113   Lockett v. Ohio, 438 U.S. 586 (1978). 114   Lowenfield v. Phelps, 484 U.S. 231 (1988); Zant v. Stephens, 462 U.S. 862 (1983); Ring v. Arizona, 536 U.S. 584 (2002). 115   Coker v. Georgia, 433 U.S. 584 (1977); Kennedy v. Louisiana, 554 U.S. 407 (2008). 116   Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982); Tison v. Arizona, 481 U.S. 137, 107 S. Ct. 1676, 95 L. Ed. 2d 127 (1987). 117   Roper v. Simmons, 543 U.S. 551 (2005); Atkins v. Virginia, 536 U.S. 304 (2002). 108

109

722   guyora binder Taken together, the decisions on the sentencing process seem to contradict them­ selves. On the one hand, the Court has objected to sentencing discretion as inviting arbitrariness and discrimination, and justified capital punishment on the basis of considerations of deterrence and desert that seemed realizable through rules defin­ ing conduct and culpable mental states. Yet it has also demanded discretionary sen­ tencing based on individualized assessment of offenders’ character and capacity. The Court’s requirement of narrowing and rejection of mandatory sentences for any category of murder seemed to confirm the NAACP’s claim that regular appli­ cation of capital punishment to persons from all social groups and classes would seem intolerably cruel. The Court seems determined to limit capital punishment to a very small number of cases. In recent years, there has been about one execution for every 400 homicides.118 It seems unlikely that any process could possibly select such a small percentage of killers for execution on a principled basis. If so, there is a dilemma between fewer executions and fairer executions. A society’s choice of the former over the latter does indeed raise doubt that it still accepts capital punish­ ment as decent. Thus, it seems that the Court rather quickly gave up on the ambition, articulated in its Furman decision, of preventing arbitrary execution.119 The Court also seemed to abandon any effort to prevent race discrimination in capital sentencing with its decision in McCleskey v. Kemp.120 Here the Court rejected an equal protection chal­ lenge to Georgia’s death penalty statute, despite evidence of a great statistical dispar­ ity in sentencing based on the race of the victim. The Court offered the troubling argument that accepting such statistical disparities as evidence of unconstitutional race discrimination could invalidate much of the American criminal justice system.

ix.  English Law After the Homicide Act 1957 Until the Homicide Act 1957, capital punishment was the mandatory penalty for murder in England. The Homicide Act limited capital punishment to murders with certain aggravating circumstances including a motive of theft or resisting law enforcement. The death penalty was abolished for murder in 1969, however.121 At the present time, murder carries a mandatory life sentence.   John Kaplan, Robert Weisberg, and Guyora Binder, Criminal Law (2012), 339, 471.   Robert Weisberg, “Deregulating Death,” (1983) Supreme Court Review 305–395. 120 121   481 U.S. 279 (1987).   Murder (Abolition of Death Penalty) Act 1965. 118

119

homicide   723 The Homicide Act abolished “constructive murder” by eliminating both the intent to commit a felony and the intent to resist lawful custody as forms of malice. After this Act, malice was understood to require either intent to kill or intent to grievously injure. Recklessness of death was sometimes considered sufficient evi­ dence of malice, particularly in cases of arson and bombing.122 More recent deci­ sions rejected the view that knowledge of a high probability of death or grievous injury constitutes malice.123 While the defendant’s knowledge that her act rendered a result highly probable could not prove her intent to cause it, the defendant’s know­ ledge that such a result was nearly certain would prove such intent.124 Yet there remains an important exception to England’s supposed abolition of constructive murder. Common law rules of collective liability continue to hold participants in “joint ventures” aimed at some other crime liable for murders they believe “may” be committed during the venture.125 This differs from rules prevailing in the United States only in requiring subjective foresight as opposed to objective foreseeability of a possibility of death. On the other hand, recall that felony murder rules in the United States often have other limitations: restriction to certain danger­ ous predicate felonies, requirements that felonies be committed in a foreseeably dangerous way, requirements that killings be in furtherance of predicate felonies, and requirements of felonious purposes independent of physical harm. Comparing the English rule to the varying restrictions on felony murder imposed by American jurisdictions, it is not at all clear that the English rule requires more culpability to convict co-felons of murder than most American rules. In 2005 the Law Commission of England and Wales, an independent body cre­ ated by Parliament, recommended the division of murder into two degrees and the creation of a new form of murder based on recklessness of death.126 The Commission proposed that first-degree murder be confined to intentional killing and killing with both intent to grievously injure and recklessness of death. Second-degree murder would embrace reckless killing, killing with intent to grievously injure, and miti­ gated intentional killing, or what is now voluntary manslaughter. This proposal has not, thus far, been enacted as law. The 1957 Act also altered the law of voluntary manslaughter by making standards of mitigation more subjective. Provocation required that the defendant have killed as a result of a loss of self-control, under circumstances which would caused such a loss of self-control in a reasonable person.127 The law left this question of reasonable provocation to the jury rather than defining certain circumstances as adequate or inadequate as a matter of law. Provocation was a partial defense, requiring proof 123   Hyam v. DPP [1975] A.C. 55.   R. v. Moloney [1985] A.C. 905.   R. v. Woollin [1999] A.C. 82. 125   Powell and Daniels [1999] 1 A.C. 1; Jeremy Horder, Homicide and the Politics of Law Reform (2012), 158. 126   Law Commission of England and Wales, Murder, Manslaughter and Infanticide (Law Com No. 127 304, 2006).   Homicide Act 1957, section 3. 122

124

724   guyora binder by the defendant. In addition, the Act added a new partial defense, “diminished responsibility,” requiring a mental abnormality causing a substantial impairment of responsibility.128 It was distinguishable from the complete excuse of insanity, requir­ ing a mental disease leading to a defect of reason. The Act also strangely provided for mitigation to manslaughter in the unusual case of a suicide pact in which the killer survived or changed his mind.129 The Coroners and Justice Act 2009 replaced the defense of provocation with the analogous defense of “loss of control.”130 While the defense bears the burden of pro­ duction on this issue, the prosecution bears the burden of proof. Again, the loss of control must have been triggered by circumstances that would induce such a loss of control in a normal person of the defendant’s sex and age. Yet these circum­ stances may only be of two kinds: (a) the defendant feared violence from the victim, directed at herself or another; or (b) another’s acts or statements of a “grave charac­ ter” induced the defendant to feel a justifiable sense of having been wronged.131 The loss of control need not occur immediately after the event causing it, but it must be something more than a desire for revenge. The 2009 Act also defines dimin­ ished responsibility more restrictively, requiring that a medically recognized condi­ tion impair the defendant’s understanding of his conduct, ability to form a rational judgment, or self-control, and that this impairment significantly contributed to the defendant’s participation in the homicide.132 Involuntary manslaughter remains a common law crime, untouched by statutory reform. Two forms of involuntary manslaughter have been recognized. One is man­ slaughter by gross negligence, requiring that the defendant, with gross negligence of a risk of death, violated a duty of care to the deceased, causing death. The existence of such duties depends on a multi-factor standard, involving the foreseeability of death, the “proximity” of the defendant to the victim (an elusive concept that may refer to physical distance, social relatedness, or directness of causation), and the reasonableness of imposing the duty.133 The defendant breaches the duty by deviat­ ing from the conduct of a reasonable person, in light of the risk of death apparent to a reasonable person. The standard for recognizing duties functions essentially as a standard of legal or proximate causation. The causation element itself requires only that the defendant’s conduct was a “substantial factor” in the result and was not followed by an unforeseeable voluntary and independent act that was a necessary condition to the result. The second form of involuntary manslaughter requires an unlawful act posing a danger of physical harm (not death or grievous injury) appar­ ent to a reasonable person. The causation standard for this form of manslaughter 129   Homicide Act 1957, section 2.   Homicide Act 1957, section 4.   Coroners and Justice Act 2009, section 54. 131   Coroners and Justice Act 2009, section 55. 132   Coroners and Justice Act 2009, sections 52 and 53. 133   Donohue v. Stephenson [1932] A.C. 582; Caparo Industries plc v. Dickman [1990] 2 A.C. 605. 128

130

homicide   725 permits a voluntary, independent, necessary condition for death to break the chain of causation, even if the presence of that condition was foreseeable. This particular form of homicide excludes causation by omission.

x.  The Persistence of Judgment The contemporary law of homicide in both England and the United States reflects the sustained influence of a utilitarian reform movement. That movement organized legal thought around a conception of human action as risking or causing results, and a conception of law as minimizing costly results with clear rules conditioning sanc­ tions on dangerous conduct. Within this framework, homicide was conceptualized as the expected causation of death. From this perspective, traditional definitions of homicide emphasizing violent acts or antisocial motives were seen as archaic and confused. Both English and American homicide laws moved toward this utilitarian model, first recharacterizing requirements of violence as evidentiary presumptions of culpability, and then criticizing these presumptions as empirically unjustified or intellectually dishonest. Yet in neither country did reformers fully succeed in trans­ forming homicide law. Thus English law continues to condition murder liability on the intention to inflict non-fatal injuries, and to impose joint-venture liability for killings foreseen as possible. American law continues to impose felony murder lia­ bility for unintended but foreseeable killings during certain felonies, and to extend it to accomplices to whom such killings are foreseeable. The incompleteness of reform in both societies may result from the intellectually inconvenient fact that most homicide does not result from a conscious decision to kill. Moreover, the fatal conduct we judge most antisocial is not necessarily the con­ duct committed with the most deliberation. Even in a new millennium, the use of a deadly weapon remains a more salient predictor of murder liability than any mental state it might signify. Nevertheless, most legal systems insist that some ineffable psychological criterion identifies some killers as icons of evil, while leaving others safely within the circle of our sympathy.

References Binder, Guyora, “The Meaning of Killing,” in Markus D. Dubber and Lindsay Farmer (eds.), Modern Histories of Crime and Punishment (2007), 88–114 Binder, Guyora, Felony Murder (2012)

726   guyora binder Blackstone, William, Commentaries on the Laws and Customs of England, Vol. 4 (1765–69) Garland, David, Peculiar Institution: America’s Death Penalty in An Age of Abolition (2012) Green, Thomas A., “The Jury and the English Law of Homicide, 1200–1600,” (1976) 74 Michigan LR 413, 448–450 Kaye, J. M., “The Early History of Murder and Manslaughter,” (1967) 83 LQR 569 Lee, Cynthia, Murder and the Reasonable Man (2007) Lee, Youngjae, “The Constitutional Right Against Excessive Punishment,” (2005) 91 Virginia LR 677 Nourse, Victoria, “Passion’s Progress: Modern Law Reform and the Provocation Defense,” (1997) 106 Yale LJ 1331 Pillsbury, Samuel, Judging Evil: Rethinking the Law of Murder and Manslaughter (2000) Roth, Randolph, American Homicide (2009) Stephen, James F., History of the Criminal Law of England, Vol. 3 (1883) Wechsler, Herbert and Michael, Jerome, “A Rationale of the Law of Homicide: I,” (1937) 37 Columbia LR 701 Wharton, Francis, A Treatise on the Law of Homicide in the United States (1875)

­c hapter 32

OFFENSES AGAINST THE PERSON james chalmers

i.  What Are Offenses Against the Person? Criminal codes generally group together offenses against the person in some form, although the manner in which this is done varies. The U.S. Model Penal Code, for example, refers to a general category of “offenses involving danger to the person,” consisting of four parts: homicide, “assault; reckless endangering; threats,” “kidnap­ ping and related offences; coercion,” and sexual offenses.1 Offenses of homicide will typically form the first part of any code’s treatment of offenses against the person, even if they are not formally separated out into a distinct part.2 Sexual offenses are more typically dealt with separately,3 albeit with a degree of overlap with the general category of offenses against the person.4 The   Model Penal Code §§ 210–213.   See e.g. Model Penal Code § 210; Draft Criminal Code for England and Wales, sections 54–64; Draft Criminal Code for Scotland, sections 37–38; Canadian Criminal Code, sections 215–271. cf. Swedish Penal Code, 3 kap. 1-3 and §. 7 3   See e.g. Draft Criminal Code for Scotland, Part 3; Draft Criminal Code for England and Wales, sections 87–138. 4   So e.g. the Canadian Criminal Code deals with “offences against the person and reputation” in Part VIII, and “sexual offences, public morals and disorderly conduct” in Part V. However, Part VIII includes offences of sexual assault: sections 271–273. 1

2

728   james chalmers importance of these categories of offense means that they are typically examined in their own right,5 leaving a residual category of what may be termed “non-fatal, non-sexual offences against the person.”6 Although this category is residually defined, it includes some of the most serious criminal offenses and accounts for a high proportion of the work of the courts and other criminal justice agencies. For example, in England and Wales, non-fatal and non-sexual violence against the person accounts for approximately 20% of recorded crime and 25% of convictions.7 Offenses against the person may be understood as protecting the individual’s inter­ est in physical integrity and personal autonomy. Given the high value which the law places on these rights, criminal liability may result from relatively minimal infringe­ ments of them: for example, an assault can be committed by touching or grabbing another person’s clothing.8 A rough distinction between offenses protecting these two interests can be seen in some legislative structures,9 but there will necessarily be sig­ nificant overlap, and offenses will frequently involve infringements of both interests. In providing an overview of offenses against the person, it is convenient to begin with the offense of assault. Assault generally forms the first rung of a lad­ der of offenses of increasing seriousness, but this ladder is often “somewhat shak­ ily constructed”10 given the variety of factors which legislatures may seek to reflect and record in devising a structure of offenses. This chapter will discuss assault and a variety of closely related offenses, before turning to examine offenses which are more directly concerned with personal liberty than bodily integrity.

ii. Assault English law formally distinguishes between assault and battery. Under this approach, an assault is an act by which the defendant intentionally or recklessly causes the victim to apprehend immediate unlawful violence; a battery is the application of   They are discussed in separate chapters in this volume.   See e.g. Jeremy Horder, “Rethinking Non-Fatal Offences Against the Person,” (1994) 14 OJLS 335, 337; Jonathan Herring, Criminal Law: Text, Cases, and Materials (6th ed., 2014), ch. 6. 7   See Ministry of Justice, Criminal Justice Statistics: Quarterly Update to September 2012 (2013), table Q1.4 (2011–12 data), taking into account the homicide-specific figures found at Office for National Statistics, Violent Crime and Sexual Offences, 2011/12 (2013), table 2.01. 8   R. v. Thomas (1985) 81 Cr. App. R. 331; R. v. H. [2005] 1 WLR 2005. 9   As e.g. in the Model Penal Code structure quoted previously, or ­chapters 3 and 4 of the Swedish Penal Code, addressing crimes “against life and health” and “against liberty and peace” respectively. 10   Andrew Ashworth and Jeremy Horder, Principles of Criminal Law (7th ed., 2013), 334. 5

6

offenses against the person    729 unlawful force to another person.11 Either offense can be committed in isolation, although in practice most cases will involve both, and the term “assault” is fre­ quently, both in common usage and even in legislation, used to cover both cases.12 Other systems reject such a distinction and employ a single offense of assault. Two approaches are possible here. The first is to define assault simply as consisting of an attack against another person, so that any physical consequences are merely part of the factual narrative and not part of the definition of the crime.13 The second, more common, approach is to define assault as a single offense which can be committed in two or more different ways, including both applying physical force and causing a person to fear the application of physical force.14 Where the latter approach is taken, this may involve specifying different mens rea requirements for different versions, providing for example that assault by the application of force may be committed recklessly but that assault by causing another person to apprehend force requires intention.15 The discussion so far has assumed that assault should be defined by reference to the application of force. An obvious problem with this approach is its breadth: such an offense runs the risk of capturing a wide range of conduct which is either too trivial to merit the criminal sanction or not in any way blameworthy.16 This difficulty may be mitigated by the recognition of implied consent to the “physical contacts of ordinary life.”17 An alternative approach is that taken by the Model Penal Code, which limits the offense to bodily injury rather than mere force,18 on the basis that “offensive but not physically endangering behavior”—particularly unwanted sexual conduct—is better dealt with under more narrowly defined specific offenses.19 The Code’s approach, however, is broader than it appears at first sight, as for this pur­ pose “bodily harm” encompasses physical pain alone.20 Where assault—or an aggravated variant thereof—is defined by reference to “harm” or “bodily harm,” questions may arise as to the scope of that concept. The  See R. v. Mansfield Justices, ex p. Sharkey [1985] Q.B. 613, 627 per Lane LCJ.   DPP v. Taylor; DPP v. Little [1992] Q.B. 645, 651 per Mann L.J. (“a meaning in practice which would not commend itself to the philologist”). 13   As in Scotland: see e.g. Lord Advocate’s Reference (No. 2 of 1992) 1993 JC 43; Draft Criminal Code for Scotland, section 41. 14   See e.g. Canadian Criminal Code, section 265; Criminal Code (N.T.), section 187, and also the common law position in South Africa:  Jonathan M.  Burchell, Principles of Criminal Law (3rd ed., 2005), 161. 15   See e.g. Model Penal Code § 211.1, although the offense here is defined by reference to bodily 16 injury rather than the mere application of force.   Ashworth and Horder (n. 10) 316–318. 17   Collins v. Willcock [1984] 1 WLR 1172, 1177 per Robert Goff L.J.: “So nobody can complain of the jostling which is inevitable from his presence in, for example, a supermarket, an underground station or a busy street; nor can a person who attends a party complain if his hand is seized in friendship, or 18 even if his back is, within reason, slapped.”   Model Penal Code § 211.1. 19   American Law Institute, Model Penal Code and Commentaries, Part II, §§ 210.0–213.6, 185, refer­ ring in particular to the offenses of disorderly conduct (§ 250.2) and harassment (§ 250.4). 20   Model Penal Code § 210.2(2). 11

12

730   james chalmers English courts have held that bodily harm should be interpreted as including any “recognizable psychiatric injury,” thereby allowing two men who had made a series of silent telephone calls (and in one case, engaged in other harassing behaviors) toward their victims to be regarded as having caused “bodily harm” in the form of the psychiatric illnesses suffered by their victims as a result.21

iii.  Assault, Fear, and Threats Where assault can be committed by causing someone to fear the application of force, this raises a question of how imminent that application must be. One approach is to say that the fear must be created by menacing gestures, such as brandishing a weapon.22 As such threats are naturally likely to be ones of imminent harm, a system which employs this distinction is unlikely to have to concern itself with the ques­ tion of how far “imminence” reaches. But, Lord Steyn suggested in R. v. Ireland,23 a distinction between words and gestures is “unrealistic and indefensible”: why, for example, should a man “accosting a woman in a dark alley saying, ‘Come with me or I will stab you’ ”24 not be taken to have caused his victim to fear immediate violence in the same way as if he had brandished a knife at her in broad daylight? Once words are accepted as sufficient to constitute assault, the problem of imminence becomes acute, because words are more likely than gestures to refer to future harm. In Ireland, Lord Steyn gave the example of a threatening telephone caller who says “I will be at your door in a minute or two” as a example of a potential assault;25 in another English case, it was held that assault could be committed by way of a hand-delivered letter put through the victim’s door without the victim seeing the offender.26 The limits to imminence are unclear, and it may be that decisions such as this are best understood as a reaction to deficiencies whereby the law fails properly to criminalize threatening or harassing behavior.27 The extent to which some systems criminalize threats is surprisingly limited and occasionally chaotic.28 English law,   R. v. Ireland; R. v. Burstow [1998] A.C. 147.   Gerald H. Gordon, The Criminal Law of Scotland, Vol. 2 (ed. M. G. A. Christie, 3rd ed., 2001), para. 29.03. In Canada, see R. v. Byrne [1968] 3 CCC 179: the statement “I’ve got a gun; give me all your money or I’ll shoot,” uttered while B had a coat draped over his arm, was held not to be an assault. 23 24 25   R. v. Ireland; R. v. Burstow [1998] A.C. 147.   At 162.   At 162. 26   R. v. Constanza [1997] 2 Cr. App. R. 492: Schiemann L.J. said at 494 that the prosecution must prove “a fear of violence at some time not excluding the immediate future.” 27   See e.g. Ashworth and Horder (n. 10) 318–319. Harassment is discussed later in this chapter. 28   As it certainly is in English law:  see Peter Alldridge, “Threats Offences—A Case for Reform,” [1994] Crim. LR 176. 21

22

offenses against the person    731 for example, has a statutory offense of threats to kill (which was restricted to writ­ ten threats until 1977)29 but lacks a broader general offense of threatening violence. New Zealand has an offense of threatening to kill or do grievous bodily harm,30 and although this is accompanied by a relatively recently created offense of threats of harm to people or property,31 that offense requires that the accused acted for a number of specific broader purposes such as disrupting “the activities of the civil­ ian population of New Zealand.”32 Such approaches demonstrate a reluctance to criminalize threats on their own, as compared to threats made to coerce the victim into acting in a particular way (which may amount to offenses such as extortion or blackmail)33 or threats liable to cause public disorder (which may amount to a public order offense). Other systems do operate more general offenses of threatening behavior, such as the Canadian offense of uttering threats (of death or bodily harm),34 the German offense of threatening to commit a felony,35 or the Swedish offense of unlawful threat.36 Such offenses may not completely meet the potential legal deficiency out­ lined earlier: a person may fear for their safety as the result of harassing or intimi­ dating behavior which does not take the form of a threat, and such instances are now increasingly dealt with by way of specific offenses of harassment, discussed later in this chapter.

iv.  Beyond Simple or Common Assault: A Hierarchy of Offenses While a system of criminal law might seek to operate with a single offense of assault, such an approach would be highly unsatisfactory. As Ashworth has observed, it would run contrary to the principles of fair labeling and maximum   Offences Against the Person Act 1861, section 16, as amended by the Criminal Law Act 1977, Sch. 12.   Crimes Act 1961, section 306 (New Zealand). 31   Crime Act 1961, section 307A, inserted by the Crimes Amendment Act (No, 2) 2003, section 6 32 (New Zealand).   Section 307A(2). 33   cf. Criminal Code (N.T.), section 200, which creates an offense of “threats,” but which requires that the threat be made “with intent to prevent or hinder that other person from doing any act that he is lawfully entitled to do, or with intent to compel him to do any act that he is lawfully entitled to abstain from doing.” A separate offense of threats to kill is created by section 166. 34   Canadian Criminal Code, section 264.1. The offense also encompasses threats to damage property and to “kill, poison or injure” an animal or bird that is the property of any person. 35   § 241 StGB (Strafgesetzbuch, German Criminal Code). 36   Swedish Penal Code, 3 kap. § 5 (committed by threatening a person so as to evoke a serious fear for the safety of their or another’s person or property). 29

30

732   james chalmers certainty, while leaving “little to be decided at the trial and would transfer the effective decision to the sentencing stage.”37 Scots law comes closest to the sin­ gle offense approach, operating a single offense of assault with a penalty ranging from an absolute discharge to life imprisonment, but which can be charged as “aggravated” in a variety of ways which would require to be specifically proven if charged.38 Other jurisdictions recognize that a more formal hierarchy of offenses is there­ fore required, but how should this be structured? One approach is to structure a core around the degree of harm caused and the mens rea of the accused, such as that proposed by the English Law Commission in 1994:39 2(1)  A person is guilty of an offence if he intentionally causes serious injury to another . . . 3(1)  A person is guilty of an offence if he recklessly causes serious injury to another . . . 4  A person is guilty of an offence if he intentionally or recklessly causes injury to another.

Such a structure could then be supplemented by further specific offenses that were felt necessary: the Law Commission, for example, recommended additional offenses of assault on a constable and assault to resist arrest.40 While such proposals have a certain simplistic elegance, they may be criticized for offering “too anaemic a conception”41 of the wrongdoing concerned, too readily treating different forms of serious injury as commensurable, and failing meaningfully or at all to record the nature of the offender’s wrongdoing.42 The type of focused structure offered by the Law Commission’s proposals is rarely found in systems founded on English criminal law,43 perhaps because of the lasting influence of the Offences Against the Person Act 1861, aspects of which are often described as “bewildering.”44 Different systems of criminal law treat a wide variety of factors as relevant to grading the seriousness of an assault. The multiplicity of factors will often mean that the criminal law lacks any clear hierarchy of offenses, although it is possible to seek to achieve this by using a structure which creates different “degrees” of assault and then lists a series of different factors which may be alleged in order to bring the offense within one of the specified degrees.45 This involves, to a limited 38   Ashworth and Horder (n. 10) 307.   Gordon (n. 22) paras. 29.04–29.20.   Law Commission, Legislating the Criminal Code: Offences against the Person and General Principles (Law Com No. 218, 1993), para. 13.2. The Model Penal Code similarly distinguishes between “simple” 40 and “aggravated” assault: § 211.1.   Paras. 22.1–22.11. 41   Jeremy Horder, “Rethinking Non-Fatal Offences Against the Person,” (1994) 14 OJLS 335, 351. 42   Horder, (1994) 14 OJLS 355. 43   Civilian jurisdictions, by contrast, tend to offer more logical and coherent accounts of this area of law: see e.g. Ch. 17 StGB; Swedish Penal Code, kap. 3. 44   See e.g. Law Commission (n. 39) para. 22.1; Horder, (1994) 14 OJLS 335, 338. 45   See e.g. the four degrees of assault created by the Revised Code of Washington, §§ 9A.36.011–041; assault in the fourth degree is assault committed under circumstances “not amounting to assault in the first, second, or third degree, or custodial assault.” 37

39

offenses against the person    733 extent, an attempt to treat certain types of assault as commensurate in seriousness with others. In addition to the seriousness of the harm caused and the accused’s mens rea, some of the key factors which have been taken into account in delin­ eating the seriousness of assault-type offenses are dealt with in the following paragraphs.

1.  The purpose of the assault Assault with intent to resist arrest may be regarded as a crime in its own right,46 although in many jurisdictions this will be subsumed within a more general offense of assault on a law officer. Some jurisdictions recognize specific offenses of assault with intention to commit a further crime such as robbery47 or rape,48 or to inflict a particular degree of harm.49 Such offenses are of limited value now that most systems recognize a general theory of attempts which would allow those cases to be charged as an attempt to commit the full offense, but they remain in existence. A sexual motivation may be regarded as changing the character of an assault, but sexual assault is generally regarded as a separate offense50 and is dealt with else­ where in this volume.

2.  The character of the victim The drafters of the Model Penal Code rejected “grading based on the status of the victim,” preferring instead to create general offenses only. “Special provision is unnecessary in view of the ample severity of penalties against murder and all seri­ ous attacks upon the person, regardless of the identity of the victim . . . it seems sen­ sible to grade assault offenses against special victims at the same level as any other assault.”51

  See e.g. Offences Against the Person Act 1861, section 38.   In English law, see the Theft Act 1968, section 8(2). The Law Commission has previously sug­ gested that this offense is no longer required: Law Commission (n. 39) para. 22.12. 48   In Scots law, see Gordon (n. 22) para. 29.22. 49   See e.g. the South African offense of assault with intent to do grievous bodily harm: Burchell (n. 14) 688–670. The offense is committed based on the accused’s intention and not whether grievous bodily harm is in fact caused. 50   In Scotland, the common law offense of indecent assault is regarded not as being a separate offense but as assault “aggravated by circumstances of indecency”: Gordon (n. 22) para. 29.24. In prac­ tice, this offense has been superseded by a statutory one of sexual assault: Sexual Offences (Scotland) Act 2009, section 3. 51   Model Penal Code and Commentaries, Part II, §§ 210.0–213.6, 185. 46 47

734   james chalmers This approach has not found favor. Most systems recognize, as a minimum, a specific offense of assaulting a police officer in the execution of his or her duty. (Rather unsatisfactorily, it is common for courts to have taken the view that no mens rea is required as to the victim’s status as a police officer.52) These offenses often carry significantly lower maximum penalties than are available for the most serious offenses against the person,53 the implication being that the victim’s status as a law enforcement officer is particularly relevant in a minor assault, but is in more serious cases overshadowed by the inherent gravity of the attack. There has, however, been a recent tendency in some jurisdictions to create specific offenses dealing with seri­ ous attacks against law enforcement officers.54 More recently, some jurisdictions have created specific offenses addressing assaults on other defined groups of individuals, such as “a worker who is work­ ing in the performance of his or her duties,”55 “emergency workers,”56 or immi­ gration officers.57 Alternatively, in systems which grade assault by degrees, an attack on a person in a particular group may result in the accused committing assault in a higher degree than would otherwise be the case.58 In some instances, these may serve to create a broader offense encompassing both assault and obstruction or hindering falling short of assault;59 elsewhere they may add little to the criminal law but serve as “tokens of esteem”60 by way of which the state symbolically acknowledges the value of particular individuals’ work and the risks they face.

52   Forbes and Webb (1865) 10 Cox C.C. 362; R. v. Reynhoudt [1962] HCA 23. A different view appears to have been taken in Scotland: Annan v. Tait 1982 SLT (Sh. Ct.) 108. For a qualified defence of the strict liability approach, see Jeremy Gans, Modern Criminal Law of Australia (2012) 325–326. 53   See e.g. Police (Scotland) Act 1967, section 41 (nine months’ imprisonment); Police Act 1996, sec­ tion 89 (six months’ imprisonment); Criminal Code (N.T.), section 198A (five years’ imprisonment). 54   See e.g. Canadian Criminal Code, sections 270–270.02, which since 2009 comprises a hierarchy of offenses—assaulting a peace officer; assaulting peace officer with weapon or causing bodily harm; aggravated assault of police officer—the last of which carries a maximum sentence of 14 years’ impris­ onment; Crimes Act 1961, section 198A (New Zealand) (an offense, created in 1986, of using a firearm in any manner against a constable, traffic officer or prison officer, carrying a maximum sentence of 55 10 years’ imprisonment).   Criminal Code (N.T.), section 188A. 56 57   Emergency Workers (Scotland) Act 2005.   UK Borders Act 2007, section 22. 58   See e.g. Revised Code of Washington, § 9A.36.031, creating an offense of assault in the third degree, defined inter alia by reference to the victim’s status as a transit operator or driver, school bus driver, firefighter, law enforcement officer, healthcare worker, judicial officer, or employee. Peace officers are also included in the list, but only if assaulted with projectile stun guns. 59   But such offenses can be created on a standalone basis: the Emergency Workers (Obstruction) Act 2006 created offenses of obstructing or hindering emergency workers but did not include an offense of assault, on the basis that the existing law included “comprehensive measures” to deal with such cases: Home Office Circular 003/2007, para. A2. 60  A  term borrowed from Jonathan Simon and Christine Spaulding, “Tokens of Our Esteem:  Aggravating Factors in the Era of Deregulated Death Penalties,” in Austin Sarat (ed.), The Killing State: Capital Punishment in Law, Politics and Culture (1999), 81.

offenses against the person    735

3.  Prejudice on the part of the accused In recent years, some jurisdictions have created offenses (or statutory aggravations to existing offenses) of assault motivated by prejudice toward particular character­ istics of the victim such as their race or religion.61 Such offenses are focused on the prejudice motivating the accused’s action and so differ from ones based on the char­ acter of the victim; indeed, it may be possible to commit such offenses even though the accused is mistaken as to whether the victim possesses the specified charac­ teristic.62 Some jurisdictions address this issue not through the creation of specific offenses, but instead a requirement that the court takes any prejudice evinced by the accused into account when passing sentence.63 Such developments raise both diffi­ culties relating to the question of the extent to which such motivations are properly relevant to sentence,64 and the range of characteristics which should be recognized as specifically protected by the criminal law in this way.65

v.  Torture and Other Offenses of International Concern Domestic criminal codes may include an offense of torture. U.K.  legislation, for example, defines this as a “public official or person acting in an official capacity . . .  intentionally inflict[ing] severe pain or suffering on another in the performance or purported performance of his official duties.”66 While such offenses serve to mark what might be considered a particularly heinous form of assault or other offense against the person, the significance of standalone provisions such as these is that they may be subject to different rules on jurisdiction than would generally apply across the criminal law. While criminal jurisdiction in the United Kingdom is by default territorial,67 the offense of torture is committed by any person who   See e.g. Crime and Disorder Act 1998, section 28.   e.g. the Offences (Aggravation by Prejudice) (Scotland) Act 2009 applies in respect of the victim’s disability, sexual orientation, or transgender identity, or when any of these characteristics are “pre­ sumed” by the accused. 63   See e.g. Canadian Criminal Code, section 718.2; Sentencing Act 1995 (N.T.), section 6A(e). 64   See e.g. Heidi M. Hurd, “Why Liberals Should Hate ‘Hate Crime Legislation’,” (2001) 20 Law & Philosophy 215. 65   See e.g. Law Commission, Hate Crime: The Case for Extending the Existing Offences (Law Com CP No. 213, 2013). 66   Criminal Justice Act 1988, section 134. See also e.g. Canadian Criminal Code, section 269.1; Crimes of Torture Act 1989, section 3 (New Zealand). 67   See generally Michael Hirst, Jurisdiction and the Ambit of the Criminal Law (2003). 61

62

736   james chalmers does the prohibited acts “in the United Kingdom or elsewhere,” creating universal jurisdiction. This is a consequence of the Convention against Torture,68 which requires state parties, as a minimum, either to take jurisdiction over acts of torture where the alleged offender is present within their jurisdiction or to extradite the alleged offender to a state which will exercise jurisdiction.69 States may, as the United Kingdom has done, go beyond this to assert universal jurisdiction;70 other criminal codes may specify a more restrictive set of rules closer to the minimum requirements of the Convention.71 Other criminal offenses of inter­ national concern may result in similar legislative approaches, such as the cre­ ation of offenses relating to female genital mutilation in the United Kingdom, which can be committed by any U.K. national or permanent resident outside the United Kingdom.72 Again, regardless of whether the conduct concerned would fall within the ambit of more general offenses against the person, specific legis­ lation both marks out particularly serious wrongdoing and allows the author­ ities to assert broader geographical jurisdiction than would otherwise be the case.73

vi.  Consent and Assault To what extent should an individual’s consent to assault provide a defense? Courts have occasionally been attracted to the suggestion that consent is simply not a defense to assault at all,74 but such an approach would not be sustainable given the broad range of conduct, including non-harmful touching, caught by the offense. Most systems will find it necessary to draw a line somewhere between that which 68   Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984). 69   Art. 5(2); the cases in which a state must take jurisdiction are specified in Art. 5(1). 70   For some practical consequences of this, see e.g. Katherine Gallagher, “Universal Jurisdiction in Practice: Efforts to hold Donald Rumsfeld and Other High-Level United States Officials Accountable for Torture,” (2009) 7 Journal of International Crim. Justice 1087. 71   See e.g. Canadian Criminal Code, section 7(3.7); Crimes of Torture Act 1989, section 4 (New 72 Zealand).   Female Genital Mutilation Act 2003. 73   See also e.g. Crimes Act 1961, section 204A (New Zealand). cf. Canadian Criminal Code, section 268(3)–(4). 74   A Scottish court came close to saying this in Smart v. H.M. Advocate 1975 J.C. 30, but seemed to couple it with a suggestion that the offense might require an intention to do bodily harm, in which case a general exclusion of consent might be easier to maintain, subject to exceptions for certain socially accepted activities.

offenses against the person    737 can and cannot be consented to, and one of the most influential common law deci­ sions has been the English decision in R. v. Brown,75 where a group of sadomaso­ chists were charged with a variety of offenses based on their having inflicted bodily harm on each other. The House of Lords ruled that “actual bodily harm”76 could not be consented to, meaning that the fact that the defendants had engaged in the activities willingly was irrelevant. Although the failure to recognize the validity of such consent is a clear restriction on personal autonomy, a subsequent application to the European Court of Human Rights resulted in that Court ruling that such a restriction could be considered necessary in a democratic society for the protection of health, and therefore compatible with the right to private life under Art. 8 of the European Convention on Human Rights.77

1.  Consent and socially acceptable activity Defining the limits of consent by reference to the magnitude of the harm caused, as the House of Lords did in Brown, provides only a partial answer. First, some activities, such as surgery or tattooing, may cross that factual threshold but remain unlikely candidates for criminalization. Secondly, some activities may involve a risk of harm over the prohibited threshold, but have other value which leads to the con­ clusion that they should not be criminalized. Criminal codes are frequently silent on this matter or provide only partial answers.78 Courts have sometimes sought to address the point simply by stating a list of exceptions, referring, for example, to “the accepted legality of properly con­ ducted games and sports, lawful chastisement or correction, reasonable surgical interference, dangerous exhibitions, etc.”79 Some legislative attempts to formulate a general test have been based on a test of “social acceptability.”80 Tests of social acceptability are more realistic than ones of public interest,81 which may force courts to take unlikely stances such as viewing “daredevil activities” as a “socially valuable

  [1994] 1 A.C. 212.   Previously defined in R. v. Donovan [1934] 2 K.B. 498, 509 as “any hurt or injury calculated to interfere with the health or comfort of the [victim].” 77   Laskey, Jaggard and Brown v.  U.K. (1997) 24 EHRR 39. In view of that conclusion, the Court expressed no view on whether the interference with the right to private life could also be justified on the ground of the protection of morals. 78   An illustration is the New Zealand Code, which provides no general answer but contains specific provisions providing, e.g., for the effectiveness of consent to a surgical operation and the ineffective­ ness of consent to female genital mutilation. See Crimes Act 1961, sections 61A, 204A. 79   Attorney-General’s Reference (No. 6 of 1980) [1981] Q.B. 715, 719. 80   See e.g. two Australian codes: Criminal Code (Cth.), section 71.14; Criminal Code (N.T.), section 208D. To similar effect, see section 111(2) of the Draft Criminal Code for Scotland. cf. § 228 StGB, pro­ viding that consent to bodily harm will be valid unless the act violates public policy notwithstanding 81 the consent.   See e.g. R. v. Lee [2006] NZCA 60. 75

76

738   james chalmers cultural product,”82 but run the risk of inconsistent application and insufficient respect for personal choice.83

2.  Consent and risk The validity of consent to socially accepted activities raises the question of whether such consent is effective where the activity carries with it a risk of injury. The issue has arisen sharply in cases where defendants charged with transmitting or expos­ ing their sexual partners to the risk of HIV have argued that consent to the risk of transmission was given. While at first sight an application of the principle laid down in Brown would seem to require the conclusion that any such consent is invalid, courts have avoided this conclusion, emphasizing the positive social value of sexual intercourse and concluding that it is legitimate to consent to a risk of the transmission of disease associated with it.84 Similarly, consent to the risk of injury associated with sporting activities—or even “rough horseplay”85—will be effective. In the sporting context, it is not always clear what a sporting participant should be taken to have consented to. It seems that a participant consents not to conduct within the rules of the game, but to the sport’s “normal scope,”86 which may be somewhat different. Sporting participants, it seems, must accept—at least in contact sports—that their opponents may not “play strictly according to the rules.”87

3.  Consent and the defendant’s state of mind It is unclear how the law should address situations where there is a divergence between what the actor foresaw and what came to pass.88 The English courts previ­ ously suggested that consent would be inoperative if actual bodily harm were either intended or caused,89 but that seems to produce unsatisfactory outcomes where the   R. v. Jobidon [1991] 2 SCR 714, para. 130.   See e.g. Sharon Cowan, “Criminalising SM:  Disavowing the Erotic, Instantiating Violence,” in R. A. Duff et al. (eds.), The Structures of the Criminal Law (2011), 59. 84   R. v. Dica [2004] Q.B. 1257; Neal v. R. [2011] VSCA 172. See also R. v. Cuerrier (1996) 141 DLR (4th) 85 503; R. v. Mwai [1995] 3 NZLR 149.   R. v. Jones (1986) 83 Cr. App. R. 375. 86   Lord Advocate’s Reference (No. 2 of 1992) 1993 J.C. 43, 48. 87   R. v. Jewell and Crimes Compensation Tribunal (1987) 1 VAR 370, 371, discussed by Gans (n. 52) 328–329. See also the discussion of the Canadian and English case law in Jack Anderson, “No License for Thuggery: Violence, Sport and the Criminal Law,” [2008] Crim. LR 751. 88   In some jurisdictions the point has not been addressed; in English law attempts to address it are said to have left the law “in a dreadfully confused and unsatisfactory state”: David Ormerod, Smith and Hogan’s Criminal Law (13th ed., 2011), 637. 89   Attorney-General’s Reference (No. 1 of 1980) [1981] Q.B. 715; R. v. Brown [1994] 1 A.C. 212. 82 83

offenses against the person    739 harm was unforeseen or perhaps even unforeseeable. More recently, the view has been taken that the defendant must either intend or be reckless as to bodily harm in order for consent to be inoperative.90

vii.  Harm Without Assault Where A caused harm to B without in some way “attacking” B, should that be regarded as assault, another offense, or no crime at all? One approach, as seen in the Model Penal Code, is to define assault broadly so as to encompass such cases: the Code offense of assault encompasses simply causing bodily injury. The principal difficulty with such an offense is that it may fail accurately to label the offender’s conduct. The label “assault” is generally taken to denote some form of attack, a label which seems inapposite when harm is caused by a mechan­ ism not involving such activity, and perhaps even conduct to which the victim has consented, such as the transmission of disease through consensual sexual intercourse. Other jurisdictions avoid simply subsuming such conduct within the general offense of assault, relying on offenses predicated simply on “causing harm,” such as the crime of causing bodily harm by criminal negligence under the Canadian Criminal Code,91 or the German offenses of causing bodily harm and causing bodily harm by dangerous means.92 English law for some time appeared to lack any general offense addressed at caus­ ing harm. Although the Offences Against the Person Act 1861 includes an offense of inflicting grievous bodily harm,93 the courts had for many years taken the view that “infliction” required an assault: so, for example, a man who had sexual intercourse with his wife without disclosing a serious sexually transmitted infection could not be regarded as having committed this offense when he transmitted that infection to her.94 Rather more recently, the courts have taken the view that infliction does not bear this restricted meaning, so that a person who caused serious psychiatric injury to a victim by a course of harassment could be regarded as having inflicted that harm.95 This revised interpretation of the offense made it possible to prosecute 91   R. v. Meachen [2006] EWCA Crim. 2414.   Canadian Criminal Code, section 221.   German Criminal Code, sections 223–224. 93   Offences Against the Person Act 1861, section 20. 94   R. v. Clarence (1888) 22 QBD 23. 95   R. v. Ireland; R. v. Burstow [1998] A.C. 147, discussed earlier in the context of what is regarded as “harm.” 90 92

740   james chalmers individuals who recklessly transmitted serious sexual infections to their partners without consent to the risk of transmission having been obtained.96 It may seem surprising that a system of criminal law could operate without a general offense of causing harm, as English law did for so long. However, a sys­ tem which operates general offenses of assault alongside specific offenses of caus­ ing harm in particular contexts (e.g. poisoning, explosions, and the setting of traps) may find that this provides prosecutors with sufficient mechanisms to pur­ sue wrongdoers. Intentional harm-doing which does not fall within the scope of such offenses is likely to be rare.97 Individuals who seek to cause harm to others are in practice likely to do so by way of an assault98 or another mechanism spe­ cifically recognized as falling within the scope of the criminal law; meanwhile, non-intentional harm-doing may not be perceived as serious enough to merit the use of the criminal sanction.

viii.  Specific Harm-Causing Offenses Where a system lacks a general offense of causing harm, it is likely to employ specific offenses targeting the causing of harm in particular means or contents. As such offenses are concerned with specific forms of behavior, they may be drafted in the inchoate mode, targeting particular forms of conduct regardless of whether the danger which the accused creates in fact results in harm. An exam­ ple of this approach is the English Offences Against the Person Act 1861, which in its current form continues to include offenses of poisoning,99 failing to pro­ vide food, clothing, or lodging to apprentices or servants,100 causing bodily injury by gunpowder,101 setting spring guns with intent to inflict grievous bodily harm,102 and offenses of endangering railway passengers by placing items on the railway or casting them against a railway carriage.103 The New Zealand Crimes Act contains   R. v. Dica [2004] Q.B. 1257.   The intentional transmission of HIV, for example, may receive more attention than it deserves in the literature: criminal cases involving transmission of HIV almost invariably involve indifference to the risk to which a sexual partner is exposed, rather than an intention to transmit the infection. Intentional transmission is unlikely and the rare cases where it arises are likely to involve means of transmission other than sexual intercourse: see e.g. State v. Schmidt, 771 So.2d 131 (La. Ct. App. 2000). 98   Particularly if the offense is interpreted as broadly as in DPP v. K. [1990] 1 WLR 1067, where a schoolboy who poured acid into a hand and face drier, resulting in it being blown into the face of the next user, was held guilty of assault occasioning actual bodily harm. 99   Offences Against the Person Act 1861, sections 23–24. 100 101 102 103   Section 26.   Section 28.   Section 31.   Sections 32–33. 96 97

offenses against the person    741 offenses of acid throwing,104 poisoning with intent,105 infecting with disease,106 and setting traps.107 Such structures reflect the preoccupations of the legislature at the time when they are devised, and when they survive for some time—as the 1861 Act has done— will inevitably come to look rather archaic and ill-fitting to contemporary social problems.

ix. Endangerment Where causing harm is criminalized, there is a certain theoretical attraction to employing parallel criminal offenses of endangerment, on the basis that the chance outcome of whether the harm in fact materializes should not be determinative of liability. Such theoretical symmetry is not, however, deter­ minative, both for the principled reason that the fact of harm should be con­ sidered relevant to the moral character of the accused’s actions, and for the more pragmatic reason that such offenses criminalize a rather broader range of conduct than criminal justice agencies would be interested in prosecuting, thereby leaving too much discretion in enforcement.108 Although proposals for general offenses of endangerment in English law have been made as far back as the mid-nineteenth century,109 English law has avoided the creation of any such general offenses, preferring a contextual approach whereby offenses are created applying to specific activities, such as offenses of dangerous driving.110 Elsewhere, specific offenses have been supplemented by a general offense such as the Model Penal Code’s “recklessly endangering another person,”111 but not uniformly.112 To avoid overly broad criminalization, such offenses tend to be limited to serious injury;113 recklessly causing minor harm or discomfort is gen­ erally not criminalized.114   Crimes Act 1961, section 199 (New Zealand). 106   i.e. intent to cause grievous bodily harm: section 200.   Section 201. 107   Section 202. 108   See R. A. Duff, “Criminalising Endangerment,” (2005) 65 Louisiana LR 941. 109  K.  J. M.  Smith, “Liability for Endangerment:  English Ad Hoc Pragmatism and American Innovation,” [1983] Crim. LR 127, 129, discussing proposals made by the Criminal Law Commissioners 110 111 in 1846.   Road Traffic Act 1988, section 2.   § 211.2. 112   See Gans (n. 52) 203. 113   See e.g. Model Penal Code § 211.2; Criminal Code (N.T.), section 174D. 114   With exceptions: see e.g. Criminal Code (W.A.), section 304. The Scottish common law offense appears to apply no threshold of seriousness: Gordon (n. 22) para. 29.61. 104 105

742   james chalmers

x.  Child Neglect Jurisdictions will frequently employ specific offenses encompassing ill-treatment of a child within one’s care. Such offenses may encompass both positive acts and an omission properly to care for a child, as in the United Kingdom,115 or they may, as in the Canadian offense of failing to provide necessaries of life,116 be narrowly tailored toward an omission properly to provide for another person. In both cases the exist­ ence of the offense fills any gap which may result from a restrictive approach to liabil­ ity for omissions. Where the offense also encompasses positive ill-treatment, it may in that respect add little to the general scope of the criminal law, but will better reflect the harm inherent in the accused’s conduct than the application of such general offenses.

xi. Interferences with Liberty: Kidnapping and Related Crimes The discussion thus far has focused on crimes which involve infringement (or the threat of infringement) of a person’s bodily integrity. A second group of offenses against the person acts to protect the individual’s interest in personal liberty, and the most significant of these are reviewed here. One offense not discussed here, although it is sometimes included in treatments of offenses against the person,117 is extortion (sometimes termed blackmail). Although extortion can plausibly be regarded as an offense against liberty,118 restricting as it does the choices open to the victim, the proper characterization of the offense is contested and it may not be pos­ sible to regard it as definitively falling within any particular grouping of offenses.119 115   See e.g. Children and Young Persons Act 1933, section 1; Children and Young Persons (Scotland) Act 1937, section 12. See also § 225 StGB and cf § 171 of the same code. 116   Canadian Criminal Code, section 215:  the offense includes failure to provide necessaries to a spouse or common law partner. 117   See e.g. Paul H. Robinson, Criminal Law (1997), para. 14.5 (considering it under the heading of “restraint and coercion offences”). 118   English law, by contrast, places blackmail in section 21 of the Theft Act 1968, an Act described by its long title as being one “to revise the law of England and Wales as to theft and similar or associated offences.” The similarity or association is a relatively loose one. 119   See Herring (n. 6) 610–611 for a helpful review of nine alternative rationales for the offense, some of which involve characterizing the offense in very different ways.

offenses against the person    743

1. Kidnapping As Herring has observed, a key difficulty with offenses of kidnapping is that the term: covers a broad range of conduct. It may involve kidnapping as a prelude to sexual assault; as a means to seeking a ransom payment; as part of trafficking people; as an aspect of a family case where a father takes a child away frustrated at what he regards as inade­ quate contact arrangements, or a mother takes a child away to escape from an abusive relationship.120

Attempts to define the crime have therefore struggled with problems of over- and under-inclusivity. Two broad approaches to addressing the problem can be dis­ cerned. The first focuses on the manner in which the victim is “removed”; the sec­ ond on the purpose for which this is done. The first approach can be seen in the English common law offense, which consists of four elements:  “(1) the taking or carrying away of one person by another; (2) by force or by fraud; (3) without the consent of the person so taken or carried away; and (4) without lawful excuse.”121 Here, the cumulative requirements of force or fraud and the absence of consent operate to restrict the scope of the offense. Concern has been expressed, however, that the offense therefore, at least theoretically, encompasses trivial deception which should not fall within the scope of the criminal law.122 A typical example of a purpose-based offense is that found in the Canadian Criminal Code, which provides as follows:123 Every person commits an offence who kidnaps a person with intent (a)  to cause the person to be confined or imprisoned against the person’s will; (b)  to cause the person to be unlawfully sent or transported out of Canada against the person’s will; or (c)  to hold the person for ransom or to service against the person’s will.

2.  False imprisonment False imprisonment is generally regarded as a separate offense to kidnapping; the latter requiring that the victim is removed in some way, whereas false imprisonment   Jonathan Herring, “What’s Wrong with Kidnapping?,” [2012] Crim. LR 343, 344.   R. v. D. [1984] A.C. 778, 800 per Lord Brandon of Oakbrook. 122   Law Commission, Simplification of Criminal Law—Kidnapping (Law Com CP No. 200, 2011), para. 1.11. 123   Canadian Criminal Code, section 279. See also Crimes Act 1961, section 209 (New Zealand), which mirrors the specified purposes in the Canadian code but differs in some important respects. A similar approach is found in § 212.1 of the Model Penal Code. cf. Crimes Act 1900 (NSW), section 90A, which defines the offense by reference to “intent to hold [the person] for ransom or for any other advantage to any person.” 120 121

744   james chalmers consists simply in depriving a person of his or her liberty.124 It is possible, however, for an offense of kidnapping to be based on deprivation of liberty alone, in which case a separate offense of false imprisonment may be considered unnecessary.125

3.  Forced marriage Some jurisdictions have in recent years created specific offenses of forced mar­ riage.126 An example of this is the Norwegian Penal Code, which creates an offense of causing a forced marriage, as a specific example of a felony against personal lib­ erty, committed by a person “who by force, deprivation of liberty, improper pres­ sure or any other unlawful conduct forces anyone to enter into a marriage.”127 It has occasionally been suggested that such conduct might adequately be dealt with by general criminal law offenses such as assault and kidnapping or abduction,128 but the creation of such offenses may be expected to increase given the 2011 Council of Europe Convention on preventing and combating violence against women and domestic violence, which requires state parties to “take the necessary legislative or other measures to ensure that the intentional conduct of forcing an adult or a child to enter into a marriage is criminalised.”129

4. Stalking Harassing or “stalking” conduct fits uneasily with the general structure of offenses against the person, because such conduct can encompass a broad range of dispa­ rate behaviors which are best understood in aggregation rather than isolation. The conduct involved in stalking can vary substantially, but seems to infringe both on the victim’s right to personal autonomy and personal integrity, either by violating these rights directly or giving rise to well-founded fear that they may be infringed. Concern about such conduct has prompted reappraisal of whether existing criminal law instruments are sufficient to deal with such behaviors. Many instances of such

124   See e.g. Model Penal Code § 212.3; Criminal Code (N.T.), section 196. For the complex and diffi­ cult background to English law in this area, see B. W. Napier, “Detention Offences at Common Law,” in Peter Glazebrook (ed.), Reshaping the Criminal Law: Essays in Honour of Glanville Williams (1978), 190. 125   As in New Zealand:  see Crimes Act 1961, section 209 and Law Commission, Simplification of Criminal Law—Kidnapping (Law Com CP No. 200, 2011), para. B.43, discussing Ahmed [2009] NZCA 220. 126   See Renée Kool, “Step Forward, or Forever Hold Your Peace: Penalising Forced Marriages in the 127 Netherlands,” (2012) 30 Netherlands Quarterly of Human Rights 446.   Art. 222. 128   See e.g. U.K. Government, Forced Marriage: The Government Response to the Eighth Report from the Home Affairs Committee (Cm. 8151, 2011), 3. This is no longer the U.K. Government’s position: see 129 the Anti-social Behaviour, Crime and Policing Act 2014, sections 121–122.   Art. 37.

offenses against the person    745 conduct may already be caught by offenses of issuing threats, causing someone to fear violence (as a general offense of assault may do), or public order offenses.130 Dealing with such conduct through the application of existing offenses may be unsatisfactory in at least three respects. First, the existing law may be regarded as under-inclusive, failing to capture incidents which may appear minor in isolation but which are sufficiently serious to warrant criminalization when considered in their context or as part of a course of conduct. Secondly, even if such incidents are captured by the criminal law, it may be desirable for the criminal justice system to be able to deal with a series of incidents as a single offense which properly represents the nature of the accused’s wrongdoing and carries a suitable sentence. Thirdly, the application of general offenses may label the accused’s conduct less accurately than a separate offense of stalking or harassment. A typical response to these challenges is the Canadian offense of criminal har­ assment, which prohibits engaging in certain specified actions such as repeatedly following, repeatedly communicating with, or “besetting or watching” a person’s place of residence where this “causes that other person reasonably, in all the circum­ stances, to fear for their safety or the safety of anyone known to them.”131 An alterna­ tive approach is that found in the Swedish offense of unlawful persecution (olaga förföljelse), which allows a variety of different forms of conduct, already criminal, to be treated as a single offense carrying a higher maximum sentence than would be available for some of the predicate offenses taken alone.132

References Alldridge, Peter, “Threats Offences: A Case for Reform,” [1994] Crim. LR 176 Duff, R. A., “Criminalising Endangerment,” (2005) 65 Louisiana LR 941 Fielding, Nigel, Courting Violence: Offences against the Person Cases in Court (2006) Gardner, John, “Rationality and the Rule of Law in Offences Against the Person,” (1994) 53 Cambridge LJ 502 Genders, Elaine, “Reform of the Offences Against the Person Act: Lessons from the Law in Action,” [1999] Crim. LR 689 Herring, Jonathan, “What’s Wrong with Kidnapping?,” [2012] Crim. LR 343   e.g. the Scottish common law offense of breach of the peace was seen as sufficient to deal with such conduct, and for that reason the offense-creating provisions of the (U.K.-wide) Protection from Harassment Act 1997 were extended only to England and Wales and not Scotland: see Hansard, HC Debs, 18 Dec. 1996, cols. 970–980. Subsequent decisions of the High Court narrowed the scope of the common law offense so that it could no longer serve this purpose, resulting in the creation of statutory offenses of “threatening or abusive behaviour” and “stalking” by sections 38 and 39 of the Criminal Justice and Licensing (Scotland) Act 2010. See Pamela Ferguson, Breach of the Peace (2013), para. 4.8. 131   Canadian Criminal Code, section 264. See also Protection from Harassment Act 1997, sections 1 and 4 (England and Wales); § 238 StGB; Harassment Act 1997, section 8 (New Zealand). 132   Swedish Penal Code, 4 kap. § 4b. 130

746   james chalmers Horder, Jeremy, “Rethinking Non-Fatal Offences Against the Person,” (1994) 14 OJLS 335 Horder, Jeremy, “Reconsidering Psychic Assault,” [1998] Crim. LR 392 Kell, David, “Social Disutility and the Law of Consent,” (1994) 14 OJLS 121 Kool, Renée, “Step Forward, or Forever Hold Your Peace: Penalising Forced Marriages in the Netherlands,” (2012) 30 Netherlands Quarterly of Human Rights 446 Napier, B. W., “Detention Offences at Common Law,” in Peter Glazebrook (ed.), Reshaping the Criminal Law: Essays in Honour of Glanville Williams (1978), 190–201 Smith, K. J. M., “Liability for Endangerment: English Ad Hoc Pragmatism and American Innovation,” [1983] Crim. LR 127 Weait, Matthew, “Criminal Law and the Sexual Transmission of HIV,” (2005) 68 Modern LR 121

­c hapter 33

SEXUAL AUTONOMY vanessa e. munro*

i.  Introduction to Sexual Autonomy Although the precise constituents and combinations of liberal approaches can vary markedly, at the most fundamental level a commitment to promoting and protecting citizens’ autonomy lies at the heart of any liberal society. In essence, this entails that individuals be free to act in accordance with their own desires and agency, subject only to the restriction that, in so doing, they do not impede the free­ dom of others to do the same. This, famously, was at the heart of John Stuart Mill’s “harm principle,”1 which animated and informed his classic statement of political liberalism, but it is an approach (and an ideal) that has continued to find favor, often intertwined with accompanying commitments to equality and state neutrality, as, for example, in the defense made by Ronald Dworkin of a person’s right to moral independence.2 Though the realities of it have not always been candidly acknowledged within the liberal tradition, the freedom to express and act upon one’s desires in this way necessarily presumes an empowerment that has not been (and still is not) univer­ sally shared. In various arenas, including—perhaps especially—that of sexuality, women have found their ability to express and exercise choice severely restricted. *  With the usual caveats, thanks are due to Sharon Cowan for her helpful comments and encour­ agement on an earlier draft. I am indebted to the Leverhulme Trust, which—via a Philip Leverhulme 1 Prize—supported the production of this chapter.   John Stuart Mill, On Liberty (1859). 2   Ronald Dworkin, A Matter of Principle (1986).

748   vanessa e. munro Historically positioned as the property of men (whether as fathers or as husbands), women were denied standing as citizens: their “hand in marriage” was traded as a commodity between men, and with a completed marital transaction came an irrevocable entitlement on the part of the husband to demand—and if necessary, force—sexual intercourse, regardless of the wishes or desires of his female partner.3 Increasingly, in many countries across the globe (although not yet all), feminist campaigning has secured vital successes. It has challenged social norms and created a critical momentum for the removal of some of the most egregious manifestations of gender asymmetry, including the denial of women’s property rights, the exclu­ sion of women from full participation as citizens and as workers, and the persever­ ance of marital rape exemptions and veils of privacy within contexts of domestic abuse (albeit that the operation of these initiatives can vary significantly according to other social identity markers, such as race, class, physical ability, or sexual ori­ entation). Though undoubtedly important developments worthy of celebration, the consequences of these doctrinal shifts have been limited, particularly when unac­ companied by radical changes in the underlying social norms that construct and constrain the sexual (and other) choices that women make, or are permitted (by themselves or others) to make. In this chapter, I will examine some of these progressive interventions in relation to the regulation of (hetero)sexual autonomy. In a context in which a number of critics have come to despair of liberalism’s ability to live up to its promises in terms of equality and freedom—in and beyond the arena of sexual engagement—I will highlight the considerable work that is indeed yet to be done. More specifically, I will focus on three particular arenas in which the criminal law has played a significant role in delineating the parameters of permissible sexual interaction—rape, prostitu­ tion, and “risky” sex. Though distinct in a number of important ways, I will suggest that in each of these contexts we can uncover competing narratives of progression and regression. These underline the extent to which, doctrinal acknowledgments of personal freedom and autonomy notwithstanding, the terrain of sexual expression remains uneven, with the excesses of hetero-normative and patriarchal sexuality often least curtailed. Without in any way seeking to underplay the myriad ways in which, in opposi­ tion to liberal mantras of freedom, respect, and tolerance, homosexuality has been constructed and constrained by legal intervention (as well as willful legal ignor­ ance) throughout the centuries, my discussion in this chapter will, for the most part, focus on the regulation of heterosexual autonomy. Moreover, reflecting the extent to which my analysis is indebted to feminist critique and campaigning, my primary focus will be upon the regulation of women’s sexual agency. Exploration of the significant role that sexuality, and its regulation, has played in the lived  For early feminist critique and commentary on this positioning, see Mary Wollstonecraft, A Vindication of the Rights of Women (1792). 3

sexual autonomy   749 experiences and imagined futures of many women is now a well-rehearsed feature of feminist legal analyses, captured most famously and most forcefully perhaps in Catharine MacKinnon’s insistence that sexuality has been the “lynchpin” of male domination and that it “is to feminism what work is to marxism: that which is most one’s own, yet most taken away.”4 But feminism has, of course, provided insights that extend well beyond the confines of women’s circumstances, including analyses of sex and gender more broadly, as well as the ways in which sexuality intersects with other aspects of identity and experience, such as race, class, and physical abil­ ity. As a result, I also rely here on these feminist insights to reflect critically upon the law’s regulation of certain other forms of sexual practice or expression that it has previously sought to control, specifically BDSM (bondage, discipline, sadism, and masochism) activity and “risky” intercourse. Throughout my discussion, I will draw upon examples from England and Wales, reflecting the social and jurisdictional context within which my analysis has been most immediately framed and informed, but the debates and dilemmas that these examples give rise to clearly have far broader applicability to other legal systems. I will also restrict my focus to the criminal law’s handling of the autonomy of citi­ zens deemed capable—both on grounds of age and mental ability—of meaningfully forming and tokening expressions of sexual decision-making. Though the specific age limits vary from jurisdiction to jurisdiction, it is a well-established dimension of the law’s regulation of sexual interaction that it affords additional protection to “children” and restricts, if not, forbids, sexual engagement with (and increasingly often—albeit problematically—between) minors, even where that contact may be accompanied by the professed agreement, or perhaps even the apparent initiation, of the juvenile(s) involved. Whilst critics have expressed concerns regarding the tendency for such protectionism to “overreach” in ways that stifle healthy sexual experimentation amongst young people, an increasingly intense popular concern in relation to children’s vulnerability to sexual predators has, in many jurisdic­ tions, seen an explosion of child-related sexual offenses, including those designed to target preparatory conduct in the form of grooming, notwithstanding the pro­ found definitional difficulties that such legislation has encountered.5 Though these innovations, and the debates that they have generated, raise important issues in relation to the legal (and social) construction of sexual autonomy, as well as of chil­ dren more broadly, space within the current chapter does not permit the kind of careful analysis that they merit, and as a result, it is presumed for the purposes of 4   Catharine MacKinnon, “Feminism, Marxism, Method and the State:  An Agenda for Theory,” (1982) 7 Signs 515, 515. 5   For further discussion of these debates in the specific context of England and Wales, see e.g. John Spencer, “The Sexual Offences Act 2003: Child and Family Offences,” [2004] Crim. LR 347; Francis Bennion, Sexual Ethics and Criminal Law: A Critique of the Sexual Offences Bill 2003 (2003); Suzanne Ost, “Getting to Grips with Sexual Grooming? The New Offence Under the Sexual Offences Act 2003,” (2004) 26 Journal of Social Welfare & Family Law 147.

750   vanessa e. munro the following discussion that the agents involved under the criminal law are adult. Similarly, it is presumed that those exercising, or attempting to exercise, their sexual agency in the contexts outlined here have the requisite mental and cognitive capaci­ ties to do so under the eyes of the law. Notwithstanding the clinical and diagnos­ tic complexities that are frequently involved, the extent of an individual’s cognitive ability to consent, or refuse consent, to sexual relations often falls to be determined within the legal arena. Increasingly the courts in several jurisdictions, including England and Wales, have come to recognize the context-sensitive nature of such assessments, acknowledging that one’s capacity to consent, or refuse consent, to an act varies markedly depending upon the circumstances, nature, and timing of the act in question, as well as the particular sensitivities of a person’s condition at any given moment.6 The ways in which mental capacity is evaluated and determined in these cases reflect, of course, broader presumptions and norms in relation to the formation and expression of “meaningful” and “legitimate” agency. Once again, therefore, this is rich terrain for further exploration, albeit that, for the purposes of this chapter, it cannot be dwelt upon in any detail.

ii.  Rape: A Crime Like No Other? Perhaps the paradigm manifestation of infringement of a person’s right to sexual autonomy, the offense of rape has had a long, and troubled, history under the crim­ inal law. Within the confines of this chapter, it is clearly not possible to explore the origins, rationale, and development of the offense in detail. Instead, in this section I explore a tendency within more contemporary legal responses to seek to expand the parameters of the offense, ostensibly at least in the pursuit of increased justice and protection for victims. While I will suggest that this can be evidenced from a number of sources, I will also highlight the extent to which such efforts have too often been thwarted either by tenacious social stereotype or resistant enforcement, with the result that complainants continue to be the disproportionate focus of cen­ sure whilst aggressive (hetero)sexuality provides its own justification. The pace of change has varied significantly across jurisdictions, but in broad terms, the last two centuries have brought a gradual shift in the doctrinal infra­ structure of the offense of rape, expanding the forms of conduct that could, poten­ tially, fall within its remit. In England and Wales, an early instigator of this shift was the decision in the 1845 case of R. v. Camplin,7 in which the court declared   See e.g. the opinion of Baroness Hale in R. v. C. [2009] UKHL 42.   R. v. Camplin (1845) 1 Cox C.C. 220.

6 7

sexual autonomy   751 that a complainant who was insensible through intoxication and unable to consent could be raped, even in the absence of physical force being used by the defendant. This marked a significant departure from the previous position in which—notwith­ standing its irony in a context in which women were generally treated as the pas­ sive objects of male ownership—female victims were expected actively to express staunch physical resistance, such that force was required to overbear their will. This instantiation of the consent threshold as the crux of rape has only recently been affirmed in Scotland8 and has yet to be achieved in some U.S. states, where force remains a required element of the offense. But the reformulated offense continued to harbor more regressive applications in England and Wales, particularly in the context of marital rape. It was not until the early 1990s that the House of Lords felt compelled to brave constitutional controversy as a result of the manifest failure of the law to keep pace with social standards, declaring that a man could no longer be incapable of raping his wife, since consent to marriage did not entail consent to all future conjugal relations.9 This formal recognition of wives as “rapeable” reflected a growing appreciation of the complexities of sexual consent, and the need for it to be negotiated on each occasion if the values of freedom, equality, and sexual autonomy are to be achieved. Significantly, the turn of the twenty-first century marked the beginning of a fur­ ther shift in the regulation of rape in England and Wales. The increasing recogni­ tion of the scale of male rape, coupled with an appreciation of the severe violation that attends penile penetration of parts of a woman’s body other than her vagina, ensured the extension of the actus reus of the offense to include anal penetration under the Criminal Justice and Public Order Act 1994; and, more recently, under the Sexual Offences Act 2003, oral penetration was also included. That these forms of conduct were incorporated, despite already being criminalized under other pre­ existing offenses reflects, amongst other things, the importance of labeling in the context of rape, and highlights the sense in which, as suggested at the outset, rape is positioned as the paradigm, and most blameworthy and invasive, form of sexual assault. Recent debates in the United Kingdom over whether to extend the rape offense, as some jurisdictions have done, to include non-penile forms of penetra­ tion must also be understood in this context. Indeed, amongst the key rationales provided for the decision not to do so under the Sexual Offences Act 2003 was the importance of marking the special status of rape, and in particular its specific gen­ dered dimensions as an offense capable of perpetration exclusively by men. To some extent, then, the shifts identified so far—namely, the rejection of the force requirement, the abolition of marital rape exemptions, and the inclusion of anal and oral penile penetration—can be seen to reflect the law’s ambition accurately to label, condemn, and respond to what are recognized by contemporary standards to be

  Lord Advocate’s Reference (No. 1 of 2001) 2002 SLT 466.

8

  R. v. R. [1992] A.C. 599.

9

752   vanessa e. munro forms of socio-sexual wrongdoing. But the law, of course, also plays a more norma­ tive function in that it seeks to articulate desirable forms of behavior. In furtherance of this, a number of jurisdictions have witnessed efforts in recent times to encour­ age the application of more nuanced interpretations of consent. The terrain of (het­ ero)sexual negotiation has historically been far from equal and broader dynamics of gender power, relationship norms, and social expectations can permeate con­ sent in ways that dress capitulation with the trappings of affirmation. Increasingly cognizant of this, the criminal law has found itself involved in a process of distin­ guishing consent from mere submission (see, e.g., the judgment of Dunn L.J.  in the Court of Appeal case of R. v. Olugboja in England and Wales)10 and imposing new standards by which to assess whether or not the complainant actually wanted sexual interaction. In some jurisdictions, such as England and Wales, this has been achieved by adding flesh to the bones of a bare consent threshold, so that according to the 2003 Act consent now requires agreement by choice in circumstances where there is freedom and capacity to make a choice. Other jurisdictions have sought out a new language that, although continuing typically to oscillate around notions of sexual autonomy, purports to move beyond the more contractual understanding that (some) critics have associated with the traditional consent threshold. In tandem with this, several (though by no means most) jurisdictions have also sought, in rape cases, to impose an increased level of responsibility upon defendants for their actions. Seeking to challenge conventional socio-sexual tropes according to which men’s desire is easily aroused, difficult to extinguish, and effectively its own justification for imposing sexual pressure, if not violence, on women, this shift has manifested itself in England and Wales via two significant developments in the Sexual Offences Act 2003. First, in contrast to the previous position under which it sufficed that the defendant held an honest belief in the complainant’s consent, the legislation now requires that any mistaken belief must have been reasonably held in light of all the circumstances; and, secondly, in assessing the reasonableness of any such belief, the jury are directed to consider any steps that the defendant took to ascertain consent. These reforms are designed to cement a more mutual approach to sexual negotiation, compelling (male) defendants critically to evaluate the true meaning behind any perceived “signals” of willingness that they had historically been entitled to take at face value. Cumulatively, at least at first glance, these developments are promising. Though the journey has not been a straightforward one, with diversions and cul-de-sacs along the way; and though in many jurisdictions some of these shifts are yet to be achieved (remaining, in some cases, a very distant prospect), this offers a story of progressive development toward a greater recognition of the importance of women’s sexual autonomy, of the need for richer accounts of agency that can

  R. v. Olugboja [1982] Q.B. 320.

10

sexual autonomy   753 reflect the complexities, constructions, and constraints associated with sexual decision-making, and of the importance of imposing responsibility on men (as well as women) to become proficient and careful sexual communicators. Alas, however, I would argue that this official story conceals a more conservative undertone within which progress has often been stymied, and the law has frequently found itself para­ lyzed, in the face of minimalist enforcement and/or an intransigent penal/popular imagination. More specifically, even in jurisdictions where the doctrinal trigger for criminal­ ization in the law of rape is non-consensual intercourse conducted with requisite blameworthy intent or inadvertence, the force requirement has remained rather tenacious in practice. Notwithstanding the doctrinal recognition of male victim­ hood, the offense of rape continues to be perpetrated with overwhelming dispro­ portionality upon women, and yet the consent threshold is operationalized against a context of profound suspicion of female sexuality11 and acute concern over false allegations, often (mis)represented as easy for malicious women to make.12 As a result, research has consistently revealed that, in contexts in which the determin­ ation of guilt or innocence often comes down to a credibility contest between com­ plainant and defendant, the corroboration that is perceived by police, prosecutors, and lay decision-makers to be provided by evidence of force, resistance, and injury remains pivotal to the prospects for securing a conviction in a large proportion of cases.13 Similarly, whilst the marital rape exemption may have been formally abol­ ished, the odds often remain stacked against securing a conviction in relation to an alleged attack between spouses—if not because of a lingering incredulity at the idea that rape can occur within marriage then because of a tendency to see sexual communication in such contexts as inevitably fraught with ambiguity and misun­ derstanding, at least wherever the complainant has not resorted to forceful physical resistance to supplement her verbal expressions of non-consent.14 Likewise, in rela­ tion to recent innovations designed to ensure a more egalitarian model of sexual communication, results in practice have often been disappointing. In the specific context of England and Wales, and the Sexual Offences Act 2003 in particular, there is evidence that broader notions of freedom and capacity to make a choice have   Ngaire Naffine, “Possession: Erotic Love in the Law of Rape,” (1994) 57 Modern LR 10.   For further discussion on the issue of false allegations, see Phil Rumney, “False Allegations of Rape,” (2006) 65 Cambridge LJ 128. 13   For England and Wales, see e.g. Liz Kelly et  al., “A Gap or A  Chasm? Attrition in Reported Rape Cases” (2005), Home Office Research Study 293; Vanessa Munro and Liz Kelly, “A Vicious Cycle?:  Attrition and Conviction Patterns in Contemporary Rape Cases in England and Wales,” in Jennifer Brown and Miranda Horvath (eds.), Rape: Challenging Contemporary Thinking (2009), 281 ff. For discussion of a range of other jurisdictions, see Clare McGlynn and Vanessa Munro (eds.), Rethinking Rape Law: International and Comparative Perspectives (2010). 14   Louise Ellison and Vanessa Munro, “Better the Devil You Know?: Real Rape Stereotypes and the Relevance of a Previous Relationship in (Mock) Juror Deliberation,” (2013) 14 International Journal of Evidence & Proof 299. 11

12

754   vanessa e. munro continued to be interpreted in a restrictive manner, undermining their potential to promote more expansive conceptions of consent. More specifically, concerns have been expressed regarding the failure of (mock) jurors to impose an obliga­ tion on defendants to take steps to ascertain consent,15 and it has been suggested that the imposition of an objective assessment of the reasonableness of belief has been undermined by the need to consider all of the circumstances,16 which in turn has reintroduced a range of potentially regressive socio-sexual norms that barely hold defendants to more than a subjective standard of honesty, vindicate reliance on dubious inferences drawn from presumed sexual “signals,” and cement women’s responsibility for communicating non-consent forcefully and unequivocally. These latter observations reflect the need to devote ongoing attention to the ways in which the law around rape can be improved in order for it more fully to achieve its promise of protecting against violation of sexual autonomy. But they also highlight an important point about the limits of law in this context, and about the extent to which the speed of progress can be significantly reduced where social attitudes and prosecutorial practice fail to follow suit. This presents acute difficulties in the context of rape, where despite widespread condemnation of the offense, there are substantial points of disagreement as to where the boundaries of acceptable socio-sexual behavior are, and should be, drawn. Such difficulties are compounded further, moreover, in contexts within which the normative condem­ nation associated with the offense is in itself the subject of contention, as we will see as we turn our attention in the following section to the issue of prostitution/ sex work.

iii.  Selling Sex or A Sex Sold Out? In many respects, the arenas of rape and prostitution can be seen to represent opposite poles in relation to the regulation of women’s sexual autonomy—whilst rape engages the right to refuse advances and have that refusal accredited, sex work (at least where it can be seen to be voluntarily entered into: itself a point of

15   Emily Finch and Vanessa Munro, “Breaking Boundaries?:  Sexual Consent in the Jury Room,” (2006) 26 Legal Studies 303; Louise Ellison and Vanessa Munro, “Of ‘Normal Sex’ and ‘Real Rape’: Exploring the Use of Socio-Sexual Scripts in (Mock) Jury Deliberation,” (2009) 18 Social and Legal Studies 1. 16   Jennifer Temkin and Andrew Ashworth, “The Sexual Offences Act 2003: (1) Rape, Sexual Assaults and the Problems of Consent,” [2004] Crim. LR 328; Clare McGlynn, “Feminist Activism and Rape Law Reform in England and Wales: A Sisyphean Struggle?,” in McGlynn and Munro (n. 13) 139 ff.

sexual autonomy   755 considerable debate) engages the right positively to embark on sexual encounters in pursuit of financial benefit. At the same time, however, the complex ways in which their respective regulatory regimes intertwine must be acknowledged, since the responses that the criminal law provides frame, and are framed by, perceptions of women as “chaste” (“good”) and “unchaste” (“bad”); as requiring containment and control lest they elicit men’s inevitable and apparently uncontrollable sexual desires; and as expressing fluctuating, unreliable, and/or undecipherable desires (or other­ wise) for (hetero)sexual interaction. Significantly for present purposes, moreover, there is parallel evidence in the context of legal responses to prostitution of official narratives of progress toward the greater actualization of sexual autonomy and freedom, which are nonetheless undermined or stilted by the existence of more negative interventions and outcomes for the individuals (again, disproportionately often women) involved. The dynam­ ics of sex industries vary markedly across time and space, for example in relation to the balance between street and off-street work, the links between sex work and drug addiction, and the broader social acceptability of the commodification of sexual interaction. And yet, there is a general consensus on the need to impose some form of order (often through the arm of the criminal law) on their operation, both in the interests of public order and personal protection. Recent decades have seen a stark polarization emerge as countries have adopted radically divergent approaches to, and conceptualizations of, prostitution. On the one hand, some jurisdictions (e.g. New Zealand) have decriminalized prostitution (or at least some forms thereof) and several (e.g. Germany and the Netherlands) have designed specific licensing regimes to regulate it, emphasizing the extent to which the selling of sex may be a legitimate choice and attributing much of the violence and vulnerability conventionally associated with this choice to the existence of laws that have marginalized sex workers. By contrast, other jurisdictions (e.g. Sweden) have insisted on the inherently exploitative nature of sex work and have sought to render it obsolete by, amongst other things, targeting the demand side of the industry and, in particular, imposing criminal sanction (and moral censure) on clients/purchasers. Though clearly presenting radically different pictures of the nature of sex work, both these trajectories are in fact underpinned by a similar discourse grounded in the need to respect the (sexual) integrity of prostitutes, protect them from violence, and reduce their stigma. At the source of their divergence, then, is not so much a dis­ agreement as to objectives, but rather an acute debate over how to secure such ideals in practice. But whichever avenue is followed, it is suggested here that disappointing results, reflecting the at best half-fulfilled promises of liberalism, have ensued. Though largely continuing to bear the hallmarks of the legal framework implemented following the Wolfenden Committee Report in the 1950s,17   Home Office, “Report of the Committee on Homosexual Offences and Prostitution” (Cmnd. 247, 1957). 17

756   vanessa e. munro renewed attention has been paid in the twenty-first century to the regulation of prostitution in England and Wales.18 Whilst law and policymakers have resisted being drawn entirely to either side of the regulation/abolition dichotomy, their responses have been framed in complex ways by both paradigms. Though pros­ titution itself is not illegal, many of the activities that facilitate or flow from both its street and off-street manifestations are criminalized, including solicit­ ing, running a brothel, or “pimping.” There has historically been a tendency amongst many police forces in the United Kingdom to adopt a laissez-faire approach to responsibly run brothels, and several cities have experimented with the use of street toleration zones designed to increase the safety of individual sex workers and improve their relationships with police and other outreach workers, whilst minimizing the public nuisance associated with soliciting or kerb-crawling in residential areas. Though such practices are set to continue in some areas, not least as a result of insufficient funding to support more inten­ sive “vice” policing, there has also been a growing trend toward more welfarist objectives, reflected in an increased pressure on sex workers to rehabilitate out of prostitution and, in some areas, an increased number of raids on brothels, undertaken ostensibly to “rescue” trafficked or underage prostitutes, but often having significant consequences for all sex workers. Persons convicted of solici­ ting in England and Wales may, for example, now be ordered to attend a series of meetings with a “supervisor” designed to support their exit from prostitution. Though packaged as a rehabilitative measure, these meetings are backstopped by the threat of coercive punishment, and make a number of potentially prob­ lematic assumptions about the reasons underlying the person’s engagement in sex work as well as their desire to be “helped,” where that help requires them to desist from prostitution, without the provision/opportunity for more attractive earning alternatives. Indeed, to the extent that the rationale underpinning this initiative supports an understanding of sex work as something that is not, and could not be, genuinely chosen, it maps onto a broader tendency for high-profile U.K.  policymakers to adopt increasingly moralistic imagery, denouncing the sex industry, for example, as a “sub-world of degradation and exploitation” or “a terrible trade” that “bedevils” communities19 and traps individual sex workers in a “web of fear and deceit.”20 This in turn has legitimated further recent innovations under the Policing and Crime Act 2009, whereby it is now a (strict liability) criminal offense in England and Wales for a client to pay for sexual services wherever those services are provided by a per­ son who has been subjected by a third party to exploitative conduct. 18   e.g. Home Office, “Paying the Price: A Consultation Paper on Prostitution” (2004); Home Office, “A Coordinated Prostitution Strategy” (2006); Home Office, “Tackling the Demand for Prostitution” 19 (2008).   Hansard, HC Debs, 19 Nov. 2002, col. 507 (Mr. David Blunkett). 20   Home Secretary’s Foreword to “Paying the Price” (n. 18) 5.

sexual autonomy   757 Prostitution regulation provides a significantly more disjointed and internally contradictory narrative than that relating to rape, where, as was identified in the previous section, there is a general coherence to the overall trajectory of reforms, despite a failure fully to live up to their promise in practice. This reflects the fact that, although the precise parameters of the offense may be the source of contesta­ tion, rape is widely acknowledged as an act to be condemned; the normative status of prostitution, on the other hand, is hotly disputed, which impacts in turn on the role that ideals of freedom, equality, and sexual autonomy are envisaged as playing in the development of an appropriate response. Despite this, for those on either side of the “prostitution debate,” there are elements of a narrative of progress that can be identified in recent regulatory shifts. Yet, in both cases, as with rape, I would argue that there are underpinning tensions which suggest significant limitations to the reach of that progress. On the one hand, for those who maintain that there is nothing inherently harmful or exploitative in the commercialization of sexual services, the move away from the criminalization of sex workers and their clients is to be welcomed. It acknowledges that entering into sex work can be a legitimate choice for those involved and reduces the stigma associated with that decision. Moreover, it opens up the prospect for cre­ ating systems of regulation that, it is argued, will ensure the safety of sex workers far more effectively than the sporadic outreach that is made possible where sex is sold in a clandestine fashion in contravention of, or at best in the shadow of, the criminal law. But the progress toward freedom, respect, and equality that such developments can be seen, from this perspective, to offer has often been rather more curtailed in practice. Uncertain, and indeed uncomfortable, about how to instantiate some of the more mundane aspects of workplace health and safety regulations in the specific context of brothels, several licensing regimes have been poorly devised and imple­ mented. In some cases, this has left sex workers with lesser levels of redress and pro­ tection than were previously available. In addition, although purporting to reduce stigma and exclusion by affording greater recognition to their existence, rights, and choices, even the most effective of licensing systems have secured a mixed response from sex workers, many of whom are ambivalent about their increased visibility before the state and the considerable scope that this affords for more intimate intru­ sions and interventions. Moreover, there is evidence that casting a regulatory spot­ light on the sex industry has not, as hoped, eliminated the existence of unlicensed (and potentially more risky) brothels or street soliciting. Instead, in several jurisdic­ tions, including, for example, the Australian state of Victoria, there is evidence of the creation of a “two-tier” system in which those sex workers who cannot, or do not want to, comply with the requirements imposed in regulated establishments (on working conditions, minimum fees, residency/visas, drug/alcohol use, etc.) and those clients whose proclivities (whether for “risky” sex, particular types of sexual partner, or a less visible and less traceable sexual transaction) render such establish­ ments unattractive, engage in an alternative market; one that may in fact be less

758   vanessa e. munro well policed than under previous regimes on account of the formal devolution of responsibility for regulating the sex industry to licensing authorities.21 On the other hand, for those who insist on the inherently exploitative nature of prostitution, the increased emphasis in some jurisdictions on the eradication of sex work—through a combination of punitive quashing of demand and supporting the exit of those currently engaged in selling sex—has been welcomed as a progressive step toward sex equality. This approach refuses to accredit women’s capitulation to constraint and violence as agency, seeing expressions of consent as reflective of a false consciousness and positioning the state (including its criminal laws) as a key role-player in demanding “better” for these women than they demand for them­ selves. It also sends a message of social condemnation to those who purchase sex, challenging the overall commodification of women’s sexuality of which sex work forms a crucial dimension. And yet, once again, even within this worldview, recent developments along this path have often failed to deliver on their promise. In juris­ dictions such as Sweden, where the purchasing of sex has been criminalized for some time, there is evidence of a reluctance on the part of some police officers to take the offense seriously, either declining to charge offenders or showing a level of solidarity with them by issuing half-hearted reprimands or agreeing to proceed in ways that will prevent the “indiscretion” being discovered by spouses.22 Moreover, in England and Wales to date, the impact of the creation of a client-focused offense has been negligible—at least in policing and prosecution terms. Indeed, the head of the Metropolitan Police’s Anti-Trafficking Unit has specifically acknowledged that, given the tolerance that exists in society and within the police force toward “a cer­ tain level of prostitution” (not to mention the notable absence of sufficient resources to support rigorous policing), the law in this area will be “very difficult to enforce” whatever its symbolic value.23 What is more, developments aimed at encouraging women’s exit from prostitution have been beset with conceptual and practical dif­ ficulties. The regime in the United Kingdom, as in other jurisdictions, posits attend­ ance at supervision meetings as a rehabilitative intervention, designed to “support” women in leaving sex work; but for many women, this initiative is experienced as coercive, intrusive, paternalistic, and ultimately futile. The onus here is placed upon the woman to “sort herself out,” finding the emotional and practical resources with which to leave prostitution, whilst the state, in classic neoliberal fashion, absolves

 For discussion, see e.g. Elaine Mossman, “International Approaches to Decriminalising or Legalising Prostitution,” New Zealand Ministry of Justice (2007). 22   See further, Jane Scoular, “Criminalising Punters: Evaluating the Swedish Position on Prostitution,” (2004) 26 Journal of Social Welfare & Family Law 195; and Jane Scoular, “What’s Law Got to Do With It? How and Why Law Matters in the Regulation of Sex Work,” (2010) 37 Journal of Law & Society 12. 23   “The Trade in Human Beings: Human Trafficking in the UK,” Home Affairs Committee Minutes of Evidence, Evidence Presented on 9 Dec. 2008, Commander Allan Gibson, Questions 431 and 432, available at: . 21

sexual autonomy   759 itself of responsibility for contributing to the woman’s current predicament or pro­ viding the opportunities and alternatives required to make her exit a feasible option. Whether the perceived route to progress lies in regulation or abolition models, it is submitted here that the story of recent law and policy initiatives in the context of prostitution has often been one of unintended consequences and unfulfilled ambi­ tions. Though panics about sex trafficking and the commercial abuse of underage girls has ensured that the sex industry has become a prime site of concern, each genre of response has created a complex combination of extension and retraction of the criminal law, but not always in ways that increase the safety or improve the status of individual sex workers (the vast majority of whom continue to be women). That these responses have been crafted in a context in which there remains such heated controversy over the acceptability of prostitution has doubtless added to the ambivalence with which implementation has occurred, and ambiguities in the interpretation of associated legislative language around “exploitation” or “vulner­ ability” have further contributed to the existence of a disconnect between official rhetoric and lived reality. In the next section, I turn to another arena within which the criminal law has been compelled to engage, amidst considerable contention, with the question of what a person can legitimately say yes to in the terrain of sexual interaction, and will explore some of the ways in which, in this context too, contemporary legal approaches that purport to respect and protect sexual autonomy have had at best uneven results.

iv.  BDSM, HIV, and the Risks of Pleasure Whenever the criminal law finds itself engaged in the regulation of sexual auton­ omy, it is required to strike a defensible balance between the positive entitlement to express one’s sexual inclinations without undue restriction and the negative entitle­ ment to protection from unwanted or harmful sexual practices. Nowhere perhaps have the difficulties which this gives rise to been more clearly presented than in the context of “risky” sex. In what follows, I focus attention specifically on two strands of the law’s engagement in this context—namely the regulation of BDSM activity and the sexual transmission of HIV. Across these arenas, I will argue that—akin to the patterns discerned in relation to rape and prostitution discussed previously— the law has evolved through a liberal rhetoric of freedom, respect, and equality, but has often applied those ideals in ways that have more repressive consequences,

760   vanessa e. munro particularly for individuals or groups who stand at odds from normative models of conventional heterosexuality. It is a long-standing principle of English criminal law, and one shared by a number of other legal jurisdictions, that consent can afford a defense to certain forms of physical contact that would otherwise constitute an unacceptable inva­ sion of bodily integrity. Such an approach is necessitated by our close-quarters communal existence within which contact with the bodies of others whilst we go about our daily lives is inevitable and, indeed, often a vital aspect of human interaction. From surgery to contact sports, tattooing to “rough horseplay,” the law has recognized that—even where the types of contact involved entail intru­ sive interference with bodily integrity and/or pose the risk of significant physical harm—it is legitimate and, in many cases, desirable that individuals are able to consent to such practices, and that this consent should carry with it an absolution of criminal responsibility for those involved. But it has also long been clear that consent cannot provide a defense against liability for all forms of contact, and that the context in which the contact arises, the reasons for it, and its consequences are key considerations in framing the parameters of criminal liability. Core to determinations of the relevance of consent is the law’s evaluation of the “public interest”; a benchmark the malleability of which has become the focus of consid­ erable consternation, not least in contexts in which the physical contact at issue includes a sexual dimension. In England and Wales, the leading case in this area is undoubtedly R. v. Brown,24 in which the House of Lords concluded that—the established exceptions noted earlier aside—contact that gives rise to injuries equivalent to, or more serious than, actual bodily harm (defined in current Crown Prosecution Service guid­ ance to include extensive or multiple bruising, minor fractures, or cuts that require stitches) can never be justified by consent. In this case, the defendants had engaged in sadomasochistic practices, including dripping candle wax into the urethra. None of the participants had suffered permanent injury as a result of the activities, which were conducted throughout with recognized “control” words that would ensure their immediate cessation, none of them had reported being the victim of any offense to the police, and although there was some concern over the capacity of one participant on account of his young age, the evidence indicated that their engagement in the activities was entirely informed and will­ ing. Nonetheless, the parties were charged with, and convicted of, assaults under the Offences Against the Person Act 1861. It was held that, contrary to the airforce antics in R. v. Aitken,25 which saw a victim set alight by his peers, there was no basis on which it could be argued that it was in the public interest to allow this sadomasochistic activity to be consented to. Categorized as purposive rather than

  R. v. Brown [1994] 1 A.C. 212.

24

  R. v. Aitken and Others [1992] 1 WLR 1066.

25

sexual autonomy   761 incidental violence, the activities were described as “unpredictably dangerous” encounters that “breed and glorify cruelty.”26 In the intervening decades, the decision in Brown has faced considerable criti­ cism from commentators who have maintained that the driving force behind it was a moralistic objection to, and discomfort with, homosexuality in general.27 There is certainly fuel for these concerns in the often unusually “colorful” language utilized in (some of) the judgments provided by the presiding panel. Moreover, the reluc­ tance of the court in Brown to lend credence to arguments that emphasized the need to respect personal privacy can be contrasted somewhat against the approach in relation to consensual branding activities undertaken between a husband and wife in the case of R. v. Wilson,28 where the importance of respecting what goes on behind the closed doors of the marital home played a key role in ensuring that no criminal liability was deemed to have arisen. A potential disconnect between the response under English criminal law to the homosexual sadomasochistic activities in Brown and the engagement of heterosexual couples, particularly those in “sta­ ble” relationships, in other forms of sexual risk-taking may be further highlighted, moreover, by the decisions of the Court of Appeal in R. v. Dica and R. v. Konzani.29 These cases, heard in close succession, involved male defendants who had unpro­ tected sexual intercourse on a number of occasions with several partners, infecting them with the HIV virus as a result. Whilst the defendants were aware of their HIV-positive status, and the risk of transmission through intercourse, they failed to inform their partners. Upholding their convictions for maliciously inflicting griev­ ous bodily harm contrary to the Offences Against the Person Act 1861, the Court of Appeal concluded in both cases that, while it may be possible, in principle, to consent to the risk of HIV transmission through sexual intercourse, this required informed consent. Since the victims lacked any knowledge of their partners’ HIV status, consent to the intercourse could not be relied upon to absolve the defend­ ants of liability in relation to the passing on of the virus. Indeed, referring directly to ideals of sexual autonomy, in Konzani the court maintained that the onus would generally fall on the defendant to disclose his HIV-positive status and that a failure to do so would almost invariably mean that his partner is deceived such that her consent to the intercourse (or, more precisely, the risk of physical harm associated therewith) cannot be informed nor relied upon. Although there are undoubtedly important factors that differentiate the con­ texts of Brown and Dica/Konzani, including, as the Court of Appeal emphasized, the level of inevitability and intentionality that surrounded the infliction of harm,   Brown (n. 24) per Lord Templeman at 236.   See e.g. Helen Power, “Consensual Sex, Disease and the Criminal Law,” (1996) 60 Journal of Crim. Law 412; Annette Houlihan, “When ‘No’ Means ‘Yes’ and ‘Yes’ Means Harm: Gender, Sexuality and Sadomasochism Sexuality,” (2011) 20 Law & Sexuality Review 31. 28   R. v. Wilson [1996] 2 Cr. App. R. 241. 29   R. v. Dica [2004] EWCA Crim. 1103; R. v. Konzani [2005] EWCA Crim. 706. 26 27

762   vanessa e. munro there remains something troubling in the divergence of approach. After all, these are all cases of consensual sexual activity, and yet in Brown the parties are told that they cannot consent to the risk of serious harm for the sake of sexual gratification, whilst in Dica (and Konzani), the parties are told that they can.30 Moreover, these are cases in which the court’s response is framed by reference to the importance of striking an appropriate balance between the positive and negative dimensions of sexual autonomy, specifically by prioritizing the importance of informed con­ sent, open communication, and frank disclosure. And yet, it is in the context of BDSM activity, where the ideals of mutuality and communication are often seen to be well-established pillars, that consent is rendered paralyzed. Arguably, this speaks to a dubious evaluation of the notion of “public interest” as well as the influence of questionable assumptions about normative (hetero)sexual relationships and the legitimacy of the criminal law’s intervention thereupon. In his commentary in the wake of the first instance decision in R. v. Dica, John Spencer suggested that it may be appropriate in cases of HIV transmission to pay attention to the nature of the relationship between the parties.31 More specifically, he suggested that for those who have casual sexual encounters with little-known persons or who purchase or sell commercial sex, the risk of disease transmission comes with the territory and so consent to the risk should be presumed in consent to the sexual activity. By contrast, he suggested that consent to sex in itself should not be taken to denote consent to the risk of any related infection in the context of relationships of trust, and that in these contexts directly informed consent was required. The Court of Appeal specifically acknowledged its indebtedness to this commentary from Spencer and drew attention to the different relationships which may connect those who infect with those who are infected. As Judge L.J. put it: “at one end of the extreme there is casual sex between complete strangers . . . when the attendant risks are known to be higher, and at the other, there is sexual intercourse between couples in a long-term and loving, and trusting relationship.”32 Although the judgment in Dica is ambiguous as to how far down this norma­ tive line the court wishes to tread, it is manifestly the case that the long-term nature of the relationship between the parties involved played a role in support­ ing the conclusion that the victims had no reason to think that they were run­ ning a particularly heightened risk of infection of the sort that may accompany a more casual affair. Moreover, while the judgment in Konzani places a premium on the importance of direct disclosure, which might be seen to militate against any suggestion that “riskier” contexts connote an awareness of, and consent to,   For further discussion, see Sharon Cowan, “The Pain of Pleasure: Consent and the Criminalisation of Sado-Masochistic ‘Assaults’,” in James Chalmers et al. (eds.), Essays in Criminal Law in Honour of Sir Gerald Gordon (2012), 126 ff. 31   John Spencer, “Liability for Reckless Infection—Part II,” (26 Mar. 2004) New LJ 448. 32   Dica (n. 29) para. [47]. 30

sexual autonomy   763 “riskier” sex, it is notable that the relationships involved were once again all more than casual and involved women who might be thought particularly trusting of the defendant (a 15-year-old virgin, a woman the defendant met at bible class, and a woman with a very ill son). That there may be some empirical merit in this approach cannot be disputed—data has suggested, for example, that people in stable relationships are more likely than those in unstable relationships to disclose their HIV status. And yet, the complexities that surround relation­ ships, HIV, illness, and identity ensure that the position is more complicated, with research also showing that some 40% of HIV-positive individuals have not disclosed their status to partners, despite existing in stable, monogamous relationships in half of those cases.33 Just as the courts may presume too much of “conventional” monogamy, therefore, they may presume too little of “uncon­ ventional” sexual exchanges, including those commercial exchanges that may be long-standing and marked by trust, as well as exchanges between sadomaso­ chistic participants that may be predicated on communication, disclosure, and “bounded” parameters of risk and/or harm. In providing two important litmus tests of the criminal law’s regulation of “risky” sex, the contexts of BDSM activity and reckless HIV transmission offer insights upon a trajectory that once again, akin to the contexts of rape and pros­ titution outlined previously, is marked by a rhetorical commitment to progressive respect for, and protection of, sexual autonomy, but which is potentially under­ mined by a more regressive (and patchy) application. While the contraction of the HIV virus no longer inevitably shortens one’s life, it does necessarily entail a life of precarious health status and medicinal dependency. This is a risk that we can consent to—with appropriate disclosure—when having sex in (heterosexual) relationships, and it is a risk that may even be presumed to have been consented to where those relationships are more promiscuous by nature. And yet, we cannot consent to the often far lesser risks of physical harm associated with (homosexual) BDSM activity, regardless of the care taken in relation to disclosure. This suggests that, notwithstanding liberal promises to protect and respect all expressions of sexual freedom, other than where an impartial calculation of risk of harm requires curtailment, the autonomy of some (more normatively palatable) choices contin­ ues to hold sway whilst the autonomy of more subversive lifestyles is curtailed. This arguably “patchy” application reinforces the dominant hetero-normative ideal of the stable, monogamous relationship (ideally, though not necessarily, bounded by the confines of matrimony), ensuring that whilst we are all free to pursue our sexual proclivities, some of us are more free to run the risk of physical harm in the process of that pursuit than others.

  Michael D. Stein et al., “Sexual Ethics: Disclosure of HIV Positive Status to Partners,” (1998) 158 Archives of Internal Medicine 253. 33

764   vanessa e. munro

v.  “It’s the Autonomy, Stupid”: Conceptual Wrangles and Shifting Frames At the heart of the criminal law’s regulation of sexual autonomy—in the contexts outlined previously and beyond—lies the concept of consent. Indeed, so engrained is the language and ideology of consent that it is almost impossible to construct a regime for the regulation of sexuality that does not invoke or rely upon it, as the efforts in some jurisdictions to de-center consent from rape laws have demon­ strated. Though superficially appealing as a binary mechanism by which to token agency, a wealth of critical commentary has highlighted the shortcomings of the consent threshold, at least as it has been conceptualized and operationalized within dominant liberal (and neoliberal) frameworks. Consent as currently understood has been criticized for inappropriately presuming the existence of detached, unen­ cumbered, unconditioned, and free human agency, in a world in which—as was observed at the outset of this chapter—we are all inevitably constructed and con­ strained in our choices by relationships, expectations, and sociocultural environ­ ments, with some identity groups (including women) being particularly restricted and curtailed. It has also been criticized precisely for its binary nature, which obscures a diversity of levels of submission, acquiescence, and wantedness, and for its ambiguity as to whether consent is a state of mind to be discerned by would-be partners or a status that must be verbally articulated. Efforts to rescue the consent threshold from these limiting tendencies have been undertaken—arguments have been lodged about the need to adopt “consent-plus” standards that reflect underlying levels of desire that accord with a narrative sense of one’s self,34 distinctions have been drawn between episodic and programmatic choices that merit more careful scrutiny,35 and calls have been made in general for more nuanced, contextualized, and circumspect evaluations of agency.36 Though such initiatives are, in my view, to be commended, more needs to be done in order to rescue and rehabilitate consent as a model by which progressively to regulate sexual autonomy. More specifically, greater attention also needs to be paid to the

  Vanessa Munro, “Concerning Consent: Standards of Permissibility in Sexual Relations,” (2005) 25 OJLS 335; Vanessa Munro, “Constructing Consent: Legislating Freedom and Legitimating Constraint in the Expression of Sexual Autonomy,” (2008) 41 Akron LR 923. 35   Diana Meyers, Self, Society and Personal Choice (1989). 36   See e.g. Catriona MacKenzie and Natalie Stoljar, Relational Autonomy: Feminist Perspectives on Autonomy, Agency and the Social Self (2000); Jennifer Nedelsky, “Reconceiving Autonomy: Sources, Thoughts and Possibilities,” (1989) 1 Yale Journal of Law & Feminism 7; Nancy Hirschmann, The Subject of Liberty: Toward a Feminist Theory of Freedom (2003). 34

sexual autonomy   765 ways in which the contours and parameters of consent are often at the mercy of a diversity of other sociopolitical forces. The problems with consent that critical com­ mentators have identified do not arise simply from reliance on an abstract notion of the liberal person, too often presumed as a disembodied and detached male. They arise also from the malleability of the notion of consent itself, and its perpetual porosity to the influence of alternative frameworks grounded in equally problem­ atic and abstract imperatives, such as the need to protect “the vulnerable,” to prevent “exploitation,” to promote “responsibility,” and to ensure “practical expediency” and “cost-effectiveness” in the criminal law’s enforcement. It is a truism of the human condition that we are all vulnerable to some degree, and yet the labeling of some individuals or groups as peculiarly “vulnerable” (often without a clear designation of to what exactly) has become an increasingly promin­ ent lever in ratcheting up the levels of sexual protectionism countenanced by the criminal law. On the one hand, women who are intoxicated have, for example, been increasingly depicted as vulnerable to sexual abuse, with much media and policy attention focused on their plight, and yet it remains doubtful how far this approach has either heightened the moral censure upon men who “take advantage” of that intoxication or ensured greater justice for women who cannot recall whether, in an inebriated state, they directly said no to their assailant’s sexual advances. Similarly, the tendency in much policy rhetoric to depict all sex workers as infantilized and inherently vulnerable has bolstered the legitimacy of calls to criminalize clients, but has done little to explore the reality of the complex intersections of survival and sex. The concept of vulnerability operates in these, and other, arenas in close association, moreover, with the concept of exploitation. Amongst the things to which the “vul­ nerable” are most at risk is “exploitation”—but delineating the contours of condem­ nation are similarly complex in this frame, since we are all subject to exploitation to some degree, and often in ways that we do not consider morally blameworthy. The questions of what makes a form of exploitation unacceptable, of what role the criminal law has to play in its regulation, and of whether the presence of consent or harm on the part of the “victim” hold any relevance continue to be hotly contested and rarely amenable to a straightforward resolution. Despite this, the language of exploitation has crept into the regulation of sexual autonomy, restricting the types of conduct that can be consented to (including, e.g., commercial sex work or BDSM activity) and reflecting a vigorous commitment to limiting a person’s engagement in debasing or degrading (sexual) activities undertaken for another’s gratification or benefit. But whilst the intersection of consent frameworks with burgeoning agendas around vulnerability and exploitation can be seen, on the one hand, to justify the increased encroachment of the criminal law on the regulation of sexual autonomy, on the other hand, it has assisted in a classic neoliberal sleight of hand whereby the role of the state has been sidelined. The root causes of vulnerability and exploitation are rarely connected to fiscal or social policies of the state that generate hardship

766   vanessa e. munro and exclusion; and, ultimately, the responsibility for redressing the situation lies with the individual. In the case of rape, the message that is consistently reinforced ensures that women act as sexual gatekeepers—they must not place themselves in positions of increased risk from the uncontrollable sexual urges of men, and where sex is unwanted, they must communicate this unequivocally and ideally forcefully, with resistance and physical injuries being sustained. In the case of prostitution, sex workers—though often depicted as lacking in control—are tasked with assess­ ing the riskiness of situations effectively, seeking help from the relevant authorities when needed, and complying with their dictates. They are compelled increasingly to “get help,” yet offered little of the practical, emotional, or economic assistance needed successfully to “exit” sex work. Finally, in the context of “risky sex,” the responsibility for disclosing one’s HIV status is positioned firmly with the individ­ ual, notwithstanding the social, economic, and interpersonal difficulties that this can bring about, and regardless of the fact that it may create a disincentive from undergoing testing to seek confirmation of a suspected infection. Meanwhile, the ability to engage, no matter how responsibly, in BDSM activity is removed from those for whom this may be a genuine expression of sexual choice or desire, with the underlying message being that this is a form of sexuality that simply cannot be tolerated.

vi. Conclusion There have been calls in recent decades from several commentators—feminist and otherwise—for the abandonment of liberalism and its ideals. Though there is little doubt that liberalism must continue to shed the legacies of its origins in a world in which privilege, power, and entitlement were so unequally distributed, it is hard to imagine recreating a world that envisions a progressive future in which the same fundamental notions of equality, freedom, and respect would not re-emerge.37 The objective, then, is to find ways of making these ideals live up to their promise more effectively, exposing their unstated biases, problematic assumptions, structural blind spots and inconsistent applications. The regulation of sexual autonomy provides a particularly poignant vantage point from which to undertake this task, and exploring it from the perspective of conventionally disempowered and/or marginalized iden­ tities ensures an appropriately critical engagement. It highlights not only the limits   For further discussion, see Vanessa Munro, Law and Politics at the Perimeter: Re-Evaluating Key Debates in Feminist Theory (2007), esp. ch. 2. 37

sexual autonomy   767 of the concept of consent upon which so much authority has conventionally been placed in the regulation of sexual autonomy, but also the ways in which other agen­ das—around vulnerability, exploitation, responsibility, and expediency—intersect to manipulate its thresholds. What is more, analysis of this arena of criminalization pro­ vides vital insights into the shifting contours of the state’s interaction with its popu­ lace, which lies underneath its laws.

References Archard, David, Sexual Consent (1998) Bamforth, Nicholas, “Sado-Masochism and Consent,” [1994] Crim. LR 661 Hunter, Rosemary and Cowan, Sharon (eds.), Choice and Consent:  Feminist Engagements with Law and Subjectivity (2007) MacKenzie, Catriona and Stoljar, Natalie, Relational Autonomy:  Feminist Perspectives on Autonomy, Agency and the Social Self (2000) MacKinnon, Catharine, Towards a Feminist Theory of State (1989) McGlynn, Clare and Munro, Vanessa, Rethinking Rape Law: International and Comparative Perspectives (2010) Mill, John Stuart, On Liberty (1859) Munro, Vanessa and Della Giusta, Marina, Demanding Sex:  Critical Reflections on the Regulation of Prostitution (2008) Munro, Vanessa and Scoular, Jane, “Harm, Vulnerability and Citizenship:  Constitutional Concerns in the Criminalisation of Contemporary Sex Work in the UK,” in R. A. Duff et al. (eds.), The Constitution of Criminal Law (2013), 30 ff. Phoenix, Jo, Regulating Sex for Sale: Prostitution Policy Reform in the UK (2009) Schulhofer, Stephen, Unwanted Sex: The Culture of Intimidation and the Failure of Law (1998) Temkin, Jennifer and Krahe, Barbara, Sexual Assault and the Justice Gap:  A  Question of Attitude (2008) Weait, Matthew, “Harm, Consent and the Limits of Privacy,” (2005) 13 Feminist Legal Studies 97 Weait, Matthew, Intimacy and Responsibility:  The Criminalisation of HIV Transmission (2007) Wertheimer, Alan, Consent to Sexual Relations (2003)

­c hapter 34

PROPERTY OFFENSES stuart p. green

I.  In Search of the Property Offenses The criminal property offenses are at once ubiquitous and elusive. Almost every­ one, save perhaps for the most cloistered, will at some point in their lives have been the victim of crimes such as theft, fraud, robbery, or burglary; and a remarkably high percentage of citizens will themselves have committed crimes such as tres­ pass, shoplifting, or illegal downloading from the Internet. It is hard to imagine any organized society whose law did not contain at least some basic property crimes. Yet the extraordinary diversity in how rights in property are formulated across cul­ tures, the sheer ingenuity that offenders use to infringe such rights, and the substan­ tial overlap that has developed between the criminal law and civil law in this area make the property offenses among the most conceptually complex and structurally varied offenses in our system of criminal law.

ii.  What are the Property Offenses? Most systems of criminal law in effect today contain a wide range of offenses that are classified as “property crimes.” The U.S. Department of Justice’s Bureau of Justice Statistics includes within its category of property offenses a relatively

property offenses   769 limited collection of crimes:  household burglary, motor vehicle theft, and prop­ erty theft. The influential U.S. Model Penal Code identifies a much longer list of “offenses against property”: arson, criminal mischief, and other property destruc­ tion; burglary and other criminal intrusion (including criminal trespass); robbery; theft and related offenses (including blackmail, receiving stolen property, unauthor­ ized use of vehicles, failing to return lost property, and theft by deception); and forgery and fraudulent practices (including writing bad checks, deceptive busi­ ness practices, and commercial bribery). To these lists, we might add more novel property offenses such as carjacking, insider trading, misappropriation of trade secrets, criminal copyright infringement, trademark infringement, identity theft, and a wide range of frauds. What, if anything, do these offenses have in common? Any such discussion must begin with the concept of property itself. Property is best thought of not as a phys­ ical thing, but as the bundle of rights organized around the idea of securing, for the right of the holder, exclusive use or access to, or control of, a thing. Such control may take various forms, including the right to use the property, to exclude others from using it, and to transfer it, and immunity from having it taken or damaged without one’s consent. Tony Honoré has divided what he calls the liberal concept of full ownership into a list of components: the right to possess, use, and manage a thing; the right to income from its use by others; the right to sell, give away, con­ sume, modify, or destroy it; the power to transmit it to the beneficiaries of one’s estate; and the right to security from expropriation.1 While there are various competing theories concerning the source of property rights and what constitutes their fair distribution, there is a general consensus (at least in the liberal tradition) that private ownership should be permitted, and that the state should, to some degree, protect people’s interests in property through a combination of civil and criminal sanctions. And our law does in fact include a vast range of devices designed to protect property rights of one sort of another, in a wide range of contexts. Indeed, much of the civil law—including the law of contract, tort, agency, and inheritance—has as one of its primary goals just that. The civil and criminal law regimes of property frequently work in tandem. As Eduardo Peñalver and Sonia Katyal have explained, “Laws of criminal trespass protect the boundaries around real property established through market transac­ tions. Laws prohibiting larceny, fraud, robbery, burglary, and the piracy of intel­ lectual property similarly wrap private entitlements within the safety of the publicly enforced criminal law.”2 As a consequence, the same conduct that underlies the criminal offenses of theft, fraud, or trespass can also underlie civil wrongs such as

  A. M. Honoré, “Ownership,” in Anthony G. Guest (ed.), Oxford Essays in Jurisprudence (1961), 107.   Eduardo Moisés Peñalver and Sonia K.  Katyal, Property Outlaws:  How Squatters, Pirates, and Protesters Improve the Law of Ownership (2010), 11. 1

2

770   stuart p. green tortious conversion, trespass to chattel, civil fraud, misrepresentation, fraudulent inducement, misappropriation, or civil trespass. Determining when property rights should be protected by the criminal law rather than, or in addition to, civil law invites complex questions of criminalization. Sometimes, the line between crimes and civil wrongs will depend on the magnitude or intensity of harm. For example, insider trading, tax evasion, and illegal down­ loading, when performed on a large scale, are more likely to be treated as criminal than when performed on a small scale. Similarly, trespass to land is normally a crime only when it involves actual injury to property. Theft and other property crimes can be thought of as causing harm in at least two senses. First, they are harmful in the narrow sense that they limit or deprive a property owner of a thing that saves him labor, from which he derives pleasure, or which generates income for him. Secondly, property crimes are harmful in the sense that they undermine the very reason we have a system of property rights in the first place—presumably, to facilitate the creation and preservation of wealth that makes many forms of human endeavor possible.3 Widespread theft, vandalism, and arson all tend to have a destabilizing effect on neighborhoods and on the economy more generally. In this broader sense of harm, what matters is not that the specific theft or trespass itself undermines the institution of property ownership but that it is the kind of action that would do so if generally practiced and unpunished. It would be wrong, however, to assume that the harms involved in property crimes will necessarily be more serious than the harms involved in civil violations of property law. Theft of even a small amount of money is normally a crime, while breach of even the largest contract typically is not. In order to understand why some violations of property are treated as criminal and others as civil, we need to consider the difference between the civil and criminal law more generally. As Sandra Marshall and Antony Duff have explained, “to believe that a certain kind of conduct should be criminal” is to believe “that it is conduct which should be declared wrong by the community: that it is a matter on which the community should take a shared and public view, and claim normative authority over its mem­ bers.”4 Unlike breaches of contract, which can be negotiated and resolved, thefts involve wrongs that are “non-negotiable.” Stealing (unlike breach of contract) is the kind of conduct from which people should (and should be able to) categorically refrain, even in cases in which the victim has in some sense contributed to the crime by making it easier for the offender to commit such a wrong or by tempting him to do so. According to Marshall and Duff, the public “shares” in the wrong that the individual theft victim has suffered. “[I]‌t is not ‘our’ wrong instead of hers,” they say, 3   A. P. Simester and G. R. Sullivan, “On the Nature and Rational of Property Offences,” in R. A. Duff and Stuart P. Green (eds), Defining Crimes: Essays on the Special Part of the Criminal Law (2005), 286. 4  Sandra Marshall and R. A.  Duff, “Criminalization and Sharing Wrongs,” (1998) 11 Canadian Journal of Law & Jurisprudence 7, 18.

property offenses   771 “it is ‘our’ wrong because it is a wrong done to her, as one of us—as a fellow member of our community whose identity and whose good is found within that community.”5 Whether a given crime is classified as a “property” offense in the first place will tend to reflect underlying assumptions about the values and interests an offense regime is meant to further. For example, rape was once thought of as a property offense, reflecting the view that the rapist had harmed “property” belonging to the female victim’s husband or father.6 In our presumably more enlightened age, it is invariably classified as a crime against the person. Kidnapping was also once viewed as a property offense, understood as involving a wrong done to the “property” of the parent of the kidnapped child, or to a slave owner.7 It too is now viewed as a crime against the person. Conversely, arson, once viewed primarily as an offense against the person, is now typically classified as an offense against property. While the term “crimes against property” provides a convenient shorthand, it is more accurate to speak of “crimes affecting persons’ rights and interests in property.” Different property crimes affect different sticks in the bundle of property rights in different ways. Trespass, joyriding, and unauthorized use of a movable consist of temporarily using another’s property without permission—a kind of temporary dispossession, but without any requirement of damage to property. Vandalism and criminal damage, on the other hand, typically involve damage to the owner’s prop­ erty, but no dispossession. The most venerable property crime—theft—has trad­ itionally required a particularly substantial interference with an owner’s property rights, including, normally, the right of possession. Theft thus involves not just a temporary violation of the owner’s right to exclude others from using the property, but also a more permanent violation of the owner’s right to use it himself.8

iii.  Distinguishing Among the Property Offenses In addition to considering what property offenses have in common, we also need to consider how they differ from each other. Here, we can consider three factors: First, as already noted, property crimes differ with respect to the specific “sticks” affected   Marshall and Duff, (1998) 11 Canadian Journal of Law & Jurisprudence 7, 10.   Patricia J.  Williams, “On Being the Object of Property,” in Katharine T.  Bartlett and Rosanne Kennedy (eds.), Feminist Legal Theory: Readings in Law and Gender (1991), 165. 7   Melburn N. Washburn, “Kidnapping as a Military Offense,” (1963) 21 Military LR 1, 2. 8   The points made in this paragraph are borrowed from Stuart P. Green, Thirteen Ways to Steal a Bicycle: Theft Law in the Information Age (2012), 74. 5

6

772   stuart p. green in the bundle of property rights. For example, while trespass infringes on the owner’s right to exclude, theft infringes on his right to use as well. The line between theft and trespass or unauthorized use, however, is not a particularly bright one: the concepts form a continuum. There is a threshold point at which a trespass becomes so signifi­ cant that we can say that a “stealing” has occurred. For example, imagine that D sneaks into V’s theater where a concert is about to begin, and, without paying the price of admission, sits in the one remaining empty seat, thereby denying admission to T, who is waiting at the door, having indicated his willingness to pay. In that case, we might say that D has done more than merely commit trespass on the theater; he has committed theft of a service. Secondly, the property offenses differ with respect to the type of property affected. For example, arson and trespass to land have traditionally involved a violation of an owner’s rights in real property, while theft and receiving stolen property have typically involved an interest in personal property. Property crimes also differ with respect to the tangibility of the property affected. Most property crimes have traditionally involved harm to property that was tangible. But in an economy in which intangible forms of property, such as information, identities, copyright, and trade secrets, are increasingly important, wrongful deprivation of rights in intangible property is now increasingly being criminalized as well. Thirdly, we can distinguish between property offenses that are “pure” and those that are “hybrids.” The harms contemplated by pure property offenses are caused exclu­ sively to interests in property: examples are theft and receiving stolen property. Hybrid property offenses involve harms to property in addition to harms to other kinds of interest: examples are robbery (which affects interests in both property and in bodily integrity) and burglary (which affects interests in property as well as in privacy and personal security).

iv.  Leading Property Offenses As fundamental as prohibitions on certain basic kinds of property misappropriation and destruction would seem to be to any organized system of law, it is striking that, over time and across jurisdictions, the property offenses have been conceptualized and classified in such extraordinarily diverse ways. For example, consider the fact that four of the original nine English common law felonies were (or would eventually come to be seen as) property offenses: larceny, robbery, arson, and burglary.9 Yet, in civil law systems like those in France and Germany, the only one of these offenses to exist as   The others were murder, rape, manslaughter, sodomy, and mayhem.

9

property offenses   773 a discrete crime is arson. The other three offenses existed either not at all or only as subspecies of theft or trespass. In the sections that follow, we consider the history and function of several of the leading property offenses.

1.  Theft and its constituents Theft—typically defined as the “unlawful taking of another’s property with the intent to deprive the owner of it permanently”—is the most commonly committed, conceptually complex, and variously codified of the property offenses. In order to have a sense of theft’s complexity, it will be helpful to consider briefly its history.

a)  History of theft law The first two common law theft offenses were larceny and robbery.10 Larceny, the origins of which can be traced to the mid-twelfth century, was defined as the tres­ passory taking and carrying away of the personal property of another with the intent to deprive him of it permanently. Robbery was defined as the felonious and forcible taking from the person of another of goods or money by violence or put­ ting in fear. Its origins can be traced to Roman and other ancient law. In their original conception, both larceny and robbery were designed primarily to prevent and punish breaches of the peace rather than to protect property per se. In the traditional view, according to George Fletcher’s account, “the thief upset the social order . . . by violating the general sense of security and well-being of the commu­ nity.”11 “It was assumed . . . that the criminality of the deed had to become manifest in a single brief moment of force or stealth.” For this reason, the law of larceny applied to “only the most obvious and direct taking by one person of property which was in the possession of another.”12 The most significant limiting factor in this early conception of theft was the requirement that there be a “trespass in the taking.” If the wrongdoer already possessed the owner’s property when he con­ verted it, or if the transgressor obtained property by lying to or misleading the owner, the potential for violence was thought to be less than in cases of larceny or robbery. Over time, as manufacturing and commerce expanded and the economy evolved, the legal and business communities recognized that theft law needed to do more than simply punish takings that were violent or stealthy. The requirement of manifest­ ness therefore waned, and the focus shifted to the subjective intent of the defendant

  The history described in this section is a condensation of the discussion in Green (n. 8) 9–13.   George Fletcher, “The Metamorphosis of Larceny,” (1976) 89 Harvard LR 469, 474. 12   Fletcher, (1976) 89 Harvard LR 469, 474. 10 11

774   stuart p. green and to the protection of property rights per se, regardless of how those rights were usurped. Such a shift, which Fletcher dubbed the “metamorphosis” of larceny, was achieved in two basic ways. First, the offense of larceny itself was repeatedly redefined to include a wider and wider range of conduct. Secondly, during the course of a little over a hundred years or so, beginning in the early 1700s, courts, Parliament, and (once America became independent) the state legislatures created a new set of offenses, making it criminal to obtain property by means other than just violence and stealth. Eventually, the unlawful taking of property by means of deception (or fraud, as it is often known), breach of trust, and coercion would come to be treated as separate crimes as well. The first new English theft offense to be defined after robbery and larceny was extortion (in the sense of theft by coercion). Its origins can be traced to the notori­ ous Waltham Black Act of 1722 (the same statute that made it a hanging offense to appear armed in a park or warren or to hunt or steal deer with the face blackened or disguised). The Act made it a crime to commit theft by threatening physical harm to a victim owner who did not turn over some requested property. Theft by coer­ cion thus differed from robbery in the sense that robbery involves taking property through force, against the will, and without the consent of the victim, whereas extor­ tion involves coercively obtaining the victim’s (invalid) consent to take property. After extortion, the next kind of theft to be criminalized was theft by deception. Several landmark developments contributed to its formulation. In 1779, the court in Pear expanded the offense of larceny to include “larceny by trick,” which punished the taking of property with the owner’s consent when such consent was obtained by deceit.13 Then, in 1789, the court in Young reinterpreted legislation first enacted in 1757 to create the new offense of obtaining property by false pretenses, making it a crime to use deception to obtain title to “money, goods, wares or merchandizes” from another “with the intent to cheat or defraud.”14 The difference between the two offenses was that a thief who used trickery to secure title, and not simply possession, was guilty of false pretenses, whereas a thief who secured merely possession, but not title, through fraud was guilty of larceny by trick. The 1780s saw the development of yet another new common law theft offense, again under the rubric of larceny. This was the crime of finding and failing to return lost, mislaid, or misdelivered property. Previously, one who found lost goods and failed to return them to their owner upon demand had been liable only in tort, for trover. The crime of embezzlement—or obtaining property through breach of trust— was created as a separate offense in 1799 with the passage of the Embezzlement Act, expressly overruling the case of Bazeley, decided earlier that year.15 Under the new   R. v. Pear (1779) 1 Leach 212, 168 E.R. 208.   30 Geo. II, c. 24, section 1 (1757); Young (1789) 100 E. R. 475; Jerome Hall, Theft, Law and Society (1935, rev. ed. 1952), 45–52. 15   Embezzlement Act 1799 (39 & 40 Geo. III, c. 89); R. v. Bazeley (1799) 2 East P.C. 571 (Cr. Cas. Res.). 13

14

property offenses   775 offense, originally a misdemeanor, it became a crime for employees—such as bank­ ers, merchants, attorneys, agents, and trustees—to convert property entrusted to them for their employers by third parties. Once again, U.S. jurisdictions followed a generally similar approach. The early nineteenth century saw the creation of several additional theft-related offenses, including the offense of receiving stolen property (codified in 1827), theft by housebreaking (created by Scottish courts in the 1830s), and obtaining property by threatening to do the otherwise lawful act of exposing information of an embar­ rassing nature—essentially, blackmail (codified in 1843).

b)  Consolidation of theft law The law of theft that emerged from this history was a highly complex one: a wide array of theft and theft-related offenses were viewed as more or less distinct crimes, with distinct labels, elements, defenses, and punishments. But starting in the late nineteenth century, in both the United States and England, there was considerable skepticism about the value of this scheme. A number of then-influential commenta­ tors pointed out that the law of theft was too complex for prosecutors, judges, juries, and the public at large to understand; it involved esoteric legal concepts like break­ ing bulk, asportation, trespassory caption, animus furandi, and ferae naturae, as well as elusive distinctions between possession, title, and custody, and between lar­ ceny by trick and false pretenses.16 And these concepts were not merely confusing: it was said that they allowed defendants to escape conviction unfairly by arguing that their conduct fell into the gap between offenses, or that rather than committing the form of theft charged, they had actually committed a different form of theft. By the mid-twentieth century, the reformers finally had their opportunity to rewrite the law of theft. In the United States, theft reform became a primary goal of the American Law Institute, in drafting its Model Penal Code, first promulgated in 1962. And in England, theft reform became an early goal of the Criminal Law Revision Committee, the precursor to the Law Commission of England and Wales, which drafted what would become the Theft Act 1968. Both efforts led to criminal codes that eliminated supposedly archaic distinctions such as those between lar­ ceny, embezzlement, and false pretenses, and replaced them with a more or less consolidated offense of “theft,” incorporating what had previously been the separate common law theft offenses, while at the same time retaining robbery, burglary, and writing bad checks as distinct offenses.17 16   See e.g. Herbert Wechsler, “The Challenge of the Model Penal Code,” (1952) 65 Harvard LR 1097, 1112–1113; James Fitzjames Stephen, History of the Criminal Law of England, Vol. 3 (repr. ed. 1883), 143; Commonwealth v. Ryan, 30 N.E. 364, 365 (Mass. 1892) (opinion of Holmes, J.). 17   The Model Penal Code’s version of consolidation was particularly broad. It included within the scope of theft the following offenses: theft by unlawful taking theft by deception, theft by extortion, theft of lost or mislaid property, receiving stolen property, theft by failure to make required disposition

776   stuart p. green

c)  Proliferation of theft and fraud offenses An additional development in theft law, which might be regarded as something of a counterweight to consolidation, has been the proliferation of various subject-specific theft and fraud statutes occurring especially in U.S. law at both the state and federal levels during the latter half of the twentieth century. In 1998, for example, one com­ mentator counted 232 theft or fraud statutes appearing in the federal criminal code alone, most of which were of fairly recent vintage.18 There are at least four (sometimes overlapping) varieties of specialized theft and fraud statutes. First are statutes making it a crime to steal specific types of prop­ erty. For example, California has special provisions for theft of farm animals, avo­ cados, artichokes, dogs, gold dust, amalgam, and quicksilver, among other things. The Louisiana Criminal Code contains a hopeless tangle of overlapping provisions making it a crime not only to commit theft and theft of goods, but also theft of ani­ mals, livestock, crawfish, alligators, oilfield geological surveys, timber, petroleum products, firearms, motor vehicle fuel, utility services, and anhydrous ammonia.19 The federal offense of carjacking, enacted in 1992 as an offense separate from rob­ bery generally, seems to reflect a similar impulse.20 Second are statutes making it a crime to engage in theft or fraud in specific industries or in connection with certain kinds of legal procedures. For example, specialized statutes in federal law make it a crime to engage in theft or fraud related to health care, banking, accounting, and bankruptcy.21 Third are statutes that make it a crime to steal from specific kinds of victims, such as the federal government, Native American Indian tribes, museums, and employee pension funds.22 Finally, there are statutes that make it a crime to commit theft or fraud by use of specific kinds of instrumentality, such as the mail, wire communications, computers, or credit cards.23 There is no easy explanation for why such specialization occurred during this period. There is certainly no evidence of any conscious anti-Model Penal Code backlash. Rather, the proliferation of specialized theft and fraud statutes seems to have been a reflection of the more general trend toward an ever-growing, ever more complex body of substantive criminal law.

of funds received, and unauthorized use of automobile and other vehicles. Model Penal Code § 223. The version of consolidation adopted in England, Canada, and Australia was slightly less extreme. 18   Ronald L. Gainer, “Federal Criminal Code Reform: Past and Future,” (1998) 2 Buffalo Criminal 19 LR 45, 62.   California Penal Code § 487; La. Rev. Stat. Arts. 14:67 ff. 20   18 USC § 2119. 21   18 USC § 1347 (healthcare fraud), 18 USC § 1344 (bank fraud), 18 USC § 157 (bankruptcy fraud), 18 USC § 1520 (accounting fraud). 22   18 USC § 641 (theft of federal money or property), § 664 (theft from employee pension funds), § 668 (theft of artwork from museums), § 1163 (theft from Indian tribal organizations), § 1341 (mail fraud), § 1341 (wire fraud), § 1030 (computer fraud). 23   18 USC § 1341 (mail fraud), § 1341 (wire fraud), § 1030 (computer fraud).

property offenses   777 In assessing the wisdom of such statutes, it seems appropriate to consider the extent to which specialization is not just the result of lobbying on the part of special interests, but rather reflects genuine differences in culpability, detectabil­ ity, deterrability, provability, or other factors.24 David Gray and Chelsea Jones have argued that specialized statutes of this sort often do serve “an important expressive function” and “highlight norms and expectations that are uniquely important to the functioning of discrete social enterprises like retail sales and digital commerce.”25 As our economy becomes increasingly complicated and social life becomes more and more atomized, they say, specialized theft statutes have a “unique role to play”:  they “afford an important opportunity to engage in civil society and political debates about not only the internal conditions of these emerging enterprises [such as the Internet and large retail chains], but also whether they are sufficiently central to twenty-first century life to be worthy of defense by the criminal law.”26 A related issue here arises out of divergent views about the relationship between theft and fraud. In most U.S. states, fraud tends to be viewed as a subset of theft, equivalent to the early statutory offense of false pretenses—essentially, theft by deception. In other jurisdictions, however, including England, various civil coun­ tries, and under some U.S. federal statutes, the concept of fraud refers to a wide vari­ ety of “dishonest” behavior, including schemes not just to obtain money or property, but also to achieve an “unjust advantage” or to “injure the rights or interests of another.”27 Viewed in this broader sense, fraud sometimes functions as something other than a property offense.

2.  Criminal trespass and burglary At common law, dating as far back as the thirteenth century, the prohibition on what was referred to as “trespass” took a variety of forms, most of them civil rather than criminal, and entailed a variety of kinds of wrong: to the person (in the form of assault, battery, and false imprisonment), to personal property (trespass to chat­ tel), and to real property (trespass to land). The first criminal statutes prohibiting forcible entry onto real property were enacted in the fourteenth century, though the common law offense of criminal trespass was not recognized until the early eighteenth century. It was this offense that eventually found its way into U.S. law.   Green (n. 8) 35.   David Gray and Chelsea Jones, “In Defense of Specialized Theft Statutes,” (2013) 47 New England 26 LR 861, 865.   Gray and Jones, (2013) 47 New England LR 861, 883. 27   Oxford English Dictionary. As the U.S. Supreme Court put it in Hammerschmidt v. U.S., 265 U.S. 124, 188 (1924): “To conspire to defraud the United States means primarily to cheat the Government out of property or money, but it also means to interfere with or obstruct one of its lawful governmental functions.” 24 25

778   stuart p. green The Model Penal Code provision on criminal trespass is notable for requiring that the trespasser have notice that entry is unauthorized, and that such warning be “defie[d]‌.”28 A conceptual cousin of criminal trespass is burglary, which was first defined in Coke’s Institutes, in 1641. Its elements at common law were the breaking and enter­ ing of a dwelling house of another in the night with an intent to commit a felony. By the time the offense was codified in U.S. state criminal codes of the mid-twentieth century, it had been broadened substantially: applying to many kinds of structures other than dwellings, no longer needing to be committed at night (though entry at night sometimes constituted a higher grade of the offense), not necessarily requir­ ing a breaking or even an entry (merely remaining in a place without authorization was sufficient), and not necessarily requiring felonious intent (intent to commit a misdemeanor would normally suffice).29 The offense of burglary, as previously noted, is peculiar to the common law countries. But even there it has been criticized on several grounds. First is the fact that burglary has sometimes been used as a means to prosecute prepara­ tory conduct that cannot be reached by the law of attempt. As such, it suffers from exactly the kinds of defects identified with other kinds of “pre-inchoate” offenses, in that it denies people who have only just started down a criminal path the opportunity to change their minds, and gives undue power to the police to make stops and arrests.30 Another problem with burglary is that it invites a pol­ icy of “double dipping”: whereas attempts invariably merge with the completed crime, burglars can be prosecuted for both the entry with intent to commit a crime and the crime that is actually committed once the offender is inside the target structure. Despite the criticisms of burglary, modern Anglo-American criminal codes such as the Model Penal Code and the Theft Act 1968 (as amended by the Criminal Justice Act 1991) have retained the offense. The Model Penal Code Commentary states that the decision to do so “reflects a considered judgment that especially severe sanc­ tions are appropriate for criminal invasion of premises under circumstances likely to terrorize occupants.”31 At the same time, the Commentary acknowledges that the offense has been retained out of what it calls “deference to the momentum of historical tradition”—a position that is virtually impossible to reconcile with the Code’s radically revisionist attitude toward the theft offenses.

  Model Penal Code § 221.2(2).   Helen A.  Anderson, “From the Thief in the Night to the Guest Who Stayed Too Long:  The Evolution of Burglary in the Shadow of the Common Law,” (2012) 45 Indiana LR 629, 634–638 (citing sources). 30   See Andrew Ashworth and Lucia Zedner, “Just Prevention: Preventive Justice and the Limits of the Criminal Law,” in R. A. Duff and Stuart P. Green (eds.), Philosophical Foundations of Criminal Law 31 (2011), 279, 286.   Model Penal Code § 221, Commentary, 63. 28

29

property offenses   779

3.  Arson and criminal damage Under English common law, traced by Hale to the ancient Saxon laws, arson was defined as the malicious burning of the dwelling house of another. As originally conceived, the primary purpose of the offense was to protect the inhabitants of a house from death or injury by fire.32 Protecting property was only a secondary or incidental purpose. For that reason, the common law offense of arson was originally classified as an offense against persons rather than as an offense against property. By the early nineteenth century, however, significant shifts in Anglo-American law had occurred. As John Poulos has explained, the law of arson underwent a meta­ morphosis that paralleled the metamorphosis in theft law—from an offense the primary concern of which was with public order and the prevention of violence, to an offense the focus of which was the protection of property per se.33 Consistent with this new approach to arson, many of the newer statutes focused on the type of property burned, rather than on any specific threat to a person inside the building. Today, almost all modern codes classify arson as an offense against property rather than as an offense against persons. Conceptually related to arson is the offense of criminal damage or mischief. The offense involves the intentional or reckless destruction or damage of another’s prop­ erty without lawful excuse. Unlike arson, it obviously does not require the use of fire; mere “vandalism” is sufficient. As commonly understood, the offense of crim­ inal damage is limited to attacks on tangible property, such as “the smashed bus shelter, the indelible inner city graffiti, the vandalised car, the trampled field,” as Nicola Lacey and colleagues have put it.34 The offense thus excludes harms to less tangible things like “polluted air” or water or the “deleted or spoilt computer file.”35

4.  Offenses involving intangible and semi-tangible property In societies in which wealth was based primarily on tangible things like cash, jew­ elry, domestic animals, crops, furnishings, real estate, and buildings, only tangible property could be stolen, damaged, or trespassed upon. As the economies of indus­ trialized nations have become less dependent on tangible and manufactured goods, and more on services, semi-tangible things like electricity, natural gas, and Wi-Fi, and intangible things like information, data, copyrighted and trademarked mater­ ial, and trade secrets, the criminal law has struggled to adapt.   See John Poulos, “The Metamorphosis of the Law of Arson,” (1986) 51 Missouri LR 295, 299–300.   Poulos, (1986) 51 Missouri LR 295, 324–328. 34   Nicola Lacey et al., Reconstructing Criminal Law: Text and Materials (2003), 406. 35   Lacey et al. (n. 34) 406. 32 33

780   stuart p. green There are essentially three approaches that have been followed. One is simply to redefine the element of “property” subject to theft or trespass to include a much wider range of property than was subject to these offenses at common law. For example, the Model Penal Code redefined the “things of value” that could be stolen to include “real estate, tangible and intangible personal property, contract rights, choses-in-action and other interests in or claims to wealth, admission or transportation tickets, captured or domestic animals, food and drink, electric or other power.”36 A second approach has been to enact specialized statutes, applying to specific kinds of services, semi-tangibles, and intangible property, while maintaining the basic language and conceptual appara­ tus of theft and stealing. A final approach is to break with the language of the common law entirely and, rather than speak of “stealing” property, speak instead in terms of “misappropriation” or “infringement.” The second approach has been particularly pervasive. Much modern legislation and prosecutorial policy reflect the view that the same basic legal constructs that have always applied to the infringement of rights in tangible property should also apply to the infringement of rights in intangible property. As early as 1999, in announcing the U.S. Justice Department’s initiative to make intellectual property crimes a “major law enforcement priority,” then-Deputy Attorney General Eric Holder emphasized that unauthorized downloading of intellectual property is “theft, pure and simple,” and that “those who steal our intellectual property will be prosecuted.”37 The movie and music industries, meanwhile, have waged their own campaigns to convince the public that infringement is a kind of theft. For example, in 2004, the Motion Picture Association of America produced a brief video that appeared before program content on many DVDs comparing the stealing of a car or a handbag to illegal downloading from the Internet. The appeal of this approach is obvious. It seeks to use the stigmatizing labels of “theft” and “stealing” to extend the moral force of preexisting criminal law in new contexts. But the “illegal downloading is theft” approach also poses problems. First, it may simply not be effective: despite a public relations campaign lasting a decade and a half, there continues to be substantial resistance, particularly among young people, to the idea that illegal copyright infringement should be viewed as morally equivalent to theft.38 Secondly, some scholars have argued that, from a historical and economic standpoint, the crime of theft has been, and should be, understood to involve a commonsense (if not strict economic) notion of “zero-sumness”: what is the thief ’s gain must be the victim’s loss.39 The problem is that intangible property   Model Penal Code § 223.0(6).   Eric Holder, Remarks at Press Conference Announcing the Intellectual Property Rights Initiative (July 23, 1999), available at: . 38   See e.g. Pew Internet and American Life Project, Music Downloading, File-Sharing and Copy­ right (2003), available at: . 39   The issue is discussed at greater length in Green (n. 8) 80, 210–211; see also Deborah Fisch Nigri, “Theft of Information and the Concept of Property in the Information Age,” in J. W. Harris, Property 36 37

property offenses   781 generally lacks the quality of rivalrousness that gives rise to such a dynamic. When D illegally downloads V’s movie from the Internet, V normally still has it. Therefore, in normal cases, it makes little sense to say that intangible property has been “stolen.” Even assuming that the concept of theft does not apply to intangible property, that does not necessarily mean that misappropriation or misuse of such property should fall beyond the reach of the criminal law. One alternative would be instead to use the language of “trespass” (as has been done in some unsolicited commer­ cial email cases40)—though, given trespass’s traditional association with harm to real property, doing so might result in the same kind of conceptual confusion that plagues the use of “theft.” The preferred alternative may be simply to recognize that illegal downloading and misappropriation of copyrighted material and other forms of intangible property present novel paradigms for the criminal law, and that they should be conceptualized and labeled as such.

5.  Compound and hybrid offenses As we have seen, some offenses commonly classified as property crimes— including robbery, burglary, and arson—involve setbacks to both proprietary and non-proprietary interests. Such compound offenses pose problems from the perspective of classification, grading, and the law of counts. Let us look first at the problem of classification. In deciding how the offenses just listed should be classified, there are a number of approaches one could take. First, we could ask which aspect of a given offense is more important, and classify the offense as such. For example, if it turns out that the risk posed by the robber to the victim’s safety is more significant than the risk to his property, then we should classify robbery as an offense against the person rather than as an offense against property. Secondly, we could have a rule that, for classificatory purposes, harms or risks to personal injury, whenever present, will always take precedence over harms to property, or vice versa. Thirdly, we might create a separate classificatory category for “hybrid crimes.” Finally, we could include a given hybrid offense in more than one category of offense (e.g. robbery could be classified as both an offense against property and an offense against persons). While it is not possible to resolve this issue here, it is worth noting that the question of how a given hybrid crime is clas­ sified will be significant in terms of police and prosecutorial policy, sentencing, and crime data collection and evaluation. Hybrid offenses also pose problems for the grading of offenses. Imagine a series of alternative scenarios involving arson, in which: (a) the risk of both property and Problems from Genes to Pension Funds (1997), 55; Susan W. Brenner, “Is There Such a Thing as ‘Virtual Crime’?,” (2001) 4 California Crim. LR 1, 47–49 (both making a similar point).   See Patricia L. Bellia, “Defending Cyberproperty,” (2004) 79 New York University LR 2164, 2166.

40

782   stuart p. green personal injury caused by the defendant’s actions is high; (b) the risk of property injury is high, but the risk of personal injury is low; (c) the risk of property injury is low, but the risk of personal injury is high; (d) the defendant has acted intention­ ally with respect to endangering both property and persons; (e) the defendant has acted intentionally with respect to the harming of property, but only negligently with respect to the causing of personal injury; (f) the defendant has acted negli­ gently with respect to harm to property, but intentionally with respect to personal injury; and so forth. The question is, how could we derive a grading scheme in a way that accurately reflects the degree of culpability present in each case? Speaking of offenses like this, Michael Cahill has raised the concern that one such harm might be completely trivialized if the offense becomes understood as “ ‘really’ focusing on the other one.”41 Thus: if arson comes to be viewed as fundamentally a property-related offense, its definition may require culpability only as to the property dimension and punish the corresponding endan­ germent on a per se basis without any individual proof of danger to people, or of culpability as to that danger—even though the formulation and grading of the offense clearly depends on and reflects its endangerment aspect as well as its property-damage aspect.42

One solution would be simply to do away with compound offenses like arson, and instead prosecute arsonists according to arson’s constituent parts—say, malicious destruction of property and criminal endangerment. Such an approach has been recommended by Paul Robinson, in the context of robbery. As he puts it: The offense of robbery . . . prohibits a combination of theft and assault. Perhaps such conduct should be graded higher than it would be if punished separately as a theft and an assault. If this is so, then the adjudication code should reflect such a policy. But creation of a robbery offense adds nothing to the law’s statement of prohibited conduct; the theft and assault pro­ hibitions already clearly criminalize the conduct described in the robbery offense.43

Something similar could be tried in the case of burglary. Rather than prosecuting burglary as a single compound offense, it might instead make sense to prosecute it as two separate offenses: criminal trespass and theft or attempted theft (or other felony). One problem with this disaggregation approach, however, is that to say that arson, robbery, or burglary are simply the sum of criminal damage and endangerment, assault and theft, or trespass and theft, as the case may be, is to miss what is distinc­ tive about arson, robbery, and burglary, standing on their own. It is likely that using violence to take another’s property is not ultimately reducible to its constitutive   Michael T. Cahill, “Grading Arson,” (2009) 3 Crim. Law & Philosophy 79, 90.   Cahill, (2009) 3 Crim. Law & Philosophy 79, 90. 43   Paul H. Robinson, “Reforming the Federal Criminal Code: A Top Ten List,” (1997) 1 Buffalo Crim. LR 225, 247. 41

42

property offenses   783 elements. Nor is doing so by sneaking into a person’s house or endangering her by burning down her house. Crimes like robbery, burglary, and arson reflect a totality of social, moral, historical, and cultural meanings that arguably transcend the mere sum of their elements.44 Finally, hybrid offenses pose a problem for the law of counts. Consider the Oregon case of State v. Williams, in which the defendant walked into a store where an employee was assisting a customer.45 He grabbed the customer by the shirt, pointed a knife at the employee, demanded money from the cash register, and then fled with the cash. Should a defendant in such a case be charged with two counts of robbery, or just one? If we emphasize the theftuous character of the offense, it seems that the defendant should be charged with just one count, since money was taken from only one victim. If, on the other hand, we emphasize the assaultive aspect of the case, the defendant should be charged with two counts, since he endangered two separate victims. The courts are divided on which rule will be followed. The major­ ity view seems to be to allow a separate robbery count for each victim threatened, even if property is taken from just one of the victims. A likely better approach, one urged by Mitchell Caldwell and Jennifer Allison, is to allow one count of robbery or theft for each victim from whom money was taken and separate assault counts for victims who are endangered but from whom no money was taken.46

v.  Social Injustice and Property Law Defiance As noted previously, acts of theft, trespass, and misappropriation are viewed as mor­ ally blameworthy because they entail the unjustified violation of another’s rights in property. In societies in which property rights are distributed in a manner radically different from how they are distributed in our private ownership society, what con­ stitutes theft or trespass will also look quite different. For example, imagine a society in which all property was held communally—meaning, let us assume, that everyone had the right to use all property at all times. Putting aside the economic problem of crowding, the only way to violate another’s property rights in such a society would

  For additional discussion, see Green (n. 8) 91–92.   State v. Williams, 209 P.3d 842, 843 (Or. Ct. App. 2009), cert. denied, 217 P.3d 690 (Or. 2009). 46   Mitchell Caldwell and Jennifer Allison, “Counting Victims and Multiplying Counts:  Business Robbery, Faux Victims, and Draconian Punishment,” (2010) 46 Idaho LR 647, 670. 44 45

784   stuart p. green be to exclude him improperly from use. In such a society, trespass would never be a crime. And what about societies in which property is distributed in a radically unjust manner? Some scholars have suggested that people who have suffered from severe societal injustice should be exempt from liability for a whole range of offenses— property crimes as well as violent crimes like murder and rape.47 A  competing view is that the injustice of a given society should be viewed as more relevant with respect to judging the blameworthiness of offenses against property than it is with respect to offenses against the person.48 The reason is that the moral underpinnings of offenses such as murder and rape do not depend on background considerations of social justice. The moral obligations that D breaches when he commits a violent offense against another are obligations owed to his fellow human beings, as indi­ viduals, rather than to the government or to society generally, and they would likely exist even in a society without developed institutions of law. By contrast, the moral obligations that D breaches when he engages in violations of V’s property rights by stealing his car or trespassing on his land are quite differ­ ent. As Jim Harris put it: The background right [to property] is historically situated. It does not have the same ahis­ torical status as do rights not to be subjected to unprovoked violence to the person. There are no natural rights to full-blooded ownership of the world’s resources. Good faith implementation of the moral background right may or may not achieve a threshold of justice for a property institution. If it does, the trespassory rules of the institu­ tion are, prima facie, morally binding. Murder, assault, and rape are always moral wrongs. Theft is morally wrong only when this justice threshold is attained.49

And when does a given property institution achieve a threshold of justice? That, of course, is an immensely complex and controversial question, one that lies beyond the scope of this chapter. For the moment, however, it is safe to assume that the threshold would not be met by a regime under which a whole class of citizens was unjustly forbidden from owning property. In such a society, D, as a member of that class, would not be morally blameworthy for stealing property from V, at least to the extent that V helped to create or perpetuate the conditions that caused D’s unjust impoverishment. Emmanuel Melissaris has suggested in this context that we need to distinguish between societies in which injustice is “extreme” and those in which it is “partial.”50   See Richard Delgado, “ ‘Rotten Social Background’: Should the Criminal Law Recognize a Defense of Severe Environmental Deprivation?,” (1985) 3 Law & Inequality 9. See also Jeffrie Murphy, “Marxism and Retribution,” (1973) 2 Philosophy & Public Affairs 217 (arguing that a society which treats some citizens unjustly loses its moral authority to punish those citizens who fail to comply with the law). 48   Stuart P. Green, “Just Deserts in Unjust Societies: A Case-Specific Approach,” in Duff and Green 49 (n. 30) 352.   J. W. Harris, Property and Justice (1996), 14. 50   Emmanuel Melissaris, “Property Crimes as Crimes of Injustice,” (2012) 6 Crim. Law & Philosophy 149, 157. 47

property offenses   785 The former involve “cases of basic structural injustice, in which groups are denied the resources of liberties to which they are entitled by virtue of their status as par­ ticipants in the political community and which are necessary for them to make the best of that status.” The latter involve cases where “a fair scheme of distribution of resources and liberties is largely in place but there are imperfections, which means that some citizens are distributively short-changed.” Where injustice is extreme, he says, the state can “make no demands of its citizens” and therefore is “not justified in criminalising interferences with property.”51 Cases of partial injustice present a more complex issue. According to Melissaris, injustice of this sort sometimes causes excusing conditions, such as cognitive impairments and provocations, but it does not by itself justify D’s acts. In some cases, as Peñalver and Katyal have described, property lawbreaking serves a vital role in challenging moribund and unjust property regimes and creat­ ing a more just social order. They distinguish between two different kinds of what they call “property outlaws”: “Expressive” outlaws seek to use their lawbreaking to send a message about the perceived injustice of existing property arrangements. A good example is the 1960s civil rights era lunch-counter protests, which tar­ geted laws that prohibited African Americans from sitting at “whites-only” lunch counters and having access to other public accommodations. Like the more recent Occupy Wall Street movement, the civil rights protesters used trespass as a means of social advocacy. Earlier in American history, we might think of the Boston Tea Party, which used the malicious destruction of property as a means of protesting the practice of “taxation without representation.” By defying such laws, protesters sent a tangible message that such laws were unjust and harmful and that the interests they protected were illegitimate. Contrasted to expressive outlaws are “acquisitive” outlaws, for whom the dom­ inant motivating factor might be to gain immediate access to a certain good or property interest presently in the hands of another party (whether the government or a private party), as opposed to making a general statement about the appropri­ ate scope of property rights.52 This second kind of lawbreaking is meant to produce immediate and substantial benefits for the lawbreaker (a good example would be the squatting communities of the nineteenth-century American frontier), whereas the first kind of lawbreaking means to achieve, or generate support for, a larger legal goal. The use of lawbreaking as a means to change the social order has particular reson­ ance in the current debate over intellectual property laws. Today, our economy is increasingly based on the production and sale of information and other intan­ gibles. The overall value that intellectual capital—including copyrights, trademarks, patents, and related information assets—represents for U.S. business is enormous,

  Melissaris, (2012) 6 Crim. Law & Philosophy 149, 158.

51

  Peñalver and Katyal (n. 2) 17.

52

786   stuart p. green about one-third of its total economic value, according to one estimate.53 Yet there is widespread resistance to many of the laws that are intended to protect such prop­ erty. Sometimes this resistance is the result of nothing more than unconcerted actions taken by individuals for personal convenience, in the confidence that they can “get away with it.” Other times, the lawbreaking has been the result of principled and occasionally organized action based on the belief that “information wants to be free,” and that the ownership of such information is too highly concentrated for the good of society. (The late Internet activist Aaron Swartz is probably a good example of this.54) Whatever the motive of the lawbreakers, it seems likely that the law of intellectual property has changed, and will continue to do so, in response.

vi.  Punishing Property Offenders Assuming that the state is able to prove that the defendant engaged in the prohibited conduct, and that no defense, justificatory or otherwise, applies, the question will then be how the offense should be punished. There are essentially two questions here: First, how should property crimes be punished in comparison to other kinds of offense? Secondly, how should property crimes be punished in relation to each other? Andrew Ashworth has recently taken the position that imprisonment should essentially be abolished for (pure) property offenses.55 He believes that “the dep­ rivation of the basic right to liberty of the person, being the most severe sanction available, should be reserved for the most serious offences [such as robbery, bur­ glary, sexual offenses, and violence] and not imposed for a type of offence much lower on the scale.”56 Ashworth would thus exempt from imprisonment not only larceny, but also repeat pickpocketing, embezzlement by public officials and “cap­ tains of industry,” major frauds, handling stolen goods, and benefit fraud and tax evasion. In his view, all of these offenses can be addressed more efficiently and justly through non-prison sanctions. The only possible exception would be cases in which 53  Computer Crime and Intellectual Property Section, U.S. Department of Justice, Prosecuting Intellectual Property Crime 1 (3rd ed., 2006), available at:  . 54   See Noam Scheiber, “The Inside Story of Why Aaron Swartz Broke Into MIT and JSTOR: The Italian Retreat that Radicalized the Internet Prodigy,” The New Republic, Feb. 13, 2013, available at: . 55  Andrew Ashworth, “What if Imprisonment Were Abolished for Property Offences?,” (2013) Howard League for Penal Reform, available at: . 56   Ashworth (n. 55) 3.

property offenses   787 there were “exceptional circumstances that rendered the offence so extraordinarily serious that no sentence lower than custody would meet the justice of the case.” A possible example would be “theft or fraud targeting an elderly or disabled victim, the exploitative element—combined with the theft or fraud of a significant sum or item—taking the offense above the usual combination of factors.”57 There are potential problems with Ashworth’s proposal. Empirical studies suggest that, unlike many violent offenses, the majority of property crime is committed by a relatively small number of repeat career criminal offenders, who are motivated primarily by the desire for monetary gain.58 These are just the kind of offenders for whom threatened imprisonment might actually serve as an effective deterrent. Without the threat of prison time, the alternative sentence—presumably, some form of restitution and money damages—might become nothing more than a cost of doing business. The deeper issue concerns the apparent assumption that nonviolent property offenses are per se less blameworthy than violent offenses. Consider, at the extreme, the case of Bernard Madoff, the Ponzi-scheming investment advisor who defrauded investors of a sum estimated at more than $50 billion, depriving individuals of their retirement accounts and institutions of their endowments, and arguably contribut­ ing to the financial crisis of 2008. How should the blameworthiness of Madoff ’s acts be compared to, say, a violent assault? It is far from clear that the assault, for which incarceration would be the norm, is necessarily the more blameworthy act. Moreover, insofar as property offenders tend to be more privileged than violent offenders, exempting them entirely from incarceration might result in class bias. In the end, generalizing about the blameworthiness of even pure property offenses poses problems. Consider the breadth of conduct covered by nonviolent property crimes such as larceny, embezzlement, fraud, trespass, criminal mischief, black­ mail, receiving stolen property, unauthorized use of vehicles, failing to return lost or misdelivered property, forgery, writing bad checks, deceptive business practices, commercial bribery, insider trading, misappropriation of trade secrets, criminal copyright infringement, trademark infringement, and identity theft. Each involves distinct wrongs and harms, and each seems deserving of distinct punishments. Moreover, even when we consider offenders who commit the same offense, we are likely to see a wide range of culpability. For example, the harmfulness and wrongful­ ness of a given theft or fraud will differ significantly depending on the specific cir­ cumstances of the offense, including the amount of money misappropriated, the type of property involved, the means by which the misappropriation is effected, the effect on the victim, and the circumstances of the offender. In short, given the diversity of property offenses, a categorical approach to punishment seems destined to fail.   Ashworth (n. 55) 3.   Kenneth D. Tunnel, Choosing Crime: The Criminal Calculus of Property Offenders (1992), 2, 39, 43–50. 57

58

788   stuart p. green

References American Law Institute, Model Penal Code and Commentaries: Official Draft and Revised Commentaries (1985) Fletcher, George, “The Metamorphosis of Larceny,” (1976) 89 Harvard LR 469, 474 Green, Stuart P., Thirteen Ways to Steal a Bicycle: Theft Law in the Information Age (2012) Hall, Jerome, Theft, Law and Society (1935, rev. ed. 1952) Lacey, Nicola, Wells, Celia, and Quick, Oliver, Reconstructing Criminal Law:  Text and Materials (2003) Melissaris, Emmanuel, “Property Crimes as Crimes of Injustice,” (2012) 6 Crim. Law & Philosophy 149 Moohr, Geraldine, The Criminal Law of Intellectual Property and Information:  Cases and Materials (2008) Ormerod, David and Williams, David Huw, Smith’s Law of Theft (2007) Peñalver, Eduardo Moisés and Katyal, Sonia K., Property Outlaws: How Squatters, Pirates, and Protesters Improve the Law of Ownership (2010) Simester, Andrew and Sullivan, G. R., “On the Nature and Rational of Property Offences,” in R. A. Duff and Stuart P. Green (eds), Defining Crimes: Essays on the Special Part of the Criminal Law (2005) Smith, A. T. H., Property Offences (1994) Steel, Alex, “The Harms and Wrongs of Stealing:  The Harm Principle and Dishonesty in Theft,” (2008) 31 University of New South Wales LJ 712

­c hapter 35

DRUG OFFENSES beatrice brunhöber

i.  Introduction to Drug Offenses Despite the impact of drug offenses on liberty and despite a great deal of corre­ sponding public criticism, publications on criminal law devote little attention to this issue. Drug offenses account for a large number of seizures, telephone surveil­ lances, and other intrusive law enforcement measures.1 The severity of the penal­ ties and sentencing for drug offenses is on par with those for serious crimes like murder or robbery, thus contributing to a massive rise in the incarceration rate.2 Unlike murder, robbery, or almost any other crime that is punished so harshly, drug offenses are widely contested.3 There are endless numbers of websites, pam­ phlets, manifests, and popular scientific literature advocating drug policy reform (“legalization”). Nevertheless, most legal academics ignore drug offenses.4 It seems 1   Cornelius Nestler, “Grundlagen und Kritik des Betäubungsmittelstrafrechts,” in Arthur Kreuzer (ed.), Handbuch des Betäubungsmittelstrafrechts (1998), § 11 n. 1. 2   e.g. drug offenses have contributed to the United States having the highest incarceration rates worldwide, see Dave Bewley-Taylor, Chris Hallam, and Rob Allen, “The Beckley Foundation Drug Policy Programme, Report Sixteen (2009),” in Alex Kreit (ed.), Controlled Substances. Crime, Regulation and Policy (2013), 125 ff. In Germany in 1999 15% of criminal convictions to imprisonment were based on drug offenses and even 25% of convictions to more than five years’ imprisonment, see Rainer Endriß and Jörg Kinzig, “Neuralgische Punkte des Betäubungsmittelstrafrechts,” (2001) NJW 3217. 3   cf. Douglas N. Husak, Drugs and Rights (1992), 63. 4   With regard to legal publications, see Cornelius Nestler, “Strafrecht und Drogenpolitik—eine zer­ störerische Allianz,” in Günter Kohlmann, Cornelius Nestler, Jürgen Seier et al. (eds.), Entwicklungen und Probleme des Strafrechts an der Schwelle zum 21. Jahrhundert (2004), 87; with regard to

790   beatrice brunhöber as though many academics think of drug offenses as the “dirty corner” in crim­ inal law. The lack of academic analysis of the topic is particularly unfortunate due to a public debate which has been qualified as embittered, dramatized, and even “furious.”5 Without principled academic considerations, however, we cannot make a reasoned decision on whether it is right to curb liberty in order to prevent the risks presented by drugs. From an academic point of view, the first problem arises from the use of the term “drugs.” This word is used differently in various contexts.6 Even though most people think of illicit drugs (e.g. heroin) when they hear the term, drugs are also used for medical treatment (e.g. aspirin). Drug offenses are not applicable to the medical use of drugs. Medicinal drug use is usually regulated by different laws.7 In most countries, the sale of certain medicines, for example, is limited to registered pharmacies. Quite a few drugs, however, are used for both medical and recre­ ational purposes (e.g. morphine). In general, the medical use of drugs is regulated, but permitted. By contrast, the recreational use8 of most drugs is strictly prohib­ ited. Prohibition is ensured by punishment of drug offenses (i.e. by criminalizing activities involving recreational drug use). A few drugs, however, are allowed to be used for recreation. Caffeine (coffee) and nicotine (cigarettes) are examples of drugs that fall under this category. From a pharmaceutical point of view, it is not possible to differentiate between cocaine, on the one hand, and caffeine or nicotine, on the other. From a biochemical perspective each of these is a chemical substance connected with some kind of stimulating effect on the body.9 Each of them bears health risks and has the potential to cause addiction.10 The only differ­ ence is their legal status; cocaine is prohibited, whereas caffeine and nicotine are

philosophical publications, see Douglas N. Husak, “Recreational Drugs and Paternalism,” (1989) 8 Law and Philosophy 353, 354.   Mark A.  R. Kleimann and Aaron J.  Saiger, “A Symposium on Drug Decriminalization:  Drug Legalization: The Importance of Asking the Right Question,” (1990) 18 Hofstra LR 527, 532. 6   See Husak (n. 3) 27 ff.; Kreit (n. 2) 3 f.; National Commission on Marijuana and Drug Abuse, Drug Abuse in America: Problem in Perspective, Second Report (1973), in Kreit (n. 2) 5 f.; Andrew Will and Winfried Rosen, “From Chocolate to Morphine: Everything You Need to Know about Mind-Altering Drugs (1983),” in Kreit (n. 2), 4 f.; WHO, Lexicon of Alcohol and Drug Terms, available at: ; Ambros Uchtenhagen, “Arten, Funktionen und Wirkungen der Drogen (Psychopharmakologie und Toxikologie),” in Kreuzer (n. 1) § 1 nn. 2 ff. 7  e.g. German Arzneimittelgesetz (Medicinal Products Law) or U.K. Medicines Act 1968 as amended. 8   The recreational use of drugs is often called “abuse” of drugs. Here, the term “use” is preferred since drug consumption is not necessarily excessive use (abuse). There might be moderate use. cf. Peter Cohen, “Re-Thinking Drug Control Policy: Historical Perspectives and Conceptual Tools,” in Lorenz Böllinger (ed.), De-Americanizing Drug Policy: The Search for Alternatives for failed Repression (1994), 189, 192. 9   See the definition of the WHO (n. 6): The term drug refers to “any chemical agent that alters the biochemical processes of tissues or organisms.” 10   With regard to the concept of addiction, see Section IV.1. 5

drug offenses   791 not. The legal status of drugs, however, rarely corresponds to the severity of the risk involved in using the substance. It is rather that the legal status is determined by cultural or religious traditions. Alcohol, for example, is forbidden in many countries with a Muslim tradition, but not in ones with a Christian background. Recent studies have shown that the detrimental effect of alcohol use (i.e. the phys­ ical, psychological, and social harm to users and to others) is far more severe than that of any internationally outlawed drug, even heroin.11 Due to the problems sur­ rounding the use of the term “drug,” most criminal law regulations do not define it, but instead provide lists of the chemical substances under control.12 It is mainly international law that governs these lists and requires that certain substances be controlled.13 In sum, the question of whether and how to control the recreational use of chem­ ical substances is a political decision. Qualifying a substance as a “drug” in a public debate usually evokes the reaction by the public that its use and distribution ought to be criminalized, which demonstrates that the word “drug” is not a neutral term.14 The political impact of the term is also illustrated by the fact that cannabis legaliza­ tion promoters qualify cannabis as a “soft” drug to support their cause and differen­ tiate cannabis from other “hard” drugs. In a legal context, it is more suitable to use the neutral term “controlled substances.”15

ii.  Drug Policies Three major approaches to drug policies can be differentiated: strict prohibition (1), liberalization (2), and harm reduction (3).16 These approaches were developed with regard to demand-side countries and thus concentrate on their specific problems. Despite varying problems, policies of supply-side countries may as well be categor­ ized as one of these three approaches (4).

11   David J. Nutt, Leslie A. King, and Lawrence D. Phillips, on behalf of the Independent Scientific Committee on Drugs (United Kingdom), “Drug Harms in the UK: A Multicriteria Decision Analysis,” (2010) 376 The Lancet 1558, 1561. In their study alcohol has an overall harm score of 72 whereas heroin scores 55. 12  e.g. Art. 1, para. 1, subpara. j) of the U.N. Single Convention on Narcotic Drugs of 1961 defines “drug” as any of the substances in Schedules I  and II of the Convention; see also German Betäubungsmittelgesetz (Narcotics Act), Appendices I, II, and III to § 1, para. 1. 13 14 15   See Section III.3.a.   Husak (n. 3) 19 f.   Kreit (n. 2) 6. 16   Christoph Gebhardt, “Drogenpolitik,” in Kreuzer (n. 1) § 9 nn. 94 ff.

792   beatrice brunhöber

1.  The strict prohibition approach Drug policies promoting strict prohibition of any manufacturing, distribution, and use of illicit drugs are often called “war on drugs” by promoters as well as oppo­ nents.17 The strict prohibition approach was initiated in the United States in the 1960s and 1970s as a reaction to the frequent drug use of U.S. soldiers in Vietnam. The phrase “war on drugs” was likely coined by President Richard Nixon in 1971.18 Due to U.S. dominance in international drug control, the goal of absolute abstinence—a “drug-free world”—is also the underlying idea of international law governing drug regulation. This strict prohibition approach focuses on criminalizing any activities involved with drugs and is characterized by penalization or increasing penalties, an emphasis on law enforcement, and the goal of deterring people from using drugs. In 1986, for example, the U.S. Congress established several harsh mandatory mini­ mum sentences for drug offenses.19 In addition, the implementation of drug policies in the United States is dominated by the DEA (Drug Enforcement Administration), which, due to the scope of its functions, mainly deals with the drug problem as a matter of criminal justice, rather than a public health issue (e.g. by spending most of its budget on disruption of drug trafficking through law enforcement). Similarly, U.N.  drug conventions explicitly call for the penalization of any illicit drug production, distribution, and use. U.N.  drug schemes are also dominated by offices that focus on combating crime, such as the U.N. Office on Drugs and Crime (UNODC). The World Health Organization (WHO) is barely involved in drug regulation.20 Few will dispute the fact that the “war on drugs” has (thus far) failed. Its lack of success is reflected in the rising numbers of drug users worldwide, a constantly growing drug market, an increase in drug-related crime (especially in supply-side countries, such as Mexico), and accelerating costs for drug law enforcement.21 There is, however, much dispute on the causes of its failure. Most advocates of strict prohibition regard insufficient resources for law enforcement and inadequate 17   See Ralf Beke-Bramkamp, Die Drogenpolitik der USA, 1969–1990 (1992), 88 ff., 111 ff.; Thomas M. Quinn and Gerald T. McLaughlin, “The Evolution of Federal Drug Control Legislation,” (1973) 22 Catholic University LR 586, in Kreit (n. 2) 101 ff.; Corey Rayburn Yung, “The Emerging Criminal War on Sex Offenders,” (2010) 45 Harvard Civil Rights-Civil Liberties LR 435, in Kreit (n. 2) 109 ff. See with regard to “wars on crime” as a recent development in criminal law, Markus D. Dubber, “Criminal Law: Policing Possession: The War on Crime and the End of Criminal Law,” (2001) 91 Journal of Crim. Law 18 & Criminology 829 ff.   Kreit (n. 2) 101. 19   100 Stat. 3207—Anti-Drug Abuse Act of 1986. See Thomas M. Quinn and Gerald T. McLaughlin, (1973) 22 Catholic University LR 586, in Kreit (n. 2) 101, 107. 20   For examples see Robin Room and Peter Reuter, “How Will International Drug Conventions Protect Public Health?,” (2012) 379 The Lancet 84, in Kreit (n. 2) 845, 846. 21   Gebhardt (n. 16) § 9 n. 94. For a comprehensive study of the failure, see British Strategy Unit Report Phase 1, The Guardian, June 13, 2003, available at: . See for recent statistics, UNODC, World Drug Report 2013, avail­ able at: .

drug offenses   793 actual sentencing of drug offenders as the main causes of failure.22 In contrast, opponents of strict prohibition argue that the “war on drugs” is implemented through improper means, as criminal law is only an instrument which reacts to inflicted harm by means of punishment and is not a policing tool for fighting a war against the risks of drug use.23 Moreover, opponents worry that strict prohib­ ition might even cause more harm, especially by creating a black market governed by violence.24 They call for a policy revision that either embraces liberalization or harm reduction.

2.  The liberalization approach Liberalization approaches aim to curtail the criminal law regulation of drugs and contend that drug use is a recreational activity that should generally be allowed. Some liberalization approaches merely call for decriminalization,25 which might be reached by making exceptions for personal use of (some or all) drugs. This is common practice in many European countries, where possession of small amounts of cannabis is prohibited, but not prosecuted.26 Other liberalization adherents support legalization. There is, however, a consensus that some kind of administrative regulation is needed to prevent harm to users (e.g. by contamin­ ated drugs) and to others (e.g. by driving under influence).27 The regulations proposed resemble those of legal drugs, such as alcohol or medicine, and might include licensing procedures, taxation, age restrictions, limitations on advertis­ ing, mandatory information and directions for use or warning labels, and restric­ tion of sale to certain facilities. The Netherlands became the first country to take steps in this direction when the sale of cannabis in “coffee shops” was exempted from punishment in 1976.28 Since the 1990s, sellers will not be prosecuted if they adhere to the so-called AHOJ-G rules, which include an age restriction (18 years of age), a prohibition on advertisement, and a limit of 5 grams per purchase

  James Q. Wilson, “Against the Legalization of Drugs,” (1990) 89 Commentary 21, in Kreit (n. 2) 70 ff.   Dubber, (2001) 91 Journal of Crim. Law & Criminology 829, 833 f.; Douglas N. Husak, “Guns and Drugs: Case Studies on the Principled Limits of the Criminal Sanction,” (2004) 23 Law and Philosophy 437 ff.; Yung, (2010) Harvard Civil Rights-Civil Liberties Law Review 435, in Kreit (n. 2) 109 ff. 24  Ethan A.  Nadelmann, “Drug Prohibition in the United States:  Costs, Consequences and Alternatives,” (1991) 5 Notre Dame Journal of Law Ethics and Public Policy 783‚ in Kreit (n. 2) 60, 64 f. 25   See with regard to the differentiation of decriminalization and legalization, Bernhard Haffke, “Drogenstrafrecht” (1995) 107 ZStW, 761, 772. 26   In Germany, e.g., see § 31a Betäubungsmittelgesetz (Narcotics Act). 27   See e.g. Klaus Lüderssen, “Das ‘Recht über sich selbst’—Freigabe von Drogen im Rahmen des Arzneimittelrechts,” in Klaus Lüderssen, Abschaffen des Strafens? (1995), 238 ff. 28   Robert J. MacCoun, “What Can We Learn from The Dutch Cannabis Coffeshop System?,” (2011) 106 Addiction 1899, in Kreit (n. 2) 922, 923. One might categorize the first step in the Netherlands as mere decriminalization, but the precise regulations in the 1990s shifted the model to legalization. 22 23

794   beatrice brunhöber per day. More recently, Colorado and Washington D.C. significantly liberalized the recreational use of drugs: the Colorado Amendment 64 and the Washington Initiative 502 were passed on November 6, 2012.29 These measures permit the recreational use of cannabis, but provide several administrative restrictions (e.g. a minimum age of 21 for sellers and buyers, a maximum transfer of one ounce, the restriction of production and sale to licensed facilities, and taxation of the sale).

3.  The harm reduction approach Harm reduction approaches regard the drug issue as primarily a matter of pub­ lic health and focus on protecting the lives and health of drug users.30 This focus includes treatment for drug users (e.g. detoxification, psychosocial intervention, and substance substitution, such as methadone programs), as well as interven­ tion in recreational settings (e.g. by providing information on safer use, access to free water and safe transport, and specialized first aid in nightclubs). Additional measures for harm reduction include prevention and treatment of drug-induced diseases (e.g. HIV testing of drug-injecting users, needle-exchange programs, and safe injection sites), as well as prevention of drug-related deaths (e.g. providing special training to physicians and the provision of naloxone to counter the effects of opiate overdose).31 In contrast to strict prohibition, harm reduction approaches do not necessarily aim at absolute abstinence (a “drug-free world”) and do not see (temporary) abstinence as a prerequisite for aid. The purpose of safer-use informa­ tion, for example, is to encourage responsible drug use.32 And unlike the liberaliza­ tion approach, the main objective of harm reduction is not legalization, although the approach does call for exceptions in acceptance-oriented drug work in order to exempt helpers from punishment (e.g. when handing out syringes to persons using illegally obtained heroin). In 2009, Gil Kerlikowske, the current Director of the U.S. Office of National Drug Control Policy (ONDCP), renounced the long-standing U.S. “war on drugs” since the term is “counter-productive,” as he said.33 He announced an alternative way of   The texts of the new regulations can be found in Kreit (n. 2) 958 ff.   See e.g. Nick Heather, Alex Wodak, Ethan Nadelmann, and Pat O’Hare (eds.), Psychoactive Drugs and Harm Reduction: From Faith to Science (repr. 1993); Ethan A. Nadelmann, “Thinking Seriously About Alternatives to Drug Prohibition,” (1992) 3 Daedalus 85 ff. 31   European Monitoring Centre for Drugs and Drug Addiction (ed.), European Drug Report 2013. Trends and Developments (2013), 47 ff. 32   See the German “Nationale Strategie zur Drogen- und Suchtpolitik der Bundesregierung,” Feb. 15, 2012, 52, available at: . 33   Gary Fields, “White House Czar Calls for End to ‘War on Drugs,’ ” The Wall Street Journal, May 14, 2009, available at: . 29

30

drug offenses   795 addressing the drug issue that is grounded on strict prohibition, but takes health issues into consideration (e.g. the federal refusal to fund needle-exchange programs was abandoned). Nevertheless, the United States opposes harm reduction formula­ tions in U.N. documents.34 It is not yet possible to determine whether Kerlikowske’s policy is an alternative approach or just a continuation of strict prohibition (with a few minor exceptions).

4.  Drug policies of supply-side countries Since international drug regulation is strongly dominated by demand-side coun­ tries, especially the United States and the European Union, the specific problems of supply-side countries are rarely taken into consideration. One of the distinct problems of these countries is that most of the harm is caused by drug-related crime rather than by drug use. In Mexico, for instance, homicides associated with organized crime involved in drug trafficking have dramatically increased over the last decade (with about 9,000 killings from 2001 to 2006 and almost 35,000 killings from 2007 to 2010).35 Drug-related violence increasingly affects innocent bystanders (e.g. due to the use of explosive devices) and (noncoopera­ tive) political officials.36 There is much dispute about the causes of this increase in violence as well as about the best way for the government to respond to it. Recent responses by the government can be categorized as strict prohibition approaches. In the 2007 Mérida Initiative, Mexico and other Central American countries agreed to assistance by the United States in fighting their drug-trafficking prob­ lem. This initiative concentrates on confronting drug cartels with military and police power. Most of the U.S. funding is spent on military equipment (e.g. air­ craft, helicopters) and support of the criminal justice system (e.g. law enforce­ ment officer training, witness protection programs, non-intrusive inspection equipment, and case management software).37 An alternative would be to focus on decreasing the allurement of drug-trafficking by introducing social measures in Mexico (e.g. crop substitution programs) and especially by addressing the U.S. demand for Mexican drugs.38 The latter could either be in line with a harm reduction approach through its concentration on the treatment of drug users, thus reducing the number of buyers, or in line with a liberalization approach through legalizing production within the United States, thus reducing demand for drugs produced in Mexico.

  Robin Room and Peter Reuter, (2012) 379 The Lancet 84, in Kreit (n. 2) 845, 846.   Viridiana Ríos and David A.  Shirk, Drug Violence in Mexico, Data and Analysis through 2010, University of San Diego Trans-Border Institute, in Kreit (n. 2), 820 ff. 36 37   Ríos and Shirk (n. 35) 820, 821.   cf. Ríos and Shirk (n. 35) 820, 822. 38   Ríos and Shirk (n. 35) 820, 824. 34 35

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iii.  Criminal Law Regulation of Drugs 1. The underestimated influence of international drug regulation Temporary national drug regulation is strongly influenced by international law, unlike most domestic criminal law, which is still the domain of national legislatures. Drug regulation is mainly governed by three U.N.  treaties:  the 1961 U.N. Single Convention on Narcotic Drugs, as amended in 1972, the 1971 U.N. Convention on Psychotropic Substances, and the 1988 U.N. Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.39 These treaties have led to rela­ tively uniform drug regulation across the globe. Nevertheless, national jurispru­ dence rarely analyzes international law in depth.40 Three factors account for the significance of the treaties. First, although the treaties are not directly applicable, Member States do not have much discretion in their implementation due to their exceptionally detailed requirements. Secondly, compliance is monitored by spe­ cific U.N. boards and pressure has recently led to more and more compliance with U.N. requirements (e.g. in the Netherlands). Thirdly, most countries in the world are parties to at least one of the treaties (each of them has been signed by more than 180 nations).41

2.  Shift from administrative to criminal control in drug regulation International drug regulation has moved from administrative to criminal control with an emphasis on deterrence.42 In the Opium Wars in the mid-nineteenth cen­ tury, Great Britain forced China to remove trade restrictions in order to protect the profitable opium market, which was dominated by British India. With increasing numbers of opium users in the country, the United States initiated an international 39   Hans-Jörg Albrecht, “Internationales Betäubungsmittelrecht und internationale Betäubungsmittel­ kontrolle,” in Kreuzer (n. 1)  § 10 nn. 1 ff.; Syamal Kumar Chatterjee, Legal Aspects of International Drug Control (1981); Daniel Heilmann, “The International Control of Illegal Drugs and the U.N. Treaty Regime: Preventing or Causing Human Rights Violations?,” (2011) 19 Cardozo Journal of International 40 and Comparative Law 217 ff.   Albrecht (n. 39) § 10 n. 4. 41   As of 2011, 184 states had signed the Single Convention, 183 states the Convention of 1971, and 184 the Convention of 1988. 42  For analyses of the development see Albrecht (n. 39)  § 10; Chantal Thomas, “Disciplining Globalization: International Law, Illegal Trade, and the Case of Narcotics,” (2003) 24 Michigan Journal of International Law 549, in Kreit (n. 2) 801, 802 f.; Heilmann, (2011) 19 Cardozo Journal of International and Comparative Law 217 ff.

drug offenses   797 control system for drug production and trade as the twentieth century began. The United States favored restrictions since it was not involved in opium production and trade as much as Great Britain and other countries with colonies. In 1912, the International Opium Convention at The Hague set the twofold framework for later international agreements:  first, specified substances (opium, heroin, and cocaine in the Convention of 1912)  are only to be produced, sold, and used for medical and similarly legitimate purposes under strict supervision. Secondly, other activi­ ties involving these substances, especially recreational use, are to be prevented. The first multilateral agreements mainly sought prevention by restricting production and imports to the quantities reported by the Member States as necessary for med­ ical and similarly legitimate purposes and by subjecting any trade, distribution, and export to strict supervision (e.g. state authorization of traders and limitation of exports to the reported demands). Beginning with the Single Convention in 1961, the prevention model shifted away from this administrative approach to one of criminal prohibition. The Single Convention adopted the model of administrative limitation in previous treaties (cf. Arts 21 and 30), but restricted legitimate purposes to medical and scientific object­ives (Art. 4, para. c) and aimed at strict prohibition of any other use of drugs. After transitional rules had expired (see Art. 49), religious and traditional drug uses were eventually outlawed (e.g. ritual cannabis smoking by some Hindus in India and traditional coca chewing in Bolivia). The Single Convention also required Member States to prevent unauthorized trafficking43 of drugs by penalizing it.44 The Convention of 1971 extended international drug control to a much larger number of substances by including psychotropic drugs, such as amphetamines (“speed,” “crystal meth”), hallucinogens (e.g. “LSD”), and barbiturates (“barbs”). Moreover, it further restricted the legitimate purposes for some substances, stating, for instance, that the medical use of MDMA (“ecstasy”), LSD, and mescaline shall be “very lim­ ited” (Art. 7, para. a). The Convention of 1988 is not concerned with administra­ tive control of drugs; instead, it concentrates on criminal law regulation of drugs and law enforcement. This Convention significantly expanded the list of activities to be criminalized by including, for example, the manufacture of equipment for unauthorized production or financial support of prohibited conduct.45 In addi­ tion, the Convention of 1988 also substantially expanded internationally controlled substances by incorporating precursors into the scheme (i.e. ingredients, such as safrole which is used to produce MDMA). With regard to law enforcement, the Convention of 1988 mainly provides rules for mutual assistance in criminal mat­ ters, especially with regard to extradition (Art. 7). Furthermore, it contains specific requirements for prosecution and execution of sentencing which focus on general   See Title of Art. 35 Single Convention.   Art. 36, para. 1, subpara. a); para. 2, subpara. a) ii. Single Convention. 45   Art. 3, para. 1, subpara. a) iii., iv., v. Convention of 1988. 43

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798   beatrice brunhöber and specific deterrence and leave little room for other aims, such as social reintegra­ tion or the proportionality of the penalty.46 Art. 3, para. 6, for instance, requires that Member States ensure the exercise of discretionary legal powers with due regard for deterrence. Art. 3, para. 7 requires Member States to ensure that discretionary deci­ sions concerning parole and early release take into account that offenses contrary to the Convention are generally deemed to be severe.

3.  International requirements for domestic law The main components of domestic drug regulation are standardized by the Single Convention and the Conventions of 1971 and 1988. These Conventions specify the substances that are to be controlled (a), the twofold control system with exceptions only for medical and scientific purposes (b), and what conduct is to be punished (c).

a)  Substances to be controlled First, the U.N. Conventions specify the substances to be controlled by domestic law according to the international control system.47 For reasons of legal clarity, it was agreed that drug prohibition requires a positive list of prohibited substances. These substances are listed in schedules annexed to the Single Convention and the Convention of 1971. The required control measure depends on the classification of the substance, with Schedules I including the substances assumed to be the most harmful and requiring the strictest regulation. The Single Convention, for instance, classifies heroin as a Schedule I drug which shall be prohibited except for scientific and medical research (not use as with other drugs) if the member state is of the opinion that strict prohibition is the appropriate means of protecting the public health and welfare (Art. 2, para. 5, subpara. b). The Single Convention also classifies cannabis as a Schedule I drug, which puts it under the same strict control regime as heroin. Of the substances controlled by the U.N., cannabis is the most commonly used drug for recreational purposes. Other widely used controlled substances are opium (e.g. morphine, codeine, and heroin), cocaine, and amphetamine. Substances that are not controlled by the U.N. drug control regime include tobacco, alcohol, and caffeine, which are legal in most parts of the world, but often regulated. If the WHO finds additional substances to be addictive and likely to be abused so as to constitute a public health or social problem (Art. 3 Single Convention, Art. 2 Convention of 1971), they may be added to the list of controlled substances of the Single Convention (if narcotic) or the Convention of 1971 (if psychotropic)   Albrecht (n. 39) § 10 n. 32.   With regard to the following, see Albrecht (n. 39) § 10 nn. 5 ff.

46 47

drug offenses   799 according to the procedure stipulated in the respective Convention. Despite its importance, such a decision is not made by all the Member States, but instead by an elected expert body, the U.N. Commission on Narcotic Drugs of the Economic and Social Council (CND). The CND is given full discretion in its decision. It is only bound by the medical and scientific findings of the WHO. And it is subject to review upon request by a Member State, but only by the U.N. Economic and Social Council, not by all Member States. The stated reason for this delegation to an expert commission is the need for an immediate reaction to newly spreading substances. A new challenge to the system of a positive list of controlled substances has emerged with the production of new psychoactive substances (NPS),48 which are not (yet) prohibited by drug law and which imitate the effects of controlled sub­ stances (“designer drugs”). These are either sold on the illicit market (e.g. mephe­ drone until it was listed) or as “legal highs” more openly (e.g. synthetic cannabis, “spice”). NPS are usually riskier than common drugs since less is known about how they affect the human body, what dosage is harmful or even lethal, and how to respond to an overdose. In general, their sale is not prohibited by drug laws as long as the new substance is not listed. Some countries have responded to this challenge by prosecuting the sale of NPS as an offense under medical or trade law.49 Most states continue to classify new NPS as substances prohibited by drug laws.50 In response to this issue, the European Union has established an early warning sys­ tem to inform all Member States about new drugs.51 New Zealand has responded very differently, with a new licensing procedure for NPS that allows the author­ ization of new drugs after testing (New Zealand Psychoactive Substances Act of 17 June 2013). Some states, such as Australia, Canada, and the United States, have responded to NPS by prohibiting analogs of controlled substances.52 The 21 United States Controlled Substances Act section 813, for instance, provides that analogs shall be treated as controlled substances under Schedule I to the Act. The analog provisions are of questionable legitimacy, considering that the principle of legality   See United Nations Office on Drugs and Crime, World Drug Report 2013, xi.   In Germany, e.g., NPS are classified as unauthorized medicine, which makes their sale and dis­ tribution a criminal offense under the Medicinal Products Law (§ 96 no.  4, section 2, para. 1 no.  5 Arzneimittelgesetz). The Bundesverfassungsgericht (BVerfG, German Federal Constitutional Court) has approved these rulings by lower courts, BVerfG, NJW 2006, 2684. In the United Kingdom, the sale of mephedrone as plant food or bath salt was illegal under the Trade Descriptions Act 1968 until Parliament amended the Misuse of Drugs Act 1971 to include mephedrone (The Misuse of Drugs (Amendment) (England, Wales and Scotland) Regulations 2010 No. 1144). 50   Mephedrone, e.g., was classified as an illegal drug in Germany shortly after its use became more prevalent (24. Verordnung zur Änderung betäubungsmittelrechtlicher Vorschriften, Dec. 18 2009, BGBl. I, 3944, effective since Jan. 22, 2010). 51  See: . 52   In Australia, e.g., mephedrone was considered to be an analog to methcathinone which made it illegal (Australian Drug Misuse and Trafficking Act 1985, Schedule I). In Canada mephedrone was clas­ sified as an analog to amphetamine which made it illegal (Canadian Controlled Drugs and Substances Act, Schedule III, section 19). 48

49

800   beatrice brunhöber requires a statute to give adequate and prior notice of what conduct is punish­ able (nulla poena sine lege).53 This principle is based on the guarantee of individual liberty: a person can only freely decide whether to act lawfully or unlawfully if he or she is given fair warning of what is forbidden. Analog provisions make it dif­ ficult to know in advance which substances will be deemed as analogs and thus to act accordingly.54 In addition, these provisions delegate the important decision of whether a substance is to be prohibited to police officers, judges, and juries, which runs the risk of very differing and thus arbitrary application.

b)  Restricted purposes for authorized use Secondly, the U.N. Conventions require a twofold regulation of drugs. Production, manufacture, export, import, distribution, trade, use, and possession of the sub­ stances specified are to be exclusively limited to two objectives: medical and sci­ entific purposes, all other purposes are to be prevented.55 Additionally, for some substances the purposes are further restricted. Substances in Schedule I to the Convention of 1971, such as MDMA, LSD, and mescaline, for instance, shall be pro­ hibited except for scientific and very limited medical purposes (Art. 7, para. a). Member States are not allowed to pursue other objectives with their drug pol­ icies. Hence, allowing the use of cannabis for recreational purposes is generally barred. For this reason, recent legalization of the recreational use of cannabis in Washington D.C. and Colorado56 conflicts with international law.57 U.N. drug regu­ lation also forbids the toleration of traditional or ritual uses of drugs, such as coca chewing in Bolivia. Nevertheless, it should be noted that non-Western traditional medical applications (e.g. the use of cannabis in Ayurvedic systems in India and Pakistan) are considered as medical uses that are permitted under the U.N. drug control regime.58 There is one relevant exception to the restrictions on purposes: Member States are free to allow the cultivation of cannabis for industrial use (for the produc­ tion of paper, clothing, oil, etc.) under a strictly controlled regime.59 Since the 1930s, most countries have prohibited the cultivation of cannabis because of the law enforcement-related problems that arise with the exemptions of individual farmers. After the successful breeding of drug-minimal strains of cannabis plants, a few countries, like Germany in 1996 and Canada in 1998, have legalized the 53  Claus Kreß, “Nulla poena nullum crimen sine lege,” in Max Planck Encyclopedia of Public International Law (2010), available at: . 54   cf. 806 F. Supp. 232 (District Court for the District of Colorado, Nov. 20, 1992). 55   Art. 4, para. c Single Convention; Art. 5, para. 2 Convention of 1971. 56   Colorado Amendment 64 and Washington Initiative 502 were passed on Nov. 6, 2012. 57   cf. Albrecht (n. 39) § 10 n. 53. 58   U.N. Commentary on the Single Convention (1962), prepared by the Secretary-General in accord­ ance with para. 1 of Economic and Social Council resolution 914 D(XXXIV), Art. 28 n. 7, p. 314. 59   Arts. 23 and 28 Single Convention.

drug offenses   801 cultivation of these cannabis plants for industrial use.60 In the United States, a few states, such as Oregon in 2010, have allowed the cultivation of cannabis for indus­ trial use, but approval by the Federal Drug Enforcement Agency is still pending.61 In June 2013, a federal Bill which allows industrial use of cannabis was introduced in Congress.62

c)  Required punishable offenses Thirdly, the U.N. Conventions require certain conduct to be punishable offenses. Even though the Conventions acknowledge that criminal law is mostly governed by legal, moral, religious, and cultural traditions that might differ widely,63 the Conventions explicitly stipulate what kind of conduct is to be punished. They only account for differences through the adoption of broad terms, which allows Member States to demarcate the conduct along the lines of their domestic laws and by admit­ ting escape clauses. As with all international law, Member States might also add reservations to the Conventions. All three Conventions require Member States to penalize the illicit trafficking of controlled substances.64 In addition, the Conventions call for criminalization of participation in, preparation of, conspiracy in, and attempts at committing traffick­ ing offenses.65 The provisions explicitly determine which illicit traffic activities are to be punished, and these include drug production, preparation, possession, sale, import, export, etc.66 The Convention of 1988 adds additional activities: especially organization, management, or financing of illicit traffic,67 money laundering,68 and a series of additional preparatory activities, such as inciting others to commit any of the established offenses69 or distribution of equipment for illicit production of controlled substances.70 All penalizing requirements are limited to offenses com­ mitted “intentionally,” meaning willfully or knowingly, but Member States can pun­ ish unintentional violations due to culpable negligence.71

60   In Germany with the 2nd Amendment to the Betäubungsmittelgesetz (Narcotics Act), Apr. 4, 1996, BGBl. I, 582. In Canada with the Industrial Hemp Regulations SOR/98-156 of Mar. 12, 1998. 61   Oregon Senate Bill 676, effective date Jan. 1, 2010. 62   H.R. 525—Industrial Hemp Farming Act of 2013, 113th Congress (2013–2014). 63   U.N. Commentary (n. 58) 425. 64   Art. 36, para. 1, subpara. a) Single Convention; Art. 22, para. 1, subpara. a) Convention of 1971; Art. 3, para. 1, subpara. a) i., ii. Convention of 1988. 65   Art. 36, para. 2 subpara. a) ii. Single Convention, Art. 22, para. 2, subpara. a) ii. Convention of 66 1971, Art. 3, para. 1, subpara. c) iv. Convention of 1988.   See n. 63. 67   Art. 3, para. 1, subpara. a) v. Convention of 1988. 68   Art. 3, para. b) Convention of 1988. 69   Art. 3, para. 1, subpara. c) iii. Convention of 1988. 70   Art. 3, para. 1, subpara. a) iv. and subpara. c) ii. Convention of 1988. 71   Art. 36, para. 1, subpara. a) Single Convention; Art. 22, para. 1, subpara. a) Convention of 1971; Art. 3, para. 1 Convention of 1988. See U.N. Commentary (n. 58) 428.

802   beatrice brunhöber Apart from trafficking, the Convention of 1988 explicitly calls for the very con­ troversial penalization of possession, purchase, or cultivation for personal con­ sumption.72 A few states have made reservations to this provision.73 Critics of the requirement to criminalize possession for personal use argue that deeming mere possession as an offense contravenes fundamental principles of criminal law. First, criminal punishment requires liability on the part of the offender, which is why a crime usually presupposes an act (or a failure to act). Penalization for pos­ session, however, targets a mere condition (being in possession of something)74 and not the act of acquiring possession (e.g. purchase). Secondly, possession offenses lower the standard of proof.75 It is easier to prove the fact of possession than activities such as sale, purchase, or even use of drugs. Possession is already proven by merely finding drugs on someone whereas witnesses etc. are needed to prove the sale of drugs. The Conventions contain two escape clauses. The obligation of the Member States to make activities of illicit traffic punishable offenses is subject to “constitutional limi­ tations”;76 the U.N. Commentary on the Single Convention, however, states that no such limitations are known.77 The obligations with regard to participatory acts, pre­ paratory acts, conspiracy, and attempts are also subject to domestic fundamental legal principles.78 If, for example, only attempts at more severe offenses ought to be punish­ able according to the principles governing the law of a Member State, the respective state is only required to criminalize attempts of more serious trafficking.79 Based on the proportionality principle of many Western constitutions, commentators argue that the requirement to punish mere possession is at least limited to severe cases, thus calling for restricting elements of the offense, such as minimum quantities or intent to use.80 Even though the Conventions require the enumerated activities to be “punish­ able offenses,” there is a wide scope of discretion with regard to the punishment to be imposed. Sanctions include imprisonment and punitive fines, but may also include

72   Art. 3, para. 2 1988 Convention. With regard to the Single Convention and the Convention of 1971 it was argued that they did not require penalizing possession for personal use since they dealt with 73 trafficking offenses; see U.N. Commentary (n. 58) 428.   e.g. Switzerland. 74  Ken Eckstein, Besitz als Straftat (2001), 261 ff.; Friedrich-Christian Schroeder, “Besitz als Straftat,” (2007) 11 Zeitschrift für Internationale Strafrechtsdogmatik 444 ff., 448 f.; Eberhard Struensee, “Besitzdelikte,” in Festschrift für Gerald Grünewald (1999), 713, 716 ff. Also see Dubber, (2001) 91 Journal of Crim. Law & Criminology 829, 859; Ken Eckstein, “Grundlagen und aktuelle Probleme der Besitzdelikte,” (2005) 117 ZStW 107, 114; Otto Lagodny, Strafrecht vor den Schranken der Grundrechte (1996), 325 ff. 75  Eckstein, Besitz (n. 74) 97 ff., 103 ff., 239 ff.; Eckstein, (2005) 117 ZStW, 107, 115; Lagodny (n. 74) 327 f. 76   Art. 36, para. 1, subpara. a) Single Convention; Art. 22, para. 1, subpara. a) Convention of 1971. 77   U.N. Commentary (n. 58) 429. 78   Art. 36, para. 2 Single Convention; Art. 22, para. 2 Convention of 1971; Art. 3, para. 1, subpara. c) 79 Convention of 1988. See U.N. Commentary (n. 58) 431.   U.N. Commentary (n. 58) 433. 80   Albrecht (n. 39) § 10 nn. 60 ff., 64.

drug offenses   803 administrative fines (e.g. Bußgeld according to German law).81 These provisions do, however, bar measures which would abandon any sanctions, by, for instance, per­ mitting the sale of cannabis for recreational use.82 Furthermore, the Conventions require “penalties of deprivation of liberty,” such as imprisonment, for offenses that are “serious.” The Convention of 1988 stipulates certain circumstances that are to be regarded as aggravating elements in trafficking offenses (e.g. the involvement of the offender in an organized criminal group, use of violence or arms, victimization or use of minors, offenses in or near educational institutions, and prior conviction in similar offenses).83 This requirement emphasizes the goal of deterrence84 and leaves little room for alternative goals, like social reintegration of the offender. Measures such as treatment, education, aftercare, rehabilitation, or social integration are to be established merely in addition to punishment.85 Only cases of a less serious nature or of possession, purchase, or cultivation for personal consumption, allow for such alternative measures to punishment.86

iv.  Is It Just to Criminalize Recreational Drug Use? I now return to the initial question in this chapter: is it right to curb liberty in order to prevent the risks of drugs? In other words, is it just to criminalize recreational drug use?87 Although drug proscriptions prohibit a wide array of conduct, my deliberations will focus on the core of drug regulation: the inhibition of recreational drug use.88 The underlying idea of most drug laws is that the elimination of drug use will pre­ vent the detrimental effects associated with it. In spite of some statutory schemes that do not criminalize use as such, most drug laws prohibit any activities necessary 81   The reason is that the sanction of Bußgeld is categorized as criminal punishment in international law (other than in German law which sees Bußgeld as a mere administrative reaction). cf. Albrecht 82 83 (n. 39) § 10 nn. 54 ff.   Albrecht (n. 39) § 10 n. 53.   Art. 3, para. 5 Convention of 1988. 84   U.N. Commentary (n. 58) 429 states that a “deterring effect” of the sanctions is desired. 85   Art. 3, para. 4, subpara. b) Convention of 1988. 86   Art. 3, para. 4, subparas. c) and d). See also Art. 22, para. 1, subpara. b) Convention of 1971; Art. 36, para. 1, subpara. b) Single Convention as amended 1972, which allowed treatment as an alternative to punishment for addicted offenders. 87   For further thoughts—to which I  am greatly indebted—see Husak (n. 3); Nestler (n. 1)  § 11. See also Cornelius Nestler, Betäubungsmittelstrafrecht. Bürgerautonomie und Drogenkontrolle durch Strafrecht (1998); Cornelius Nestler, “Constitutional Principles, Criminal Law Principles and German 88 Drug Law,” (1997) 2 Buffalo Crim. LR 661 ff.   See generally Nestler (n. 1) § 11 nn. 49 ff.

804   beatrice brunhöber for the consumption of drugs, such as their acquisition and possession. Though prohibition of drug trafficking might also aim at drying up financial sources for organized crime, it primarily strives to cut off supplies for drug use. In order to accomplish this objective, drug laws mainly aim at deterring drug use. In sum, most of the conduct criminalized by drug laws is preliminary to drug use (e.g. importation, acquisition, and possession of drugs). Most commenta­ tors agree that criminalizing preliminary conduct has to be capable of bring­ ing about a result that would justify punishment of an accomplished offense.89 If it is not justifiable to penalize conduct that leads to a specific result, prohib­ ition of conduct bearing only the risk of that very result is a fortiori unjustifiable. It is justifiable, for example, to criminalize attempted theft in order to protect the victim’s property from completion of this action. Prohibition of practicing to blow a whistle, however, is not justifiable because finally blowing a whistle does not bring about any results that would warrant criminalization. Hence, if defense of prohibition of drug use is untenable, justification for criminalization of preliminary acts, such as possession of drugs or drug market activities, is also unfounded. In the public debate on drugs, the advocates of decriminalization appear to be the ones who have to prove their point.90 In a society based on the principle of lib­ erty, however, the burden of proof is borne by those who support criminalization.91 The premise of freedom necessitates justification for state interference in a person’s action. Justification of drug laws can be roughly divided into two categories (although these are often combined): arguments regarding the detriments which users inflict upon themselves (1) and arguments regarding the detriments users inflict upon others or upon society (2).92

89   First Joel Feinberg, The Moral Limits of the Criminal Law, Vol. 1: Harm to Others (1987), 189 ff.; see also Douglas N. Husak, “Illicit Drugs: A Test of Joel Feinberg’s The Moral Limits of the Criminal Law,” (2008) 10 Libertaria, in Kreit (n. 2) 35, 36 f.; Douglas N. Husak, Overcriminalization: The Limits of the Criminal Law (2008), 165 f.; Nestler (n. 1) § 11 n. 100; Lüderssen (n. 27) 238 ff., 241; Andrew P. Simester and Andrew von Hirsch, “Remote Harms and Non-Constitutive Crimes,” (2009) 28 Criminal Justice Ethics 89 ff., 91; Lucia Zedner, “Fixing the Future? The Pre-Emptive Turn in Criminal Justice,” in Bernadette McSherry, Alan Norrie, and Simon Bronitt (eds.), Regulating Deviance (2009), 35 ff. 90   e.g. James Ostrowski, “Moral and Practical Case for Drug Legalization,” (1990) 18 Hofstra LR 607, 619. See Winfried Hassemer, “Entkriminalisierung im Betäubungsmittelstrafrecht,” (1993) KritV 198, 208; Husak (n. 3) 59. 91   John Kleinig, “Ethical Issues in Substance Use Intervention,” (2004) 39 Substance Use & Misuse 369, 371. This consideration might be based on Kant’s philosophy, see Immanuel Kant, “Metaphysik der Sitten (1797), Einleitung in die Rechtslehre, § B, § C,” in Königlich Preußische Akademie der Wissenschaften (ed.), Kants Werke, Vol. 6 (repr. 1968), 229 ff.; see also Michael Köhler, “Freiheitliches Rechtsprinzip und Betäubungsmittelstrafrecht,” (1992) 104 ZStW 3 ff., 10 ff., 15. The consideration might alternatively be based on Mill’s theory, see John Stuart Mill, On Liberty (ed. John Gray and G. W. 92 Smith, repr. 1996).   Those categories stem from Husak (n. 3) 71 ff., 145 ff.

drug offenses   805

1.  Protection of drug users Though rarely developed as an argument, justification for drug laws often impli­ citly rests on the idea that drug use per se is immoral.93 Such an argument might be categorized as legal moralism, which assumes that the moral wrongfulness of an act is sufficient to render it punishable. Many terms describing drug use have a moral connotation. Commentators speak of “drug abuse,” for instance, and not of “con­ trolled substance consumption.”94 Consequences commonly associated with drug use are also widely considered immoral: drug users are portrayed as bad neighbors, poor parents, school dropouts, or the dregs of society.95 Drug use is characterized as degrading, self-indulging, and an act that results in loss of control. Political scientist James Q. Wilson argues: “Tobacco shortens one’s life, cocaine debases it. Nicotine alters one’s habits, cocaine alters one’s soul.”96 The underlying presumption is that drug use conflicts with a certain concept of virtue (e.g. with the protestant idea of temperance). Accordingly, prohibition of drug use aims at improving a person’s character. There are two possible arguments in response to such legal moralism. First of all, obtaining approval for a certain idea of virtue is difficult in a secular state.97 Secondly, according to most criminalization theories, criminalization of an act can only be justified on the basis that the act inflicts harm or violates rights, but not on the mere immorality of the act.98 Drug prohibition is often considered necessary to protect against drug-induced death, disease, and addiction, which would interfere with individuals’ long-term capacity for autonomy. In Joel Feinberg’s tradition of thought,99 such consider­ ations are classified as “hard” paternalism, which means limiting a person’s right to decide, for his or her own good, despite the voluntariness and competence of his or her action or choice.100 As John Kleinig points out, if a person’s long-term intents, plans, and values are constantly hindered by using drugs, the person’s own view justifies the prohibition of drug use.101 It is, however, rare for a person perma­ nently to set aside his or her own immediate pleasures in favor of accomplishing long-term goals. The decision to abstain from instant satisfaction may widely vary.   With regard to the following, see Husak (n. 3) 64 ff.   See for an early critic of the missing differentiation of excessive and controlled drug use, Norman E. Zinberg, Drug, Set, and Setting, The Basis for Controlled Intoxicant Use (1984), 19 ff. 95   William Bennett, former director of the U.S. Office of National Drug Control Policy, in his “National Drug Control Strategy” (1989) as cited by Husak (n. 3) 166. 96   Wilson, (1990) 89 Commentary 21, in Kreit (n. 2), 70, 76. 97  David A.  J. Richards, Sex, Drugs, Death, and the Law:  An Essay on Human Rights and Overcriminalization (1982), 171 f. 98   See generally Tatjana Hörnle, Grob anstößiges Verhalten (2005) with further references at 1 fn. 4; Tatjana Hörnle, “Theories of Criminalization,” Chapter 30 in this volume, Section III.2.d. 99   Joel Feinberg, The Moral Limits of the Criminal Law, Vol. 3: Harm to Self (1986), 12 ff.; Stephan Kirste, “Harter und weicher Rechtspaternalismus,” (2011) Juristenzeitung 805 ff. 100   e.g. Patrick A. Devlin, “Law, Democracy, and Morality,” (1962) 110 University of Pennsylvania LR 101 635 ff.   John Kleinig, Paternalism (1984), 67 f. 93

94

806   beatrice brunhöber Hard paternalism purports (objectively) to know how people should set priorities in such matters. To be plausible, hard paternalism would have to demonstrate evi­ dence that it is better to refrain from drugs in all cases.102 Advocates of hard pater­ nalism usually support their conclusion with arguments concerning the lethal and health risks of drugs, as well as the risk of addiction. Evidence on lethal and health risks is far more inconclusive than generally acknowledged. First, the fact should be taken into account that specific risks differ greatly from drug to drug and that illicit drugs are not necessarily more harmful than legal drugs. There are, for instance, no reported cases of deaths caused by an overdose on cannabis, which is not the case with alcohol,103 and there is little disagreement on LSD being nonaddictive.104 Evidence shows that not only illicit drugs, such as heroin and crack cocaine, but also alcohol are among the most harmful drugs for users.105 Secondly, it should be noted that prohibition greatly increases many health risks.106 Uncontrolled production, for example, promotes contamination and uncertain dosages, which might result in intoxication and overdose. Moreover, the high prices on a black market encourage more intense and riskier forms of application, such as injection. And the injection of drugs increases the risk of transmitting many severe diseases, such as HIV and hepatitis C. Last, but not least, quite a few legal activities are at least as risky as drug consumption (e.g. motorcycling or mountain climbing). The most important argument in favor of drug prohibition is that addiction ren­ ders the decision to use a drug nonvoluntary.107 Based on Feinberg’s line of rea­ soning,108 this argument might be considered as “soft” paternalism, which means interference in cases in which a person’s choice or action is not genuinely his or her own because he or she is incapacitated, strongly pressured, or uninformed of relevant facts. The underlying premise is that addiction incapacitates or pressures the drug user so much that he or she literally does not have any choice but to con­ sume the drug.109 Since the concept of addiction is very controversial, assessing the strength of this argument is difficult. The recent International Classification of Diseases by the WHO states that addiction (called “dependence syndrome”) typic­ ally includes “a strong desire to take the drug, difficulties in controlling its use, persisting in its use despite harmful consequences, a higher priority given to drug use than to other activities and obligations, increased tolerance, and sometimes a physical withdrawal state.”110 On this basis, one might conclude that addicted drug   Gerald F. Gaus, “Taking Drugs and Rights Seriously,” (1995) 14 Crim. Justice Ethics 63, 66.  Alcohol is involved in about 10,000 lethal overdoses per year in the United States alone, Nadelmann, (1991) 5 Notre Dame Journal of Law Ethics and Public Policy 783‚ in Kreit (n. 2) 60, 67. 104   Nestler (n. 1) § 11 n. 138. 105   Nutt, King, and Phillips, (2010) 376 The Lancet 1558 ff., 1561. 106   Husak (n. 3) 74 ff.; Köhler, (1992) 104 ZStW 3 ff., 10 ff. 107   See generally Husak (n. 3) 100 ff.; Nestler (n. 1) § 11 nn. 131 ff. 108 109   Feinberg (n. 99) 12 ff.   Husak (n. 3) 100 ff.; Nestler (n. 1) § 11 nn. 131 ff. 110   ICD-10, F-10. 102 103

drug offenses   807 users do not live up to the autonomy ideal, as it is spelled out by Harry Frankfurt and Gerald Dworkin.111 On their definition, autonomy is a person’s capacity to gov­ ern her immediate decisions according to primary values. Hence, an addict who wants to quit, but repeatedly continues to take drugs qualifies as non-autonomous. However, this does not render the addict’s choice to use a certain drug on a spe­ cific occasion nonvoluntary.112 She might not live an autonomous, self-reflected and coherent life, but she is still capable of deciding and acting on her immediate prefer­ ences. She still has a choice to take the drug or not. What remains is the question of whether the threat of physical withdrawal is so overwhelming that the decision to take drugs repeatedly can no longer be considered as free.113 The plausibility of this argument is contested on the grounds that even drugs associated with severe with­ drawal symptoms do not lead to pain qualifying as compulsive.114 It is worth noting that withdrawal symptoms are often overestimated. Even discontinuation of heroin use, for instance, only causes flu-like symptoms for about a week.115 In addition, withdrawal symptoms can easily be avoided by substitution (e.g. methadone for heroin) or greatly reduced by medication. Moreover, many drugs cause little (e.g. cocaine, cannabis) or no (e.g. LSD) physical withdrawal symptoms.116 Finally, it is argued that addiction cannot play a role in assessment of freedom of choice for the many drug users who only take drugs occasionally or who decide to begin taking drugs again after a period of abstinence.117

2.  Protection of non-users Even if the protection against self-inflicted harm is hard to justify, one might say that drug prohibition is necessary in order to protect non-users and society from the detrimental effects of drug use. Most advocates of drug prohibition contend that drug use burdens society by reducing productivity, causing people not to fulfill their social duties, and contrib­ uting to high healthcare costs.118 Decriminalization would, as they argue, increase these costs because many more people would take drugs if they were legal. This argument can be qualified as utilitarian.119 The underlying assumption is that the societal advantages of drug prohibition outweigh the disadvantages. This strand 111   Gerald Dworkin, The Theory and Practice of Autonomy (1988), 3 ff.; Harry Frankfurt, “Freedom of the Will and the Concept of a Person,” (1971) 68 The Journal of Philosophy 5 ff. Michael Köhler comes to similar conclusions on the basis of Kant’s moral principle of autonomy, see Köhler, (1992) 104 ZStW 112 113 3 ff., 18 f.   Gaus, (1995) 14 Crim. Justice Ethics 63, 64.   Husak (n. 3) 107 ff. 114 115   Husak (n. 3) 106 ff.; Nestler (n. 1) § 11 n. 150 ff.   Nestler (n. 1) § 11 n. 155. 116 117   Nestler (n. 1) § 11 n. 162.   Nestler (n. 1) § 11 n. 159. 118   e.g. Mark A. R. Kleiman and Aaron J. Saiger, (1990) 18 Hofstra LR 527, 532; John Kaplan, “Taking Drugs Seriously,” (1988) 92 The Public Interest, 32, 37. 119   See generally John Stuart Mill, Utilitarianism (ed. Roger Crisp, 1999).

808   beatrice brunhöber of thought is confronted by the usual objections to utilitarianism, namely that it justifies unjust results if they are more useful and that it is impossible to know all advantages and disadvantages or to designate an accurate value to each of them.120 Furthermore, it is noted that utilitarian justifications of drug prohibition sometimes do not assess the purported benefits.121 The main benefit of prohibition is said to be the discouragement of use and thus the minimization of social costs. It is contested, however, that criminal prohibition actually deters people from drug use to a large extent.122 The effect of punishment as a deterrent is proportional to the expected possibility of being prosecuted, which is inherently small with regard to drug offenses since there are no victims of the crime to notify the police.123 In addition, most utilitarian justifications of drug prohibition do not give much serious thought to the disadvantages of prohibition, which might include the specific health risks of the black market (see previously), the costs of law enforcement, the consequences of punishment for drug users (social deprivation), and the suspension of the pleasure experienced by most people using drugs.124 Some commentators qualify the objective of public health as a normative goal of drug prohibition, rather than an empirical advantage (“utility”).125 According to major criminalization theories, penalization of an act is limited to conduct which might cause harm or violate rights.126 On this basis, penalization of drug use can only be justified if it harms (or violates) public health.127 It is questionable whether drug use actually has this effect since use by one individual cannot have any meas­ urable effect on overall public health.128 Even if drug use does have a bad effect on the single user’s health, one ill person does not make the whole population diseased. There is only an effect on public health if a lot of people use drugs repeatedly. As   J. J. C. Smart and Bernard Williams, Utilitarianism: For and Against (1991), 77 ff.   Husak (n. 3) 147 ff.; Kleimann and Saiger, (1990) 18 Hofstra LR 527, 548. 122  Lorenz Böllinger, “Betäubungsmittelstrafrecht, Drogenpolitik und Verfassung,” in Bernulf Kanitscheider (ed.), Drogenkonsum—bekämpfen oder freigeben? (2000), 179 ff., 185; Husak (n. 3) 151 ff. 123   Böllinger (n. 122) 185 ff. See generally Karl F. Schumann, Positive Generalprävention (1989). 124   Husak (n. 3) 158. 125  As stated by the Bundesverfassungsgericht (BVerfG, German Federal Constitutional Court) BVerfGE 90, 145, 174 referencing the explanatory memorandums to the German Betäubungsmittel­ gesetz (Controlled Substances Act) of 1971, Bundesrats-Drucksache 665/70 [neu], 2 and of 1981, Bundestags-Drucksache 8/3551, 23 f. See the critic of Hans-Ulrich Paeffgen, “Betäubungsmittel-Strafrecht und der Bundesgerichtshof,” in 50 Jahre Bundesgerichtshof, Festgabe aus der Wissenschaft, Vol. 4 (2000), 695 ff., 696 ff. 126   The harm principle as spelled out by Feinberg, The Moral Limits (n. 89), e.g., or the legal goods theory (Rechtsgutstheorie), as spelled out by Winfried Hassemer, Theorie und Soziologie des Verbrechens (1973). The foundational claim noted previously is a strongly abridged summary of these criminaliza­ tion theories. There is not enough space here to discuss these theories in depth. With regard to crimin­ alization theories, see Hörnle in this volume (n. 98) Section III. 127   Nestler (n. 1) § 11 nn. 262 ff. 128   This problem is discussed under the term Kumulationsdelikte (cumulative offenses) in German law, first Lothar Kuhlen, “Umweltstrafrecht—auf der Suche nach einer neuen Dogmatik,” (1993) 105 ZStW 697, 716. 120 121

drug offenses   809 a result of drug criminalization, the single user is held responsible for the acts of others upon which he or she does not have an influence. It is argued that such far-reaching responsibility violates the principle of culpability by making someone accountable for the acts of others (ex iniuria tertii).129 Such broad responsibility, it is further argued, needs to be limited at least to acts that, if legalized, would consid­ erably increase damage and are cumulatively capable of causing harm.130 As stated earlier, it is disputed whether decriminalization would lead to a substantial increase in drug use since the effect of drug prohibition on actual deterrence from taking drugs is questionable. It should also be noted that many of the health risks of drug use might be caused by prohibition, rather than by drug use as such (see above). Another limit that is widely agreed upon is that petty offenses cannot justify such broad responsibility.131 Under this premise, excluding cases involving small amounts of drugs might be considered. Drug prohibition is frequently based on the argument that it prevents drug-related crime.132 In assessing this rationale, three types of crimes that might be connected to drug use must be differentiated: intoxication-induced crimes, crimes related to obtaining drugs, and black market-related crimes.133 First, drug intoxication might contribute to crimes, especially ones like driving under the influence and violent crimes.134 It should be noted, however, that a drug user is punishable for crimes that he or she actually commits.135 Someone who takes heroin, for example, and then physically harms another person is punishable for assault. Prohibiting drug use in order to prevent drug-induced crimes extends criminal liability to very prelimin­ ary acts. In addition, drug users who do not get violent after taking drugs are held responsible for the few who commit an intoxication-induced crime (and who can be punished for that very crime under non-drug-related provisions). As stated earl­ ier, such broad responsibility requires thorough justification.136 Opponents note that evidence of a correlation between illicit drug intoxication and violent crimes is inconclusive (in contrast to evidence regarding alcohol intoxication).137 Even if the correlation were similar to the one with alcohol intoxication, the vast majority of drug users (as with alcohol drinkers) do not commit violent crimes. Secondly,   Claus Roxin, Strafrecht Allgemeiner Teil, Vol. 1 (4th ed., 2006), § 2 n. 82.   Kuhlen, (1993) 105 ZStW 697, 716 f.; Andrew von Hirsch and Wolfgang Wohlers, “Rechtsgutstheorie und Deliktsstruktur—zu den Kriterien fairer Zurechnung,” in Roland Hefendehl, Andrew von Hirsch, and Wolfgang Wohlers (eds.), Die Rechtsgutstheorie (2003), 196, 207 ff. 131   Kuhlen, 1993 105 ZStW 697, 717. 132   cf. e.g. Wilson, (1990) 89 Commentary 21, in Kreit (n. 2) 70, 75. 133 134   Nestler (n. 1) § 11 nn. 245 ff. with further references.   Nestler (n. 1) § 11 nn. 250 ff. 135   The offender can only be punished for the intoxication-induced crime if she was responsible despite intoxication. However, in the case of incapacitation, she might be punished for intentionally or negligently putting herself into an intoxicated state which might lead to committing a crime (which is an independent offense in many penal codes, e.g. in Germany based on the legal concept of actio libera 136 in causa or on § 323a Strafgesetzbuch (German Criminal Code).   See text accompanying n. 128. 137   Nestler (n. 1) § 11 n. 252. 129 130

810   beatrice brunhöber many drug users commit crimes in order to pay for their drugs.138 Here, too, it should be noted that a drug user who actually steals money to pay for drugs is punishable for theft. In addition, it is argued that decriminalization might reduce these crimes by eliminating a black market that is responsible for extremely high prices and by diminishing criminal prosecution of drug users, which contributes to unemployment and insufficient income to purchase drugs.139 Thirdly, crime is related to the illegal market.140 Due to the lack of state regulation, disputes about agreements and competition for shares in the illegal market are often settled with violence. Moreover, an illegal market promotes bribery of law enforcement agen­ cies and money laundering. It has, however, been pointed out that these crimes are closely connected to the market being illegal and thus might disappear with its legalization.141

v. Conclusion In conclusion, criminalizing drug use leads to a puzzling paradox.142 On the one hand, drugs are harmful. Damage from their use ranges from serious health prob­ lems of users to social costs brought about by drug users who no longer fulfill their social duties (as parents, employees, etc.). On the other hand, using criminal law as a response to these problems makes close regulation of drugs difficult, if not impossible. The administrative control of production, sale, and use that governs legal drugs, such as alcohol or medicines, cannot be applied to an illegal market. In a black market, the government cannot require clinical testing prior to approval of a drug, prohibit dangerous ingredients, proscribe certain levels of active components, subject sale of drugs to age restrictions, or limit consumption to certain locations. Despite prohibition, the numbers of drug users constantly rise. Under a prohib­ ition regime, however, the government has no means of protecting the many drug users from uninformed consumption and health risks or to promote responsible use which would reduce harm to others. A  system of administrative regulation, rather than one of control by criminal law, would put the authority back into the hands of government.

139   Nestler (n. 1) § 11 n. 247.   Nestler (n. 1) § 11 nn. 248 f.   Nestler (n. 1) § 11 nn. 246 f. 141   Winfried Hassemer, “Entkriminalisierung im Betäubungsmittelstrafrecht,” (1993) KritV 198, 205; Kurt Schmoke, “An Argument in Favor of Decriminalization,” (1990) 18 Hofstra LR 501, 505. 142   Hassemer, (1993) KritV 198, 207. 138

140

drug offenses   811

References Böllinger, Lorenz (ed.), De-Americanizing Drug Policy: The Search for Alternatives for failed Repression (1994) Chatterjee, Syamal Kumar, Legal Aspects of International Drug Control (1981) Dubber, Markus D., “Criminal Law: Policing Possession: The War on Crime and the End of Criminal Law,” (2001) 91 Journal of Crim. Law & Criminology 829 Eckstein, Ken, Besitz als Straftat (2001) Haffke, Bernhard, “Drogenstrafrecht,” (1995) 107 ZStW 761 Hassemer, Winfried, “Entkriminalisierung des Betäubungsmittelstrafrechts,” in Hassemer, Winfried, Strafen im Rechtsstaat (2000), 229 Heather, Nick, Wodak, Alex, Nadelmann, Ethan, and O’Hare, Pat (eds.), Psychoactive Drugs and Harm Reduction: From Faith to Science (repr. 1993) Husak, Douglas N., Drugs and Rights (1992) Köhler, Michael, “Freiheitliches Rechtsprinzip und Betäubungsmittelstrafrecht,” (1992) 104 ZStW 3 Kreit, Alex (ed.), Controlled Substances. Crime, Regulation, and Policy (2013) Kreuzer, Arthur (ed.), Handbuch des Betäubungsmittelstrafrechts (1998) Lüderssen, Klaus, “Das ‘Recht über sich selbst’—Freigabe von Drogen im Rahmen des Arzneimittelrechts,” in Lüderssen, Klaus, Abschaffen des Strafens (1995), 238 Nestler, Cornelius, “Constitutional Principles, Criminal Law Principles and German Drug Law,” (1997) 2 Buffalo Crim. LR 661 Nestler, Cornelius, Betäubungsmittelstrafrecht. Bürgerautonomie und Drogenkontrolle durch Strafrecht (1998) United Nations Office on Drugs and Crime (UNODC), World Drug Report 2013, available at: 

­c hapter 36

TERRORISM kent roach

i.  Introduction to Terrorism and the Law Professor Conor Gearty has recently acknowledged the need for laws “to pre­ vent the destructive acts that threaten our security” including those involving planning, preparation, and incitement of terrorist violence. Nevertheless, he argues that these wrongs must be characterized as criminal in order to protect the liberty of the least powerful and to ensure the basics of justice including “open justice; a presumption of innocence; careful rules of evidence to prevent abuse; an independent system of sentencing, and much else besides.”1 I  agree with Professor Gearty that the criminal law is preferable to its less restrained alternatives including military detention, military or administrative trials, and assassination.2 The criminal law holds out a promise of justice and accuracy that is not present in less restrained and exacting measures that accept “collateral damage” and false positives as a necessary cost of business. The eventual over­ turning of wrongful convictions in the Irish terrorist cases of the Birmingham Six and Guildford Four cases stand as a testament to the criminal law’s concern about accuracy and guilt, concerns that unfortunately seemed to have taken a

  Conor Gearty, Liberty and Security (2013), 115, 45.   Kent Roach, “The Criminal Law and its Less Restrained Alternatives,” in Victor Ramraj et  al. (eds.), Global Anti-Terrorism Law and Policy, (2nd ed., 2012). 1

2

terrorism   813 back seat in the overinclusive use of military detention by the United States at Guantánamo Bay, Cuba3 and the acceptance of collateral damage in its targeted killing regime.4 At the same time, there is a danger in simplistic demands for “charge or release”5 and nostalgic celebration of the eventual exoneration of those wrongly convicted in the 1980s. The criminal law has changed in a manner that makes it much more difficult today to conclude that anyone has been wrongly convicted of terrorism. In part in response to Security Council Resolution 1373 issued in the wake of 9/11, leg­ islatures throughout the world have created a mind-boggling raft of new terrorism offenses. Becoming a terrorist is now, as Victor Tadros has argued, “much easier” than becoming a murderer because “one can become a terrorist simply by collect­ ing information or by possessing articles which might be useful to terrorists. One is a terrorist by holding funds that might be used for terrorist activities” including in foreign countries.6 As Professor Tadros notes, this expansion of terrorism law has implications for proportionate retributive punishment. Even more fundamen­ tally, overbroad definitions and offenses may define away much of the problem of innocence. The overbreadth of modern terrorism law starts at the source: the definition of terrorism. In the absence of international agreement on a definition of terrorism, terrorism has not been included in the jurisdiction of the International Criminal Court. Domestic legislatures have defined the term broadly in a manner that may capture political dissenters who damage property or disrupt essential services. The U.K. Supreme Court has recently recognized, albeit with some regret and embarrassment,7 that Parliament’s definition of terrorism can capture those who support freedom fighters against repressive regimes and those who fight the mili­ tary during armed conflicts. Legislatures have asserted universal jurisdiction and criminalized terrorism in foreign lands generally without regard to the danger of convicting “terrorists” or “freedom fighters” who oppose repressive and brutal regimes. One need not intend to or help such groups engage in violence to be a 3   Kent Roach and Gary Trotter, “Miscarriages of Justice in the War Against Terror,” (2005) 109 Pennsylvania State LR 967. These cases eventually led to the creation of a new criminal justice system institution, the Criminal Cases Review Commissions, committed to ensuring the safety of criminal convictions even after regular appeals were exhausted. 4   President Obama in a 2013 speech on national security while expressing regret and indicating that he and his officials will be “haunted as long as we live” by the killing of innocent people also observed that “ it is a hard fact that U.S. strikes have resulted in civilian casualties, a risk that exists in every war.” Text of Speech, The New York Times, May 23, 2013, available at: . 5  Conor Gearty, “Human Rights in an Age of Counter-Terrorism,” (2005) 58 Current Legal 6 Problems 25.   Victor Tadros, “Justice and Terrorism,” (2007) 10 New Crim. LR 658, 678. 7   R. v. Gul [2013] UKSC 64, [62]–[64] urging legislative restrictions on Parliament’s broad defin­ ition of terrorism but applying them to publications depicting attacks against Coalition Forces in Afghanistan and Iraq.

814   kent roach terrorist: associating with them or giving them resources is often sufficient. New terrorism offenses are statutory versions of inchoate offenses, but depart from inchoate liability by not requiring a specific intent to engage in any particular act of violence. Concerns about the neutrality and integrity of the criminal law are heightened by arguments that Günther Jakobs and others have made that a special kind of “enemy criminal law” can exist alongside the regular criminal law that will be applied in a reciprocal and respectful manner to citizens. Enemy criminal law is characterized by a focus on prevention, a willingness to use disproportion­ ate sanctions and to depart from normal procedures.8 As will be seen, there are some features of modern terrorism law that come dangerously close to “enemy criminal law.” An increasing toleration for “enemy criminal law” should not be seen as only the preserve of a few controversial German theorists. Antony Duff has written that in the context of international terrorism “we probably can no longer maintain any simple or clear-cut distinction between crime and war.”9 Much modern terrorism law incorporates various domestic or international lists of terrorist groups. This allows domestic or international executives to use secret intelligence to declare who the enemy is as opposed to allowing independent and open courts to decide on the basis of public evidence if they are guilty of terror­ ism.10 Once the enemy has been listed, an expanded criminal law can do the rest of the work. Even without resort to the problematic notion of “enemy criminal law,” there are grounds to be concerned about post-9/11 terrorism offenses. They come perilously close to punishing people for their associations, their status, and their thoughts.11 Legislators have acted on their growing intolerance of risk by defining new terror­ ism offenses as broadly as possible and often in great detail that leaves little room for judicial reading down. Legislatures have not abandoned fault requirements when drafting new terrorism offenses and have only in relatively rare cases relied on objective fault requirements. At the same time, however, they have defined fault levels so that the prosecutor generally need not establish a specific intent in relation to any particular or indeed any act of terrorist violence. In this way, new terrorism offenses go far beyond traditional forms of inchoate liability such as attempts or conspiracy which generally require proof of a subjective intent to commit a planned or intended act of violence. The most infamous example of this trend is the U.S. Supreme Court’s decision in Holder v. Humanitarian Law Project12 8   Carlos Gómez-Jara Díez, “Enemy Combatants vs. Enemy Criminal Law,” (2008) 11 New Crim. LR 529; Lucia Zedner, “Security, the State and the Citizen:  The Changing Architecture of Criminal Control,” (2010) 13 New Crim. LR 379, 391 ff. 9   R. A.  Duff, “Notes on Punishment and Terrorism,” (2005) 48 American Behavioral Scientist 758, 760. 10   David Paciocco, “Constitutional Casualties of September 11,” (2002) 16 Supreme Court LR (2d) 199. 11 12   Kent Roach, The 9/11 Effect (2011), 449   130 S. Ct. 2705 (2010).

terrorism   815 which held that one can be guilty of material support of terrorism by knowingly contributing to the nonviolent and even humanitarian activities of a listed ter­ rorist group. New offenses designed to prevent terrorism and punish acts that are only remotely related to terrorism raise the risk that post-9/11 failures of criminal justice will likely not be as clear-cut as the notorious wrongful convictions of a previous generation. In other words, guilt in relation to terrorism may have been legislatively defined away. The first section of this chapter will briefly outline a variety of less restrained alternatives to the criminal law that have been used to respond to terrorism. These alternatives help us to understand the values of the criminal law that are worth saving, but that are under pressure to adjust to more efficiently respond to terrorism. The bulk of the chapter will examine how criminal law has expanded to deal with the challenges of preventing terrorism and how this may under­ mine the integrity of the criminal law. Topics to be examined include definitions of terrorism, extraterritorial jurisdiction, and the integration of administrative blacklists into the criminal law. The understandable desire to prevent terrorism has created an incentive for legislatures to stretch the prohibited act of criminal laws so that they apply well before traditional inchoate forms of liability such as attempts, conspiracy, and incitement. The chapter will also examine the lim­ ited capacity of fault requirements to restrain broad definitions of the criminal law. The limited role of defenses, especially entrapment, will be examined as will the pressures that broad terrorism offenses place on principles of proportionate punishment. The conclusion will reflect on whether the criminal law is worth saving as society’s sternest response to terrorism or whether its attempts to adapt to the challenges of preventing terrorism have sacrificed the essential features of a just criminal law. Legislated overbreadth is particularly stark and obvious in the terrorism context, but it also builds on other attempts to use criminal law to preempt a staggering array of risks.13 Criminal laws against terrorism reveal more general weaknesses in modern criminal law especially with respect to the legislature’s ability to define criminal acts broadly and fault requirements nar­ rowly. The result places pressure on principles of proportionate punishment given the severe punishment that is expected given the seriousness of the ulti­ mate harm that is to be adverted. In the end, the criminal law is more restrained than administrative or military detention, trials, and killings, but perhaps not as much as proponents of a criminal law approach to terrorism such as Professor Gearty expect and hope.

13   Lucia Zedner, “Terrorism and Counter-Terrorism:  What is at Risk?,” in Layla Skinns, Michael Scott, and Tony Cox (eds.), Risk (2011), 109–130; Dru Stevenson, “Effect of the National Security Paradigm on Criminal Law,” (2011) 22 Stanford Law & Policy Review 129.

816   kent roach

ii.  Lack of Confidence in the Criminal Law and the Use of Less Restrained Alternatives The post-9/11 era has produced a simultaneous expansion of the criminal law and the increased use of less restrained alternatives to the criminal law. This paradox was most visible in the United States which in the wake of 9/11 created new offenses of harboring terrorism and new criminal investigative powers in the Patriot Act while at the same time declaring war against terrorism in a manner that involved military force, detention, renditions, and targeted killing. If the country that impris­ ons the greatest percentage of its population did not have confidence in the ability of the criminal law to respond to and prevent terrorism, it is understandable why other countries after 9/11 also were attracted to alternatives that did not require proof of guilt beyond a reasonable doubt on the basis of public evidence. Both the United Kingdom and Canada used immigration law as anti-terrorism even while those countries substantially expanded their criminal laws to counteract terror­ ism. Other countries such as Israel, Egypt, Singapore, and Malaysia enacted new criminal laws especially with respect to terrorism financing, but also relied on older forms of administrative and military detention.14

1.  Military detention and trial The United States is notorious for its high imprisonment rate and use of the death penalty and life imprisonment without the possibility of parole. Given this, it is striking that the United States displayed such a lack of confidence in the criminal law in the aftermath of 9/11. The highest officially acknowledged number of detainees at the American military base at Guantánamo was 779 persons. Over 500 of these persons were released under the Bush administration with 72 more being released during the Obama administration and 86 more being approved for release.15 These figures reveal the overinclusive nature of military detention. Military authorities eventu­ ally concluded that the vast majority of those detained at Guantánamo need not be detained. It is difficult to imagine any criminal justice system with a similar acquit­ tal rate, let alone a wrongful conviction rate. At the same time, the fact the Obama

  Roach (n. 11), ch. 3.   Human Rights First, “Guantánamo by the Numbers,” Apr. 9, 2013, available at:  . 14 15

terrorism   817 administration has slotted 46 of the remaining 166 detainees for detention without trial speaks to a continued lack of confidence on the criminal law. Congress’s pro­ hibition on the transfer of Guantánamo detainees to stand trial in the United States even after the conviction and life sentence of Ahmed Ghailani, the one detainee so transferred, underlines this lack of confidence and patience with the criminal law. Ironically, the number of Guantánamo detainees subject to indeterminate military detention without any trial will increase in light of decisions holding that mater­ ial support of terrorism is not a war crime subject to the jurisdiction of military courts.16 Military trials can at least be compared to civilian trials. In contrast, mili­ tary detention without trial until the war against terrorism ends endures as a true legal black hole.

2.  Immigration and administrative detention Before 9/11, the United Kingdom had some of the most developed and severe crim­ inal laws against terrorism. The Terrorism Act 2000 consolidated and regularized decades of experience in prosecuting terrorism in Northern Ireland. Nevertheless, in the months after 9/11, the United Kingdom felt compelled to derogate from the European Convention on Human Rights to authorize the indeterminate adminis­ trative detention of non-citizens suspected of terrorism who could not be deported to countries such as Egypt and Syria because they would be tortured.17 This regime was eventually repealed in 2005 after the House of Lords found that the use of immigration law as anti-terrorism law was discriminatory against non-citizens and disproportionate to a terrorist threat that was not limited to citizens.18 The United Kingdom was not, however, content to rely on its broad terrorism offenses and extensive investigative powers including up to 28 days of preventive arrest. In 2005, it enacted another controversial administrative measure—control orders—which were sometimes even used to control a person after they were acquitted of crim­ inal offenses. One judge who entered a control order explained that the fact that the accused had been acquitted of conspiracy to bomb transatlantic planes was not determinative because he had seen evidence that the jury at the criminal trial and the accused himself had not.19 Even when it expands, the criminal law faces chal­ lenges from less restrained measures that do not insist on proof of guilt beyond a reasonable doubt on the basis of public evidence. Unlike most criminal trials, administrative measures allow the state to use secret evidence/intelligence not disclosed to the detainee. Here again, the criminal law   Hamdan v. U.S., 696 F.3d 1238 (2012).   Anti-Terrorism, Crime and Security Act 2001, Part IV. 18   A. v. Secretary of State [2004] UKHL 56. 19   Secretary of State v. A.Y. [2009] EWCA 3053 (Admin.), [196]. 16 17

818   kent roach asserts some gravitational force even while the state departs from it. There was extensive litigation both in the United Kingdom and the European Court of Human Rights over how much evidence must be disclosed to those subject to adminis­ trative control orders.20 Both military and administrative detentions and trials are often compared to the criminal model and are often seen by the media and civil society as less legitimate than the criminal trial. This is generally a good thing, but there is a risk of being complacent and nostalgic about the fairness of a criminal law that has to compete with many less restrained means to prevent terrorism. Moves back to the criminal law may increase the legitimacy of counterterrorism more than its fairness. In any event, the possibility of administrative or even military measures may hang over criminal trials should they result in acquittals or sentences perceived to be inadequate.

3.  Extra-legal renditions and legal extraditions Before 9/11, extraordinary or illegal forms of rendition were generally used to bring suspected terrorists to the United States for trial and the U.S. courts held that such illegalities did not deprive them of jurisdiction to try the rendered person in the United States.21 After 9/11, the rendition program mutated from one designed to facilitate terrorism trials in the United States to one designed to allow foreign allies to extract intelligence from detainees. This was part of a more general battle between those, often in the police, who stressed the col­ lection of evidence for criminal trials and those, often in intelligence agencies, who stressed the necessity of collecting intelligence to prevent the next terrorist attack. Intelligence collectors in the CIA and in the military gained the upper hand after 9/11. The result is that it is now difficult and sometimes impossible to prosecute detainees who were tortured. The well-known history of abuses is a testament to what happens when the restraining effects of accountability at subsequent criminal prosecutions—either of the detainee or the interrogating officials—are lost. Although extraordinary renditions represent a particularly malign form of inter­ national cooperation, their legal equivalent are extradition hearings which are designed to provide some legal protections before a person is transferred to face criminal trial in another country. An important topic for criminal law scholars over the next decade may be the effects of such proceedings on the criminal process of other countries. Courts have traditionally treated extradition deferentially with an 20   A. v U.K. (2009) 49 EHRR 301. Similar requirements of disclosing the “gist” of the allegations while also allowing the use of some secret evidence have been imposed by the Canadian courts with respect to immigration detention on security grounds. Canada (Minister of Immigration v. Harkat) 21 2014 SCC 37, [55]–[60].   U.S. v. Alvarez-Machain, 504 U.S. 655 (1992).

terrorism   819 emphasis on diplomatic comity. There are, however, some recent trends for courts to be more assertive about ensuring human rights in the jurisdiction that will receive the fugitive. European and Canadian courts, for example, will insist that effective assurances be given that the death penalty not be applied before a person is extra­ dited and that evidence derived from torture also not be used in the receiving juris­ diction.22 The U.S. Congress has implicitly recognized the reality that extradition proceedings have to respect basic human rights by giving the President the ability to provide assurances that a fugitive will not face military detention or trial if neces­ sary to ensure international cooperation. Extradition proceedings are the legalized analog to renditions. They will become increasingly important as countries assert universal jurisdiction over international terrorism. Countries may have incentives to send terrorist suspects to countries that will treat them more harshly and with less exposure of secrets, but courts will have a role in ensuring that the countries receiving terrorist suspects treat them fairly.

4.  Targeted killing The rise of targeted killings as an alternative to capture, detention, and prosecu­ tion of suspected terrorists provides the most profound challenge to the crim­ inal law because of the absence of criminal law analogs. The only viable analog are rules that authorize the use of lethal force to stop fleeing criminals, but such rules are not transparently applied to targeted killing. The Obama administra­ tion has successfully avoided attempts judicially to review the targeted killing of even American citizens on secrecy grounds.23 Targeted killing allows secret and unreviewed intelligence to be used as evidence to inflict society’s ultimate penalty. Even if courts are prepared to review targeted killings, they are likely to follow the Israeli Supreme Court’s example of defining the targets broadly and accept­ ing some degree of collateral damage as inevitable.24 The acceptance of justified collateral damage is the antithesis of basic criminal law values that insist on only punishing the guilty.

  Othman (Abu Qatada) v. U.K. (2012) 55 EHRR 1 (prohibiting extradition to face trial in Jordan because of real risk of the use of evidence obtained by torture). See also U.S. v. Khadr [2011] ONCA 358 (prohibiting extradition from Canada to the United States to face terrorism charges because of abuses committed with American knowledge when fugitive initially detained in Pakistan). The Canadian courts have, however, allowed extradition of Canadian citizens to the United States on terrorism charges. Sriskandarajah v. U.S. [2012] 3 SCR 609. They have also contemplated that in rare and excep­ tional circumstances, a person could be extradited despite the real risk that evidence derived from torture will be used in the receiving jurisdiction. France v. Diab [2014] ONCA 374, [274]. 23   Al-Aulaqi v. Obama, 727 F. Supp. 2d 1 (2010). 24   Public Committee against Torture v. Israel (HCJ 769/02). 22

820   kent roach

5. Summary A criminal law that effectively competes with targeted killing, administrative and military detention and extradition to countries with tougher terrorism laws will be under pressure to sacrifice many of its fundamental values including its extreme aversion to collateral damage and secret evidence. A criminal law that draws the line at these values may become increasingly peripheral in counterterrorism. Indeed, the recent rise and popularity of targeted killing brings us closer to a dystopian future where drones replace criminal trials at least for suspected terrorists.

iii.  Challenges as the Criminal Law Responds to Terrorism 1.  Defining terrorism In the immediate aftermath of 9/11, the U.N. Security Council in Resolution 1373 used its mandatory powers relating to international peace and security to require all states to ensure that terrorism was treated as a serious crime and that there be criminal prohibitions against the financing of terrorism. This was all done without any guidance about how states should define terrorism. The Security Council acted as if the traditional problems whether terrorism included freedom fighters or state terrorism had evaporated with the World Trade Center. Some point to British pros­ ecutions of Libyan freedom fighters before they overthrew Gaddifi as confirmation that these definitional problems are intractable and can only be tempered by wise and political use of prosecutorial discretion.25 The U.K. Supreme Court concluded in R. v. Gul26 that Parliament’s definition of terrorism “is very far reaching indeed” and could capture “activities by the victims of oppression abroad, which might command a measure of public understanding, and even support in this country . . . ” My own view is that terrorism could have been defined narrowly as killing civilians outside of armed conflict with many difficult freedom fighter and state terrorism issues being resolved through the laws of war.27 The U.K. Supreme Court in Gul, however, concluded even while the 1999 Convention on Terrorism Financing took such an approach, international law has not evolved to produce a consensus about the definition of terrorism. Given that, the court concluded that it had no choice but   Jacqueline Hodgson and Victor Tadros, “The Impossibility of Defining Terrorism,” (2013) 16 New 26 27 Crim. LR 494.   [2013] UKSC 64, [29].   Roach (n. 11) 51–53. 25

terrorism   821 to defer to Parliament’s very broad definition of terrorism that could include attacks against military forces in conditions of armed conflict. Although the 1999 Terrorism Financing Convention provided helpful guidance on a restrained definition of terrorism and Resolution 1373 promoted the Convention in many ways, Resolution 1373 did not help legislatures confront the difficult issues of defining terrorism. Many countries filled the gap left by international disagree­ ment by looking at section 1 of the UK’s Terrorism Act 2000 which defined ter­ rorist activities to include politically or religious motivated property destruction and disruption of electronic systems. This was a broad definition that created risks that illegal protest would be treated as terrorism. It also created a risk that people might be targeted by the state because they shared extreme political and religious views with those prepared to commit terrorist violence. The European Union 2002 Framework Decision also provided a similarly broad template for legislative defin­ itions of terrorism, albeit without relying on proof of political or religious motive and with some exemptions for armed forces who take actions governed by inter­national humanitarian law during armed conflicts as well as for strikes and protests.28 Canada provides a striking example of the differences between a restrained and principled definition of terrorism crafted by the independent judiciary and an overbroad definition created by legislation speedily enacted after 9/11. In 2002, the Supreme Court of Canada recognized the difficulties of defining terrorism including its prior application to Nelson Mandela’s ANC. The Court nevertheless held that a general definition provided in the 1999 Convention on the Suppression of Terrorism Financing should be used in immigration law. This definition only applied to acts “intended to cause death or serious bodily injury to a civilian, or to any other per­ son not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.”29 This minimalist definition “catches the essence of what the world understands by ‘terrorism’ ”30 and would have applied to both the attacks on New York City and the Pentagon. It avoided requiring that acts be committed for politi­ cal or religious reasons to constitute terrorism. It also did not incorporate executive blacklists of enemies. It did not include property damage or disruptions of electronic systems or other essential services. If the U.N. Security Council had promoted such a restrained definition of terrorism and international agreement had been reached, global terrorism laws might today be far more restrained and more neutral. The Canadian judicial definition of terrorism may not be perfect, but it is much more restrained than the Canadian legislative definition of terrorism enacted shortly after 9/11. This legislative definition follows the traditional international law approach first by focusing on techniques such as bombing and hostage taking   Council Framework Decision of June 13, 2002 on Combatting Terrorism 2002/475/JHA. 30   Suresh v. Canada [2002] 1 SCR 3, [98].   Suresh v. Canada, [98].

28

29

822   kent roach prohibited by various international conventions. It also contains a more general definition adapted from the U.K. Terrorism Act 2000. This definition prohibits the intentional infliction of death or serious bodily harm but also substantial property damage or disruption of essential private or public services in a manner that endan­ gers life.31 The latter provision expands the British law but is offset by exemptions for protests or strikes that are not intended to endanger life and acts in armed con­ flicts that are consistent with international law. The Supreme Court of Canada has rejected a challenge that this broad definition of terrorism was overbroad and vio­ lated freedom of expression and religion while at the same time reading down some offenses that incorporate its broad terms so that they would not apply to doctors or lawyers who provided their professional services to known terrorists.32 The differ­ ences between Canada’s judicially and legislatively crafted definitions of terrorism are striking. They underline the problems of legislative overbreadth found in much modern criminal law. The answer cannot be to return to a regime of judge-made crimes, but to ensure that judges rigorously review the legislative product for over­ breadth and compliance with human rights and when necessary invalidate or read down criminal laws that go beyond what is reasonably necessary to achieve their specific purpose. At the same time, judicial remedies for legislative overbreadth will be uncertain and crafted on a case-by-case basis.

2.  Universal and extraterritorial jurisdiction The problems created by overbroad definitions of terrorism are aggravated by the frequent assertion of universal or extraterritorial jurisdiction to prosecute terror­ ism committed abroad. In 2007, the Court of Appeal of England and Wales held that various terrorism offenses would apply to the collection of material that was intended to defeat the Gaddafi regime in Libya. The Court of Appeal appeared to appreciate defense arguments about “the injustice and oppression of the Gaddafi regime” as well as the accused’s assertion that “the proposed opposition movement should not harm civilians or foreigners. Its targets are Colonel Gaddafi himself, his secret police and his army.” It also recognized that “we can look about the world today and identify former ‘terrorists’ who are treated as respected, and in one case at least, an internationally revered statesmen.”33 Despite such recognition of the his­ torical contingency of the terrorism label, the court upheld the terrorist conviction of a Libyan refugee and would-be rebel on the basis that Parliament had defined ter­ rorism to include attacks against any country including the governments of “tyrants   Criminal Code of Canada, RSC 1985 c. C-34, section 83.01.   R. v. Khawaja [2012] SCC 69, [49]–[51], [74]. The author acted as counsel for a civil liberties group that intervened in the case to argue that the definition of terrorism was unconstitutional. 33   R. v. F. [2007] EWCA Crim. 243, [6]‌, [9]. 31

32

terrorism   823 and dictators.”34 The approach in this case was largely confirmed by the Supreme Court in its 2013 decision in Gul which involved the admittedly different facts of publications depicting attacks on Coalition Forces in Afghanistan and Iraq.35 Such approaches dramatically reveal the problems of applying broad definitions of ter­ rorism in an extraterritorial manner and judicial acceptance of unfettered legisla­ tive supremacy in defining crimes. The result, one that seemed apparent even to the judges who affirmed convictions in both cases, is to create a disjunction between legal guilt as provided by the legislature and commonsense understanding of what the world understands as terrorism. Courts should rethink the type of blind defer­ ence to legislative definitions of crimes that produced the discomforting result in the Libyan and Gul cases. The assertion of extraterritorial jurisdiction has also meant that people have been successfully prosecuted for planning acts of violence in war zones. The Supreme Court of Canada had little troubling dismissing an accused’s arguments that his actions in planning acts of violence fell within an exemption for acts consistent with international law during an armed conflict36 British courts have similarly concluded that “those who attacked . . . the Coalition Forces in Afghanistan or Iraq with the requisite intent set out in the Act are terrorists.”37 Post-9/11, states have opportun­ istically employed and blended the distinct concepts of war and terrorism crimes in whatever manner best allows them to incapacitate the enemy. This threatens the integrity of both criminal and war crimes.

3.  Integrating administrative listing processes into the criminal law Much of the practical necessity for the enactment of new terrorism laws after 9/11 was caused by the U.N. Security Council’s demands in Resolution 1373 that each country enact laws against terrorism financing. These laws rely heavily on finan­ cial institutions to enforce asset freezes and to notify authorities about suspicious transactions that may involve terrorists. To this end, lists of terrorists compiled by the Security Council and domestic executives play a fundamental role in facilitat­ ing the enforcement of terrorism financing laws. Bankers need lists. Such lists are, however, problematic for a criminal law that demands proof of guilt in a public trial. Lists of terrorists are a type of individualized bill of attainder of guilt similar to that prohibited under Art. I of the U.S. Constitution. Those placed on a terrorist blacklist have been declared to be guilty of terrorism by the executive often on the basis of secret intelligence and without a trial. To be sure, most listing regimes allow some 35   R. v. F., [26], [32].   [2013] UKSC 64.   R. v. Khawaja [2012] SCC 69, [95]–[103]. 37   R. v. Gul [2012] EWCA Crim. 280, [60]; aff ’d [2013] UKSC 64. 34

36

824   kent roach challenges to be made to particular listings, but such reviews typically stop short of a full trial with public evidence. Executive lists of terrorists declare who is the enemy for the purpose of admin­ istering terrorism laws. Many terrorism laws incorporate such lists. For example, section 2229 (b) of the United States Code makes it an offense punishable by 15 years’ imprisonment to provide material support to a listed foreign terrorist organi­ zation. Section 83.01(1.1) of the Canadian Criminal Code defines a terrorist group to include any listed entity. Executive decisions based on secret evidence is thus substi­ tuted for proof beyond a reasonable doubt on the basis of public evidence that the group is in fact a terrorist group. There are strong arguments that such an approach breaches the right to a fair and public trial and the presumption of innocence.38 These arguments have not been tested, in part because terrorist lists are becoming outmoded as Al Qaeda evolves from a terrorist group to an ideology that can inspire people with no connections to known terrorist groups. The incorporation of listed groups in terrorism laws is a departure from the uni­ versality of criminal laws which are typically aimed at all persons living within the jurisdiction of the court. Terrorist lists define the listed group or individual as a type of “enemy” or “outlaw” rather than as a person subject to the same rules as others. As my colleague Markus Dubber has argued, the idea of enemy criminal law associ­ ated with Günther Jakobs focuses on the concrete status of a particular person as citizen or enemy and defies the traditional abstract and general nature of the crimi­ nal law.39 The appeal of enemy criminal law as a means to deal with terrorists should not be underestimated. The acclaimed legal theorist Antony Duff has flirted with the concept of enemy criminal law when he conceded that “it is not clear that we should treat terrorists as members of, or visitors to, the political communities that they attack rather than enemies with whom we are engaged in a war.”40 The incorpo­ ration of lists of terrorists prepared by the executive moves the criminal law toward a war model which is focused more on harming a known enemy than establishing universal rules that apply to all.

4.  Expanding the prohibited act beyond traditional inchoate liability A distinguishing feature of modern anti-terrorism law is the creation of a wide array of offenses that punish conduct well in advance of any act of terrorism. The Supreme Court of Canada has implicitly recognized that the result is to criminal­ ize conduct that would not satisfy the normal requirements of inchoate liability. It   Paciocco, (2002) 16 Supreme Court LR (2d) 199.   Markus D. Dubber, “Citizenship and Penal Law,” (2010) 13 New Crim. LR 190. 40   R. A. Duff, Answering for Crime (2007), 15. 38

39

terrorism   825 rejected arguments that common law restrictions on combining traditional forms of inchoate liability (i.e. the creation of crimes such as attempted conspiracy) would apply to Canada’s Anti-Terrorism Act. It stressed that the new offenses created after 9/11 were “statutory inchoate offences” and that courts should respect the purposes of the legislature in criminalizing remote risks or even a risk that a risk of terrorism would occur.41 Similar patterns of legislative activism in defining terrorism widely and judicial deference to such clear expressions of legislative intent are seen in deci­ sions from other countries.42 As one leading American commentator has observed, terrorism offenses in the United States go well beyond the traditional laws govern­ ing conspiracy and attempts.43 Terrorism law, like enemy criminal law, is prepared to impose harsh punishment well in advance of the commission of ultimate harm.44 Terrorism law in the United Kingdom is a good demonstration of the expansion­ ist tendencies of terrorism law. Section 54 of the Terrorism Act 2000 creates broad offenses of providing, receiving, or inviting others to receive training for terrorism. These broad offenses have been supplemented with other training offenses in sec­ tions 6 and 8 of the Terrorism Act 2006 including attendance at any place anywhere where terrorist training is provided. Fault requirements do little to discipline the latter offense as they only require that the accused know or ought to know that the place attended is used for terrorist training and not that they intend to receive such training for terrorist purposes.45 As will be seen later, this follows a pattern seen throughout much modern terrorism laws. Fault requirements are retained, but deprived of much of their restraining force because they are related to a broadly defined actus reus that has remote or tenuous connections with actual acts of ter­ rorism. Clive Walker has argued that the end result of the broad British terrorism offenses are that they could be applied to journalists or others who attended training sites for legitimate purposes.46 Even if avoided by the wise exercise of prosecutorial discretion, the possibility of such absurd results should encourage judges to rethink complete judicial deference to the way that legislatures define crimes. Judges should insist that crimes reasonably relate to the mischief that they are designed to address. Even broader than the above training offenses are the frequently used offenses under sections 57 and 58 of the Terrorism Act 2000 of possessing items “which give rise to a reasonable suspicion” that they are for terrorist purposes and the collecting of information likely to be useful to a person preparing or committing an act of ter­ rorism. The courts have struggled with the overbreadth of these offenses but have   R. v. Khawaja [2012] SCC 69.   Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010); R. v. G. and J. [2009] UKHL 13. 43   Robert Chesney, “Beyond Conspiracy?,” (2007) 80 Southern California LR 425. 44   Gómez-Jara Díez, (2008) 11 New Crim. LR 529, 531. 45   The Court of Appeal concluded that section 8 of the Terrorism Act 2006 “creates an offence of attending at terrorist training even for a person who does not have the intention of putting it to ter­ rorist purposes. In such a case he should not be there.” R. v. Da Costa [2009] EWCA Crim. 482, [21]. 46   Clive Walker, Terrorism and the Law (2011), para. 5.21. 41

42

826   kent roach stopped short of requiring that the accused “actually possessed the fertilizer for a purpose connected with the commission of an act of terrorism. That would be to impose on the Crown a requirement that is not to be found in section 57(1).”47 This approach may follow traditional understandings of legislative supremacy, but it can produce convictions that do not deserve the label or punishment of terrorism. It also may discount the enhanced culpability of those who do possess such items for terrorist purposes. What may be necessary is a constitutional doctrine that allows courts to insist that crimes, and especially serious ones such as terrorism, are suffi­ ciently connected to their ultimate objective to warrant the stigma and punishment that befits terrorism. The broad British offenses allow the accused to establish a few defenses, but the use of defenses that have to be established by the accused to mitigate overbroad offenses runs in tension to the presumption of innocence. In any event, the courts have not interpreted the defenses in a particularly generous manner. The House of Lords has rejected an intent “to wind prison officials up” as a reasonable excuse for possessing extremist materials under section 58.48 Although the accused was intended by the legislature to bear the burden of establishing the defenses, human rights considera­ tions have reduced the burden to an evidential one. Even the reduced burden may, however, force accused to testify, thus exposing them to cross-examination about extremist religious or political beliefs. The restraining effects of human rights in the form of the presumption of innocence is minor compared to the ability of the legisla­ ture to define the substance of the offense in extremely broad terms. The disjunction between judicial activism on procedural issues such as the presumption of inno­ cence compared to judicial deference toward the substance of the offense is striking, but follows patterns seen in other countries.49 The end result in the British context is to allow terrorism convictions for the possession of unpopular yet ambiguous mater­ ials. Professors Hodgson and Tadros have argued that the court’s approach allows the state “to make a terrorist out of nothing.”50 Professor Clive Walker similarly con­ cludes that the effect of the offenses is that “not only terrorists may be convicted of terrorism offences.”51 Nevertheless, Parliament has not been deterred from the use of such broad offenses. In 2006, it raised the maximum period of imprisonment for these frequently prosecuted offenses from 10 to 15 years, thus placing pressure on principles of proportionate punishment. Parliament may be defining the problem of innocence away so that it will be much more difficult today than it was in the past to establish that a person was wrongly convicted of a terrorism offense. Broad possession-based terrorism offenses are not limited to the United Kingdom. In 2012 the Australian High Court upheld a conviction of making a document 48   R. v. G. and J. [2009] UKHL 13, [68].   R. v. G. and J., [74].   William Stuntz, The Collapse of the American Criminal Justice System (2011). 50   Victor Tadros and Jacqueline Hodgson, “How to Make a Terrorist out of Nothing,” (2009) 72 51 Modern LR 984.   Clive Walker (n. 46) para. 5.79. 47

49

terrorism   827 connected with assistance in a terrorist act in a case of a journalist and commenta­ tor on Islamic affairs who spent three days downloading, annotating, and writing a preface for a book on the “rules of jihad” that outlined various terrorism techniques including assassinations. The High Court held that the accused’s argument that he was a researcher and a journalist did not satisfy the evidential burden with respect to a defense that the material was not intended to be used to prepare for or engage in terrorism. One judge explained that while the evidence “suggests a reasonable possibility that the [accused] lived a useful and blameless professional life,” it was “entirely neutral about” and not sufficient to suggest that the accused “acted, in this particular instance, with an intention other than facilitating assistance in a terrorist act.”52 Another judge similarly stood the presumption of innocence on its head by acknowledging that even though the accused’s status as a journalist was “not incon­ sistent with the absence of an intention to facilitate assistance in a terrorist act,” this was not sufficient to fulfill the evidential burden.53 Legislative crafting of defenses and evidential burdens in this case challenge the spirit if not the letter of the pre­ sumption of innocence. Those caught with suspect religious and political material had better be able to explain themselves. The criminal law has expanded to incor­ porate elements of risk and an intelligence mindset that focuses more on suspicious activities, statuses, and associations than on acts that are dangerous in themselves or that clearly reveal an intent to engage in violence. In doing so, it has attached the label and punishment of terrorism on those who may well not be terrorists.

5.  The limited restraining effects of fault or mens rea requirements Criminal law reformers influenced by the U.S. Model Penal Code have long bemoaned the fact that legislatures have not systemically addressed the fault requirement of criminal offenses. Terrorism offenses, however, provide an example of what can happen when legislators turn their mind to such matters. The result is not encouraging because fault requirements have done surprisingly little to restrain overbroad terrorism offenses. Legislatures have generally required some fault level for most terrorism offenses, often a subjective fault element, but have generally defined fault levels so that proof of a specific terrorist purpose or intent to commit a specific or any act of terrorist violence are not required. The most famous example is Holder v. Humanitarian Law Project where a majority of the U.S. Supreme Court held that people could be guilty of providing material support to a listed foreign terrorist organization even if they only intended to assist the humanitarian efforts of the listed group. The decision 52

  Queen v. Khazaal [2012] HCA 26, [110].

  Khazaal, [19].

53

828   kent roach illustrates the drastic differences between only requiring subjective knowledge that one is assisting a terrorist group and the additional requirement of having a sub­ jective intent or purpose to assist the group in its terrorist activities. Chief Justice Roberts for the Court rejected reading in a terrorist purpose requirement as “incon­ sistent with the text of the statute . . . Congress plainly spoke to the necessary mental state for a violation . . . and it chose knowledge about the organization’s connection to terrorism, not specific intent to further the organization’s terrorist activities.”54 Here we see the same blind judicial deference to legislative intent seen in the British possession case. Even in the United States, legislative supremacy is alive and well with respect to the substance of the criminal law. Judicial deference to legislative attempts to preclude a requirement of proof of a terrorist purpose is unfortunate because such requirements could do much to restrain terrorism offenses. As Justice Breyer warned in his dissent in Humanitarian Law Project, once subjective knowledge that is one supporting a terrorist group is demonstrated, there is “no natural stopping point.”55 The terrorist offense could apply to lawyers filing briefs on behalf of the group. Two years later, the Canadian Supreme Court concluded that lawyers would not be caught in the same hypothetical but only because the Canadian offense had an additional statutory requirement of acting for the purpose of assisting a terrorist group in terrorism.56 The Canadian example is not terribly robust, however, because Parliament and not the courts included the additional requirement that the accused must not only knowingly contribute to a terrorist group but do so “for the purpose of enhancing the ability of any terrorist group to carry out a terrorist activity.”57 Even though the Canadian courts have constitutionalized subjective mens rea for the most serious crimes such as murder and war crimes, they have only constitutionalized subjective knowledge of the actus reus requirements.58 Such requirements might be satisfied by the major­ ity decision in Humanitarian Law Project. Knowledge of a broadly defined actus reus that is only remotely connected to terrorism could fall well short of proof of a terrorist purpose. What is required to restrain terrorism offenses is a more robust constitutional doctrine that insists on proof of a terrorist purpose before convicting a person of a terrorism offense. This would bring terrorism offenses more in line with the type of fault required for inchoate offenses, albeit without necessarily requiring the prosecu­ tor to establish that an accused planned or attempted a specific terrorist act. A more generic terrorist purpose could suffice, but some such purpose should be necessary to ensure fair labeling and punishment of a person as a terrorist. Regrettably no

  Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2717 (2010).   Holder v. Humanitarian Law Project, 2736 (2010). 56 57   R. v. Khawaja [2012] SCC 69, [47].   Criminal Code of Canada, section 83.18(1). 58   R. v. Martineau [1990] 2 SCR 633; R. v. Finta [1994] 1 SCR 701. 54 55

terrorism   829 such doctrine has emerged to restrain post-9/11 terrorism laws.59 The breadth of the actus reus combined with the limited role of mens rea in restraining broadly defined terrorism crimes has created a danger that legislatures are being allowed to define away plausible arguments that those targeted and convicted as terrorists are actually innocent of being involved in terrorist violence.

6.  The limited relevance of entrapment and other defenses Another factor that undermines the true guilt of convicted terrorists is the aggres­ sive use, especially in the United States, of informers and undercover officials who persuade accused to take preparatory steps toward the commission of acts of ter­ rorism. The important role played by such informers suggests that the state has not been content to rely on the extension of the criminal sanction with new terrorism crimes. It devotes considerable resources and ingenuity to induce people to take substantial preparatory steps, such as purchasing bomb-making material or even detonating fake bombs, in order to reveal their terrorist intent. The entrapment defense should ensure that the state does not target people for intensive and manipulative stings simply because they may have extreme political or religious beliefs.60 The federal courts in the United States, where most major terrorism prosecutions are conducted, use a subjective test for entrapment that should require the state to prove beyond a reasonable doubt that the accused was predisposed to commit a terrorist crime before they are approached by government agents.61 American juries in the post-9/11 era, how­ ever, have rejected entrapment defenses by concluding that an accused who went along with a terrorist sting must have been predisposed to commit such crimes. The 2nd Circuit held that an accused’s desire to “inflict harm on the U.S.” and “to be willing to die like a martyr” was sufficient predisposition in the face of a dissent that these grievances are common among Muslims and in most cases will “never combust” unless accompanied, as in the case, with a year-long campaign of inducements by an informer.62 The British and Canadian courts, as

59   Requirements of specific intent, again linked with specific legislative language in 18 USC § 2340, ironically were critical to the infamous torture memos that concluded that American officials who engaged in harsh interrogation practices would not be guilty of torture. See Karen Greenberg (ed.), The Torture Papers (2005), 174–175. 60   Kent Roach, “Entrapment and Equality in Terrorism Prosecutions,” (2011) 80 Mississippi LJ 1455. 61   Jacobson v. U.S., 502 U.S. 540 (1992). 62   U.S. v. Cromitie, 727 F.3d 194 (2013). Some respected observers of American terrorism trials have concluded that convictions are inevitable once a jury learns that a suspect was in favour of bin Laden or the 9/11 attacks. Karen Greenberg, “ ‘Terrorists’ like Abu Hamza will never get real justice until the

830   kent roach well as the European Court of Human Rights,63 apply a more objective test that is more attentive to the legitimacy of the initial decision to target the accused for a terrorist sting. At the same time, British and Canadian courts have left the door open to “random virtue testing” based on the person’s presence at a suspi­ cious or high-crime area.64 This approach may be unobjectionable when applied to low-intensity drug or prostitution stings but the idea of allowing random virtue testing of certain mosques or political meetings should raise concerns about discriminatory profiling that could undermine the legitimacy of subse­ quent convictions. Defenses other than entrapment play a limited role in terrorism cases. Duress played a role in some early IRA terrorism cases, but now will generally be precluded by either judicial or legislative limits on the availability of the defense.65 To the extent that modern terrorism offenses often seem to punish people largely for subscribing to extremist religious or political views that promote violence, it might be expected that mental disorder and diminished responsibility defenses would play a role. Although the idea of indeterminate detention until a would-be terrorist “recovered” from extremism has some proponents,66 it has not yet been embraced in Western criminal law. One obstacle to such acceptance would be a reluctance to pathologize an offender’s religious or political views even while using their views as evidence of intent or predisposition. One interesting exception is Singapore which has released about two-thirds of alleged members of the terrorist group Jemaah Islamiyah who were subject to indeterminate detention under that country’s Internal Security Act.67 The detainees have been subject to a formal re-education process conducted by members of Singapore’s significant Muslim minority. Unlike Singapore, established democracies have shown little interest in rehabili­ tating terrorists and at times have imprisoned offenders together in a manner that may facilitate further radicalization. Rehabilitation issues and demands for subse­ quent preventive detention may arise when terrorist offenders apply for parole or are released at the end of their sentence. The release of convicted and unrehabili­ tated terrorists into the community may prompt states to use less restrained admin­ istrative and immigration measures even after terrorists have served their criminal sentences. real 9/11 trial,” The Guardian, 20 May 2014 at . See also Human Rights Watch Illusion of Justice: Human Rights Abuses in US Terrorism Prosecutions July, 2014.   Teixeira de Castro v. Portugal (1998) 28 EHRR 101.   R. v. Barnes [1991] 1 SCR 449; R. v. Loosely [2001] UKHL 53. 65   For a decision holding that duress could be available to a person who assisted with a terrorist murder, see DPP v. Lynch [1975] A.C. 653. But now see R. v. Howe [1987] A.C. 417 excluding duress in such situations. 66   Don Scheid, “Indefinite Detention of Mega-Terrorists in the War on Terror,” (2010) 29 Crim. 67 Justice Ethics 1–28.   Roach (n. 11) 138–143. 63

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terrorism   831

7.  Proportionality between punishing terrorism and the breadth of terrorism crimes The breadth of terrorism crimes, the uneven use of fault requirements, and the rejection of entrapment defenses all place pressure on sentencing judges who want to maintain proportionality between punishment and what the accused actually did. Both the public and the state expect lengthy sentences for any offense that con­ tains the word terrorism. Nevertheless, the sentencing judge who has heard all the evidence and interpreted broadly worded offenses may conclude that the accused’s actual culpability is much less than the legislative label suggests. Many terrorism cases also involve multiple offenders, presenting differences about offenders’ degree of involvement and knowledge. Sentencing judgments provide an opportunity to provide a more critical and precise examination of the guilt of each offender. At the same time, sentencing remains a discretionary process and judges need not neces­ sarily engage in critical re-evaluations of the underlying crime. Fortunately, there are some signs that courts will use sentencing to take a closer look at the actual offense. In the course of significantly reducing the sentences of a number of men convicted of multiple terrorism offenses, the Victorian Court of Appeal in Australia observed that “the offences overlapped . . . Adjustment of sentences was necessary to ensure that the offender was not doubly punished for the same conduct.”68 One of the accused had been convicted of four overlapping offenses—being a member of, providing resources, providing funds, and possess­ ing things in relation to a terrorist offense.69 The Victorian Court of Appeal also observed that the statutory definitions of a terrorist organization was “extraordin­ arily broad” and “may include anything from a rag-tag collection of malcontents whose commitment to terror never advances further than a conception that one day, some time, they will undertake a ‘terrorist act’ of as yet underdetermined nature and scope” to groups “like Al Qaeda or Jema’ah Islamiah, with a proven record of committing the worse terrorist acts imaginable.”70 These comments, though valu­ able at sentencing, also cast some doubt on the breadth of the offenses and the appropriateness of the label of terrorism that will result from a conviction. There is considerable pressure on courts to hand down severe sentences to denounce and deter terrorism. The transnational nature of terrorism also may fos­ ter comparison if not competition over high sentences. Canadian appellate courts raised a ten-and-a-half-year sentence of the first person convicted under Canada’s 2001 Anti-Terrorism Act to life imprisonment,71 the same sentence received by co-conspirators in the United Kingdom.72 The increase in sentence was justified on other grounds, notably the accused’s absence of remorse and the seriousness 69   Benbrika and Others v. The Queen [2010] VSCA 281, [551].   Benbrika, [569]–[576]. 71   Benbrika, [555].   R. v. Khawaja, 2010 ONCA; aff ’d [2012] SCC 69. 72   R. v. Khyam [2008] EWCA Crim. 1612.

68 70

832   kent roach of terrorism, but it also discounted the trial judge’s finding that there was a rea­ sonable doubt that the Canadian accused, unlike his British co-conspirators, knew about a planned fertilizer bomb plot in London.73 This precedent has inspired fur­ ther increases in sentences in Canada. For example, a 19-year-old first offender who pled guilty in the Toronto terrorism plot had his sentence raised on appeal from 14 to 20  years despite the trial judge’s finding that he was not a continuing dan­ ger to the public.74 The Canadian trend to increased severity is not uniform. The first Canadian convicted of terrorist financing for contributing $3,000 to the listed but defeated Tamil Tigers had his six-month sentence upheld on appeal despite his absence of remorse.75 Even when courts are determined to send a stern message about terrorism, they may find the sheer breadth of many terrorism offenses forces them to award a sentence that does not accord with the seriousness of the terrorism label. The English Court of Appeal warned in one case involving terrorist publications that while “terrorist acts are usually extremely serious” and deterrent sentence war­ ranted, “care must, however, be taken to ensure that the sentence is not dispro­ portionate to the facts of the particular offence.”76 It reduced sentences because the accused believed what he was doing was legal and was at most reckless about whether the material would encourage terrorism.77 Judges can use sentencing dis­ cretion to compensate for overbreadth and inappropriate fault levels in terrorism offenses. This is better than nothing, but it begs the question of whether judges should be more active with respect to the substance of the offenses. It is questionable whether judges are giving adequate thought to rehabilitation when sentencing terrorists. In the above case involving terrorist publications, the English Court of Appeal warned that “if sentences are imposed which are more severe that the circumstances of the particular case warrant this will be likely to inflame rather than deter extremism.”78 It held that the trial judge had erred by not reducing the sentence to reflect the accused’s remorse and renunciation “of the rad­ ical and Jihadist cause.” In the end, however, the sentence for distributing terrorist publications was only reduced from six to five-and-a-half years.79 A final complication is whether immigration and citizenship consequences should be considered at sentencing. Many countries are enacting harsh measures that require non-citizens convicted of crime to be deported and even allowing   R. v. Khawaja (2009) 248 CCC (3d) 233, [37] (Ont. S.C.).   R. v. Khalid [2010] ONCA 861. 75   The British Columbia Court of Appeal observed that the accused’s “lack of remorse was perhaps not surprising given his Tamil heritage, the impact of the war on his family, and his continuing concern for the dire circumstances of the Tamil population in Sri Lanka.” R. v. Thambaithurai [2011] BCCA 137, [22]. Similarly, light sentences were handed out in cases where Tamils sent money from Australia to the Tamil Tigers. See Roach (n. 11) 320–321. 76 77   Rahman and Anon. v. R. [2008] EWCA Crim. 1465, [8]‌.   Rahman, [47]. 78 79   Rahman, [8]‌.   Rahman, [32]–[34]. 73

74

terrorism   833 citizenship to be taken from people involved with serious crime including terror­ ism. As Professor Zedner has suggested, the sense that internal enemies should be stripped of citizenship and the procedural experimentation of combining criminal and immigration sanctions are features of enemy criminal law that do not accord the accused the same rights as other offenders who are considered to be errant but fellow citizens.80

iv. Conclusions Terrorism presents existential challenges to the criminal law. On the one hand, there is a danger that a criminal law that retains requirements for prohibited and precise wrongful acts, fault, the presumption of innocence, proof of guilt beyond a reasonable doubt on the basis of public evidence, and fair labeling based on pro­ portionate punishment will become marginal to post-9/11 attempts to prevent ter­ rorism. Rather than deal with a restrained criminal law, states have and will employ less restrained forms of indeterminate administrative and military detention and administrative and military trials that use secret evidence/intelligence not disclosed to the detainee. Another option is to extradite terrorist suspects to face trials in jurisdictions with harsher terrorism laws. Some states have the power in some cir­ cumstances to dispense with any trial at all and kill suspected terrorists (and others surrounding them) with drones. On the other hand, there is a danger that the criminal law will expand to deal with the terrorist threat in a way that will undermine its own integrity as criminal law. These threats include overbroad statutory definitions of terrorism and terrorism offenses and the corresponding strain that they place on principles of proportionate punishment. Other threats to the criminal law include reliance on administrative blacklisting mechanisms, legislative displacement of specific intent requirements, and the erosion of defenses notably entrapment that may protect the accused from state-instigated crimes that target those with radical religious or political views. Unfortunately, the post-9/11 decade has produced the worst of all worlds: the criminal law has expanded perhaps to the breaking point while often being over­ shadowed by less restrained alternatives.81 The common losers in both these trends   Lucia Zedner, “Security, the State and the Citizens: The Changing Architecture of Crime Control,” (2010) 13 New Crim. LR 379. 81   For arguments that there is a convergence between military and criminal trials for terrorism, see Robert Chesney and Jack Goldsmith, “Terrorism and the Convergence of the Criminal and Military Detention Models,” (2008) 60 Stanford LR 1079. 80

834   kent roach are traditional principles of restraint, culpability, fair labeling, due process, and pro­ portionate punishment. The post-9/11 experience in the United States perhaps best reveals the threats that terrorism presents to the criminal law. Despite having a highly developed criminal justice system, the United States demonstrated a profound lack of confidence in the criminal law as a means to prevent terrorism. This lack of confidence was not sim­ ply a product of the initial shock at 9/11 that produced Guantánamo. It has recently intensified as Congress has prevented criminal trials of Guantánamo detainees and the Obama administration has accelerated targeting killing. At the same time as it has used less restrained alternatives, the United States has broadened its criminal law so that people can be convicted of terrorist offenses for giving money to listed groups without any intention that the money be used for violence. The entrapment defense has failed to protect Muslim accused who have been subject to intense stings started when the state only knew they had radical and unpopular religious and political views. The American experience demonstrates how the expansion of the criminal law and the attraction to less restrained alternatives to the criminal law have been mutually re-enforcing. They both threaten the integrity of criminal law as an exacting instrument for punishing only the guilty. Given the magnitude of external challenges to the criminal law, it is tempting to applaud all uses of the criminal law to respond to terrorism. This would be a mistake because there is a danger that the criminal law will become distorted in its attempt to compete with less restrained policy instruments to prevent terrorism. Indeed, so much distortion has already taken place since 9/11 that there are strong arguments that the criminal law may not be worth saving and the move back to the criminal law that many have urged may turn out to be a pyrrhic victory. The U.N. Security Council encouraged countries to enact new terrorism laws after 9/11 and to include laws against terrorist financing but provided countries with no imme­ diate guidance about how to define terrorism. Legislatures almost always erred on the side of overinclusion and courts have offered few remedies for legislative overbreadth in defining terrorism. The inclusion of religiously or politically motiv­ ated property damage and disruption of essential services as terrorism created a danger that illegal protest can be investigated, tried, and punished as terrorism. The U.K. Supreme Court in Gul, the Canadian Supreme Court in Khawaja, and the U.S. Supreme Court in Humanitarian Law Project have all refused to invali­ date overbroad definitions of terrorism. Many countries routinely and casually assert extraterritorial jurisdiction over terrorism offenses. This places countries in de facto competition over terrorism prosecutions in what may become a race to the bottom, imperfectly policed by extradition proceedings that can sometimes be circumvented by illegal renditions or through innovations such as the European Arrest Warrant. Universal jurisdiction combined with broad offenses has intensi­ fied the danger of labeling and punishing freedom fighters and their supporters as terrorists.

terrorism   835 The frequent inclusion of political and religious motive requirements and enforce­ ment practices that have focused on Islamic groups have challenged the neutrality of the criminal law. The entrapment defense has failed despite concerns that ter­ rorism crimes may be more the product of state targeting of Islamic radicals than genuine attempts to commit terrorist violence. American juries have consistently rejected the entrapment defense, raising concerns that they have conflated preexist­ ing predisposition to commit terrorist crimes with perceived Islamic extremism. The incorporation into the criminal law of blacklists of terrorist groups and indi­ viduals compiled by the executive on the basis of secret intelligence also threatens the neutrality of the criminal law by allowing the sovereign to declare who is the enemy and then use an expansive criminal law against such entities. The danger is that radicals and dissenters may be labeled and disproportionately punished as ter­ rorists even though they have not intended to engage in terrorist violence. Although the internal challenges that terrorism poses to the criminal law are daunting and should not be underestimated, the criminal law remains preferable to less restrained alternatives that can dispense with public trials in their entirety. Indeed, the expansion of the criminal law to deal with terrorism including the dan­ ger of defining innocence away may provide an opportunity to explore and perhaps even repair some of the weaknesses of the criminal law in general. Legislative over­ breadth and sentences that are disproportionate to broad crimes targeting remote risks are a problem beyond the terrorism context. In the face of overbroad and relatively clear legislative language, courts should insist that the prohibited act in terrorism and other offenses bear some reason­ able relation to the ultimate harm that is targeted. In addition, judges can also fol­ low the path taken by Justice Breyer in his dissent in Holder v. Humanitarian Law Project82 and resist legislative attempts to restrict mens rea and preclude specific intent requirements. The independent courts could resist discriminatory targeting of unpopular groups associated with terrorism and insist that the executive not be able to use lists as bills of attainder determining guilt. The extreme breadth of ter­ rorism offenses underlines the dangers to courts of deferring to legislatures on all matters of substantive criminal law. Even if courts are unable to resist the substan­ tive expansion of the criminal law, they should draw a line in the sand by insisting that the legislature cannot impose punishment that is disproportionate to acts that have a tenuous connection to terrorist violence. The extremes of post-9/11 terrorism laws might possibly force courts to develop a substantive jurisprudence of restraint, equality, and fair labeling. Nevertheless, the challenges of developing such a jurisprudence, particularly in the terrorism con­ text, should not be underestimated. Even if courts overcome their traditional defer­ ence to governments on national security matters, post-9/11 terrorism laws are quite sophisticated. They avoid crudely vague or discriminatory language and mandatory   130 S. Ct. 2705 (2010).

82

836   kent roach sentences. They also often employ subjective fault requirements, albeit fault that is not related to a specific intent to engage in terrorist violence but to a broadly defined prohibited act that may have a tenuous connection to any act of terrorist violence. The dangers if courts fail to develop a restraining jurisprudence are great. It could foster a false illusion of fairness as countries gravitate back to the criminal law as a means to prevent and punish terrorism. In addition, overbroad and harsh new terrorism offenses may, as has occurred in the past, provide a convenient tem­ plate when the criminal law responds to the next series of terrifying harms.

References Chesney, Robert and Goldsmith, Jack, “Terrorism and the Convergence of the Criminal and Military Detention Models,” (2008) 60 Stanford LR 1079 Duff, R. A., “Notes on Punishment and Terrorism,” (2005) 48 American Behavioral Scientist 758 Gómez-Jara Díez, Carlos, “Enemy Combatants vs. Enemy Criminal Law,” (2008) 11 New Crim. LR 529 Paciocco, David, “Constitutional Casualties of September 11,” (2002) 16 Supreme Court LR (2d) 199 Roach, Kent, “Entrapment and Equality in Terrorism Prosecutions,” (2011) 80 Mississippi LJ 1455 Roach, Kent, The 9/11 Effect (2011) Scheid, Don, “Indefinite Detention of Mega-terrorists in the War on Terror,” (2010) 29 Crim. Justice Ethics 1 Stevenson, Dru, “Effect of the National Security Paradigm on Criminal Law,” (2011) 22 Stanford Law & Policy Review 129 Tadros, Victor, “Justice and Terrorism,” (2007) 10 New Crim. LR 658 Tadros, Victor and Hodgson, Jacqueline, “How to Make a Terrorist out of Nothing,” (2009) 72 Modern LR 984 Walker, Clive, Terrorism and the Law (2011) Zedner, Lucia, “Security, the State and the Citizen: The Changing Architecture of Criminal Control,” (2010) 13 New Crim. LR 379

­c hapter 37

“WHITE COLLAR” CRIMES samuel w. buell*

i.  White-Collar Crime’s Definition Problem While the phenomenon of “white collar” crime is relatively modern, it existed in Western law well before an American sociologist of the 1930s famously coined the odd but now entrenched term.1 Once the phrase appeared, however, legal observers began endlessly grappling with the meaning of so-called white-collar criminality. This area of criminal law, unique among regions of the special part, seems never to quite get past its definitional task. This impediment might be surprising given the massive attention paid to this sphere of criminality, attention that increases year over year across the developed world. But the definitional sticking point appears natural once one appreciates that legal doctrine itself faces a stiff challenge in using rules to specify these types of unwanted behaviors. All of substantive criminal law, like all law, confronts boundary problems. White-collar crime, however, is dominated by boundary problems and, ulti­ mately, defined by them. If one wants to appreciate why this subject has been hard to understand, white-collar crime should be conceived as crime committed in social settings in which seriously unwanted behaviors are embedded within *  For very helpful comments on a draft, many thanks to Deborah DeMott and Julie O’Sullivan. 1   Edwin H. Sutherland, White Collar Crime (1949).

838   samuel w. buell desirable ones—and are difficult to set apart and extract through clearly specified ex ante rules of law. This chapter will argue this definitional claim and illustrate it through discussion of some prominent offenses and common contemporary enforcement practices. It will conclude by linking the theoretical–definitional discussion to ambivalent pub­ lic attitudes toward white-collar crime in the United States.

1. Demography The “white collar” neologism was designed to call attention to the legal relevance of a social class. Edwin Sutherland, the American sociologist, pursued a project that had an explicit normative bent. The United States had not paid attention, he said, to a problem he designated as “white collar” crime and defined as “crime committed by a person of respectability and high social status in the course of his occupation.”2 Sutherland suggested that Americans had been allowing their management class to get away with the economic analog of murder. He called for aggressive criminaliza­ tion in the business realm, including of many behaviors treated even today as regu­ latory concerns but not crimes. Sutherland’s term stuck. But, as many have observed, his definition of the term does not work. Persons of upper social strata, however defined, commit plenty of murders, use and sell drugs, can be rapists, are just as prone to assault as any­ one, and so on. Meanwhile, financial crimes are not limited to the socially priv­ ileged. Grafters, scam artists, con men, and even sophisticated Ponzi schemers can emerge from humble beginnings.3 And the business management class, though no model of aspirational diversity, is far more open to strivers than when Sutherland wrote.4 Demography, at least correlated with social class, is not a fruitful method for drawing boundaries around the realm of white-collar crime. Such a method also threatens to drain legitimacy from the project of criminalizing nonviolent economic wrongs. It would be anathema to the Anglo-American legal tradition to determine that a particular social class needed more criminal punishment and then to design substantive crimes toward that end. Although some would argue that is precisely what has been done with drug criminalization,5 liberal legal systems claim to reject such reasoning.   Sutherland (n. 1) 9.   Tamar Frankel, The Ponzi Scheme Puzzle: A History and Analysis of Con Artists and Victims (2012); Frank Partnoy, The Match King: Ivar Kreuger, The Financial Genius Behind a Century of Wall Street Scandals (2010); Mitchell Zuckoff, Ponzi’s Scheme: The True Story of a Financial Legend (2006). 4   Anita Rhagavan, The Billionaire’s Apprentice: The Rise of the Indian-American Elite and the Fall of the Galleon Hedge Fund (2013). 5   Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2012). 2 3

“white collar” crimes   839

2.  Economic activity Instead of focusing on class, one could define white-collar crime as crime commit­ ted in a certain economic realm: banking, or “Wall Street,” or “corporate America,” or “business” in some wider sense. One might include within this realm a variety of professionals and other service providers and gatekeepers, such as lawyers and accountants, who are integral to the corporate world. This kind of definition tracks many public discussions of white-collar crime. But the designation does not fit well with substantive criminal law and its enforcement. Data show that the majority of prosecutions of white-collar offenses in the United States involve conduct outside the realm of the large corporation (the Fortune 500 and like firms).6 This has been demonstrably true since the 1970s and probably has been the case since the late 1800s, when industrialization and the emergence of a consumer economy gave rise to the first concerted national efforts to combat fraud.7 White-collar prosecutions generally draw the attention of the press, and there­ fore the public, when the accused work for large firms. As measured by numbers, however, this is not a representative sample of the thousands of criminal cases that involve actors at every level and in every sector of the sprawling modern econ­ omy. To pass a $50 bad check is, by some reasonable conceptions, to commit a white-collar crime. A further problem with limiting white-collar crime to the realm of corporate activity is that doing so excludes many crimes, such as bribery and obstruction of justice, that involve government functions and are generally treated as part of the white-collar field of law practice. Many people would also apply the white-collar label to certain offenses commonly committed in mostly private settings, such as blackmail, extortion, and embezzlement.8 It is helpful to distinguish the broad realm of white-collar crime from a narrower category of activity best termed corporate crime. Corporate crime is the field of law enforcement and practice that concerns criminal offenses, and closely related civil regulatory violations, committed by sizeable business firms and their managers and employees. In this area, individual and firm liability overlap and are linked in many important ways, as a matter of both substantive criminal law and criminal proced­ ure. The investigation, enforcement, and defense of matters of corporate crime now comprises a major field of U.S. and European law practice, is emerging in Asia, and draws the constant attention of both general media and a growing cadre of specialized financial reporters. 6   David Weisburd et al., Crimes of the Middle Classes: White-Collar Offenders in the Federal Courts (1991). 7  Edward J.  Balleisen, “Private Cops on the Fraud Beat:  The Limits of American Business Self-Regulation, 1895–1932,” (2009) 83 Business History Review 113 ff. 8   Stuart P. Green, “The Concept of White Collar Crime in Law and Legal Theory,” (2004) 8 Buffalo Crim. LR 1 ff.

840   samuel w. buell

3. Victimization It often has been said that white-collar crimes differ from other criminal offenses in the relationship between offender and victim. Unlike the victims of violent crime, victims of white-collar crime rarely suffer from direct physical harm or the appre­ hension of such injury. White-collar crimes, unlike for example vice or “public order” offenses, usually do have identifiable victims. In large cases, however, the class of victims is typically diffuse, in the senses of being spread far and wide and standing at some remove in a chain of causation from the acts of the principal offender, whom the victims may never see, deal with, or even identify. These features of white-collar crime are important to legal theory because they call attention to the complicated relationship of these offenses to the harm prin­ ciple. White-collar offenses are diverse and straddle several categories of harm. Sometimes they involve simple and direct financial injury:  investment advisor A persuades investor B to supply funds to A for investment on B’s behalf; A then runs off to Bora Bora with the funds. At other times these crimes involve harm spread across large classes of persons, including cases of lots of small harms aggregating to major wrongdoing:  public company executive A lies to the company’s thousands of shareholders to boost the firm’s stock price and thus the value of A’s stock options; many small shareholders lose a few hundred or thousand dollars, adding up to hundreds of millions in loss. The question of victimization is further complicated in such cases by the fact that only those who purchased at the inflated price and held their shares through revela­ tion of the fraud have been hurt by the fraud, while those whose purchases were timed differently may have profited from fraudulent inflation of the price. Finally, sometimes white-collar offenses involve the sort of general harm said to victimize society at large: bank manager A embezzles depository funds that are insured by a government guarantee. This may undermine confidence in and reli­ ance on vital social institutions and therefore the effectiveness of those institutions. This concern is frequently offered as a reason to criminalize insider trading and obstruction of justice. Complexity and subtlety in accounts of victimization is a common feature of white-collar crimes. As Stuart Green has said, it may be that white-collar crime can be defined only by a kind of family resemblance method, by which each offense in the category shares with others some but not necessarily all of a set of common characteristics, such as diffuse victimization.9 If we are seeking a definition that helps us better understand white-collar crime, however, it is not enough to have some criteria that sort individual crimes, one at a time, into or out of the category. After all, there must be something about white-collar crimes as a whole or we would not have spent so much time and energy   Green, (2004) 8 Buffalo Crim. LR 1 ff.

9

“white collar” crimes   841 talking about them as if they are distinct from the rest of criminal law’s special part, which has no similar conceptual subcategories. That is to say, “blue collar” crime is not a helpful term.

4. Offenses One could, of course, abandon the project of conceptual definition and organize white-collar crime according to a list of offenses that belong in the category. It is useful to do this for clarity purposes, and we should do so. It is also relatively easy to get agreement about the great majority of individual offenses. The most com­ mon white-collar crimes in the United States are fraud (in its many statutory forms, and including insider trading), embezzlement and misappropriation (but not plain old theft), bribery and related corruption violations, tax crimes, offenses involving interference with the administration of justice, violations of the many requirements of the modern administrative state (“regulatory offenses”), and extortion (including blackmail). However useful a list might be for data collection and other purposes, a list is not a definition. If all we needed to do were to draw some lines for purposes of understanding each other when we say “white collar,” we could quibble some over the precise location of those lines but not much would turn on our disagreements.

5.  Problem of legal specification White-collar offenses are best defined by what makes them difficult. Without ques­ tion, they present legal problems of greater complexity than with old-fashioned crime of the “core,” “street,” “violent,” “vice,” or whatever-we-might-want-to-call-it type. Difficulty is what makes these offenses so interesting. The challenge of white-collar crime arises from, if you will, its embeddedness. Embeddedness is the extent to which an activity subject to criminal prohibition is enmeshed within, closely related to, and not readily distinguishable from socially acceptable or even welcome conduct. Think of murder. Only in rare cases does the law of homicide confront such problems—as, for example, when a doctor is chal­ lenged for discontinuing life-saving measures in a jurisdiction that has not settled its rules on the matter. Criminally prohibited activities are arranged on a spectrum in this regard, with murder the easy case, assault a bit more likely to involve such difficulties, theft usu­ ally straightforward but sometimes not (as evident in the development of the com­ mon law of larceny), and so on. Rape, for example, is an offense that has a large proportion of violations that are not the least bit ambiguous with respect to crit­ ical elements such as forced and/or nonconsensual sexual penetration. But in many

842   samuel w. buell cases, as Peter Westen develops in an important book on consent, the law must make difficult determinations about what counts as “valid” or “expressed” or “law­ ful” consent.10 These decisions often involve contested matters of fact. They can also require legal resolution of disputed normative questions involving permissible ver­ sus criminal sexual conduct. White-collar offenses tend to fall toward the end of this spectrum at which appli­ cation of criminal prohibitions, as often as not, requires the legal system to make difficult determinations about when behaviors involving commercial transactions, political activity, adversarial litigation, and the like “cross the line” from “aggres­ sive” or “sharp” to criminal. Consider fraud, for example. Virtually all fraud, and especially frauds that draw greatest public attention, are embedded within ordinary national commerce. Sometimes frauds jump out from their commercial surround­ ings and are easy to see. Infamous Ponzi schemes, such as those pursued in the 2000s by the likes of Bernard Madoff and Allen Stanford, do not present hard legal questions. Outright lies, absence of real investments, extensive efforts to perpetuate and cover up the schemes—all make clear that such cases are only slightly different than simple thefts. But, to take a common contemporary case, what of the executives of the public company who pursue novel and questionable interpretations of accounting rules in reporting their company’s finances, to avoid recognizing losses that would depress their firm’s stock price? The legal system must make difficult decisions about where to draw the normative line. An example is a famous 1969 opinion of the American federal judge Henry Friendly that ruled that accountants can be criminally liable for securities fraud for intentionally helping a client to use its financial statements to paint a misleading picture for its shareholders—even if the accountants fully com­ plied with the technicalities of accounting rules.11 Four decades later, this decision was naturally applied to public company executives who similarly used accounting technicalities as a shield. Former WorldCom CEO Bernard Ebbers, who offered a defense of technical rule-compliance to a charge of massive accounting fraud that triggered what was then the largest bankruptcy in U.S. history, failed to persuade an appellate court that his jury should have been told that rule-compliance was an absolute defense.12 White-collar criminal law must deal with this sort of problem all the time. When does a payment to a politician constitute criminally corrupt influence in a system in which monetary contributions to campaigns are not only welcome but enjoy consti­ tutional protection? When does an attorney’s joint representation of and coaching of multiple witnesses constitute obstruction of justice in an adversarial legal system that mandates zealous lawyering? When do a corporation’s payments in a foreign 10   Peter Westen, The Logic of Consent: The Diversity and Deceptiveness of Consent as a Defense to 11 Criminal Conduct (2004).   U.S. v. Simon, 425 F.2d 796 (1969). 12   U.S. v. Ebbers, 458 F.3d 110 (2006).

“white collar” crimes   843 country to facilitate the construction of a power plant constitute violations of the Foreign Corrupt Practices Act in the midst of rapid and complex processes of glo­ balization? When does a threat to bring legal action constitute extortion in a society that welcomes and even lauds the sharp negotiator? And so on. This feature of embeddedness in routine activities that are mostly conducted within legitimate and important social institutions—commerce in corporations, politics in government, dispute resolution in agencies and courts—produces acute problems of legal specification. It is difficult to articulate such close distinctions within generalized legal rules that must serve to address many and varied cases.13 This is true even if normative disagreements about precisely what kinds of behav­ iors should be criminalized in commercial, political, litigation, and like activities have been settled. Often they have not been. Making the problem more difficult, white-collar prohibitions deal with sectors of social activity in which technologies and norms evolve rapidly, potentially leaving each new move of legal regulation one step behind.14 A natural response to these pressures is to take resort in open texture in criminal law. Legislation cannot fully specify white-collar crimes ex ante because language is limited in its precision and social planners lack perfect foresight, to say the least. The result is generalized criminal prohibitions of very broad scope. Fraud statutes typically prohibit “fraud.”15 Obstruction of justice statutes prohibit “corruptly inter­ fering with the due administration of justice.”16 Bribery statutes prohibit payments to “influence” public officials.17 Extortion statutes prohibit obtaining things of value “against the will of another” by means of “coercion.”18 Statutory law describes legal concepts rather than behaviors. The problem with open-textured offenses, of course, is the strength of the pro­ fessed Anglo-American commitment to the legality principle. This commitment purports to reject, among other things, law that defines criminality ex post, on the run, and through adjudication—rather than ex ante, through policy deliberation, and by legislation. (Civil law systems typically express stronger forms of this com­ mitment.) Thus, from the problem of embeddedness, which is a result of social norms and social facts, arises a legal problem of specification that is highly distinc­ tive of, though not unique to, white-collar crime. The problem of specification, in turn, explains the instability of the law in this area relative to other regions of the criminal law’s special part, and the persistent contestation over white-collar crime, both inside and outside the processes of legislation and adjudication. 13   Samuel W. Buell, “The Upside of Overbreadth,” (2008) 83 New York University LR 1491 ff. More generally: H. L. A. Hart, The Concept of Law (2nd ed., 1994), 128; Frederick Schauer, Playing by the Rules (1991), 3; Friedrich Waismann, “Verifiability,” in Anthony Flew (ed.), Essays on Logic and Language (1951), 117 ff. 14   Samuel W. Buell, “Novel Criminal Fraud,” (2006) 81 New York University LR 1971 ff. 15 16   18 USC §§ 1341, 1343, 1348; U.K. Fraud Act 2006.   18 USC §§ 1503, 1505. 17 18   15 USC §§ 78dd-1, 78dd-2, 78dd-3, U.K. Bribery Act 2010.   18 USC § 1951.

844   samuel w. buell We thus arrive at explanations for two commonly observed features of white-collar criminal cases. The first is that white-collar cases, in contrast to cases of “street” crime, more often involve the question of whether conduct, the facts of which may not be in serious dispute, constitutes a crime than they do the question of whether someone was the true perpetrator or what happened at the scene of the crime. The second is that white-collar cases much more often turn on questions of mens rea— what precisely was in the defendant’s mind at the relevant moment—than on ques­ tions of actus reus—what exactly did the defendant do. A typical pattern in fraud cases, for example, is that the defendant’s possession of a document or presence at a meeting will not be in dispute but the defense will vigor­ ously contest that the defendant was aware, much less intended, that anyone would be misled by the document or the decision taken at the meeting. In the absence of the foolish “smoking gun” email to a colleague, which surprisingly continues to turn up in some cases at major financial institutions, arguments about lack of mens rea can be persuasive. In the recent scandal involving LIBOR interest rates, for exam­ ple, bank employees messaged each other about making sure that the borrowing rates their bank reported to the British Banking Authority were not “too false,” lest the numbers attract suspicion. Likewise, in the huge insider-trading investigation involving the SAC Capital hedge fund owned by Steven Cohen, a group of traders shared tips through an email group that started with the statement “the first rule of email club is that there is no email club.” Just as wizened cops will say that it is the dumb bank robbers who get caught, it could well be that enforcement patterns in white-collar crime are explained as much by the government’s luck as its strategy. These two features of white-collar crime—difficulty in identifying criminality and challenges in proving mental state—are symptoms of the legal system’s strug­ gle in this field to manage high tension between the need for flexible law capable of addressing novel, diverse, and unanticipated forms of conduct and the desire to adhere to rule-of-law commitments. Even though we are told that in modern U.S. law “there is no such thing as a common law crime,” inevitably adjudication of these offenses includes a kind of lawmaking in which police, prosecutors, judges, and jurors decide what really counts as fraud, bribery, or obstruction of justice. Intense focus on mens rea is a means of making those decisions in a way that relieves the anxiety of legal actors that vague law and novel interpretations of law will land the unsuspecting, law-abiding, blameless person in prison.19 White-collar crimes are not the only criminal offenses that exhibit the features just discussed, nor do they always work this way. But the dominance of these fea­ tures, and the discomfort and difficulties they produce, perhaps explain why this part of the special part has long been viewed as standing apart, earning its own spe­ cial designation. In the absence of a definition of white-collar crime that achieves   Samuel W. Buell and Lisa Kern Griffin, “On the Mental State of Consciousness of Wrongdoing,” (2012) 75 Law & Contemporary Problems 133 ff. 19

“white collar” crimes   845 complete fit, it may be most fruitful see the category as crime committed in social settings in which undesirable behaviors are embedded within desirable ones—and are difficult to set apart and extract through clearly specified ex ante rules of law.

6.  Economic theory Before turning to enforcement matters, note a paradox. The methodology of law and economics has struggled to produce satisfactory descriptive or normative accounts of white-collar criminalization. It is not overly difficult to construct a hypothesis, such as that criminal law ought to be used when monetary sanctions cannot adequately deter activities that produce externalities, or that punishment is warranted for those behaviors that ought to be prohibited rather than merely “priced” because they “bypass markets.”20 But such formulations map poorly onto existing and long-established patterns of criminalization and fail to provide suf­ ficient justification for the great regulatory leap from monetary liability to impris­ onment.21 (In contrast, criminal liability of corporations, for which there can be no imprisonment, has been highly amenable to economic analysis.22) In the realm of white-collar crime, economics can explain a great deal more about fact than law.

II.  White-Collar Crime’s Enforcement Realities In one way, white-collar crime’s definitional problem fades in significance when observing the present enforcement landscape in the United States and Europe. There is no confusion nowadays about where the action is in white-collar enforce­ ment. One only need look to the growth of bureaucracies such as the U.S. Securities and Exchange Commission, the U.K. Serious Fraud Office and Financial Conduct Authority, the U.S. Department of Justice, the U.S. Environmental Protection   Gary Becker, “Crime and Punishment:  An Economic Approach,” (1968) 76 Journal of Political Economy 169 ff.; Richard Posner, “An Economic Theory of Criminal Law,” (1985) 85 Columbia LR 1193 ff.; John C.  Coffee, Jr., “Does ‘Unlawful’ Mean Criminal? Reflections on the Disappearing Tort/Crime Distinction in American Law,” (1991) 71 Boston University LR 193 ff. 21   Gerard E. Lynch, “The Role of Criminal Law in Policing Corporate Misconduct,” (1997) 60 Law & Contemporary Problems 23 ff. 22   Jennifer H. Arlen, “Economic Analysis of Corporate Criminal Liability: Theory and Evidence,” in Alon Harel and Keith Hylton (eds.), Research Handbook on Criminal Law (2012), 144 ff. 20

846   samuel w. buell Agency, and their many offices devoted to criminal enforcement or the enforce­ ment of closely related civil regulatory matters. Equally telling is massive growth in the practices of the world’s largest law firms devoted to “government enforce­ ment and white-collar crime” and like descriptions. These practices include more work doing compliance and internal investigations for large organizations seeking to police themselves than defense of people charged with crimes.23 It was recently reported that 1,500 lawyers appeared at an annual U.S. conference devoted to the defense practice that had attracted only a few dozen attorneys when it began con­ vening in the late 1980s. Legal practitioners in this field are not confused about which criminal offenses draw the keen attentions of both prosecutors and corpor­ ate managers. Still, a look at the substantive offenses that dominate the current enforcement picture underscores the field’s definitional and conceptual challenges. It happens that virtually all of the most active areas of enforcement, at least when it comes to the major cases, involve the problem of embeddedness and resulting contesta­ tion over how to define boundaries of criminality. Perhaps this is no coincidence. Lawyers can be entrepreneurial, even those who work for governments. It may be habitual for practitioners of white-collar crime to sally and skirmish along the frontiers of offense definition.

1.  Major realms of enforcement In briefly describing the main areas of white-collar enforcement in the United States, it will be useful to organize the discussion around the concept of fraud. Fraud is meant, for these purposes, as a loose conceptual category of behaviors involving deception. As such, the category is much broader than strict doctrinal definitions of the offense of fraud itself. Three species of fraud, and a fourth category of conduct, occupy the majority of white-collar criminal cases:  business fraud, fraud against government, fraud in government, and harm to public health and the environment.

a)  Business fraud A very large proportion of white-collar prosecutions have to do with fraudulent behavior by the managers and employees of businesses in their conduct of busi­ ness affairs, typically those of corporations and partnerships. In the United States, United Kingdom, and many other countries, such conduct is subject to overlap­ ping, or parallel, regimes of criminal and civil regulatory enforcement. This sort of fraud generally can be punished criminally, sanctioned civilly, or both—with the   Charles D. Weisselberg and Su Li, “Big Law’s Sixth Amendment: The Rise of Corporate WhiteCollar Practices in Large U.S. Law Firms,” (2011) 53 Arizona LR 1221 ff. 23

“white collar” crimes   847 mix often determined not so much by legal doctrine as by prosecutor and enforcer discretion. These kinds of cases can be divided into four subcategories. First there is what might be called investment fraud. Investors, such as sharehold­ ers of a company or investors in a hedge fund or mutual fund, are lured by lies and other forms of deception to entrust monies in the hopes of returns. With private funds, such fraud typically involves more or less direct misappropriation of investor monies. With public companies, such fraud is less direct because managers of a firm issuing securities traded in large liquid exchanges do not receive the investors’ funds. This is usually called accounting fraud, which can take almost as many forms as there are accounting rules but essentially involves manipulation of figures in the reported financial statements that are the primary source for analysts and investors to assess the value of the firm. In these cases, managers are motivated by gains in their own compensation and prestige that flow from increases in the company’s value generated by fraud on the market. (Indeed, some argue that the latter frauds do not really harm the diversified investor because, over time, she as often realizes gains as losses from fraud in the market.24) All of these cases are typically prosecuted under the U.S.  securities fraud law (“Rule 10b-5”) and the general federal prohibition against fraud committed through the use of the mails and interstate wires (“mail and wire fraud”). Some state prosecutors, especially New  York’s, also pursue such cases via similar state statutes.25 Controversy often arises over which of these kinds of cases are “really criminal,” rather than more appropriate for civil regulatory treatment and private lawsuits. There is much, and sometimes total, overlap in criminal and civil anti­ fraud regimes. Harm, flagrancy, level of intent, and similar factors are likely to influence pros­ ecutorial discretion. Paradigm cases for criminal treatment have included, in the case of misappropriation of investor funds, the prosecution of Bernard Madoff for a massive Ponzi scheme and, in the case of accounting fraud, the prosecutions of former WorldCom chief Bernard Ebbers and the former managers of the Enron Corporation.26 More ambiguous matters include trading of derivative securities relating to the mortgage market in the lead up to the global financial crisis that began in 2008. Many have argued that these activities should have been prosecuted aggressively as criminal offenses, beyond the many public and private civil suits that have been filed. Others have said that a high level of culpability might be absent, or at least difficult to prove, in such cases given the sophistication of counterparty traders and the widespread knowledge of relevant risks among professionals in the banking and housing sectors. 24   Amanda Rose, “Fraud on the Market:  An Action Without A  Cause,” (2011) 160 University of 25 Pennsylvania LR Pennumbra 87 ff.   New York General Business Law § 352-c. 26   U.S. v. Ebbers, 458 F.3d 110 (2006); U.S. v. Skilling, 554 F.3d 529 (2009); “The Madoff Affair,” PBS Frontline broadcast, May 12, 2009.

848   samuel w. buell Secondly, there are cases of business managers and employees pilfering the assets of their own employers. In simple scenarios, these cases are familiar as iterations of the long-standing legal concept of embezzlement. More often than not, the misap­ propriation involves deception and concealment and therefore these can be viewed (and prosecuted) as fraud. Federal criminal law in the United States includes no general embezzlement offense and would treat such cases as bank frauds, securities frauds, or mail and wire frauds. In more complex corporate scenarios, these diversions of assets are called cases of corporate “looting” or, in the academic literature, “tunneling.” Looting cases can be circuitous and can involve gray areas in the distinctions between corpor­ ate and personal assets and the structure and processes around executive com­ pensation and corporate governance, including interactions between boards of directors and corporate officers. The prosecutions of former Tyco head Dennis Kozlowski and former Hollinger International executive Conrad Black produced hotly contested trials in which the defendants, operating in an era of lavish and complex executive compensation, argued that the benefits they received had been duly approved and were appropriate. (Both men lost, with Black serving a rela­ tively short sentence and Kozlowski a very long one.27) Thirdly, there are cases in which businesses defraud their counterparties in transactional activity. Perhaps the most common scenario here is the large con­ sumer fraud, with many small victimizations summing to a major case. These frauds more often involve fly-by-night operations that dissolve before, or as soon as, the fraud is discovered than established businesses with significant reputa­ tional capital. Large, sophisticated companies certainly defraud each other from time to time. But authorities rarely treat these cases as criminal, being content to leave resourceful and well-counseled entities to sue each other. Generally speak­ ing, cases of counterparty fraud less often present difficult problems of distin­ guishing criminality from appropriate business activity than do other types of fraud. Fourthly, there is the special case of insider trading, a sort of stepchild of fraud. There are few specialized laws banning insider trading in the United States. Rather, the federal courts have ruled that insider trading is a form of securities fraud. This has proved an awkward idea. Most people who think insider trading is wrong think it is wrong because it is a kind of cheating that erodes confidence in markets: the offender plays the stock market with secret information no one else has, like an ace hidden up the sleeve in a game of poker. As a theory of fraud, the argument proves too much. In investment markets, informational resourcefulness and advantage are not only permissible but encouraged. No such market could function well under a rule that guaranteed

  U.S. v. Black, 625 F.3d 38 (2010); People v. Kozlowski, 11 N.Y.3d 223 (2008).

27

“white collar” crimes   849 equality of information. Such a rule would eliminate the incentive to produce the knowledge that makes prices more accurate. The courts have worked around this problem by saying that the corporate insider who trades using information gained on the job, without saying so, defrauds the com­ pany’s own shareholders, with respect to whom she is a fiduciary owing heightened duties of candor.28 The same rule applies to a “tippee,” a person who acquires infor­ mation from a corporate insider knowing that the insider has provided it in breach of a duty not to disclose it.29 Of course, this theory leaves out all cases not involving a corporate insider, or her tippee, trading directly with the firm’s own shareholders. So the courts have invented a companion “misappropriation” theory, whereby the person who trades using nonpublic information gained on the job is guilty of defrauding her own employer, to whom she owes a duty not to use secretly purloined business infor­ mation for personal gain.30 The misappropriation theory enables prosecution of many cases that intuitively strike observers as insider trading, such as a lawyer who purchases equity of a target corporation that he knows his client is preparing to acquire. But the theory is strained and seems to treat the problem of insider trading more as one of loot­ ing (of information) than as one of fraud on other investors. Notwithstanding the awkward legal regime governing insider trading, enforcement of the crime has been continually on the rise, especially in a recent wave of prosecu­ tions in which the government for the first time used wiretaps to net some very large Wall Street investors.31 As prosecutions extend into the realm of the modern hedge fund, the cases bear increasing features of embeddedness. Hedge funds have the pro­ duction of informational advantage as the core of their business models. They leverage creativity and facility with data to produce that advantage. Under positive law, such industriousness is not criminal insider trading unless fund managers obtain informa­ tion from individuals who have taken it from their employers in violation of duties, and fund managers know that to be true. Still, prosecutors seem to find insider-trading cases more straightforward to investigate and bring than cases of complex corporate investment fraud. The relevant documents and witnesses are fewer and the crime is usually more intuitive for the layperson who is impressed into jury service. Insider trading provides an excellent example of the legal fluidity of white-collar crimes. Most people nowadays would quickly identify insider trading as both a seri­ ously wrongful behavior and a crime. But it is not clear how much of that belief is attributable to the law having taught people to think that way. Before the 1970s, there was no solid legal theory of insider trading as a form of securities fraud and there were no such criminal prosecutions. There remains substantial academic debate about whether prohibitions on insider trading have social benefit.32 And, if 29   Chiarella v. U.S., 445 U.S. 222 (1980).   Dirks v. SEC, 463 U.S. 646 (1983). 31   U.S. v. O’Hagan, 521 U.S. 642 (1997).   U.S. v. Rajaratnam, 719 F.3d 139 (2013). 32   Dennis W. Carlton and Daniel R. Fischel, “The Regulation of Insider Trading,” (1982) 35 Stanford LR 357 ff. 28

30

850   samuel w. buell really asked, the public might struggle to explain exactly why it thinks the employee of the big corporation who buys stock because of something she heard at work is a clear wrongdoer, while the fellow who beats the house by counting cards at the casino, or the amateur investor who buys a rail company’s stock after tracking pas­ senger volume at the station, has done nothing wrong. A final word should be inserted here on the subject of antitrust violations, which are not exactly a form of business fraud but bear some structural resemblance to the subject. Civil and criminal antitrust enforcement has always involved excep­ tionally large measures of enforcer discretion and economic policy considerations. Anticompetitive conduct in large industries is not often treated as criminal and is typically left for civil regulatory enforcement or private litigation. Here there is a serious problem of embeddedness. How in the world do we distinguish in any bright-line way between the taking of competitive advantage and anticompetitive behavior? The question has had decorated economists at odds, which has probably steered authorities away from criminal punishment. Naked price-fixing conspiracies are treated criminally but typically involve activities that can be difficult to unearth, so such prosecutions are infrequent, at least against major corporate actors.33

b)  Fraud against government Another category of white-collar crime involves what might be called fraud against government, again using fraud as a broad concept encompassing deceptive behav­ iors. The larger the modern regulatory state grows, and the more funds it collects and dispenses, the more opportunities arise to cheat it. Contracting fraud of course dominates this category, especially fraud in the pur­ suit of contracts related to enormous modern defense budgets. These cases range from relatively simple instances of rigging bids to borderline situations involving conflicts of interest in the awarding of subcontracts. Another massive realm of criminal enforcement activity in recent decades, leading to billions of dollars in settlements with corporations, has been fraud by hospital corporations, pharma­ ceutical manufacturers, and other firms doing business in whole or in part through government-supported healthcare programs. Tax evasion and tax fraud comprise another major area in which the criminal law addresses cheating of the government. Two things are unusual, and perhaps somewhat surprising, about criminal tax prosecutions in the United States. Both have to do with the fact that tax laws have grown increasingly complex and are filled with somewhat arbitrary lines that are the product of compromises in legislation, rule-making, and ever more contentious budgetary negotiations. First, cheating on taxes is prosecuted relatively rarely. The government prefers to handle these matters civilly. Out of all those audited and discovered to have violated   Harry First, Criminal Antitrust Enforcement (1991), 1 ff.

33

“white collar” crimes   851 the law, the government typically chooses for criminal prosecution only those tax­ payers who have not just failed to report income or taken excessive deductions but who have pursued affirmative measures to hide and misrepresent their finances before the Internal Revenue Service. One explanation for the small number of pros­ ecutions has been that the government relies intuitively on an idea that has been explored in academic theory: that too many prosecutions for tax evasion could send the signal to the public that cheating is rampant and that those who continue to pay their taxes are “chumps.” It cannot be disputed that the government has very limited resources relative to the enormity of the taxation system and that tax compliance in the United States is in reality, though not in law, essentially dependent on the people’s good faith.34 Secondly, the courts have developed special mens rea rules for criminal tax cases. The principle that ignorance of the law is no excuse has been relaxed in tax cases by means of the federal courts’ interpretation of Congress’s use of the term “willfully” in tax statutes to mean the intent to violate a known legal duty.35 The complexity and lack of simple logic in tax law have been said to defeat the usual rationale that people are fairly expected to know the law. Such rulings obviously deter prosecutors from bringing criminal tax cases. However, it must be noted that the government has been willing to take on, with some success, the lucrative and aggressive tax shel­ ter industry with criminal prosecutions, including of advisors employed by major law and accounting firms.36 Particularly in view of the theme of embeddedness, it is no trifle that the government has sent more than one partner of a national law firm off to prison for giving opinions on tax shelters that were found to have crossed the line from legal advice to counseling crime. Another category of fraud against the government, again speaking broadly, includes offenses against administration of judicial and regulatory systems. Federal prosecutors generate a relatively large number of cases annually involving charges of perjury, obstruction of justice, false statements in official government matters, contempt, and the famously amorphous “conspiracy to defraud [the government of] the United States.”37 As with tax evasion, the proportion of such prosecutions to the likely incidence of, for example, lying in the courts must be quite low. Perhaps here too prosecutors are reluctant, in their efforts to manage perceptions about deterrence, to bring too many cases. Prosecutorial discretion in this area is exceptionally broad and, frankly, unprin­ cipled, generating consistent criticism.38 The government does not in any system­ atic way police the administration of justice. Rarely if ever is someone prosecuted 34   Eric A. Posner, “The Case of Tax Compliance,” (2000) 86 Virginia LR 1782 ff.; Dan M. Kahan, “The Logic of Reciprocity: Trust, Collective Action, and Law,” (2003) 102 Michigan LR 71 ff. 35 36   Cheek v. U.S., 498 U.S. 192 (1991).   U.S. v. Pfaff, 407 Fed. Appx. 506 (2010). 37   18 USC § 371. 38  Daniel C.  Richman and William J.  Stuntz, “Al Capone’s Revenge:  An Essay on the Political Economy of Pretextual Prosecution,” (2005) 105 Columbia LR 583 ff.; Julie R. O’Sullivan, “The Federal

852   samuel w. buell just because she happened to give false testimony or withhold a document in, for example, a civil lawsuit or a routine regulatory hearing. Instead, prosecutors appear to pursue such cases for two reasons that sometimes overlap. First, the strength of the human impulse to lie and cover up nearly guarantees that, once prosecutors begin any serious investigation, they will end up with some evidence of perjury, obstruction of justice, or false statements that can support a criminal prosecution even if the matter that started the investigation never bears evidentiary fruit or was not a crime in the first place. Secondly, prosecutors seem to favor pursuit of such cases, rather than declination, when the potential defendants are famous or likely to garner media attention, perhaps in the belief that deterrence is hard to come by in this area so message considerations should dominate. Martha Stewart, I. Lewis “Scooter” Libby, and (almost) Bill Clinton are the most frequently cited examples of this. The law governing crimes against the administration of justice, which is exceed­ ingly broad, contributes to problems of prosecutorial discretion and line-drawing. The general federal obstruction statute makes it a crime to interfere with “the due administration of justice.”39 Another famous statute treats as a felony any false oral or written statement in any federal government matter, whether or not the defendant knew of the government’s involvement.40 A recent statute, enacted after disputes in the early 2000s over document shredding and deletion in a couple of major accounting and securities firms, similarly criminalizes the destruction of any document relevant to a federal government matter.41 (Perjury statutes, on the other hand, retain roots in the common law and are narrowed by their requirement that a tribunal has administered an oath.) Prosecutions under these laws produce a myriad of questions about what ought to be a crime, questions that have been neither asked nor answered in the legisla­ tive process. Should prosecutors be allowed to treat as a felony a simple, impul­ sive denial that a person utters when a government agent asks whether she has committed a crime?42 If a lawyer in business with his client files frivolous requests for injunctions to slow a criminal investigation of his client that would bring their business down, has the lawyer obstructed justice?43 What about the lawyer who, on retainer to the target of an investigation and paid to represent others who are wit­ nesses, advises them all to assert their constitutional right to silence in the grand jury, at the direction of the target?44 When does a company’s use of its long-standing policy on document retention and destruction become obstruction of justice because the company steps up “compliance” with the policy just when it learns that Criminal ‘Code’ is a Disgrace: Obstruction Statutes as Case Study,” (2006) 96 Journal of Crim. Law & Criminology 643 ff.   18 USC § 1503.    40  18 USC § 1001.    41  18 USC § 1519. 43   Brogan v. U.S., 522 U.S. 398 (1998).   U.S. v. Cueto, 151 F.3d 620 (1998). 44   U.S. v. Cintolo, 818 F.2d 980 (1987). 39

42

“white collar” crimes   853 a government investigation is brewing?45 Has a lawyer committed obstruction of justice if she destroys a hard drive given to her by a client when the hard drive con­ tains images of child pornography that are a crime to possess? Federal case law is increasingly filled with such tricky questions of the borderline between crime and adversarial litigation or ordinary interaction with government.

c)  Fraud in government Just as a bigger government supplies more opportunities to cheat the state, a bigger government employs more people who may include not only the public-spirited but also the venal. Corruption, whether covered by bribery, extortion, or other laws, has been commonly criminalized since at least the nineteenth century.46 But the matter has grown much more complex with the scale of private financing of contemporary U.S. politics. U.S. criminal law has dealt with the line-drawing problem in this realm through doctrine that identifies corruption, under the most commonly deployed statutes, as the giving of something of value with the intent to influence official action pursuant to a “quid pro quo,” that is, a contract-like understanding that payment x is in return for official decision y.47 In recent reforms to its bribery laws, the United Kingdom has followed a similar approach. Given the practical difficulties of proof that attend such quid pro quo require­ ments, this might be a workable means of filtering cases. But it is an imperfect solution to the boundary problem in corruption. Conceptually, if not doctrinally, it remains difficult to explain the difference between these two cases: paying a mem­ ber of Congress to vote against a proposed law to regulate banks more strongly; and regularly sending heaps of campaign contributions to the same member with the reasonable expectation, based on past performance, that the member will vote against all such proposed laws. Probably this is because Americans do not have a clear idea of how to specify what they think corruption really is, in spite of the constant use of casual metaphors about “clean government,” “sewers,” and the like. The result is uneven exercise of prosecutorial discretion, which swings between cases of flagrant organized graft, such as that involving former Congressman Randy “Duke” Cunningham of San Diego, and cases of ethical missteps, such as that of the home renovations accepted by former Senator Ted Stevens of Alaska, a criminal conviction the government ultimately abandoned due to serious prosecutorial errors. Two more features of contemporary criminal enforcement involving govern­ ment officials are especially interesting. First, in the United States this field presents   Arthur Andersen LLP v. U.S., 544 U.S. 696 (2005).   James Lindgren, “The Elusive Distinction Between Bribery and Extortion: From the Common Law to the Hobbs Act,” (1987) 35 UCLA LR 815 ff. 47   U.S. v. Sun-Diamond Growers of California, 526 U.S. 398 (1999). 45

46

854   samuel w. buell challenging and hotly debated issues of federalism. The Department of Justice has for many decades viewed its mandate as including the policing of state and local corruption. Protecting citizens from corruption in government institutions that fail meaningfully to represent them or police themselves, the argument goes, is akin to using federal power to protect citizens from violations of their civil rights when states fail to provide that assurance. Because Congress lacks the constitutional power to regulate state and local gov­ ernment directly, pursuit of this agenda has required legislative and prosecutorial creativity. Federal bribery statutes are applied to state and local government institu­ tions that use federal funds. Or federal fraud statutes are applied on the theory that state and local officials owe a “duty of honest services” to their constituents. Some believe, with occasional sympathy from the Supreme Court, that these extensions of federal criminal law, rather than protecting citizens from state and local graft, threaten to deprive the people of their rights and authority to control their own governance.48 Secondly, the law of bribery is venturing more frequently into international waters, where it is encountering strong and unpredictable cross currents. The Foreign Corrupt Practices Act and the U.K. Bribery Act 2010, along with similar laws adopted by other developed economies pursuant to treaty obligations, appear to seek to eradicate the sort of rent-seeking by officials in developing economies that had long been an accepted cost of doing business abroad. Indeed, the Department of Justice has said that its aggressive recent enforcement activity in this area is intended to change international business culture. The complication, of course, is that legal lines that are difficult to draw become even trickier to make out as one carries doctrine around the globe, traversing diverse normative environments. One country’s idea of graft may be another country’s idea of efficient bureaucracy. Corruption in government can be entrenched and difficult to dislodge. Social norms are even harder to alter quickly. Complicating matters are confusing questions about whose interests are advanced by a global campaign against corruption in the conduct of business with govern­ ments. Citizens of successful market economies that have been relatively free of corruption? Those who yearn to have such economies? Businesses venturing forth with good intentions but loathe to cede competitive advantages? Businesses trying to get off the ground in markets that have previously tolerated bribery? Free-riding countries that do not pursue enforcement against their own firms but would like the field of competition cleared by enforcement against the firms of other countries? It will be some time before we know what the public and private effects have been of the increased presence of criminal enforcement in the international business realm.

  Roderick M. Hills, Jr., “Corruption and Federalism: (When) Do Federal Criminal Prosecutions Improve Non-Federal Democracy?,” (2005) 6 Theoretical Inquiries in Law 1565 ff. 48

“white collar” crimes   855

d)  Harm to health and the environment The final major sector of white-collar criminal enforcement encompasses activities that harm, or threaten to harm, public health and the environment. Instrumentalist thinking dominates the crafting and enforcement of these offenses, as it is often dif­ ficult to construct strong or fully coherent accounts of moral blameworthiness in such cases. Typically the law takes what are simply regulatory violations of a civil nature and layers on top of them criminal offenses that carry much more severe penalties for violations committed with heightened forms of mens rea. Of course, as in other areas of white-collar crime, there are plenty of egregious cases that lack any ambiguity about criminality: the global oil company that reck­ lessly allows a tanker or an offshore well to fail, ruining an ecosystem; or the landlord who disregards fire codes and then sees a nightclub packed with clients engulfed in flames. Sometimes prosecutors use old-fashioned homicide statutes to pursue such cases, along with charging criminal offenses relating to environmental harm or public safety. Regulatory offenses, however, more commonly involve debatable choices about where to set the line between crimes and civil penalties. Consider two common examples. The Clean Water Act, a landmark environmental legislation of the 1970s, includes provisions criminalizing the violation of discharge permits.49 In other words, it is not necessarily a crime to release pollutants into public waterways. (Sewage management, among other things, would be impossible if it were.) It is a crime to release more of something than one has been given a license to release, after complicated processes of application and approval. Doing so with intent can be a felony. Somewhat similarly, the Federal Food, Drug, and Cosmetic Act, which regu­ lates the pharmaceutical industry, makes it a crime to market drugs for purposes other than those approved by the government after an even more complicated process of application and review.50 Nothing in criminal law prevents a physician from treating her patient with lawful drugs as she sees fit, including by prescrib­ ing a medicine to treat something for which the medication has not been tested. But if a drug company representative informs a doctor of a medicine’s possible effectiveness for an illness for which the government has not approved the drug, the representative and his employer have engaged in criminal marketing of the drug.51 In doctrinal terms, they have committed the crime of “misbranding.” This type of prosecution, and threats to bring it, have yielded billions of dollars in payments to the government by pharmaceutical manufacturers over the last two decades.

50   33 USC § 1319.   21 USC § 331.   An emerging line of First Amendment reasoning threatens to complicate the government’s efforts in this area. U.S. v. Caronia, 703 F.3d 149 (2012). 49 51

856   samuel w. buell

2.  Responses to the problem of legal specification As with virtually any significant matter of law, it is essential to the understanding of substantive white-collar crimes to have in view their institutional dimensions. In terms of this chapter’s theme, the object is to see how major legal institutions cope with the problem of embeddedness and its production of line-drawing challenges. The institutional dimensions of white-collar crimes are rich subjects of economic, political, legal, and normative inquiry that can only be flagged here.

a) Legislation Many who enter debates about white-collar crime, especially defense advocates engaged in the task of litigation, argue for a seemingly simple response to the prob­ lem of embeddedness. The criminal law, carrying the severest public sanctions short of war craft, ought to stay well back from boundary regions, applying itself only to “core” white-collar crimes that engender little or no disagreement: premedi­ tated Ponzi schemes, outright embezzlement of corporate assets, deliberate perjury before enforcement tribunals, and the like. As long as the criminal law keeps its eye on its core task, the argument goes, legislation can clearly and precisely describe prohibited behaviors. The problem is that behaviors in the competitive realms of economics and pol­ itics evolve and diversify too rapidly for such approaches to be effective. The modern administrative state, with its massive rule-making bureaucracies, ameliorates the problem to some degree. But even these executive branch institutions can be lethar­ gic and inefficient, and many believe as a normative matter that they should not substitute too often for legislatures. Positive law supplies considerable evidence of the seriousness of this difficulty. Common law systems have repeatedly opted in the realm of white-collar crime for broad legislative prohibitions that are tacitly or explicitly meant to be filled in by courts through the process of adjudication. Fraud statutes prohibit “schemes to defraud.” Obstruction of justice statutes prohibit “interference with the adminis­ tration of justice.” Corruption statutes prohibit “payment with intent to influence.” Extortion statutes prohibit “coercion.” There are many such examples. In spite of abundant rhetoric about the constitutional allergy to criminal liability in uncer­ tain circumstances, most white-collar criminal law in the United States cannot be understood fully without the help of lawyers and judicial opinions. Some scholars have argued that this feature of criminal legislation is a function of the economy of politics.52 There is much truth in what they have said. Except when legislators see anti-corruption prosecutors headed their own way, they have little incentive to narrow the substantive criminal law. The least-cost option is to vote in 52

  William J. Stuntz, “The Pathological Politics of Criminal Law,” (2001) 100 Michigan LR 505 ff.

“white collar” crimes   857 favor of each new, broad prohibition and let prosecutors—who are keen to husband public support for their actions lest their legal weapons be taken away—choose to use broad statutes to punish the “bad” while leaving the “good” alone. Perhaps sur­ prisingly, this dynamic has affected not only politically powerless street offenders but also well-represented corporate criminals, whom the public often wants to see treated severely. There is more to the story, however. Even life-tenured judges, who are not subject to electoral politics, have been full participants in filling in white-collar criminal law case by case. Statutes are infrequently narrowed by interpretation in criminal cases. They are almost never ruled unconstitutionally vague or broad. Going back centur­ ies, Anglo-American courts have said that prohibitions against fraud, obstruction of justice, and other behaviors must be left somewhat open-ended, lest the crafty wrongdoer too easily evade punishment. The fact is that the political economy is not the only economy influencing white-collar criminal legislation. There is also an economy of law compliance, law violation, and law enforcement, which is exceedingly competitive in the corporate sector, whose occupants devote massive resources to planning in the shadow of law. To take just one example, several prominent frauds of the early 2000s (Enron, WorldCom, etc.) were based on sophisticated manipulations of the U.S. account­ ing regime, which can be similar to tax law in its specificity and arcana. Without general prohibitions against deceiving shareholders, well-counseled public compan­ ies could engineer misleading financial statements around, and through the gaps in, accounting rules—especially given the argument that reliance on professional advice ought to be a defense to fraud. For good or ill, lawmakers and the public have concluded that broad antifraud prohibitions are necessary to deter such behaviors and that civil enforcement alone cannot adequately protect the public.

b) Prosecution The persistence of open texture in white-collar criminal laws surely rests in part on the pattern by which prosecutors enforce those laws. If prosecutors pushed the major statutes to their full logical limits in too many cases, especially in the realm of routine business activity, support for such laws would likely drain away. Prosecutors are not naïve about this, nor are the many well-intentioned officials among them uninterested in questions of public welfare. The result has been the development of informal practices of charging white-collar cases when the facts are “bad” or “egre­ gious”—as measured by the level of venality in mental state, the kind or amount of harm inflicted on the public, or more often some combination of the two. Plenty of disputable cases still enter the system, but far less than the logic of the law would allow. Strong evidence for this dynamic in prosecutorial decisions can be found by examining the contemporary practice of white-collar criminal defense. Business

858   samuel w. buell is booming. And this form of law practice consists largely of what the bar refers to as “conference room litigation,” that is, a process of negotiation and contestation during the investigative phase that is designed to persuade authorities that the case is not “really criminal” at all, or at least merits a lesser form of conviction and sen­ tence.53 This informal litigation before actual criminal charges even includes forms of appeal. The Department of Justice routinely affords defense counsel the opportun­ ity to argue to supervisory personnel that “line” prosecutors are preparing to make the wrong decision about whether to charge a case criminally.

c) Adjudication Finally, the judiciary plays an important role in managing the boundaries of white-collar criminal law. The motivations for this behavior are not entirely clear. But the results are easily observable. The federal courts generally take one of two approaches when confronted with difficult questions of line-drawing in cases pros­ ecuted under white-collar statutes. Occasionally courts (more often the Supreme Court than the lower appellate courts) will narrow a statute through judicial inter­ pretation to limit its application to a somewhat more predictable class of cases. The most prominent recent such example was the Supreme Court’s ruling that a federal fraud statute, which has been frequently used to deal with public corruption and nonmonetary frauds involving violations of corporate fiduciary duties, could no longer be applied in the absence of proof of payment of a bribe or kickback to the defendant.54 More often, courts rest rulings on the facts of white-collar cases, finding that a particular defendant’s level of wrongful intent makes irrelevant any concern about the statute’s potential application to “innocent-minded” persons.55 In fraud and other cases, this approach can often involve implicit or explicit find­ ings that the defendant was “conscious of wrongdoing” or “knew what she was doing was wrong.” This idea has origins in very old jurisprudence about how “badges of fraud,” such as active steps to conceal evidence, marked out cases of fraudulent conveyance in debtor–creditor law. (Lord Coke talked about it in a seventeenth-century case involving a debtor who craftily shifted his sheep over to another man’s pasture.56) The idea seems to be that even though mistake of law is not generally a defense to white-collar crimes, genuine concerns about unfair notice fall away if the defendant had some sense that her behavior was normatively wrong. There is reason to believe that this idea is rooted in extra-legal social norms because of evidence that jurors may approach deliberations in white-collar cases with similar criteria in mind.

  Gerard E. Lynch, “Our Administrative System of Criminal Justice,” (1997) 66 Fordham LR 2117. 55   Skilling v. U.S., 561 U.S. __ (2010).   U.S. v. Dial, 757 F.2d 163 (1985). 56   Twyne’s Case (1601) 3 Co. Rep. 80b, 76 E.R. 809 (K.B.). 53

54

“white collar” crimes   859 Jurors typically want to see that “smoking gun” email or memo in which a busi­ nessperson worried aloud about whether anyone might go to jail.

iii.  Punishment and Public Attitudes It remains to conclude by tying the preceding discussion of law to the broader social context of white-collar crime. There is substantial ambivalence in the United States about how to treat white-collar criminals. Although the point is necessarily specu­ lative, it stands to reason that instability and contestation along the borders of doc­ trinal crime definitions is at least related to, if not symptomatic of, clashing social attitudes. The phenomenon is more likely one of genuine ambivalence than of political dispute. Although individuals on the left are well known to be less tolerant of harm resulting from aggressive business conduct than those on the right, it is difficult to say that fixed patterns of attitude toward white-collar crime predictably correlate with demographic and other attributes. Consider, for example, the seeming aggres­ siveness of U.S. white-collar prosecutors during the George W. Bush administra­ tion in contrast with repeated criticisms of Obama administration prosecutors for “failing to put bankers in jail” and the like. More predictable are differing attitudes depending on whether individuals are considering the problem of white-collar crime from a general ex ante perspective or are, ex post, confronting individuals who are candidates for potential punishment in cases of less than flagrant wrongdoing.

1.  White collar sentencing in the United States Evidence of ambivalence is most prominent in the area of sentencing law and prac­ tice. Impatience, both within and outside legal institutions, with lenient sentences for white-collar crimes, which often included substitution of fines, probation, and community service for imprisonment, was one of the primary drivers of the U.S. sentencing reform movement of the 1970s and 1980s. The result was the pro­ duction of constricting sentencing guidelines systems that made it much more dif­ ficult for defense counsel and sympathetically inclined judges, especially in federal court, to avoid imposition of prison sentences for white-collar criminals. As public concern with misconduct in the corporate sector increased during the 1990s and 2000s, legislatures and sentencing commissions steadily harshened sen­ tencing guidelines for financial crimes, to the point at which notional sentences for

860   samuel w. buell serious frauds equated to common sentences for murder.57 At about the same time, the Supreme Court ruled as a matter of constitutional law that guidelines could no longer legally restrain sentencing judges.58 Not surprisingly, the white-collar sen­ tencing pendulum began immediately to move a bit in the other direction, at least to the extent that few judges in relatively routine cases imposed the exceedingly lengthy sentences—up to and including life imprisonment—that current U.S. law authorizes in white-collar cases involving sizeable losses. It is much easier to say that a relatively faceless class of corporate executives should be subject to long prison sentences than it is to lock away a particular indi­ vidual who typically stands before the court with a long record of professional suc­ cess, no record of criminal activity, a history of charitable works, and a story about her ability to contribute in some substantial way to social welfare if spared prison. The general problem of “corporate criminals” becomes more complex when indi­ vidualized, for judges of all political stripes. There is reason to believe that jurors may be subject to something of the same dynamic. When a remarkably accom­ plished, up-by-the-bootstraps member of the Goldman Sachs board of directors was recently prosecuted for insider trading, the jurors reported that they searched for any possible grounds in the evidence on which to acquit the man and send him home, but to their regret found none.

2.  Absence of equilibrium Two major influences likely perpetuate ambivalence towards white-collar crime, and thus contribute to boundary problems in crime definition and pendulum swings in sentencing law and practice. First, a capitalist economic system—and the United States is history’s leading example—by definition requires citizens to believe in two conflicting ideas at once. Entrepreneurs must be unleashed to create wealth but penned in lest their pursuit of self-interest generate regrettable and harmful externalities. In the morally charged realm of criminal law, this makes likely a pub­ lic belief that pursuit of wealth can be either worthy or repulsive, and difficulty in clearly understanding or seeing the difference between the two. Greed is both good and bad. Secondly, robust U.S. discourse about the idea of equality plays out in complicated ways when it comes to white-collar crime. On the one hand, law should treat no one more favorably because of her social class. As the criminal justice system has grown   Daniel C. Richman, “Federal White Collar Sentencing in the United States—A Work in Progress,” (2013) 76 Law & Contemporary Problems 53 ff.; Samuel W. Buell, “Reforming Punishment of Financial Reporting Fraud,” (2006) 28 Cardozo LR 1611 ff.; Frank O. Bowman, III, “Pour Encourager Les Autres?: The Curious History and Distressing Implications of the Sarbanes–Oxley Act and the Sentencing Guidelines that Followed,” (2003) 1 Ohio State Journal of Crim. Law 373 ff. 58   U.S. v. Booker, 543 U.S. 220 (2005). 57

“white collar” crimes   861 notoriously intrusive and punitive toward common criminals, the belief has grown that white-collar criminals ought not be treated any less severely than anyone else. This logic can lead to a kind of doubling-down on incarceration strategies. On the other hand, it can be difficult to ignore real differences that distinguish white-collar crimes—and often but not always the persons who commit them—from murders, rapes, robberies, burglaries, and assaults. It is hard not to conclude that instability in the law of white-collar crime will persist as long as Western societies have not quite resolved their attitudes toward white-collar criminals and business activity in general. It is not only challenging to say what white-collar crime is; it is also hard to find precisely where it fits in the architecture of contemporary morality. So it remains intensely interesting.

References Arlen, Jennifer H., “Economic Analysis of Corporate Criminal Liability:  Theory and Evidence,” in Alon Harel and Keith Hylton (eds.), Research Handbook on Criminal Law (2012) Becker, Gary, “Crime and Punishment:  An Economic Approach,” (1968) 76 Journal of Political Economy 169 Buell, Samuel W., “Novel Criminal Fraud,” (2006) 81 New York University LR 1971 Buell, Samuel W., “Is the White Collar Offender Privileged?,” (2014) 63 Duke LJ 823 Coffee, John C., Jr., “Does ‘Unlawful’ Mean Criminal? Reflections on the Disappearing Tort/ Crime Distinction in American Law,” (1991) 71 Boston University LR 193 Eichenwald, Kurt, The Informant (2001) Green, Stuart P., “The Concept of White Collar Crime in Law and Legal Theory,” (2004) 8 Buffalo Crim. LR 1 Green, Stuart P., Lying, Cheating, and Stealing: A Moral Theory of White-Collar Crime (2007) Kadish, Sanford H., “Some Observations on the Use of Criminal Sanctions in Enforcing Economic Regulations,” (1963) 30 University of Chicago LR 423 Lynch, Gerard E., “The Role of Criminal Law in Policing Corporate Misconduct,” (1997) 60 Law & Contemporary Problems 23 Schlegel, Kip and Weisburd, David (eds.), White Collar Crime Reconsidered (1992) Stuntz, William J., “The Pathological Politics of Criminal Law,” (2001) 100 Michigan LR 505 Sutherland, Edwin H., White Collar Crime (1949) Weisburd, David et al., Crimes of the Middle Classes: White-Collar Offenders in the Federal Courts (1991) Weisselberg, Charles D. and Li, Su, “Big Law’s Sixth Amendment:  The Rise of Corporate White-Collar Practices in Large U.S. Law Firms,” (2011) 53 Arizona LR 1221 Wheeler, Stanton et al., Sitting in Judgment: The Sentencing of White-Collar Criminals (1992)

­c hapter 38

PUBLIC WELFARE OFFENSES darryl k. brown

i.  Introduction to Public Welfare Offenses “Public welfare offenses” form a curious category within criminal law for several reasons. First, they contradict a purported principle of criminal law by imposing strict liability, when criminal law is distinguished from civil by its requirement of fault as a prerequisite to punishment. Secondly, these strict liability crimes are endorsed with little hesitancy largely in the United States and England, although criminal codes elsewhere employ rules that are not far removed from strict liability. Finally, despite widespread judicial approval of strict criminal liability, the num­ ber of truly strict public welfare offenses is probably much smaller than courts and some commentators suggest; even without formal mens rea requirements, many such crimes rest on a plausible inference of culpability. Even if the last claim is persuasive, public welfare offenses make a useful concept not for the clarity it adds to criminal law but for the insights it offers about jurisdic­ tions that embrace it. For one, public welfare offenses arguably are more a creation of courts than of legislatures, and so they reveal a widespread judicial approval of criminal liability without culpability. In particular, they reveal judicial—and per­ haps a broader political or cultural—receptivity to utilitarian rationales that trump

public welfare offenses   863 conflicting normative principles; this is especially interesting when we recognize that arguments for the need of public welfare crimes, as opposed to equivalent civil sanctions, are weak. Moreover, while I will raise questions about the meaningful­ ness of public welfare offenses as a distinctive category, they seem to be a good indi­ cator of a jurisdiction’s embrace of strict criminal liability more generally: the more a jurisdiction legitimizes public welfare offenses, the more it seems to incorporate strict liability elsewhere in its criminal law. In what follows, I  develop these claims and offer explanations—some of them familiar—for long-standing Anglo-American acceptance of public welfare offenses. After defining the category in more detail, I recount widely accepted historical and practical explanations for public welfare offenses. I also provide context that cor­ rects some details in familiar accounts of the origin of these offenses. Attention then turns to the rationales for and criticisms of public welfare offenses, including con­ ceptual and political considerations. Public welfare offenses reveal Anglo-American criminal law’s distinctive comfort with criminal liability that is not defined closely in relation to fault, and tendencies in both jurisdictions to embrace a significant de facto conceptual distinction between offenses that are formally criminal and a sub­ set that are widely accepted as not truly criminal.

ii.  Definitions: Public Welfare Offenses and Strict Liability 1.  “Public welfare offenses” The term “public welfare offenses” is more common among U.S. courts and schol­ ars. In England, Canada, and elsewhere, “regulatory offences” is probably more common. By either label, public welfare offenses are generally defined as minor crimes that carry modest fines, although short incarceration terms may be author­ ized.1 They are understood as “regulatory” in nature—malum prohibitum rather than malum in se—and commonly address threats to “public health, public safety, public morals, or public order.” The fact that they regulate morally neutral rather than inherently wrongful conduct is thought to minimize any stigma attached to conviction.2 Partly for these reasons—and the lack of explicit mens rea terms in the 1   R. v. Lambert [2002] 2 A.C. 545; U.S. v. Morissette, 346 U.S. 240 (1952); R. v. Wholesale Travelers Group [1991] 3 SCR 154, 218–220 (Canada). 2   Provincial Motor Cab Co. v.  Dunning [1909] 2 K.B. 599, 602 (“particular class” of offenses that “arise only from the breach of a statutory regulation . . . is not to be regarded as a criminal offence in the

864   darryl k. brown statutes—courts interpret these offenses to carry strict liability. As additional justi­ fication, courts assert that potential offenders know or should know of the regulated nature of their activity,3 and add the practical claim that proof of mens rea for these settings would be unusually difficult to prove, making enforcement difficult and costly.4 Given their strict liability nature, these offenses violate criminal law’s core nor­ mative principle, actus non facit reum nisi mens sit rea5—roughly, no criminal liability without proof of fault, or in Blackstone’s words, the requirement that a “vicious will” must accompany an “unlawful act.”6 For this reason, courts try to sharply distinguish public welfare offenses from “ordinary” or “true” criminal law,7 although the category is so well established that it in fact is part of Anglo-American criminal law.

2.  Strict criminal liability Before proceeding, a more precise definition of “strict liability” is in order, if only because courts and scholars have given the term (and the related label “absolute liabil­ ity”) different meanings. There are important distinctions among crimes described as “strict.”8 Following others, I employ strict liability to mean that an offense con­ tains at least one material element for which the state is not required to prove mens rea, or culpable state of mind. As one example, a crime of possessing an unreg­ istered automatic weapon that requires proof that one knew the weapon’s nature (automatic) but not its unregistered status is a strict liability offense. Possessing such a weapon is not inherently wrongful, but its nature is thought to put one on notice about regulations that carry penalties if breached. For other strict liability offenses, proof of fault is required for an element that defines wrongfulness, while full sense of the word”); R. v. Lambert [2002] 2 A.C. 545; Morissette, 346 U.S. 240 (1952) (both noting minimal “stigma”); R. v. Lemon, R. v. Gay News Ltd. [1979] 1 All E.R. 898 (H.L.) (“usual justification for . . . strict liability . . . is the threat . . . to public health, public safety, public morals or public order”); R. v. City of Sault Ste. Marie [1978] 2 SCR 1299 (Canada).  See R. v. Davies [2003] ICR 586; R. v. Wholesale Travelers Group [1991] 3 SCR 154; R. v. Chargot Ltd. [2009] 1 WLR 1 (H.L.). See also Janet Dine, James Gobert, and William Wilson, Cases and Materials on Criminal Law (5th ed., 2006), 184 ff. 4   R. v. S. [2003] 1 Cr. App. R. 35 (Trade Marks Act 1994, section 91(2)(c)); R. v. Wholesale Travelers Group [1991] 3 SCR 154, 246–247; Staples v U.S., 511 U.S. 600, 607, 619 (1994); People v.  Stanley, 921 N.E.2d 445, 452–454 (Ill. App. 2009); State v. Jordan, 733 N.E.2d 601, 606–607 (Ohio 2000). 5   Fowler v. Padget (1798) 7 Term Rep. 509, 101 E.R. 1103. 6   William Blackstone, Commentaries on the Laws of England, Vol. 4: Public Wrongs (1769), 21 ff. 7   R. v. Wholesale Travelers Group [1991] 3 SCR 154, 218–220 (Canada). 8   Stuart P.  Green, “Six Senses of Strict Liability:  A  Plea for Formalism,” in A. P.  Simester (ed.), Appraising Strict Liability (2005), 1 ff.; R.  A. Duff, “Strict Liability, Legal Presumptions, and the Presumption of Innocence,” in Simester, ibid., 125 ff.; Douglas N. Husak, “Varieties of Strict Liability,” (1995) 8 Canadian Journal of Law & Jurisprudence 189 ff., 199, 223. 3

public welfare offenses   865 an element that increases punishment severity is strict. For example, sexual assault is wrongful. Assault on a victim under age 13 constitutes a more serious offense, but the victim’s age is usually a strict liability element in U.S. law. (“Constructive” strict liability sometimes describes crimes that require culpability for one wrongful ele­ ment but not others.) Public welfare offenses, however, go further:  they lack mens rea requirements for most or all elements, even for elements that define wrongfulness. One exam­ ple is liability for a seller of adulterated food without proof he knew (or was neg­ ligent regarding) its adulterated nature; another is punishment of a parent for a child’s truancy without proof the parent was reckless or negligent as to the child’s absence from school. Offenders may be punished under such statutes for conduct (or inaction) they reasonably believed to be wholly innocent. (“Pure” strict liability sometimes describes such offenses.) U.S. and English courts approve public welfare offenses of this form, although in practice it is hard to find examples of defendants who were not (at least arguably) negligent. Other distinctions matter as well. For some offenses, defendants may argue against the strict liability element by proving reasonable care or due diligence, or powerlessness to prevent the violation. In Canadian law, the defendant can always offer this kind of defense to a strict liability offense; a disfavored group of minor offenses that permit no defense are labeled “absolute liability.”9 In England and the United States, some strict liability statutes specifically provide for such defenses.10 This offense structure in effect shifts part of the burden of proof to the defendant.

iii.  Comparative Status of Strict Regulatory Offenses As noted, public welfare offenses seem largely to be a feature of the criminal law of England, Wales, and U.S.  jurisdictions. Other common law jurisdic­ tions, notably Canada, New Zealand, and much of Australia, have been much   R. v. City of Sault Ste. Marie [1978] 2 SCR 1299, 1301 (Canada).   For examples see Rotherham Metropolitan Borough Council v. Raysun (U.K.) Ltd. [1988] BTLC 292, [1989] CCLR 1 (Q.B.) (defenses in section 24 of the Consumer Protection Acts 1961 and 1971, and in section 12 of the Consumer Safety Act 1986); Paul Roberts, “Strict Liability and the Presumption of Innocence: An Exposé of Functionalist Assumptions,” in Simester (n. 8) 151 ff. (citing statutes govern­ ing environmental harms, liquor sales, and weapons possession). For a U.S. example of statutes provid­ ing affirmative defenses, see U.S. v. Morissette, 346 U.S. 240, 265 and fn. 26 (1952). 9

10

866   darryl k. brown less receptive to strict criminal liability even for minor regulatory crimes, at least without ensuring that defendants are allowed to defeat liability with evi­ dence of reasonable care.11 In civil code jurisdictions, there is likewise varia­ tion among countries’ use of strict liability for regulatory offenses, although overall there is probably greater reluctance to authorize strict criminal liabil­ ity. Roughly speaking, variation seems to depend on how strongly a nation’s criminal law adheres to a principle of blameworthiness as a prerequisite for criminal liability. Germany, for example, strongly rejects strict criminal liabil­ ity (although apparently with a few exceptions). The Dutch Criminal Code, by contrast, includes strict liability regulatory offenses.12 Neither English nor U.S. law contains a general requirement for proof of blameworthiness as a pre­ requisite for criminal liability.13 Likewise, Art. 6(2) of the European Convention on Human Rights, which mandates the presumption of innocence, has not been interpreted to limit nations’ authority to adopt strict liability offenses. English courts in particular have firmly taken this view of Art. 6(2).14 The Canadian Supreme Court has interpreted the Canadian Charter of Rights and Freedoms, however, effectively to prohibit absolute liability for offenses that carry any term of imprisonment.15 It may be that differences between countries that reject strict liability regu­ latory offenses and those that embrace them is less than initially appears. Procedural and evidentiary rules can ease the state’s burden of proof on mens rea with effects that approach strict liability. Evidentiary presumptions regarding mens rea, for example, function much like strict liability rules that are rebuttable by defense evidence of due diligence. Both ease the state’s task of proving prima facie liability without proving culpability, then place the burden on defendants

11   R. v. City of Sault Ste. Marie [1978] 2 SCR 1299 (Canada). Stephen Shute and A. P. Simester (eds.), Criminal Law Theory: Doctrines of the General Part (2002), 10 ff. (noting the general requirement in these jurisdictions for proof of negligence); Richard Singer, “Resurgence of Mens Rea III:  The Rise and Fall of Strict Liability,” (1989) 30 Boston College LR 337 ff.; G.  L. Peiris, “Strict Liability in the Commonwealth,” (1983) 3 Legal Studies 117 ff. 12   Jeroen Blomsma, Mens Rea and Defences in European Criminal Law (2012), 209 ff. 13   On England, see G.  R. Sullivan, “Strict Liability for Criminal Offences in England and Wales Following Incorporation into English Law of the European Convention on Human Rights,” in Simester (n. 8) 195 ff. On U.S. law, see Herbert Packer, “Mens Rea and the Supreme Court,” (1962) Supreme Court Review 107 ff.; U.S. v. Behrman, 258 U.S. 280, 288 (1922) (“If the offense be a statutory one, and intent or knowledge is not made an element of it, the indictment need not charge such knowledge or intent”). But see Alan Michaels, “Constitutional Innocence,” (1999) 112 Harvard LR 828 ff. 14   R. v. G. [2008] 1 WLR 1379 (H.L.); Barnfather v. Islington Education Authority [2003] 1 WLR 2318 (QBD) (strict liability, without due diligence defense, for parent upon proof of child’s truancy from school); Kahn v. Trinidad [2005] 1 A.C. 374 (Privy Council). The decision of the European Court of Human Rights is less clear on whether Art. 6(2) restricts strict liability. Salabiaku v. France, App. No. 10589/83 (1991) 13 EHRR 379. See also Andrew Ashworth, “Should Strict Liability be Removed from All Imprisonable Offences?,” (2010) 45 Irish Jurist 1 ff.; Blomsma (n. 12) 213 ff. 15   Re B.C. Motor Vehicle Act [1985] 2 SCR 486; R. v. Pontes [1995] 3 SCR 44.

public welfare offenses   867 to either overcome the presumption or show due diligence. Additionally, offense definitions can be reformulated to ease the prosecution’s task, for example by criminalizing risk creation instead of harmful results, by defining preparatory conduct as a crime, or by otherwise eliminating an element from an offense defin­ition, thereby also removing mens rea for that element. All common law and European legal systems engage in some of this, and national laws vary also in how rigorously they conceptualize mens rea terms such as recklessness or negli­ gence; some ease the prosecution’s mens rea burden through mens rea defin­ itions.16 In sum, comparisons between jurisdictions that endorse and reject strict liability offenses may be less than they sometimes appear, and so require careful attention. Nonetheless, meaningful differences surely remain regarding regulatory offenses. On one view, this may be puzzling. All advanced nations have for several decades had extensive systems of administrative regulation—with ever-growing enforcement capacity—that serve much the same regulatory function as public welfare offenses. Where strict liability is disfavored, states rely on civil or admin­ istrative laws to impose sanctions for the same harmful or risk-creating con­ duct targeted by public welfare offenses. In Germany, for example, non-criminal provisions (Ordnungswidrigkeiten) that carry administrative fines (Geldbuße)17 address the same sorts of regulatory topics as U.S. public welfare offenses. Even England and the United States, where public welfare offenses are most firmly established, have expansive administrative codes that provide parallel civil pen­ alties. Criminal public welfare offenses and civil sanctions often cover the same activity, giving the government choices between civil or criminal enforcement strategies. The availability of civil alternatives do much to undermine arguments, com­ monly accepted by courts, that criminal regulatory offenses are necessary to meet the regulatory demands of modern societies. The modern administrative state, then, poses the question: why do some states retain this category of strict criminal liability, when it violates their purported actus non facit principle and can be eas­ ily replaced by non-criminal rules and penalties? Recall that judicial explanations suggest that public welfare offenses are functionally civil offenses already—minimal stigma and minor fines, usually for morally innocuous conduct. Part of the answer seems to lie in the history of public welfare offenses, and also in the reasons that scholars and courts have gotten that history wrong.

  Blomsma (n. 12) 218 ff. examines these differences in several countries and assesses their resem­ blance to strict liability. 17   Gesetz über Ordnungswidrigkeiten (OWiG, German Regulatory Offences Act), 19 Feb. 1987 (BGBl. I 602; III 454-1). John Spencer and Antje Pedain, “Approaches to Strict and Constructive Liability in Continental Criminal Law,” in Simester (n. 8) 237 ff., 240. 16

868   darryl k. brown

iv.  History of Public Welfare Offenses 1.  Judicial embrace of strict regulatory offenses Familiar accounts of public welfare offenses in Anglo-American law trace their origins to the mid-nineteenth century,18 and to an identifiable historical cause: the need for greater regulation that accompanied growing markets, industrialization, and urbanization in the 1800s. One scholarly account has had a singular influ­ ence: Francis Sayre’s 1933 Columbia Law Review article, “Public Welfare Offenses.” Sayre surveyed decades of criminal law decisions in English and U.S. courts and concluded that criminal offenses were unusual until the 1840s. Before that decade, strict criminal liability was confined to a few exceptional offenses, especially cer­ tain libel offenses and morals crimes like statutory rape and adultery.19 Beginning at mid-century, however, English and U.S.  courts began to conclude that a wide range of minor “police offenses and criminal nuisances” lacked any requirement to prove the defendant’s guilty mind along with his action (or inaction despite a duty to act). In both countries, these “public welfare offenses” had “increased rapidly in number and importance” in the second half of the nineteenth century and into the twentieth.20 Sayre was not alone in noticing this development. R. M. Jackson described the evolution in English criminal law in a Cambridge Law Journal article in the same era,21 earlier treatise writers such as Bishop and Prentice had acknowledged strict liability in various police offenses,22 and courts by the 1930s widely recognized a presumption against mens rea for malum prohibitum statutes that lacked explicit mental-state terms. But Sayre’s article gave a name to this class of offenses, especially in U.S. courts.

a)  English courts The 1846 decision of R.  v.  Woodrow is commonly cited as the turning point. In that decision, the Court of Exchequer affirmed a £200 forfeiture for possession of adulterated tobacco, even though Woodrow had convincingly shown that he had “no knowledge or cause to suspect” the tainted status of the goods. Baron Parke’s  e.g. R. v. Woodrow (1846) 15 M. & W. 404, 153 E.R. 907; Morissette, 346 U.S. 240 (1952); Sullivan (n. 13) 196 ff. 19   A survey of strict liability is found in R. v. Prince (1875) L.R. 2 CCR 154, 163 (Brett J., dissenting). 20   Francis Sayre, “Public Welfare Offenses,” (1933) 33 Columbia LR 55 ff. 21   R. M. Jackson, “Absolute Liability in Statutory Offences,” (1936) 6 Cambridge LJ 83 ff.; also W. T. S. Stallybrass, “The Eclipse of Mens rea,” (1936) 52 LQR 67. 22   William Prentice, Police Powers Arising Under the Law of Overruling Necessity (1894), 136 ff.; Joel Prentiss Bishop, New Commentaries Upon the Criminal Law (8th ed., 1892), § 303. 18

public welfare offenses   869 opinion offered a rationale that courts continue to invoke today as a justification for strict criminal liability:  for some offenses, the difficulty of proving mens rea is accompanied by the special importance of preventing the harm that the statute seeks to prevent. “[T]‌he public inconvenience would be much greater, if in every case the officers were obliged to prove knowledge. They would be very seldom able to do so.” The “public inconvenience” of ineffective enforcement arising from the burden of proving mens rea justified, for the Woodrow court and subsequent ones, interpreting the statute as a strict liability offense. On the other side of the Atlantic, scholars often identified the 1849 decision in Barnes v. State as U.S. counterpart to Woodrow—the decision that signaled courts’ new willingness to interpret certain minor statutory offenses as having no mens rea requirement. In Barnes, the Connecticut Supreme Court affirmed a petty convic­ tion for selling liquor to a “common drunkard” without proof that the defendant knew his customer’s status as a drunkard.23 Over the subsequent several decades, English and U.S. courts issued numerous decisions concluding that various statu­ tory offenses included no mens rea requirement. Often, they inferred legislative intent by reference to public interests in preventing the specific harm that the offense targeted, or the fact that the conduct posed a risk of harm to large numbers of people. A few English decisions illustrate the point. The 1866 decision in R. v. Stephens upheld an indictment based on the common law public nuisance doctrine rather than a statute and provided an early example of a court endorsing vicarious strict liability on a business owner for the conduct of agents. A  quarry owner had been charged after his workers—unbeknownst to him “and against his gen­ eral orders”—obstructed a river with waste from the quarry.24 Vicarious liability for firms, owners, and supervisors was to become a routine form of public wel­ fare offense liability in the next century. Jackson identified the 1873 decision in Fitzpatrick v. Kelly as the first to impose absolute liability for sale of adulterated food.25 By 1899, Lord Russell concluded that adulterated-food offenses are “one of the class of cases in which the Legislature has, in effect, determined that mens rea is not necessary to constitute the offence.”26 In Hobbs v. Winchester Corporation, the English Court of Appeal held that a butcher could be convicted under the Public Health Act 1875, for unknowingly selling unsound meat, the unsoundness of which could not be detected by reasonable inspection.27 Provincial Motor Cab Co. v.  Dunning approved a conviction for operating cars without tail lights—as required by a regulation pursuant to the Motor Car Act 1903—without proof that   Barnes v. State, 19 Conn. 398 (1849).   R. v. Stephens (1866) L.R. 1 Q.B. 207. For an earlier example, see R. v. Medley (1834) 6 C. & P. 292, 172 ER 1246 (affirming criminal liability for public nuisance of owners of gas works after agents despoiled 25 a river with refuse from the business).   (1873) L.R. 8 Q.B. 337. 26 27   Parker v. Adler [1899] 1 Q.B. 20.      [1910] 2 K.B. 471. 23

24

870   darryl k. brown the owner-defendants knew of the tail light failures.28 The court explained that proof of intent “does not apply to that particular class” of offenses that “arise only from the breach of a statutory regulation,” because the regulation “was for the protection of the public” and a breach “is not to be regarded as a criminal offence in the full sense of the word.”

b) U.S. courts U.S. state courts followed the same path in the decades after Barnes. A number of decisions concluded that no mens rea proof was required for petty offenses that addressed such matters as sale of liquor, contaminated foods, and—in the South, where slavery prevailed until the 1860s—slavery regulations such as a prohibition on common carriers transporting slaves without the owner’s written permission. In 1846 the Tennessee Supreme Court insisted, in a common-carrier prosecution, on the “sacred principle” that “the intention to commit the crime is of the essence of the crime.”29 But a decade later a Maryland court held a similar statute to require no mens rea proof, and thereafter courts frequently abandoned the “sacred prin­ ciple” for many mala prohibita statutes. They approved criminal liability under various statutes “irrespectively of any knowledge” on the defendant’s part regarding the critical conduct or circumstance elements that made the conduct criminal—the intoxicating or contaminated nature of their products, or the presence of a slave on their vessels.30 By the early twentieth century, the category of strict regulatory offenses was firmly established in U.S. courts, even if the definition of the category was impre­ cise. A representative state court decision described “a well-recognized distinction between statutes denouncing as crimes acts mala in se and statutes denouncing as crimes acts mala prohibita. In the former, generally speaking, intent is a necessary element, while in the latter it is not so.” The second group lacks mens rea require­ ments because they “are in the nature of police regulations, are for the protection of the public, or are intended to promote the general welfare.”31 The U.S. Supreme Court in U.S. v. Balint said the same: in the prohibition or punishment of particular acts, the state may in the maintenance of a public policy provide “that he who shall do them shall do them at his peril and will not be heard to plead in defense good faith or ignorance.” Many instances of this are to be found in regulatory measures in the exercise of what is called the police power where the emphasis of

  [1909] 2 K.B. 599, 602.   Duncan v. State, 7 Hum. 148 (Tenn. 1846) (mens rea required for offense of transporting a slave). 30   State v. Baltimore and Susqu. Steam Co., 13 Md. 181 (1857) (no mens rea required for transporting a slave); Commonwealth v. Boynton, 2 Allen 160 (Mass. 1861); Commonwealth v. Farren, 9 Allen 489 (Mass. 1864); quotation from Commonwealth v. Goodman, 97 Mass. 117, 119 (1867). 31   State v. Lindberg, 125 Wash. 51, 59 (1923); also People v. D’Antonio, 134 N.Y.S. 657 (1912). 28

29

public welfare offenses   871 the statute is evidently upon achievement of some social betterment rather than the punish­ ment of the crimes as in cases of mala in se.32

By the mid-twentieth century, the legitimacy of strict criminal liability was so widely accepted that it sometimes slipped beyond the confines of minor regulatory crimes. The Supreme Court’s 1952 decision in U.S. v. Morissette provided an enduring descrip­ tion of the doctrine that courts will presume mens rea is required for traditional crimes but assume strict liability is intended for statutes with modern regulatory purposes. The case is telling, however, for a less noted point:  the willingness of the trial and lower appellate courts to infer strict liability for a critical element of a traditional theft offense—an element essential to determining whether a defendant acted wrongfully. The defendant was charged with ordinary theft (or “conversion”) of govern­ ment property after he took scrap metal, which he believed to be abandoned, from government land and sold it for a small profit. Even though the statute explicitly required proof that an offender “knowingly converts” government property, the trial and appellate courts both interpreted the statute to require no proof that the defendant knew the property belonged to the government, nor to permit evidence of his mistaken belief that it was abandoned as a defense. The appellate court found in this theft statute a public welfare purpose. “Manifestly,” the statute’s purpose “was to afford added protection against the taking of government property,” and “pun­ ishment for an illegal act done by one in ignorance of facts making it illegal is not contrary to due process of law.”33 This reasoning is striking and—though overturned by the Supreme Court—far from exceptional. The court extended the strict liabil­ ity rationale far beyond a typical low-level police regulation. It was unconcerned with the severity of the punishment—up to ten years in prison. And it emphasized the protective purpose of the statute—something true for virtually all crimes— without regard to the principle that punishment of wrongdoing requires proof of blameworthiness.

c)  From minor offenses to serious crimes The inclination toward strict liability even for serious offenses displayed by the Morissette lower courts continues in Anglo-American criminal law. Sayre (like others) claimed public welfare offenses were characterized by modest penalties and stigma, as well as by a protective, regulatory function on morally neutral con­ duct. By contrast, mens rea is always required for crimes with a primary aim of “singling out wrongdoers for punishment.”34 Even the earliest cases said as much. R. v. Stephens in 1866 affirmed a strict liability conviction “In as much as the object

  U.S. v. Balint, 258 U.S. 250, 252 (1922).   Morissette v. U.S., 147 F.2d 427, 429–430 (6th Cir. 1951). 34   Sayre, (1933) 33 Columbia LR 55 ff., 72. 32 33

872   darryl k. brown of the indictment is not to punish the defendant but really to prevent the nuisance from being continued.”35 Initially, one can question the traditional argument that small fines for regula­ tory offenses uniformly carry no significant moral opprobrium. A modest fine may deter some traffic offenses, but the deterrent effect of financial loss alone seems an implausible rationale for such fines on large-scale commercial actors. Nor do offenders seem consistently to experience those fines as financial losses without attendant stigma. (The corporate CEO in U.S. v. Park challenged his conviction— surely at considerable expense—to the U.S. Supreme Court, although his fines for five offenses stemming from insanitary conditions of food warehouses totaled only $250.) Public welfare offenses seem to depend on signaling some social disapproval through petty criminal status in order to motivate greater care in commercial endeavors.36 That point aside, the limits on strict regulatory liability were not uniformly enforced by courts even before Sayre’s 1933 article. The 1922 decision in U.S. v. Balint held that an indictment for a federal narcotics offense need not allege that the defendant knew the substance that he distributed was a narcotic drug, even though the maximum punishment could be five years in prison.37 Balint also showed how judges interpreted the criterion of a statute’s public-safety or regulatory purpose broadly to the point of disingenuousness. Balint found that “the emphasis of the [narcotics statute] is in securing a close supervision of the business of dealing in these dangerous drugs by the taxing officers of the Government.” Despite its fel­ ony classification and its authorized sentence, “it merely uses a criminal penalty to secure recorded evidence of the disposition of such drugs as a means of taxing and restraining the traffic.”38 Thirty years later, the lower courts in Morissette showed that they had learned well how to focus on a statute’s regulatory aims while ignoring the magnitude of its sanctions. Moreover, another reason that the penalty size and regulatory purpose did not serve as consistent criteria for sorting strict liability offenses from those requir­ ing mens rea is that they were not the only reference points courts used to distin­ guish “ordinary” crimes from regulatory offenses. As we noted earlier, courts often either relied on the fuzzy mala in se/mala prohibita distinction or an inaccurate one between common law and statutory crimes.

  Stephens (1866) L.R. 1 Q.B. 207. See also Sherras v. De Rutzen [1895] 1 Q.B. 918, which required mens rea proof for a liquor offense and noted that strict liability should be confined to offenses that are “not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty.” 36   W. Friedmann, “Public Welfare Offences, Statutory Duties, and the Legal Status of the Crown,” (1950) 18 Modern LR 24 ff. 37  See U.S. v. Balint, 258 U.S. 250, 254 (1922); U.S. v. Dotterweich, 320 U.S. 277, 285 (1943) (noting five-year punishment under the Narcotic Act in Balint). 38   U.S. v. Balint, 258 U.S. 250, 254 (1922). 35

public welfare offenses   873 It is worth noting that the ambiguity has run in both directions. That is, courts were hardly consistent in reading every low-level regulatory statute that lacked a mental-state term as a strict liability offense. As one example, the 1894 decision in Somerset v. Wade rejected a strict liability reading of an 1872 Liquor Licensing Act— precisely the sort of low-level regulatory statute that should fall within the public welfare offense doctrine. The section under which the defendant was prosecuted (for allowing drunken patrons into his licensed public house) included no mens rea term, yet Wade held that the offense required proof that the defendant knew the patron on his premises was drunk; proof merely that he sold the liquor, and that the patron was in fact drunk, was insufficient. Declining to follow Woodrow’s strict liability rationale, the court relied instead on Somerset v. Hart, which held that a licensed pub owner must have knowledge of illegal gaming on his premises before he can be convicted for permitting it, even when his employee was aware of the illegal conduct.39 Richard Singer, revisiting the case law much later, concluded that it showed more inconsistency than Sayre recognized. Singer identified decisions in which courts misinterpreted prior cases as having affirmed strict criminal liability; and also some legislative intent to abandon mens rea from exceedingly thin evidence. Those errors were enough for Singer’s view that Sayre’s account was at least “overstated.”40 However, those decisions, and their rationales, cut another way as well. Courts that wrongly approved strict criminal liability by misreading precedent or legisla­ tive intent nonetheless manifested a willingness (or eagerness) to approve it, across jurisdictions, decades, and statutes, even if they did so inconsistently. The ambiguity remains in more recent case law, but so does the strong AngloAmerican approval of strict criminal liability. Importantly, this is true for both minor regulatory offenses and more serious ones that carry significant punish­ ments. Public welfare offense doctrine has not succeeded in containing strict crim­ inal liability solely to low-level regulatory violations. It probably instead contributed to Anglo-American criminal law not requiring mens rea proof for significant aspects of serious offenses as a means to ease enforcement burdens and improve the harm-prevention aim of these offenses. Andrew Ashworth has described this in the context of English law,41 and it is explicit in many U.S. offenses addressing drugs, identity theft, and other topics.42 39   Somerset v. Wade (1894) 1 Q.B. 574; Somerset v. Hart (1884) 12 QBD 360. For a similar outcome, see Sherras v. De Rutzen [1895] 1 Q.B. 918 (liability for serving alcohol to a constable on duty requires proof that defendant knew the constable was on duty). 40   Singer, (1989) 30 Boston College LR 337 ff., 363. 41   See Ashworth, (2010) 45 Irish Jurist 1 ff., 9, 38, 40, citing the Medicines Act 1968, applied in Pharmaceutical Society of Great Britain v. Storkwain [1986] 2 All E.R. 635; Howells [1977] Q.B. 614; Deyemi and Edwards [2008] 1 Cr. App. R. 25. 42   See Darryl Brown, “Federal Mens Rea Interpretation,” (2012) 75 Law & Contemporary Problems 109 ff., citing inter alia identity-fraud offense codified at 18 USC § 1028A.

874   darryl k. brown

v.  Explanations for Strict Criminal Liability 1. Tradition Why do Anglo-American courts endorse strict criminal liability in public wel­ fare offenses and even for elements of more serious crimes? This section outlines several explanations, without a full effort to defend them. The first is simply trad­ ition:  English and U.S.  criminal law employed strict liability for certain serious crimes even before the mid-nineteenth century rise of regulatory offenses. Libel and certain morals crimes—adultery, bigamy, and statutory rape—required no proof of culpability on critical elements such as marital status or victim age. The same was true in most U.S. jurisdictions, although with less criminal libel and more use of the felony murder doctrine (abolished in England in 1957). And common law frequently required no mens rea for grading elements, the facts that distinguished lesser from greater offenses. Strict regulatory offenses did not plow entirely new ground.

2.  Proportional punishment and “change of normative position” Stepping back, the Anglo-American tradition of strict liability seems to reflect a weaker cultural or political—as well as legal—commitment to proportional liability— liability in accord with an offender’s culpability. In part, it may also reflect a different conception of proportionality. The strongest form of that idea is the principle of cor­ respondence (or referential principle),43 which requires proof of culpability for every element of an offense. This principle seems to have a stronger place in most European criminal justice systems. It has had the support of most English and American scholars for several decades, and drafters of the U.S. Model Penal Code were firmly commit­ ted to it. But it has not prevailed among Anglo-American legislators and judges, and recent scholarly accounts have shed light on the intelligibility of its alternative. The alternative rests on the premise that an offender who is culpable for a single wrong­ ful act (or offense element) undergoes “a change of normative position” relative to non-wrongdoers. Thereafter, he might be fairly punished more harshly based on cir­ cumstances or consequences he did not know, intend, or foresee because those things followed from (or accompanied) his culpable wrongdoing. Put differently, causation

  Blomsma (n. 12) 208 ff.

43

public welfare offenses   875 of harm can aggravate punishment without reference to culpability, and mistakes as to circumstances do not mitigate liability. On this view, wrongdoers have a weaker claim to fully proportionate liability. Something like this position lies behind strict liability for more serious offenses, many of which require mens rea for at least one element that represents the con­ duct’s wrongfulness. The argument is weaker for offenses that arguably lack mens rea requirements even for a single such element.44 But a standard judicial rationale for strict liability regulations relies on this position. Courts assert that even actors engaged in lawful endeavors are fairly punished when reasonable people in contem­ porary society would recognize the activity as likely to be a regulated one (e.g. food distribution, manufacturing, firearms possession), and the regulation addresses risks to others. By electing to engage regulated lawful activity, an actor has “changed his normative position.” If we can plausibly attribute broad legal principles to reflect majoritarian senti­ ment and enjoy some popular support in democratic polities (an assumption that in some instances is contested), then the pervasive use of strict liability for pub­ lic welfare offenses and for serious crimes suggests that English and U.S.  popu­ lar/political sentiment embrace this weak proportionality principle for criminal punishment.

3.  Preference for utilitarian rationales Another likely explanation, also at a broad level of generality, is found in the Anglo-American receptivity to utilitarian rationales in legal reasoning. The doctrine of public welfare offenses rests largely on such rationales, rather than justifications of moral principle. Courts ubiquitously recognize the instrumental advantages that strict liability provides to enforcement officials, and they regularly concede the leg­ islature’s prerogative to enact offenses that serve these practical ends at the expense of the principle that criminal punishment is reserved only for the blameworthy wrongdoers. Courts acknowledge that strict liability “may produce mischief in individ­ ual cases” by punishing those who acted blamelessly.45 They infer that legislators “weighed the possible injustice of subjecting an innocent seller to a penalty”46 and accede to legislative judgment that this cost is worth the benefits of greater pub­ lic protection that should follow easier imposition of sanctions, or even that this  See U.S. v. Freed, 401 U.S. 601 (1971).   State v. Balt. & Susq. Steam Co., 13 Md. 181, 187 (1859); R. v. Woodrow, 15 M. & W. 417. Singer argues forcefully regarding courts’ inappropriate turn to utilitarian over moral considerations in strict liability offenses. See Singer, (1989) 30 Boston College LR 337 ff. 46   Balint, 258 U.S. 250, 254 (1922). Under the federal drug sale offense at issue, justice to blameless defendants is outweighed by “the evil of exposing innocent purchasers to danger from the drug.” 44 45

876   darryl k. brown tradeoff is necessary. The “difficulty of proof of knowledge” is too great for the state to bear in some cases.47 “[T]‌he inconvenience and injury would be much more gen­ eral” than the injustice done by punishing a blameless defendant, a Maryland court reasoned in 1857, “if, in every case of this kind, the party charged could defend himself by offering evidence that he did not know . . . and that reasonable diligence had been used to prevent” any violation.48 Public welfare doctrine, in short, forsakes the actus non facit principle for practical enforcement gains. More broadly, strict liability almost by its nature prioritizes utilitarian interests over moral or political restraints on state power. Anglo-American criminal law reflects that ordering of priorities in its wide use of strict criminal liability.

4.  Social duties in modern societies Another reason for acceptance of strict liability appears in familiar explanations for its practical necessity. By the twentieth century, courts regularly cited the unavoid­ ability of strict liability regulations in the wake of industrialization, urbanization, new technologies, and increasingly expansive commercial markets. In Morissette, Justice Jackson offered an enduring version of this understanding: The industrial revolution multiplied the number of workmen exposed to injury from increasingly powerful . . . mechanisms. . . . Traffic . . . came to subject the wayfarer to intoler­ able casualty risks if owners and drivers were not to observe new cares and uniformities of conduct. Congestion of duties . . . called for health and welfare regulations undreamed of in simpler times. Wide distribution of goods became an instrument of wide distribution of harm. . . . Such dangers have engendered . . . detailed regulations which heighten the duties of those in control of particular industries, trades, properties, or activities that affect public health, safety, or welfare. . . . While such offenses do not threaten the security of the state in the manner of treason, they may be regarded as offenses against its authority, for their occurrence impairs the efficiency of controls deemed essential to the social order as presently constituted. In this respect, whatever the intent of the violator, the injury is the same. . . . Hence, legislation applicable to such offenses does not specify intent as a necessary element.49

Morissette echoed Sayre’s explanation, although Sayre made no reference to indus­ trialization or workplace injuries and correctly recognized that these offenses arose from longer standing efforts to police threats to social order and public health— alcohol, adulterated food, misbranded or fraudulently labeled goods, traditional forms of public nuisance, and, in time, control of risks from automobile traffic and widespread narcotics. But Sayre perceptively alluded to additional, ideological shifts that accompanied social and material ones:   Balint, 258 U.S. 250, 254 (1922).   State v. Balt. & Susq. Steam Co., 13 Md. 181, 187 (1859).

47

48

  342 U.S. 246, 253–256 (1952).

49

public welfare offenses   877 The decisions permitting convictions of light police offenses without proof of a guilty mind came just at the time when the demands of an increasingly complex social order required additional regulation of an administrative character unrelated to questions of personal guilt; the movement also synchronized with the trend of the day away from nineteenth century individualism toward a new sense of the importance of collective interests. The result was almost inevitable. . . . [T]‌he movement has been not merely an historical accident but the result of the change social conditions and beliefs of the day.50

Courts acknowledge only obliquely if at all this ideological shift away from trad­ itional liberal individualism and “toward a new sense of the importance of col­ lective interests.” Yet judicial reasoning in a number of decisions dating from the mid-nineteenth century supported Sayre’s characterization. From one perspective, this is a jarring shift for English and U.S. courts. The Anglo-American political trad­ ition is distinctive for its commitment to individual liberty, of which the actus non facit reum principle, which constrains the state from unjustly infringing liberty, is but one manifestation. The liberal state model stood in contrast, as Anglo-American scholars of the latter nineteenth century were well aware, to the German “social state” (Sozialstaat) principle that developed in the Second Reich. The socioeconomic model of “corporatism,” marked in part by an emphasis on employer and worker associ­ ations in key economic sectors coordinated by the state (a policy of Verstaatlichung), and more generally by a commitment to social solidarity and interests rather than the laissez-faire and individualist ideals of the Anglo-American tradition.51 What Sayre recognized and what courts repeatedly concede in their utilitarian justifications for public welfare offenses is a felt necessity to forsake some degree of private liberty and to strengthen individual social obligations to collective interests. We might view this as part of the liberal state’s path toward its own version of social state; it is a change in core legal doctrine that shifts priority to social good and social order even at some cost to private and individual interests. (Other parts of this broader story include the evolution of tort law in response to industrialization, and early social insurance schemes such as workers’ compensation laws.)52 Judicial decisions are replete with language to this effect—language about the individual’s affirmative duty to the broader social or public interest. This was evi­ dent in early criminal nuisance decisions; R. v. Stephens described the quarry own­ er’s “duty to take all proper precautions to prevent the rubbish from falling into   Sayre, (1933) 33 Columbia LR 55 ff., 67 (emphasis added).   For a brief account that references the broad literature on German corporatism, liberalism, and laissez-faire in the late nineteenth century, see James Q.  Whitman, “Early German Corporatism in America,” in Mattias Reimann (ed.), The Reception of Continental Ideas in the Common Law World 1820–1920 (1993), 229 ff. 52   See G.  Edward White, Tort Law in America (1980); John P.  McLaren, “Nuisance Law and the Industrial Revolution—Some Lessons from Social History,” (1983) 3 OJLS 155 ff.; John Fabian Witt, The Accidental Republic: Crippled Workingmen, Destitute Widows, and the Remaking of American Law (2004) (history of workers’ compensation laws in the United States). 50 51

878   darryl k. brown the river” and harming community interests. Several decades later, the individual’s social obligation and the priority of public interests that strict liability defines was more explicit. The Supreme Court in U.S. v. Dotterweich described with approval “a now familiar type of legislation whereby penalties serve as effective means of regu­ lation” without proof of “awareness of some wrongdoing” and explained: “In the interest of the larger good it puts the burden of acting at hazard upon a person other­ wise innocent but standing in responsible relation to a public danger.”53 Morissette suggested the same rationale for public welfare offenses: “The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect.” On this account, public welfare doctrine represents a sort of political irony for the two preeminent liberal states. Lacking other means—other social–economic institutions, legal principles, or political norms—to regulate increasingly complex societies for the collective benefit, English and U.S. governments evolved an unusu­ ally broad use of a rule that expands state power with minimal consideration of the individual’s distinct interest—strict criminal liability.

5.  Limits on central state administrative capacity One institution that England and the United States lacked through the nineteenth century, relatively speaking, was a strong central government with the governance capacity to accompany growing administrative needs.54 Few seemed to dispute, as Sayre put it, that “the demands of an increasingly complex social order required additional regulation of an administrative character,” and that “questions of personal guilt” were often inappropriate in this realm. Yet much, if not most, of this new regu­ lation did not take a straightforwardly administrative form in the United States and England. It took the form of criminal regulation, eventually supplemented in many settings by parallel civil or administrative regimes. (Perhaps Germany’s greater state coordination in the Bismarckian state, to meet the challenges of urbanizing and industrializing societies, enabled it to rely less on criminal law for administrative reg­ ulation and maintain its strong commitment to the actus non facit reum principle.) The nineteenth-century liberal state, in the United States and even in England, lacked a sufficient regulatory structure and state capacity for administrative govern­ ance to meet the risk-management and harm-prevention agenda presented by indus­ trial modernity. As England and the United States, like other industrializing nations,

  U.S. v. Dotterweich, 320 U.S. 277 (1943).   The seminal scholarly account on the distinctively “thin” model of the U.S. state, especially in the nineteenth century, is Stephen Skowronek, Building the New American State: The Expansion of National Administrative Capacities 1877–1920 (1982). For a brief account of the relatively decentralized adminis­ trative structure of the English government in the nineteenth century, see McLaren, (1983) 3 OJLS 155 ff. 53

54

public welfare offenses   879 found themselves in need of greater regulatory capacity, they adapted an established legal structure, criminal law, to meet the needs that could not be met, for some decades at least, by weak administrative institutions to address growing issues of food safety, liquor and drug distribution, auto traffic, workplace safety, and the like.55 Criminal law, after all, had long played a central role in the liberal state’s police—the state’s exercise of its general powers “to govern men and things” in order to preserve public welfare, social order, and security.56 Through this inherent authority even decentralized com­ mon law states pervasively governed social and commercial life through regulation of sexual and familial relations, commercial markets, master–servant relations, disorderly persons, alcohol use, public roadways, threats to morals from literature, gaming, or dance halls—the full gamut of society. Recall that Sayre specified that by “public wel­ fare offenses” he meant strict liability “police offenses and criminal nuisances.”57 England and the United States had strong legal traditions of regulating real and perceived risks of every sort, but only limited legal and institutional capaci­ ties to do so. Public welfare offenses, then, represent an adaption of the available criminal law and state institutions to changing circumstances. That adaption took firm root. Courts so fully developed the law of strict liability regulations that the doctrine continued, on the force of its own well-established legitimacy, even after Anglo-American states developed modern administrative infrastructures that make regulatory penalties in criminal form, per se, largely unnecessary.

vi.  Public Welfare Offenses and Culpability Whatever the role of these considerations in explaining the persistence of public welfare offenses, we should consider how much of a departure from the actus non facit principle these regulatory crimes seem to represent. For at least three 55  One instance of this larger structure is referenced by Sayre, in his discussion of limitations imposed by nineteenth-century forms of action. Public actions such as nuisances generally had to be brought in criminal form (though described sometimes as quasi-criminal or quasi-civil), either by private or public prosecutors, because there was generally no option resembling a public regulatory authority with enforcement powers grounded in civil statutes. Sayre, (1933) 33 Columbia LR 59 ff. The administrative powers of local boards of health were an early shift away from this limit. See McLaren, (1983) 3 OJLS 155 ff. 56   See Markus D. Dubber, The Police Power: Patriarchy and the Foundations of American Government (2005). 57   Sayre, (1933) 33 Columbia LR 55 ff. Sayre consistently used the phrases “police offenses” and “police regulations” to describe public welfare offenses.

880   darryl k. brown reasons offered by courts, indifference to culpability in public welfare offenses is not as unqualified as it initially seems, and that makes the acquiescence of Anglo-American judges to formal strict liability less puzzling. Considered closely, many strict offenses rely on an intelligible idea about offenders’ culpabil­ ity. If convincing, this significantly reduces the number of truly strict regulatory offenses.

1.  Defenses to strict liability Recall the distinctions noted earlier among types of strict liability; one difference is whether defendants may rebut strict liability with proof of due diligence or power­ less to prevent the harm. Such defenses preserve some role for fault in liability deci­ sions, even though the state need prove only the defendant’s conduct (or failure to act upon a duty). Many public welfare offenses have specific statutory clauses that provide for defenses of reasonable care, due diligence, lack of knowledge, or the like.58 The drug offense in U.S. v. Balint is one example; defendants otherwise liable under the statute may present the defense that they acted as a licensed physician or pharmacist in the course of professional practice.59 Some adulterated-products statutes allow defendants to avoid liability by showing that they obtained the goods from another subject to a warranty for quality—evidence of the defendant’s reason­ able care.60 Even when statutory text is not explicit, courts interpret some strict liability offenses to allow such defenses. A Georgia court permitted a defense of reasonable mistake of fact to the charge of allowing a minor to play billiards without parental consent.61 U.S. v. Park affirmed that a corporation’s chief executive can be vicari­ ously liable under the Food and Drug Act for violations caused by employees but added that the “responsible corporate agent” theory of the statute “permits a claim that a defendant was ‘powerless’ to prevent or correct the violation to ‘be raised defensively at a trial on the merits’.”62 Again, some public welfare crimes (including many alcohol-related offenses) permit no such defense.63 Moreover, these statutes shift the burden of proof on culpability to defendants, which some protest is an 58   See Roberts (n. 10) 153 ff. (citing statutes); Jackson, (1936) 6 Cambridge LJ 88 ff. (citing the Fertiliser and Feeding Stuffs Act 1893 and the Feeding Stuffs Act 1926). 59   U.S. v. Behrman, 258 U.S. 280 (1922), describing the Narcotic Drug Act of Dec. 17, 1914, c. 1, § 2, subd. (a), 38 Stat. 785, 786. 60   See Singer, (1989) 30 Boston College LR 337 ff., 348, 365, 372 (describing and citing statutes includ­ ing the U.S. Food and Drugs Act § 113 (1955) and Health Act §§ 291, 298, 300 (1956 Vic.); and the U.K. 61 Fertilisers and Feeding Stuffs Act 1926, section 7(1)).   Stern v. State, 53 Ga. 229 (1874). 62   U.S. v. Park, 421 U.S. 658, 673 (1975) (citing U.S. v. Wiesenfeld Warehouse Co., 376 U.S. 86 (1964)). 63  See e.g. Commonwealth v.  Boynton, 2 Allen 160 (Mass. 1860); Commonwealth v.  Goodman, 97 Mass. 117, 119 (1867); Hill v. State, 19 Ariz. 78, 165 P. 326 (1917); State v. Valure, 95 Iowa 401 (1895); State v. Schaefer, 44 Kans. 90 (1890); Gourley v. Commonwealth, 140 Ky. 221, 227, 131 S.W. 34, 36 (1910).

public welfare offenses   881 inadequate substitute for requiring the state to prove fault.64 Nonetheless, defenses help to justify strict regulatory offenses inasmuch as they reduce the number of those punished without displaying some degree of negligence.

2.  Foreseeable risks, results, or circumstances Another group of public welfare offenses implies some regard for culpability by fore­ going mens rea proof for one aspect—a result or circumstance—when negligence (or worse) is usually apparent in the defendant’s conduct, which by its nature is committed intentionally. “Dangerous driving,” if it requires no proof of the driver’s awareness of dangerousness, is one example. No proof of a defendant’s awareness or intent is required, but the state must prove driving and its “dangerous” character, which amounts to proof of negligence.65 Courts reached such conclusions in earlier eras even where the nature of some risks was no longer immediately apparent, such as selling milk adulterated with water. Judges concluded that such mixing rarely occurred unintentionally; it was a familiar fraudulent tactic of sellers. Thus proof that one sold diluted milk was taken as strong evidence of knowing adulteration. The same was true of “mislabel­ ing” offenses, such as oleomargarine labeled as butter. Concern about misleading customers regarding certain goods was so widely recognized that only negligent (or deceptive) vendors would mislabel.66 A related argument helps to explain alco­ hol offenses, particularly during U.S. Prohibition. Many believed alcohol to be so dangerous—to individuals and social order—that distribution conduct was viewed nearly as malum in se. Beverage vendors (at least of fermentable ones such as ciders and “malt”) were expected to guard against such grave dangers.67 An inference of negligent causation is reflected in judicial reasoning: “where one deals with others and his mere negligence may be dangerous to them . . . the law may, in order to stimulate proper care, require the punishment of the negligent person though he be ignorant of the noxious character of what he sells.”68 These assumptions did not hold for all such offenses. In R.  v.  Woodrow, the defendant-seller apparently could not reasonably have learned that his tobacco was adulterated, nor could the vendor in Parker v. Alder, where milk was adulterated by a stranger while in transit.69 But inferred culpability that held for most applications was sufficient to justify strict regulatory offenses in most courts. 64   Roberts (n. 10) 151 ff.; Patrick Devlin, “Statutory Offences,” (1957–58) 4 Society of Public Teachers 65 of Law 206 ff.   Devlin, (1957–58) 4 Society of Public Teachers of Law 206 ff. 66   State v.  Rogers, 142 Me. 94, 49 A.  564, 567 (1901); Fox v.  State, 94 Md. 143 (1901); Lawrence Friedman, History of American Law (1973), 400 ff. 67   See Rollin Perkins, “Criminal Liability Without Fault: A Disquieting Trend,” (1968) 68 Iowa LR 1067 ff, 1075. 68 69   U.S. v. Balint, 258 U.S. 250, 252 (1922).   Parker v. Adler [1899] 1 Q.B. 20.

882   darryl k. brown

3.  Notice from the regulated nature of activity Finally, courts adopted a third rationale for concluding that negligent conduct usu­ ally was behind breaches of strict liability offenses. Those engaged in activities that pose significant risks to others are presumed, in the modern era, to be aware that their activities are regulated by various duties of care. Woodrow made this assump­ tion early regarding tobacco vendors.70 Contemporary trades such as manufacturing pharmaceuticals or transporting industrial chemicals give rise to this presumption. As long as actors know the nature of such articles,71 they are expected to know regu­ lations regarding, for example, mandatory licenses or safety practices; thus failure to comply implies at least negligence. The same goes for owners and supervisors held vicariously liable for their agents’ conduct regardless of whether they were aware of it. Officers are presumed to know of their duty to ensure that agents adhere to regulations. The U.S. Supreme Court was explicit on this point in U.S. v. Park, where it inferred fault by an executive guilty under a vicarious strict liability offense. “The considerations which prompted the imposition of this duty” to guard against unsanitary conditions, which the defendant ought to know, the Court concluded, “provide the measure of culpability.”72 On this view, then, like the rationales arising from foreseeable risks and defenses, many public welfare offenses that are formally strict in fact reveal some level of fault in the nature of their proof.

vii.  Conclusion: Limits on Criminal Culpability In sum, the widespread persistence of public welfare offenses in English and U.S.  criminal law does not mean that criminal sanctions are always imposed on wholly non-culpable actors, even where courts explicitly describe these offenses as strict criminal liability. Required proof for many of these offenses justifies a plausible inference of culpability. But this is not true for all applications of these offenses. Some can be employed to punish innocent actors in ways that mens rea proof requirements would prevent. Moreover, the theory of culpability on which many public welfare offenses rests is relatively thin, perhaps equivalent to a civil

71   (1846) 15 M. & W. 415, 153 E.R. 912.  e.g. U.S. v. Staples, 511 U.S. 600 (1994).   U.S. v. Park, 421 U.S. 658, 674 (1975). For a comparable English offense and judicial rationale, see Rotherham Metropolitan Borough Council v. Raysun (U.K.) Ltd. [1988] BTLC 292, [1989] CCLR 1 (Q.B.) (firm liable for non-compliance by agents in importing crayons with toxic ingredients). 70 72

public welfare offenses   883 negligence standard. Yet it is worth bearing in mind that jurisdictions which reject strict criminal liability may nonetheless devise mens rea requirements that are no more rigorous than this, and they may additionally rely on other devices, such as offense definitions, to impose criminal sanctions on offenders manifesting only marginal or debatable culpability. The greater effect of public welfare offenses may be that they help to legitimize and sustain strict criminal liability for more serious offenses. Courts sometimes lose sight of the context and particularities that originally justified and limited the scope of a rule. So it is with public welfare offenses. Even in the 1930s, scholars lamented that English and U.S. courts had extended strict liability to serious crimes punish­ able by significant prison terms.73 That tendency has not abated in recent decades.74 Public welfare offenses are a primary source for legal justifications that minimize the connection between fault and the magnitude of criminal sanctions, even if their direct enforcement results in a relatively small number of unjustified punishments.

References Ashworth, Andrew, “Should Strict Liability be Removed from All Imprisonable Offences?,” (2010) 45 Irish Jurist 1 Blomsma, Jeroen, Mens Rea and Defences in European Criminal Law (2012) Brudner, Alan, Punishment and Freedom (2009) Dubber, Markus D., The Police Power (2005) Edwards, J., Mens Rea in Statutory Offenses (1955) Hall, Jerome, General Principles of Criminal Law (1947) Jackson, R. M., “Absolute Liability in Statutory Offences,” (1936) 6 Cambridge LJ 83 Novak, William J., The People’s Welfare (1996) Perkins, Perkins, “The Civil Offense,” (1952) 100 University of Pennsylvania LR 832 Sayre, Francis, “Public Welfare Offenses,” (1933) 33 Columbia LR 55 Simester, A. P. (ed.), Appraising Strict Liability (2005) Singer, Richard, “Resurgence of Mens Rea III: The Rise and Fall of Strict Liability,” (1989) 30 Boston College LR 337 Stallybrass, W. T. S., “The Eclipse of Mens Rea,” (1936) 52 LQR 67 Williams, Glanville, Criminal Law (1953)

  See Sayre, (1933) 33 Columbia LR 55 ff., 80 (citing cases).   See Ashworth, (2010) 45 Irish Jurist 1 ff. (describing and criticizing English and Irish decisions on strict liability offenses carrying imprisonment sentences); Staples v.  U.S., 511 U.S. 600 (1994); U.S. v. Dean, 556 U.S. 568 (2009) (robbery, strict liability for discharge of a firearm). 73

74

SECTION C

CRIMINAL PROCESS

­c hapter 39

THE LONG SHADOW OF THE ADVERSARIAL AND INQUISITORIAL CATEGORIES máximo langer*

i.  Introduction: the Centrality and Influence of the Adversarial and Inquisitorial Categories on Comparative Criminal Procedure It is commonplace to say that “adversarial” and “inquisitorial” have been central categories in the comparative study of the criminal process. This chapter argues that the influence and centrality of these categories run even deeper than has been acknowledged because these categories have contributed to constitute *  I would like to thank Rachel Barkow, Alejandro Chehtman, Mirjan Damaška, Sharon Dolovich, Jeff Fagan, Malcolm Feeley, James Forman, David Garland, Bernard Harcourt, John Jackson, Josh Kleinfeld, Niki Lacey, Corinna Lain, Inga Markovits, Tracey Mears, Intisar Rabb, Dan Richman, Paul Roberts, David Sklansky, Göran Sluiter, Carol Steiker, Jordan Steiker, Sergey Vasiliev, Jim Whitman,

888   máximo langer and shape comparative criminal procedure by reflecting and restricting the main theoretical trends and the main thematic interests of this field. The chapter maintains that it is possible to identify the main theoretical traditions with which comparative criminal procedure has engaged by mapping commentators’ and courts’ uses of the adversarial versus inquisitorial distinction. This mapping reveals five main uses of these categories as: (a) descriptive ideal-types; (b)  historical or sociological systems present in actual criminal procedures; (c) opposing interests or values that coexist in any criminal process; (d) functions of the criminal process; and (e) normative models. After carrying out this mapping, the chapter argues that even the main alternative approaches to the adversarial– inquisitorial opposition in comparative criminal procedure operate within these same theoretical traditions. It will also be suggested that the adversarial–inquisitorial dichotomy has played a role in limiting the type of themes or issues that comparative criminal proced­ ure studies have covered. These studies have tended to focus on the features of the criminal process that are highlighted by juxtaposing adversarial and inquisitorial systems, to the detriment of other topics. The centrality of this juxtaposition may help to explain why comparative criminal procedure has mostly focused on the criminal process of the developed West, has been interested in the domestic but not in the transnational prosecution of crime, has had a doctrinal, institutional and role approach to the criminal process, and has mostly shown interest in only a subset of criminal justice rules, institutions and actors. The chapter then states that broadening and deepening the knowledge and insights that comparative criminal procedure may produce requires transcending the long theoretical and thematic shadow of the adversarial and inquisitorial categories. The chapter sketches a number of ways in which comparative criminal procedure may do so and thus may expand the type of positive and normative insights that can inform our understanding of the criminal process. Before we proceed, three clarifications over this chapter’s arguments are in order. This chapter includes within comparative criminal procedure the academic discipline that studies the criminal process from a comparative angle and that have representatives at many law schools and other university departments around the world. Participants in this academic discipline are legal academics who teach or write about the criminal process and that explicitly or implicitly include a comparative analysis of two or more jurisdictions in their analysis. These academic participants see themselves or are perceived by others as comparative criminal procedure scholars. However, comparative criminal procedure as a way of thinking and as and participants at workshops at Di Tella University, Harvard University, SMU, University of Amsterdam, University of Buenos Aires, Universidad del Litoral (Argentina), Universidad de Rosario (Argentina), and Universidad de San Andrés (Argentina), for comments on earlier drafts, David Heyrani for his research assistance, and Elyse Meyers for editing the chapter.

adversarial and inquisitorial categories    889 a transnational field goes beyond legal academia and encompasses legal reformers, judges, lawyers, and policymakers who implicitly or explicitly compare two or more jurisdictions while they are thinking, analyzing, adjudicating over, or trying to reform the criminal process. The second clarification is that my argument—that I will not be able to develop in detail here due to the chapter’s space constraints—is that the centrality of the adversarial and inquisitorial categories and the ways of thinking that they reflect has contributed to limit the scope of comparative criminal procedure as a field in a variety of ways. At times, these categories have contributed to blind legal participants. In other words, they have contributed to make invisible for these participants other alternative theoretical perspectives and themes that could be used to analyze the criminal process from a comparative angle. These categories have also contributed to exclude from or push to the margins of the field the work of a number of scholars, legal practitioners, and policymakers that could be considered within the field or central to the field, if the field were configurated in a different way. At other times, these categories and the ways of thinking that they reflect have contributed to blur the analyses of the participants in the field—that is, they have impoverished their analysis of certain issues. Finally, these categories and ways of thinking have distracted legal participants—that is, they have encouraged legal participants to concentrate on certain types of theoretical perspectives and themes to the detriment of others. These four ways of influencing the field have been present individually or in combination in different contexts depending on the characteristics of specific legal actors and the institutional settings and practices within which these actors operate. The third clarification is that my argument about the centrality and influence of the adversarial and inquisitorial categories over comparative criminal procedure is not a univariable causal claim. Many factors have influenced the constitution and shaping of comparative criminal procedure as a field of inquiry, adjudication, and policymaking that I cannot analyze here due to space constraints. My claim is that the adversarial and inquisitorial categories have been one of the factors that have played an important role in this respect.

ii.  Brief Historical Background The term “inquisitorial” has a long history in the criminal process. During the twelfth and thirteenth centuries, commentators already distinguished between inquisitorial and accusatorial processes. Based on public rumors (fama), public officials could initiate the inquisitorial process by their own motion. Accusatorial

890   máximo langer process, on the other hand, required an accusation by a private individual. The distinction between these two types of processes was a distinction within, rather than between, legal systems.1 In other words, the terms were mainly used to refer to two types of processes that coexisted within the same legal system, rather than as tools to compare and distinguish between the legal processes of different legal systems. Relatedly, at this early time, accusatorial process and inquisitorial process did not connote, respectively, English and continental jurisdictions.2 The use of the terms “inquisitorial” and “accusatorial” to compare civil and common law jurisdictions came as a later development, occurring between the second half of the eighteenth century and the first half of the nineteenth century. During the eighteenth century, commentators and policymakers in continental Europe became interested in English criminal procedure as a possible model for reform, as they sought alternatives to the criminal process of the ancien régime.3 European commentators and policymakers started to use the category “accusatorial” to refer to the Anglo-American criminal process and the term “inquisitorial” to refer to either the criminal process of the ancien régime or of continental Europe at the time.4 Later on, Anglo-American jurisdictions started to use the term “adversarial” instead of “accusatorial” in a related fashion.5 The content that those commentators gave to these categories varied. In some formulations, the accusatorial process relied on private individuals to prosecute   Though there have been many historical studies on adversarial and inquisitorial process, the intellectual history of the adversarial–inquisitorial categories and comparative criminal procedure still needs to be written. I am currently engaged at an early stage in such a research project. This assertion about the use of the categories in the twelfth and thirteenth centuries, and the other statements I make in this chapter’s historical section, are thus only tentative and preliminary since I have not yet been able fully to test them. 2   For a recent review of the main tracts on procedure by medieval and early modern jurists, including their analysis of accusatorial and inquisitorial process, see Kenneth Pennington, “The Jurisprudence of Procedure,” in Wilfried Hartmann and Kenneth Pennington (eds.), The History of Courts and Procedure in Medieval Canon Law (forthcoming 2014). 3   On the influence of English criminal procedure on Enlightenment commentators, see Antonio Padoa Schioppa, “I Philosophes e la Giuria Penale,” (1986) I-II Nuova Rivista Storica 107. 4   See e.g. Faustin Hélie, Traité de l’instruction criminelle, Vol. 5 (1853), § 308; Karl J. A. Mittermaier, Das deutsche Strafverfahren (1832), § 28; Karl J.  A. Mittermaier, Lehre vom Beweise im deutschen Strafprozesse (1834), § 3; H., “An Account of the Criminal Law, Criminal Courts, and Criminal Procedure of Germany; With Notices of the Principal Writers on Penal Jurisprudence, and the Principal Theories of Penal Legislation Prevailing There,” (1834) 11 Law Magazine Quarterly Review of Jurisprudence 1, 18–23. 5  See e.g. Edmund M.  Morgan, “Some Observations Concerning Presumptions,” (1930–31) 44 Harvard LR 906, 910. Though the terms “accusatorial” and “adversarial” are most commonly used indistinctively or as synonyms, some people have distinguished between them. See e.g. Abraham S.  Goldstein, “Reflections on Two Models:  Inquisitorial Themes in American Criminal Procedure,” (1974) 26 Stanford LR 1009 ff. (using the term “adversary system” to refer to a method for resolving disputes in a contested trial, while stating that the term “accusatorial system” includes the “adversary system” but also other fundamental procedural premises like the presumption of innocence and a reactive enforcement of criminal law); Richard Vogler, A World View of Criminal Justice (2005), 129 1

adversarial and inquisitorial categories    891 crime, while the inquisitorial process relied on public officials.6 Other formulations included a wider range of features. For instance, the accusatorial system was defined as a criminal process controlled by the parties, where the court was a passive umpire. The accusatorial process did not try to elicit the defendant’s confession to prove the defendant’s guilt, and adjudicated criminal cases in an oral and public trial by jury. Adjudicators had to evaluate the evidence freely, according to their impressions of the case, and their verdict could not be appealed. In contrast, the inquisitorial system consisted of a criminal process controlled by the court by its own motion, where the court had the role of investigating and adjudicating the case. The inquisitorial process tried to elicit the defendant’s confession as part of its investigation of the case, and adjudicated criminal cases in written and secret proceedings by professional judges. Adjudicators had to evaluate the evidence of the case according to a system of legal proof, and their verdict could be appealed.7 Commentators in continental Europe conceived the accusatorial and inquisitor­ ial processes as systems. One or more epistemological, social, or political prin­ciples underpinned and connected the respective features of each of these processes. Thus, a number of commentators considered that each system assumed a different way of gathering, producing, and evaluating evidence, and determining the truth about the case. For instance, according to one account, the accusatorial system had a “synthetic conception” of investigating the truth since each of the parties had to present evidence that supported their assertions. The accusatorial system also assumed that proper evaluation of evidence only required the common sense, education, and experience of any citizen. In contrast, the inquisitorial system had an “analyt­ ical conception” of truth determination, since each incriminating procedural step required that there were clear indications that the defendant was guilty. In addition, the inquisitorial process required that the professional adjudicators appointed by the government used a system of legal proof that was assumed to be the product of scientific knowledge.8 Continental European commentators also assumed that there was a relationship between the type of society and the type of criminal process. For instance, reflecting nineteenth-century notions, some commentators assumed that the accusatorial process could flourish in primitive or simpler societies, as suggested by the use of accusatorial trials by ordeals and by oath in the Middle Ages, but not in advanced or complex (using the term “accusatorial” to refer to premodern forms of procedure and the term “adversarial” to refer to contemporary proceedings in England and the United States). For the purposes of this chapter, I  use the two terms indistinctively because, for the most part, comparative criminal procedure has used them in such a way, and because my arguments in this chapter do not require making distinctions between the two terms.   See e.g. Mittermaier, Strafverfahren (n. 4) § 28.   See e.g. Hélie (n. 4)  § 308; Mittermaier, Lehre (n. 4)  § 3; H., (1834) 11 Law Magazine Quarterly Review of Jurisprudence 1. 8   See Mittermaier, Lehre (n. 4) § 3. 6 7

892   máximo langer ones.9 Commentators also associated the accusatorial system with a democratic or people’s conception of the state, aimed at protecting individual rights and liberties, and the inquisitorial system with an authoritarian or monarchical conception of the state, aimed at efficiently enforcing criminal law.10 Commentators defended the inquisitorial system by arguing that it was based on reason and that it punished crime solemnly and equally.11 Elaborating on this distinction between the accusatorial and inquisitorial systems, a group of commentators characterized Napoleon’s Code d’instruction criminelle, which prevailed in continental Europe in the nineteenth century, as “the mixed system” that struck the right balance between individual liberties and efficiency.12

iii.  Contemporary Theoretical Conceptions of the Adversarial and Inquisitorial Categories The centrality of the adversarial–inquisitorial distinction for comparative criminal procedure continues to the modern day. While the nineteenth-century conceptions of these terms may have set the grounds for the current configuration of the field, comparative criminal procedure has grown and expanded its theoretical bases in the last few decades.13 In terms of their theoretical conception, we can distinguish at least five contemporary uses of the terms “adversarial” or “accusatorial,” on the one hand, and “inquisitorial,” on the other.14 Those who use these five theoretical conceptions have not always articulated them as such. At times, the same author has used the expressions in more than one of these theoretical senses and, in fact, these theoretical senses can be soundly integrated in a single analysis. In addition, these five uses have not been equally present in the comparative criminal procedure literature and practice. Nevertheless, the articulation and mapping of these five conceptions is useful because doing so will enable us to identify the main theoretical traditions within contemporary comparative criminal procedure.   See e.g. Hélie (n. 4)  § 308; Karl J.  A. Mittermaier, Theorie des Beweises im Peinlichen Prozesse 10 (1809), § 1.   See e.g. Hélie (n. 4) § 308; Mittermaier, Lehre (n. 4) § 3. 11   See e.g. Mittermaier, Lehre (n. 4) § 3; Mittermaier, Theorie (n. 9) § 1. 12   See e.g. Hélie (n. 4) § 308. 13   For reviews of the field, see Elisabetta Grande, “Comparative Criminal Justice,” in Mauro Busani and Ugo Mattei (eds.), The Cambridge Companion to Comparative Law (2012), 191 ff.; Paul Roberts, “On Method: The Ascent of Comparative Criminal Justice,” (2002) 22 OJLS 539 ff. (book review). 14   On the different conceptualizations of the adversarial and inquisitorial categories, see Máximo Langer, “La Dicotomía Acusatorio Inquisitivo y la Importatión de Mecanismos Procesales de la Tradición Jurídica Anglo-Sajona,” in Julio Maier and Alberto Bovino (eds.), Procedimiento Abreviado 9

adversarial and inquisitorial categories    893 In a first theoretical use, “adversarial” and “inquisitorial” have been conceived as descriptive ideal-types. In reality, no existing criminal process fully presents the features of either type. Rather, in the same way that buildings may be more or less true to defined architectural styles, criminal processes may be more or less similar to procedural models.15 The designer of ideal-types would determine their content based on one or more features that she considers important to highlight or study. Commentators have considered that the contraposition between criminal process as a contest between two parties versus criminal process as a unitary impartial investigation is one of the central, if not the core, content of, respectively the adversarial and inquisitorial ideal-types.16 However, some commentators have also included features such as oral versus written proceedings, concentrated versus sequenced proceedings, lay versus professional adjudicators, among others, in, respectively, the adversarial and inquisitorial types.17 This ideal-type approach has been fruitful for classificatory purposes because any criminal process could be located along the spectrum between the adversarial and inquisitorial ideal-types.18 In addition, as Weberian categories, ideal-types can be used to describe predominant features of the rules or practices of a given criminal process, enabling the comparative analysis of specific topics, such as which criminal proceedings present more evidentiary barriers to conviction19 or better protect vulnerable witnesses.20 The main criticism of ideal-types has been that, even if they can capture the degrees of gray between two procedural opposites, they cannot make sense of the multiple procedural phenomena not included in the ideal-types.21 In a second theoretical conception, “adversarial” and “inquisitorial” have been conceived as historical or sociological systems that exist in actual past or contemporary criminal processes, typically in common and civil law jurisdictions or a subgroup within them. In one of this conception’s strands, the content of the (2001), 97 ff. In this previous article, I  distinguished between six different theoretical uses of the categor­ies “adversarial” and “inquisitorial.” Since the conception of these categories as normative principles would unnecessarily complicate this chapter’s analysis, I will concentrate here on only five of these uses. For analysis of procedural models more generally, see e.g. Mirjan Damaška, “Models of Criminal Procedure,” (2001) 51 Zbornik (Collected Papers of Zagreb Law School) 477 ff. 15   See e.g. Mirjan Damaška, “Adversary System,” in Sanford H.  Kadish (ed.), The Encyclopedia of Crime and Justice, Vol. 1 (1984), 24 ff. 16  See e.g. John D.  Jackson, “The Effect of Human Rights on Criminal Evidentiary Processes: Convergence, Divergence or Realignment?,” (2005) 68 Modern LR 737, 742–743. 17   See e.g. Nico Jörg, Stewart Field, and Chrisje Brants, “Are Inquisitorial and Adversarial Systems Converging?,” in Phil Fennell et al. (eds.), Criminal Justice in Europe (1995), 41 ff. 18   See e.g. C. H. W. Gane, “Classifying Scottish Criminal Procedure,” in P. Duff and N. Hutton (eds.), Criminal Justice in Scotland (1999), 56 ff. 19  See e.g. Mirjan Damaška, “Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: A Comparative Study,” (1973) 121 University of Pennsylvania LR 506 ff. 20   See e.g. Louise Ellison, “The Protection of Vulnerable Witnesses: an Anglo-Dutch Comparison,” (1999) 3 International Journal of Evidence & Proof 1 ff. 21   Inga Markovits, “Playing the Opposite Game: On Mirjan Damaška’s The Faces of Justice and State Authority,” (1989) 41 Stanford LR 1313 ff. (book review).

894   máximo langer adversarial and inquisitorial systems would be determined by the lowest common denominator that civil and common law jurisdictions respectively possess at any given time.22 For instance, if at any point all common law jurisdictions use a jury, while all civil law jurisdictions use professional adjudicators, these features respectively become part of the content of the adversarial and inquisitorial systems. This lowest-common-denominator approach has been criticized for its instability because the content of the categories has to be altered with any change in any single civil or common law jurisdiction.23 This approach also lacks sound criteria to determine the meaning of the adversarial and inquisitorial systems because the content of the categories depends on random changes in individual civil and common law jurisdictions, rather than on the principles or rationales that may underlie the categories. Other strands of this second theoretical conception of the adversarial and inquisitorial systems as historical or sociological categories do not present such problems. Researchers define the categories on the basis of the criminal proced­ ure features they want to study, and investigate whether there are principles or rationales that connect these procedural features together. One strand includes a series of historical studies about the criminal process. In one important version of this conception, commentators have used the term “inquisitorial” to refer to a criminal process that was born in continental Europe between the twelfth and thirteenth centuries and prevailed until the beginning of the nineteenth century. Features of this process have included public officials’ initiation of criminal proceedings by their own motion, the system of legal proof, limited defendants’ rights, and the use of torture.24 Recent historiography locates in the eighteenth century the origins of the adversarial system, which is understood as a contest between two lawyers before a passive judge and jury, regulated by contemporary common law rules of evidence and where the defendant has a panoply of trial rights.25 In these historical studies, contemporary continental criminal proceedings are sometimes characterized not as “inquisitorial,” but rather as “mixed” or “non-adversarial.”26 These historical analyses have provided insight into not only the history of the criminal process in different jurisdictions, but also into how the criminal process has interacted with diverse phenomena, such as the formation of the nation-state, the expansion of the power of the church in the 22   Joachim Hermann, “Various Models of Criminal Proceedings,” (1978) 2 South African Journal of 23 Crim. Law & Criminology 3, 4–6.   See e.g. Damaška (n. 15). 24  A  classical reference in this line of work is Adhémar Esmein, Histoire de la Procédure Criminelle en France (1882). For recent related historiography, see e.g. Jacques Chiffoleau, “Avouer l’inavouable: l’aveau et la procédure inquisitoire à la fin du Moyen Âge,” in Renaud Dulong (ed.), L’aveu (2001), 57 ff; Lotte Kéry, “Inquisitio—denunciato—exception: Möglichkeiten der Verfahrenseinleitung im Dekretalenrecht,” (2001) 87 ZRG 226 ff. 25   See e.g. John H. Langbein, The Origins of Adversary Criminal Trial (2003). 26   See e.g. Langbein (n. 25).

adversarial and inquisitorial categories    895 Middle Ages and early modern era, and the professionalization of criminal litigation between the eighteenth and nineteenth centuries, to name just a few.27 Another use of the terms as historical or sociological systems refers not to criminal proceedings of the past, but to contemporary criminal proceedings of (at least some of) today’s common and civil law jurisdictions.28 “Adversarial” has, for instance, referred to a criminal process conceived of as a dispute between two parties before a bifurcated court composed of a judge and a jury, while “inquisitorial” has referred to a criminal process conceived of as a unitary impartial investigation run by professional public officials. Recent scholarship has characterized these two conceptions of the criminal process as a set of cultural or social norms that institutions and actors internalize through socialization processes.29 These two conceptions have also been characterized as two ways to distribute powers and responsibilities among the main institutions and actors of the criminal justice system, such as prosecutors, judges, defendants, defense attorneys, victims, and the citizenry.30 And, to the extent that legal actors use the “adversarial” or “common law” label and the “inquisitorial” or “civil law” label to define themselves as jurists, these categories can also be understood as legal identities.31 This conceptualization of the adversarial and inquisitorial systems in terms of social norms and power dynamics has helped to understand how these historical or sociological systems reproduce themselves and change over time.32 It has also enabled researchers to analyze why civil and common law jurisdictions have regulated and discussed specific legal topics in a different fashion, such as the defendant’s right to disclosure.33 This conceptualization has also helped to explain how reforms from adversarial to inquisitorial systems may be rejected or transformed by the receiving jurisdiction due to differing cultural norms or to power dynamics, and to analyze whether and how U.S. criminal procedure has spread to other jurisdictions.34   See e.g. Chiffoleau (n. 24); John H. Langbein, “The Criminal Trial Before the Lawyers,” (1978) 45 University of Chicago LR 263 ff. 28   See e.g. Jacqueline Hodgson, French Criminal Justice. A Comparative Account of Investigation and Prosecution of Crime in France (2005). 29  Máximo Langer, “From Legal Transplants to Legal Translations:  The Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure,” (2004) 45 Harvard International LJ 1 ff; Máximo Langer, “The Rise of Managerial Judging in International Criminal Law,” (2005) 53 American Journal of Comparative Law 835 ff. For critical discussion about the concept of legal culture with special relation to criminal justice, see e.g. David Nelken (ed.), Comparing Legal Cultures (1997); David Nelken (ed.), Contrasting Criminal Justice (2000); David Nelken, Comparative Criminal 30 Justice: Making Sense of Difference (2010).   Langer, (2004) 45 Harvard International LJ 1. 31   Langer, (2005) 53 American Journal of Comparative Law 835. 32   Langer, (2004) 45 Harvard International LJ 1. 33   See e.g. Máximo Langer and Kent Roach, “Rights in the Criminal Process:  A  Case Study of Convergence and Disclosure Rights,” in Mark Tushnet et al. (eds), Handbook on Constitutional Law (2013), 273. 34   Toby S. Goldbach, Benjamin Brake, and Peter J. Katzenstein, “The Movement of U.S. Criminal and Administrative Law:  Processes of Transplanting and Translating,” (2013) 20 Indiana Journal of 27

896   máximo langer This conceptualization has also helped to explain a set of procedural practices and outcomes within international criminal tribunals where lawyers educated and trained in domestic systems with differing procedural norms have prosecuted, defended, and adjudicated cases together.35 These first two conceptualizations of “adversarial” and “inquisitorial” as ideal-types and as historical or sociological systems have also enabled the analysis of what may be at stake in this dichotomy from an epistemological, sociological, or political perspective.36 A  series of studies have considered that the adversarial and inquisitorial models involve not only two different fact-finding and adjudication techniques, but also assume different conceptions of truth, with the inquisitorial model assuming, for instance, a correspondence theory of truth, and the adversarial model assuming a consensus theory of it.37 This epistemological line of research has enabled comparative criminal procedure scholars to analyze not only theoretical but also practical issues, such as possible relationships between wrongful convictions and adversarial and inquisitorial criminal processes. For instance, scholars have pointed out how adversarial party-driven proceedings may have problems in identifying and challenging common causes of wrongful convictions, such as mistaken eyewitness identification, lying witnesses, false confessions and false guilty pleas, faulty forensic evidence, and tunnel vision or confirmation biases.38 Within sociolegal circles, some have linked adversarial process to individualist conceptions of society and Puritanism and inquisitorial process to more Global Legal Studies 141 ff.; Elisabetta Grande, “Italian Criminal Justice: Borrowing and Resistance,” (2000) 48 American Journal of Comparative Law 227 ff.; Langer, (2004) 45 Harvard International LJ 1; Máximo Langer, “Revolution in Latin American Criminal Procedure: Diffusion of Legal Ideas from the Periphery,” (2007) 55 American Journal of Comparative Law 617 ff.; Allegra MacLeod, “Exporting U.S. Criminal Justice,” (2010) 29 Yale Law & Policy Review 83; William T.  Pizzi, “Understanding Prosecutorial Discretion in the United States: The Limits of Comparative Criminal Procedure as an Instrument of Reform,” (1993) 54 Ohio State LJ 1325.   Langer, (2005) 53 American Journal of Comparative Law 835.   For a general review of what may be at stake in the choice between adversarial and inquisitorial systems, see Malcolm Feeley, “The Adversary System,” in Robert G. Janosik (ed.), Encyclopedia of the American Judicial System (1987), 753 ff. 37   See e.g. Mirjan Damaška, Evidence Law Adrift (1997); Mirjan Damaška, “Atomistic and Holistic Evaluation of Evidence. A  Comparative View,” in David S.  Clark (ed.), Comparative and Private International Law. Essays in Honor of John Merryman (1990), 91 ff.; Mirjan Damaška, “Truth in Adjudication,” (1998) 49 Hastings LJ 289 ff.; Thomas Weigend, “Should We Search for the Truth, and Who Should Do It?,” (2011) 36 North Carolina Journal of International Law & Commercial Regulation 389 ff. 38   See e.g. Kent Roach, “Wrongful Convictions: Adversarial and Inquisitorial Themes,” (2010) 35 North Carolina Journal of International Law & Commercial Regulation 387 ff.; Christopher Slobogin, “Lessons from Inquisitorialism,” (2014) 87 Southern California Law Review 699. For a critique of the ability of the U.S. adversary system to reach truthful outcomes, see William T. Pizzi, Trials without Truth (1999). On the relationship between different types of psychological biases and the adversarial and inquisitorial process, see e.g. Bernd Schünemann, “Der Richter im Strafverfahren als manipulierter Dritter?—Zur empirischen Bestätigung von Perseveranz- und Schulterschlußeffekt,” in Günther Bierbrauer, Walter 35

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adversarial and inquisitorial categories    897 communitarian conceptions of society and Catholicism.39 In political theory, adversarial and inquisitorial processes have been linked to different conceptions of the state. In one political theory conceptualization, the passive role of the court in adversarial process has been linked to a reactive conception of the state that remains neutral among different conceptions of the good, while the active role of the court in inquisitorial process has been linked to a state that embraces and advances a conception of the good.40 In another formulation, adversarial process has been linked to a state that implements its policies through litigation, while inquisitorial process has been linked to a state that implements its policies through a bureaucratic machinery.41 In yet another formulation, adversarial process has been linked to a capitalist state.42 Besides being conceptualized as ideal-types and historical or sociological systems, “adversarial” and “inquisitorial” have been used in a third way: to refer to opposing interests or values within the criminal process. In this view, “adversarial” refers to the value of due process or defendants’ rights and “inquisitorial” refers to the value of law enforcement or efficiency. This third conceptualization of the adversarial–inquisitorial categories does not concentrate on procedural form in fact-finding and adjudication, but rather on whether specific features of the criminal process advance due process or law enforcement. In this sense, “adversarial” and “inquisitorial” would be interests or values that we would find in different degrees in every jurisdiction, rather than labels that would respectively apply to common and civil law. One can place different jurisdictions on different points of the spectrum between these two opposing values or interests on the basis of which particular balance each jurisdiction strikes between law enforcement and due process. Though this third conceptualization of the adversarial and inquisitorial categories has not typically appeared in pure form, it has been present in comparative criminal procedure for a long time. For instance, in his classic Theory of Evidence in the German Criminal Process, published in 1834, Mittermaier said that the two fundamental principles of criminal procedure are: (a) the interest of society and the need that no guilty person goes unpunished, and (b) the protection of individual and public freedoms.43 Mittermaier also maintained that the adversarial and inquisitorial are the two fundamental ways that one can use to analyze the criminal process. According to Mittermaier, the differences between these two categories are Gottwald, and Beatrix Birnbreier-Stahlberger (eds.), Verfahrensgerechtigkeit. Rechtspsychologische Forschungsbeiträge für die Justizpraxis (1995), 215 ff.; Peter J. van Koppen and Steven D. Penrod (eds.), Adversarial versus Inquisitorial Justice: Psychological Perspectives on Criminal Justice Systems (2003). 39   See e.g. Antoine Garapon and Ioannis Papadopoulos, Juger en Amérique et en France:  Culture juridique française et common law (2003). 40   See e.g. Goldstein, (1974) 26 Stanford LR 1009. 41   See e.g. Robert A. Kagan, Adversarial Legalism: The American Way of the Law (2003). 42   Eugeny Pashukanis, Selected Writings on Marxism and Law (ed. P. Beirne and R. Sharlet, transl. 43 P. Maggs, 1980).  Mittermaier, Lehre (n. 4) § 1.

898   máximo langer not merely formal, because the adversarial and the inquisitorial principles are the cardinal maxims that regulate evidence and verdicts.44 He then linked the adversarial principle to the popular principle under which people see in every indictment against a citizen a dangerous attack against public and individual liberties, while he linked the inquisitorial principle to a monarchical system in which the supreme power must prosecute crime in the interest of protecting general security and maintaining order.45 Thus, through the adversarial and inquisitorial principles, one could understand the criminal process as a tension between these two conflicting interests or values of law enforcement versus due process. Similarly, Garraud said in 1907 that every procedural code aims at reconciling two apparently opposing interests: the interest of society that no guilty person escapes a speedy punishment and the interest of the individual of having an impartial and thorough examination of his guilt.46 Neither adversarial nor inquisitorial processes present sufficient safeguards for the proper administration of justice. While adversarial process would lead to impunity, inquisitorial process would not be respectful of due process. It is thus necessary to combine both types of process to manage such a tension.47 This third conceptualization of the adversarial and inquisitorial categories persists to this day. Under some accounts, the adversarial process puts the interests of individuals subjected to criminal prosecution over the interests of society and is inefficient in collecting evidence and ensuring convictions against the guilty.48 In contrast, inquisitorial process aims at preventing the impunity of the criminally guilty and protects the interests of the collectivity, but risks convicting the innocent and is authoritarian.49 The procedures of continental Europe would be mixed systems that would strike a balance between law enforcement and the protection of liberty, and even Anglo-American systems would not be purely adversarial.50 In a fourth theoretical sense, “adversarial” and “inquisitorial” are often used to describe functions that criminal proceedings may perform. In this fourth conceptualization, those criminal proceedings that are structured to obtain systematic or coerced admissions of guilt by defendants have been characterized as “inquisitor­ ial,” while those that are not structured to elicit these admissions of guilt would be “adversarial.”51 This conceptualization has not concentrated on procedural form, but rather on the actual functions that criminal procedure plays. One can link this fourth conceptualization of the adversarial–inquisitorial categories with the trad­ itional comparative law functionalist school, which does not look at the apparent  Mittermaier, Lehre (n. 4) § 3.    45 Mittermaier, Lehre (n. 4) § 3.   René Garraud, Traité Théorique et Pratique d’Instruction Criminelle et de Procédure Pénale, Vol. 47 I (1907), § 1.   Garraud (n. 46) § 21. 48   See e.g. Michèle-Laure Rassat, Procédure pénale (2010), §§ 16 and 17. 49 50   Rassat (n. 48) §§ 16 and 17.   Rassat (n. 48) § 21. 51   See e.g. Note, “Excluding Coerced Witness Testimony to Protect a Criminal Defendant’s Right to Due Process of Law and Adequately Deter Policy Misconduct,” (2011) 38 Fordham Urban LJ 1221, 1224. 44

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adversarial and inquisitorial categories    899 differences between legal systems but instead analyzes whether legal systems play similar functions using different forms.52 This fourth theoretical conceptualization has an old pedigree in comparative criminal procedure due to the association between the term “inquisitorial” and the practice of torture in the ancien régime.53 The association between coerced confessions and civil law persists today, especially in the common law world.54 However, despite these simplistic characterizations, comparative criminal proced­ure scholars have argued that some of the origins of the right against compulsory self-incrimination can be found in civil law, and that contemporary civil law jurisdictions recognize such a right.55 In addition, turning the classical comparative criminal procedure functionalist argument upside down, recent scholarship has argued that, despite preexisting stereotypes, some contemporary common law jurisdictions may be relying on the systematic or coercive obtainment of admissions of guilt to convict as much as or in more problematic ways than civil law jurisdictions, with these admissions of guilt being managed by prosecutors and occurring at the arraignment stage in the form of guilty pleas rather than before the police or an investigating judge.56 The association between Anglo-American jurisdictions and the right against compulsory self-incrimination has been weakened further by authorization to the jury in England and Wales to make negative inferences in some situations based on the suspect’s silence as well as the authorization in the United States to use techniques such as waterboarding during the Bush administration as part of its anti-terrorism policies.57 In a fifth theoretical conceptualization, “adversarial” and “inquisitorial” are used as normative models. These models include a set of positive or negative   See e.g. Konrad Zweigert and Hein Kötz, An Introduction to Comparative Law (transl. Tony Weir, 3rd ed., 1998). 53   For historical analysis of and qualifications about the practice of torture in the criminal process of the ancien régime, see e.g. Mirjan Damaška, “The Death of Legal Torture,” (1978) 87 Yale LJ 860 ff. (book review); Mirjan Damaška, “The Quest for Due Process in the Age of Inquisition,” (2012) 60 American Journal of Comparative Law 919 ff.; John Langbein, Torture and the Law of Proof (1976); Kenneth Pennington, The Prince and the Law, 1200–1600: Sovereignty and Rights in the Western Legal Tradition (1993). 54   See e.g. Colorado v. Connelly, 479 U.S. 157, 181 (1986); Rogers v. Richmond, 365 U.S. 534, 81 S. Ct. 735, 5 L. Ed. 2d 760 (1961). 55   See e.g. R. H. Helmolz et al., The Privilege against Self-Incrimination. Its Origins and Development (1997); Gordon van Kessel, “European Perspectives on the Accused as a Source of Testimonial Evidence,” (1998) 100 West Virginia LR 799 ff. 56  John H.  Langbein, “Torture and Plea Bargaining,” (1978) 46 University of Chicago LR 3 ff.; Máximo Langer, “Rethinking Plea Bargaining: The Practice and Reform of Prosecutorial Adjudication in American Criminal Procedure,” (2006) 33 American Journal of Crim. Law 223 ff. For comparative analysis on prosecutors as de facto adjudicators, see e.g. Erik Luna and Marianne Wade (eds.), The Prosecutor in Transnational Perspective (2012). 57   On the regulation of the right against compulsory self-incrimination in England and Wales, see e.g. David J. Feldman, “England and Wales,” in Craig M. Bradley (ed.), Criminal Procedure. A World Wide Study (2007), 149, 166–172. 52

900   máximo langer principles or features that can be used to evaluate actual criminal proceedings, to make decisions in individual cases, and to advance criminal procedure reform. Arguments in favor of the normative appeal of adversarial and inquisitorial processes have been based on the allegedly superior epistemological capacity, consistency with human rights, higher transparency, democratic character, or efficiency of the adversarial process over the inquisitorial one, or vice versa.58 As with the previous conceptualizations, commentators have given different content to the adversarial and inquisitorial processes as normative models depending on the issues in which they are interested or for which they advocate.59 Such content has included classical themes within the adversarial–inquisitorial categories, such as the opposition between party-driven versus court-driven procedure, oral hearings versus written dossier, public versus secret proceedings, strong versus weak defendant’s rights, and juries versus mixed courts or professional adjudicators. These arguments have often been followed by proposals to adopt partial or comprehensive adversarial reforms in civil law jurisdictions or inquisitorial reforms in common law ones.60 Courts have also made a normative use of these categories. For instance, the European Court of Human Rights has held that Art. 6 of the European Convention on Human Rights requires an adversarial process that includes a right to equality of arms, understood as the right of each party to be afforded a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage 58   For a critical analysis of the consequentialist and nonconsequentialist justifications of the adversarial system, see David Luban, Law and Justice (1988), 67–102. On the alleged superior or inferior epistemological value of the adversarial process, see e.g. Luigi Ferrajoli, Diritto e ragione. Teoria del garantismo penale (10th ed., 2009); Carrie Menkel-Meadow, “The Trouble with the Adversary System in a Postmodern, Multicultural World,” (1996) 38 William & Mary LR 5 ff. On the alleged superior consistency of the adversarial or inquisitorial system with human rights, transparency, and democracy more generally, see e.g. Alberto Binder, Justicia Penal y Estado de Derecho (1993); Julio B. J. Maier, I Derecho Procesal Penal (2nd ed., 1996); and Bernd Schünemann, “Zur Kritik des amerikanischen Strafprozessmodells,” in Edda Wesslau and Wolfgang Wohlers (eds.), Festschrift für Gerhard Fezer (2008), 555 ff. On whether the adversarial or inquisitorial systems are more efficient, see e.g. Richard A. Posner, “An Economic Approach to the Law of Evidence,” (1999) 51 Stanford LR 1477 ff. 59   There have also been commentators who have considered that legitimate criminal processes have to combine aspects of the adversarial and the inquisitorial categories, rather than opting for one over the other. See e.g. Vogler (n. 5) (arguing that legitimate criminal processes have to combine elements of the adversarial, the inquisitorial, and the popular justice traditions). 60   See e.g. Ennio Amodio and Eugenio Selvaggi, “An Accusatorial System in a Civil Law Country: The 1988 Italian Code of Criminal Procedure,” (1989) 62 Temple LR 1211 ff.; Binder (n. 58); Richard S. Frase, “Comparative Criminal Justice as a Guide to American Law Reform: How Do the French Do it, How Can We Find Out, and Why Should We Care?,” (1990) 78 California LR 539 ff.; Richard S. Frase and Thomas Weigend, “German Criminal Justice as a Guide to American Law Reform: Similar Problems, Better Solutions?,” (1995) 18 Boston College International & Comparative LR 317 ff.; Jenia Iontcheva Turner, “Judicial Participation in Plea Negotiations: A Comparative View,” (2006) 54 American Journal of Comparative Law 199; John H.  Langbein, “Mixed Court and Jury Court:  Could the Continental Alternative Fill the American Need?,” (1981) American Bar Foundation Research Journal 195 ff.; Lloyd L. Weinreb, Denial of Justice: Criminal Process in the United States (1977).

adversarial and inquisitorial categories    901 vis-à-vis his opponent.61 The right to an adversarial process means, in a criminal case, that both prosecution and defense must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party.62 This right includes that the accused should be given an adequate and proper opportunity to challenge and question witnesses against him, either at the time the witness is making his statement or at some later stage of the proceedings.63 In order to accommodate both civil and common law jurisdictions, the European Court has not included in the content of adversarial process many features that one finds in common law. This way, the Court has required both common and civil law jurisdictions to amend their proceedings while leaving sufficient room for these jurisdictions to stick to their pre-established norms and regulations.64 Even though normative arguments have been made in favor of the inquisitorial system, the adversarial system has had the upper hand in this debate, especially in recent years. The preference for adversarial process may partially be the result of substantive reasons and debate. However, other phenomena, such as the influence of the U.S. criminal procedure and agencies around the world and the old association between the term “inquisitorial” and the criminal process of the ancien régime, may also help to explain why the adversarial process has been considered a more appealing procedural model. This normatively positive and negative connotation of “adversarial” and “inquisitorial” helps to explain why the terms have been used as rhetorical devices and slogans in criminal adjudication or for criminal procedure reforms around the world.65

iv.  Alternative Approaches and the Adversarial–Inquisitorial Long Theoretical Shadow Given the centrality of the adversarial–inquisitorial categories for comparative criminal procedure, it is not surprising that commentators have articulated alternative approaches to them. This section will argue that even though these alternative

  See e.g. Kennedy v. U.K., App. no. 26839/05 (2011) 52 EHRR 4, para. 184.   See e.g. Fitt v. U.K., App. no. 29777/96 (2000) 30 EHRR 480, para. 44; Rowe and Davis v. U.K., App. no. 28901/95, ECHR 2000-II, para. 60 (Grand Chamber). 63   See e.g. Kostovski v. Netherlands, App. no. 11454/85 (1989) 12 EHRR 434, para. 41. 64   See e.g. Jackson, (2005) 68 Modern LR 737, 742–743. 65   See e.g. Amodio and Selvaggi, (1989) 62 Temple LR 1211; Langer, (2007) 55 American Journal of Comparative Law 617; David A. Sklansky, “Anti-Inquisitorialism,” (2009) 122 Harvard LR 1634. 61

62

902   máximo langer approaches have often improved our understanding of criminal procedure, they are simply elaborations on the adversarial and inquisitorial categories or still operate within the adversarial and inquisitorial long theoretical shadow. My analysis of these alternative approaches will sequentially follow the theoretical mapping of the adversarial–inquisitorial opposition of the previous section as: (a) descriptive ideal-types; (b) historical or sociological systems present in actual criminal proced­ ures; (c) opposing interests or values that coexist in any criminal process; (d) functions of the criminal process; and (e) normative models. Mirjan Damaška’s framework in The Faces of Justice and State Authority is the most sophisticated and influential of these alternatives approaches.66 Damaška proposes two sets of opposing ideal-types instead of the adversarial and inquisitor­ ial categories in order to avoid “narrow and sterile constructs” and “vain attempts to express the core of the contrast between Continental and Anglo-American administration of justice.”67 A first set of opposing ideal-types includes the hierarchical and coordinate ideals; these types articulate two ways in which authority within the administration of justice may be structured. In the hierarchical ideal, the administration of justice is composed of professional decision-makers who apply technical rules to cases and who are in hierarchical relationships of authority among themselves. In the coordinate ideal, the administration of justice is composed of lay decision-makers who apply community standards to cases and who are in horizontal relationships of authority among themselves. The second set of opposing ideal-types includes the policy-implementing and the conflict-solving models. These types articulate two goals that the administration of justice may pursue. In the conflict-solving model, the goal of the administration of justice and the state is to provide a framework within which individuals may choose their own conceptions of the good. In the policy-implementing model, the goal of the administration of justice and the state is to implement a certain conception of the good. Damaška’s insightful framework renovated the comparative study of the legal process by providing two original sets of opposing ideal-types that connect features of the legal process to different types of authority and goals of the administration of justice.68 However, original as the framework is, it can be understood as an elaboration on the adversarial and inquisitorial categories rather than a true alternative to them. Like an important strand of the adversarial–inquisitorial literature, Damaška’s framework relies on ideal-types as theoretical devices. In other words, like that adversarial–inquisitorial strand, Damaška creates abstract models as a way to classify and analyze actual   Mirjan Damaška, The Faces of Justice and State Authority (1986).   Damaška (n. 66) 6. 68   On the importance and influence of Damaška’s work, see John Jackson, Máximo Langer, and Peter Tillers (eds.), Crime, Procedure and Evidence in a Comparative and International Context: Essays in Honour of Professor Mirjan Damaška (2008). 66 67

adversarial and inquisitorial categories    903 legal processes. In addition, Damaška’s conflict-solving and policy-implementing models can be considered elaborations on the classical adversarial–inquisitorial opposition between party-contest versus impartial inquiry, while the coordinate and hierarchical models can be considered elaborations on the classical adversarial–inquisitorial opposition between lay versus professional decision-makers. The conflict-solving and policy-implementing models can also be considered an elaboration on the classical comparative criminal procedure theme that there is a link between types of criminal process and types of political states. If in classical articulations the adversarial is linked to a democratic conception and the inquisitorial to an authoritarian or monarchical conception of the state, Damaška’s framework links contest-like proceedings to a liberal conception and inquiry-like proceedings to non-liberal conceptions of the state. The contribution is new but operates within an intellectual space that the literature on adversarial and inquisitorial systems had already opened. A second set of alternative approaches includes historical and sociolegal ana­ l­yses of the legal process that do not (heavily) rely on the adversarial–inquisitorial distinction and propose instead other concepts to compare Anglo-American and continental jurisdictions. These studies have also honed our understanding of the criminal process by arguing, for instance, that different conceptions of lay participation in criminal adjudication may reflect different conceptions of the nation; that relationships between criminal justice institutions and local non-state institutions are described dissimilarly in different countries because of different attitudes toward the idea of “community”; that differing concerns about undercover surveillance reflect different conceptions of its goals and the problems it may present; that there is a link between prosecutorial discretion and different conceptions of equality; that differences in legal regulations may reflect different conceptions of privacy; and that major differences in the way in which evidence of the defendant’s character is treated reflect different conceptions of relations between state and citizen in Anglo-American and continental jurisdictions or a subgroup within them—to mention just a few examples.69 However, once again, these studies can be considered to operate within the space already opened by the literature on adversarial and inquisitorial process. Like conceptualizations of “adversarial” and “inquisitorial” as historical or sociological systems, this literature takes common law and civil law or Anglo-American and continental jurisdictions (or a subgroup within them) as a given central division 69  See e.g. Markus D.  Dubber, “The German Jury and the Metaphysical Volk:  From Romantic Idealism to Nazi Ideology,” (1995) 43 American Journal of Comparative Law 227 ff.; Stewart Field, “State, Citizen, and Character in French Criminal Process,” (2006) 33 Journal of Law & Society 522 ff.; Nicola Lacey and Lucia Zedner, “Community in German Criminal Justice: A Significant Absence?,” (1998) 7 Social & Legal Studies 7 ff.; Jacqueline E.  Ross, “The Place of Covert Surveillance in Democratic Societies:  A  Comparative Study of the United States and Germany,” (2007) 55 American Journal of Comparative Law 493 ff.; James Q. Whitman, “Equality in Criminal Law: The Two Divergent Western Roads,” (2009) 1 Journal of Legal Analysis 119 ff.; James Q. Whitman, “The Two Western Cultures of Privacy: Dignity versus Liberty,” (2004) 113 Yale LJ 1151.

904   máximo langer that can be explained by identifying principles or rationales that would underpin each type of jurisdiction. In addition, the type of explanations proposed operate within the culturalist tradition of comparative criminal procedure that finds in different values or social norms or political conceptions the explanatory variables of legal differences between the criminal processes of common and civil law. A third set of alternative accounts for the adversarial–inquisitorial opposition has applied Herbert Packer’s classical crime control and due process models to the comparative analysis of criminal procedure. Per the crime control model, criminal procedure is an assembly line that has as its main goal the efficient enforcement of criminal law through plea bargaining. Under the due process model, criminal procedure is an obstacle course that emphasizes the protection of the defendant’s rights through a trial before an impartial tribunal.70 Packer conceived of the crime control and due process models as tensions between two value systems within the U.S. adversary process.71 However, commentators have used the crime control and due process models for comparative analyses of the criminal process.72 It is hard to exaggerate the influence of Packer’s models on thinking about crim­ inal procedure not only in the United States, but throughout the world.73 Packer elegantly articulated his two detailed models to capture a classical tension within the criminal process. However, he was not the first to see this tension. As already mentioned, well before Packer identified this issue, a number of comparative crim­ inal procedure scholars had already considered that the opposition between adversarial and inquisitorial criminal process captured this very tension between efficient law enforcement and due process—and they were not the first ones to articulate this tension either. In short, Packer’s models, though original, are not truly alternatives to the adversarial and inquisitorial categories, but rather can be considered elabor­ ations on a way of thinking about the criminal process that had already been opened and that was already present in the comparative criminal procedure literature. A fourth set of alternative accounts has concentrated on the functions that the legal process plays, rather than its form. Martin Shapiro’s comparative account of courts is probably the most sophisticated example of this conception. Shapiro questioned the predominant understanding of courts as “involving (1) an independent judge applying (2) preexisting legal norms after (3) adversary proceedings in order to achieve (4) a dichotomous decision in which one of the parties was assigned the legal right and   Herbert L. Packer, “Two Models of Criminal Procedure,” (1964) 113 University of Pennsylvania LR 71   Packer, (1964) 113 University of Pennsylvania LR 1, 7–9. 72   See e.g. Eric Luna, “A Place for Comparative Criminal Procedure,” (2004) 42 Brandeis LJ 277 ff.; Kent Roach, “Four Models of the Criminal Process,” (1999) 89 Journal of Crim. Law & Criminology 671 ff. 73   For critical analysis of Packer’s models, see e.g. John Griffiths, “Ideology in Criminal Procedure or A Third ‘Model’ of the Criminal Process,” (1970) 79 Yale LJ 359 ff. For a recent review of Packer’s work and the main reactions to it, see Hadar Aviram, “Packer in Context: Formalism and Fairness in the Due Process Model,” (2011) 36 Law & Social Inquiry 237 ff. 70

1 ff.

adversarial and inquisitorial categories    905 the other party found wrong.”74 Instead, he explored the role of consent by the case parties and the population in the legitimation of adjudicatory bodies and emphasized the conflict-solving, lawmaking, and social control functions that they perform.75 Shapiro’s work has made important contributions to the comparative analysis of the legal process. Through his emphasis on the need for consent and the functions that adjudicatory bodies perform, Shapiro provided a fresh perspective by studying courts as part of the spectrum of bodies that play conflict-solving, lawmaking, and social-control functions in any given society. However, his theoretical perspective operates within an existing scholarly framework, namely the comparative law functionalist school as applied to the adversarial and inquisitorial categories and to the criminal process and comparative law more generally.76 Like the functionalists, Shapiro questioned the importance of legal discourse and procedural form and concentrated instead on the functions that courts and process perform. His contributions are new but operate within a theoretical strand already present in comparative studies. A fifth set of alternative approaches has adopted a normative perspective. These approaches have questioned the adversarial–inquisitorial distinction and have tried to move beyond it by proposing procedural reforms or interpretation of procedural legal texts on the basis of regional or universal human rights or procedural trad­ition.77 Such reforms and interpretations have included, for instance, proposals that criminal courts should not have investigating functions or that only the evidence produced at trial should be the basis for a conviction. According to these approaches, one of the problems with the adversarial and inquisitorial categories is that they respectively connote Anglo-American and continental jurisdictions. Proposing reforms inspired by features of the adversarial and inquisitorial models may thus trigger nationalist reactions that can impede substantive discussions and hinder reform efforts.78 These normative proposals have enriched national, regional, and global debates about how the criminal process should be structured. For instance, the work of the Delmas-Marty Commission in France fostered debate on whether the investigating judge is compatible with international or European fair trial standards. However, once we study these alternative models in detail, these models substantially parallel the normative conceptions of the adversarial and inquisitorial systems described earl­ ier. In fact, the elements of these normative models include many of the elements of   Martin Shapiro, Courts. A Comparative and Political Analysis (1981), 1.   Shapiro (n. 74). 76   On the comparative law functionalist school, see e.g. Zweigert and Kötz (n. 52) and accompanying text. 77   See e.g. Commission Justice pénale et Droits de l’homme, La mise en état des affaires pénales (1991); Sarah Summers, Fair Trials. The European Criminal Procedure Tradition and the European Court of Human Rights (2007). 78   See e.g. Summers (n. 77) 11–13. 74 75

906   máximo langer adversarial normative models, such as a sharp distinction between the role of prosecuting and adjudicating, the elimination of the preliminary investigation judge, the conception of a criminal process in terms of an “accusatorial trinity,” the strengthening of defendants’ rights, the introduction of consensual mechanisms for prosecution and defense to deal with criminal cases, and the strengthening of public and oral trials.79

v.  The Thematic Shadow of the Adversarial–Inquisitorial Categories In this section I will argue that the shadow of the adversarial and inquisitorial categories runs even longer. This is the case because the adversarial–inquisitorial and alternative approaches to the comparative study of the criminal process share not only theoretical traditions, but also an interest in only certain aspects of the criminal process. My main argument is that the juxtaposition of the adversarial and inquisitorial categories has made salient certain jurisdictions and certain aspects of the administration of criminal justice to the detriment of others. Due to space constraints, I can only sketch, rather than demonstrate my statements, over this matter. First, comparative criminal procedure has been mostly interested in understanding and explaining the differences between Anglo-American and continental European jurisdictions. While not the exclusive interest, it has been central to the discipline for a long time.80 The centrality of the association of the adversarial and inquisitor­ ial categories with, respectively, Anglo-American and continental jurisdictions has likely contributed to perpetuate the geographical limitations of the field. This association has conferred a premier role to England and the United States and to France, Germany, and Italy as the primary jurisdictions that have to be explained because the adversarial and inquisitorial systems have been abstracted from these countries’ criminal processes or because these jurisdictions are considered the most influential or the originators of adversarial and inquisitorial systems. These limitations have downplayed the criminal processes of lower income countries and non-Western countries, making most comparative criminal procedure scholarship an enterprise to understand the differences within the developed West, rather than a truly global exercise.   See e.g. Commission Justice pénale et Droits de l’homme (n. 77); Summers (n. 77).   There have been exceptions to this trend. A recent example is Paul Roberts and Jill Hunter (eds.), Criminal Evidence and Human Rights (2012) (exploring the impact of human rights on a wide range of common law jurisdictions). 79

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adversarial and inquisitorial categories    907 Secondly, though comparative criminal procedure has assumed that individual jurisdictions may be members of legal families and that jurisdictions may influence each other, it has been interested, almost exclusively, in a criminal process that investigates and prosecutes criminal cases within a single jurisdiction, most typically within a single nation-state.81 The prosecution of cases whose crimes, persons, or evidence are found outside the prosecuting jurisdiction has attracted the interest of transnational criminal law, international relations, and international law scholars, but little attention from comparative criminal procedure quarters. This limited interest may relate to comparative criminal procedure’s shaping as a discipline through the adversarial and inquisitorial categories before transnational crime became an important phenomenon. Within the traditional comparative criminal procedure paradigm, the goal has been to explain differences in the way civil and common law jurisdictions prosecute and adjudicate their own domestic crime, rather than to understand how jurisdictions may interact with each other in the prosecution and adjudication of individual cases.82 Thirdly, comparative criminal procedure has maintained a doctrinal, institutional and role perspective. The field has been mostly interested in explaining why civil and common law jurisdictions have different rules and institutions to prosecute and adjudicate crime, and why prosecutors, judges, defense attorneys, and other actors are assigned different roles in each type of jurisdiction; in explaining what may be the principles or rationales underlying these rules, institutional arrangements and roles; and in evaluating which set of rules, institutional arrangements and roles is more appealing.83 It has explored little about other questions, such as whether and why criminal processes in different jurisdictions have the same or different types of “clients” (i.e. victims, defendants, witnesses, expert witnesses, and so on). This may again result from the comparison of adversarial and inquisitorial systems making salient rule, institutional and role differences rather than other types of differences and commonalities between criminal justice practices. Fourthly, despite its institutionalist and role perspective, comparative criminal procedure scholarship has showed interest mostly in a limited set of criminal justice 81   For criticisms of comparative law and Western legal culture more generally that parallel the first two thematic limitations that I just mentioned, see the three following works by William Twining: General Jurisprudence (2009), ch. 1; Globalisation and Legal Theory (2001), chs. 6 and 7; “Globalization and Comparative Law,” in Esin Örücü and David Nelken (eds.), Comparative Law. A Handbook (2007), 69 ff. In these works, Twining articulates other criticisms to comparative law such as an almost exclusive interest in doctrine that does not apply to comparative criminal procedure that has a long tradition of institutional analyses that go beyond the letter of the law. In that sense, comparative criminal proced­ ure can be understood not simply as a subspecies of comparative law, but rather as a field that, while related to comparative law, also has its own set of theoretical traditions and thematic interests. 82   For a recent exception by a scholar with a strong international law background, see Chimene Keitner’s comparative exploration of this type of question, “Rights Beyond Borders,” (2011) 36 Yale Journal of International Law 55 ff. 83  For a good example of this type of doctrinal, institutional and role approach, see Mireille Delmas-Marty and J. R. Spencer (eds.), European Criminal Procedures (2002). Some of these doctrinal,

908   máximo langer institutions and actors—those related to the formal process of prosecution and adjudication. Once again, the comparison of adversarial and inquisitorial processes may result in highlighting differences in institutions and actors such as the office of the prosecutor, the courts, and the bar, rather than other institutions and actors such as the police, diversion/probation officers, post-conviction and post-appeal proceedings, and administrative agencies that play a role in the criminal process, just to mention a few. For instance, comparative criminal procedure has arguably done little to explain the police as an institution. To be sure, the powers and legal regulations of the police are often covered in comparative analyses of the criminal process.84 However, we know little about how different police forces operate in the criminal process in relationship to different social groups, how police departments are demographically composed, how police departments are structured as organ­ izations, and what is the array of functions that different police departments play in different jurisdictions.85 The limited focus on the police may be a consequence of the police all over the world being, by definition, inquisitorial, in the sense that they investigate cases by their own motion. The adversarial–inquisitorial opposition may fail to trigger interest and study about the different configurations that these inquisitorial institutions may take. Similarly, we know very little about what type of administrative agencies other than the police play a role in the prevention, investigation, and prosecution of crime in different jurisdictions, and how these administrative agencies perform these roles.

vi.  Transcending the Adversarial and Inquisitorial Long Shadow This chapter has identified the main theoretical traditions of comparative criminal procedure, as well as the main issues it has investigated. That its theories and themes are limited is not exclusive to this field. Every discipline engages with a limited set of institutional and role approach limitations may apply not only to comparative criminal procedure, but to criminal procedure more generally. See, e.g., Paul Roberts, “Groundwork for a Jurisprudence of Criminal Procedure’, in R.A. Duff and S.P. Green (eds.), Philosophical Foundations of Criminal Law (2011) 379–408.   See e.g. Craig M. Bradley (ed.), Criminal Procedure. A World Wide Study (2007); Steven Thaman, Comparative Criminal Procedure: A Casebook Approach (2nd ed., 2008). 85   A  remarkable exception is the work of David H.  Bayley, to which comparative criminal procedure scholars have paid limited attention. See his Patterns of Policing (1990) and Changing the Guard: Developing Democratic Police Abroad (2006). 84

adversarial and inquisitorial categories    909 theoretical traditions and has its own set of central themes. In fact, in comparison to other disciplines, comparative criminal procedure has engaged with a broader set of theoretical schools, which has allowed it to produce many insights on the criminal process. However, if comparative criminal procedure wants to broaden and deepen its understanding and analysis of the criminal process, transcending the adversarial and inquisitorial categories is a task forward. The hope is that the identification of these theoretical traditions and themes may help scholars, practitioners, and policy-makers move past at least some of these limitations to make comparative criminal procedure an even stronger field of inquiry. There are many ways to transcend these categories’ shadow. Here I am going to sketch a few possible avenues. As a starting point, it is important to distinguish between the positive and normative levels. There is room for both types of analyses under the big umbrella of comparative criminal procedure. However, positive and normative analyses present different challenges that have to be addressed separately. In fact, one of the problems with some of the ways in which the adversarial and inquisitorial categories have been used is that they have often confounded the two levels. At the positive level, there are at least three issues to consider. First, as already explained, a very important strand of comparative criminal procedure has heavily relied on models in order to analyze the criminal process. There is no question that these tools have enabled comparative criminal procedure to articulate different conceptions of the criminal process, analyze prevailing cultural understandings and norms as well as power and institutional dynamics in specific jurisdictions, identify different epistemological conceptions of the criminal process, and explore the relationship between these procedural conceptions and different types of societies and political systems. Nevertheless, these models are less able to produce other types of positive knowledge because they are multidimensional. In other words, comparative criminal procedure ideal-types or systems try to account for many features of the criminal process at once, such as prosecutorial discretion versus compulsory prosecution, guilty pleas versus non-guilty pleas, waivable versus non-waivable conception of rights, court as passive umpire versus court as active investigator, party-gathering of evidence versus impartial-gathering of evidence, lay adjudicators versus professional adjudicators, oral hearings versus written dossier, public versus secret proceedings, day-in-court conception versus sequential conception of the criminal process, and so on. Even when these multiple dimensions are reduced to a few underlying variables, these underlying variables themselves are often multiple. For instance, adversarial and inquisitorial features are often reduced to two sets of opposing variables, such as dispute versus inquiry and day-in-court versus sequential process. And even when the underlying variables are sharply separated, each individual underlying variable is again often itself multidimensional. For instance, to take a sophisticated example, Damaška’s coordinate and hierarchical models are multidimensional; they include

910   máximo langer not one but three variables: lay versus professional decision-makers, horizontal versus vertical relationships among decision-makers, and community standards versus technical rules of adjudication. My point is not to dismiss multidimensional models. Comparative criminal procedure has produced many positive insights through these models and should keep using them when they are appropriate to describe or analyze a given phenomenon. The problem with multidimensional constructs is that they can make it difficult to analyze certain phenomena. Let me give an example to illustrate the point. Let us say that we want to study whether specific characteristics of some countries’ criminal processes have an effect on the type of defendants (defined within a continuous spectrum of politically power­ful or weak individuals) against whom these countries open formal proceedings for international crimes on the basis of universal jurisdiction. If we describe the criminal processes in question using multidimensional models, it may be impossible to know which specific characteristics of the criminal process, if any, affect the type of defendants against whom formal proceedings are opened. Are different patterns in different countries explained by differences in the degree of prosecutorial discretion, on whether these countries have certain rules of evidence, on whether the victim can be a party in the criminal process, or by none of the above? Unless we identify and analyze each individual variable separately, it may be impossible to answer these questions in a meaningful way.86 The second issue to consider is whether, to expand upon and transcend the main themes it has studied, comparative criminal procedure should engage with a larger array of theoretical literatures. For instance, to transcend its concentration on the developed West and its relative lack of interest in how the criminal process affects the transnational prosecution of crimes, comparative criminal procedure could benefit from deeper engagement with literatures on globalization of law, inter­national relations, and postcolonial studies, just to mention three possible examples.87 To broaden and transcend its rule and institutional analysis, comparative criminal procedure could benefit from engaging with literatures or disciplines as law and economics, political science, criminology, and sociology. For instance, following the trad­itional theoretical traditions described, comparative criminal procedure scholarship has typically analyzed whether and how adversarial and inquisitorial institutional 86   It is for this reason that I did not use the adversarial–inquisitorial categories or similar multi­ dimensional models as independent variables in Máximo Langer, “The Diplomacy of Universal Jurisdiction: The Political Branches and the Transnational Prosecution of International Crimes,” (2011) 105 American Journal of International Law 1 (arguing that the degree of control by the executive branch on whether or not formal proceedings are open has affected the type of defendants against whom these proceedings have been opened). 87  For comparative criminal procedure’s attempts to engage with some of these literatures, see Langer, (2007) 55 American Journal of Comparative Law 617; Langer, (2011) 105 American Journal of International Law 1.

adversarial and inquisitorial categories    911 norms have shaped prosecutorial discretion and how prosecutors exercise discretion in different jurisdictions.88 Applying law and economics and political science analyses, for example, would instead encourage focus on the structure of incentives that legislatures, the executive branch, and judges have to give discretion to prosecutors, and on the incentives of the prosecutors themselves to exercise their discretion in particular ways.89 In another example, comparative criminal procedure could engage with criminological and sociological literatures concentrated on who the “clients” of public institutions are, and on how the class, race, ethnicity, gender, age, and immigration status of victims and crime participants affect the way the criminal process works. The third issue is methodological. Comparative criminal procedure has been strong in producing qualitative studies based on historical archival research, interviews with criminal justice participants, and direct observations of criminal justice practices.90 However, very little has been done using quantitative methods.91 Unlike trends in some disciplines, the idea is not to reject any non-quantitative empirical methodology that does not use multivariable regressions. Rather, the suggestion is to expand the methodo­ logical tools and approaches so that quantitative studies complement qualitative ones.92 At the normative level, it is important that we distinguish between form and substance. The adversarial and inquisitorial systems are two ways to implement the principles and goals of the criminal process, but they should not be confounded with the principles and goals themselves. Instead of starting by asking which system, adversarial or inquisitorial, is normatively superior, we should start by asking which principles and goals we value in the criminal process and then discuss the best ways to implement those principles and goals in specific jurisdictions. There have been a handful of attempts to proceed with this discussion in this way,93 but these types of approaches are still too new and too few.   See e.g. Abraham S. Goldstein and Martin Marcus, “The Myth of Judicial Supervision in Three ‘Inquisitorial’ Systems: France, Italy, and Germany,” (1977) 87 Yale LJ 240 ff.; John H. Langbein and Lloyd L. Weinreb, “Continental Criminal Procedure: ‘Myth’ and Reality,” (1978) 87 Yale LJ 1549 ff. 89   For comparative analysis of prosecutors’ behavior based on their incentives, see Nuno M. Garoupa, “The Economics of Prosecutors,” in Alon Harel and Keith N. Hylton (eds.), Research Handbook on the Economics of Criminal Law (2012), 231 ff.; Langer, (2011) 105 American Journal of International Law 1. 90   See e.g. Hodgson (n. 28); David T. Johnson, The Japanese Way of Justice. Prosecuting Crime in Japan (2001); Langbein (n. 25); Langer, (2007) 55 American Journal of Comparative Law 617. 91   For a rare exception that has been mostly ignored by the comparative criminal procedure literature, see Floyd F. Feeney, German and American Prosecutions: An Approach to Statistical Comparison (1998). 92   For an attempt to integrate quantitative and qualitative methods with comparative criminal procedure’s models, see Máximo Langer and Joseph W. Doherty, “Managerial Judging Goes International, but its Promise Remains Unfulfilled: An Empirical Assessment of the ICTY Reforms,” (2011) 36 Yale Journal of International Law 241 ff. 93   See Mirjan Damaška, “What is the Point of International Criminal Justice?,” (2008) 83 Chicago-Kent LR 229 ff.; R. A. Duff et al. (eds.), The Trial on Trial, Vol. 3 (2007); Ferrajoli (n. 58); Jackson, (2005) 68 Modern LR 737; John D. Jackson and Sarah J. Summers, The Internationalization of Criminal Evidence. Beyond the Common Law and Civil Law Traditions (2012); Paul Roberts, “Theorising Procedural Tradition: Subjects, Objects and Values in Criminal Adjudication,” in Duff et al., ibid., Vol. 2 (2006), 37 ff.; Sergey Vasiliev, ‘International Criminal Trials: A Normative Theory,’ PhD dissertation, University of Amsterdam, 2014. 88

912   máximo langer

vii. Conclusion This chapter has looked at the adversarial and inquisitorial categories as a means to analyze the field of comparative criminal procedure. The chapter briefly described some of the knowledge and insights produced by this field and also indicated the theoretical and thematic limitations of the field. These limitations have been partially reflected and partially produced by the adversarial and inquisitorial categor­ ies. Expanding the horizons of our comparative understanding and analysis of the criminal process will require transcending the adversarial and inquisitorial categor­ ies without forgetting what these categories have enabled us to see and do.

References Damaška, Mirjan, The Faces of Justice and State Authority (1986) Damaška, Mirjan, Evidence Law Adrift (1997) Duff, R. A. et al. (eds.), The Trial on Trial, Vols. 1, 2, and 3 (2004, 2006, 2007) Esmein, Adhémar, A History of Continental Criminal Procedure ([1882] transl. John Simpson, 1882) Ferrajoli, Luigi, Diritto e raggione. Teoria del garantismo penale (10th ed., 2009) Jackson, John D. and Summers, Sarah J., The Internationalization of Criminal Evidence. Beyond the Common Law and Civil Law Traditions (2012) Langbein, John H., The Origins of Adversary Criminal Trial (2003) Langer, Máximo, “From Legal Transplants to Legal Translations: The Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure,” (2004) 45 Harvard International LJ 1 Langer, Máximo, “Rethinking Plea Bargaining: The Practice and Reform of Prosecutorial Adjudication in American Criminal Procedure,” (2006) 34 American Journal of Crim. Law 233 Luna, Erik and Wade, Marianne (eds.), The Prosecutor in Transnational Perspective (2012) Shapiro, Martin, Courts. A Comparative and Political Analysis (1981) Vogler, Richard, A Worldwide View of Criminal Justice (2005)

­c hapter 40

DISCRETION frank meyer

i. Introduction Originally discretion became associated with abuse of power and tyranny. It stood in sharp contrast to the rule of law. To rein in discretion has been and still is one of the key concerns of the rule of law. Today, many legal systems around the globe have succeeded in effectively implementing the rule of law in the area of criminal justice without eliminating discretion altogether. Rather, criminal justice architects have sought to preserve and inject discretionary elements in the administration of criminal justice in manifold respects when it was deemed indispensable or even fruitful. Many tasks within the criminal process appear to go hand in hand with a certain and inevitable quantum of discretion. This chapter seeks to explore the contemporary uses of discretion over the entire range of the criminal process. The analysis proceeds in three steps. First, it will identify and categorize manifestations of discretionary decision-making as they were purposefully built into criminal justice systems or historically emerged as inherent elements of the criminal process. Factors that will inform the categorization encompass actors involved, stage of process, source, and operation of discretion. The study will also take a closer look at criminal law doctrine and the application of substantive criminal law. It is one of the main interests of this chapter to highlight the interconnectedness of substantive and procedural law. The second part is designed to cast light on the empirical and normative rationales that are invoked to explain and justify the use of discretion. Against this backdrop, the diversity and divergences between the approaches criminal justice systems

914   frank meyer have adopted will emerge and provide the reader with a clearer picture not only of how and why discretion has become an indispensable element of the criminal process, but also in which respects criminal justice systems around the globe diverge. The final part is dedicated to the critical question of legitimacy. Discretion has serious implications for our understanding of justice and the rule of law. The scope of this chapter does not allow an in-depth analysis. But a brief exploration of limitations, tensions, and frictions will suffice to underscore the intricate nature and far-reaching consequences the use of discretion has within criminal justice systems.

ii.  Manifestations and Types of Discretion Discretion is a ubiquitous and essential element of criminal justice. It permeates the entire criminal process in often very subtle, if not undetected, ways. As the following sample will show, the real world of criminal justice is full of junctions at which discretionary decisions are taken.1 This broad sketch will be of unavoidably high generality and presumably oversimplify matters. Yet, the ensuing account neither attempts to describe a specific legal system nor does it exclude the possibility that things are done completely differently elsewhere. All that it intends is to cast light on the many possible manifestations of discretion that (may) pervade criminal justice systems today.

1.  Discretionary decisions and holders of discretionary authority The earliest decision-points are the numerous frontline decisions made by police officers.2 “What suspicion to follow?,” “whom to stop?,” “whom or what to search?,” “whom to interrogate?,” “when to seek surveillance warrants?,” or “whom to arrest?” require individual judgments on a daily basis. And it does not stop there. One may

1   See Loraine Gelsthorpe and Nicola Padfield (eds.), Exercising Discretion: Decision-Making in the Criminal Justice System and beyond (2003), 29 ff.; Michael Gottfredson and Don Gottfredson, Decision Making in Criminal Justice—Toward the Rational Exercise of Discretion (1988), 15 ff.; Keith Hawkins (ed.), Uses of Discretion (1995). 2   Simon Bronitt and Philip Stenning, “Understanding Discretion in Modern Policing,” (2011) 35 Criminal LJ 319–330; Gottfredson and Gottfredson (n. 1) 1.

discretion   915 even start one step earlier with strategical and tactical decisions of where, when, and how often to patrol certain areas. Operational choices of this kind affect both the prevention and detection of crime. Certainly, the police are not entirely self-sufficient in deciding these issues. Prosecution practices and judicial attitudes in a given district may have unspoken ripple effects on the police and the way they allocate their resources. Once probable cause materializes, it is often still up to the police what crimes to write up. In this early phase, police officers have enormous and almost unsupervised latitude to screen out or divert (predominantly minor) cases (using instruments like informal warnings or formals cautions and reprimands) thereby forestalling any further action. Although entirely unregulated, police nullification is a prevalent factor of law enforcement. Discretionary power not to enforce is also vested in many regulatory agencies that are charged with the administration of a myriad of sectors of public life and welfare. Increasingly, criminal sanctions governed by statute or (internal) guidelines have been introduced in these areas to give agencies more leverage to use. Victims are crucial gatekeepers, too. The possibility and sometimes legality of prosecution can depend on whether they report a crime or lodge a formal complaint, which in some countries and for certain categories of offenses is a mandatory prerequisite for prosecution. In the absence of such complaint, public intervention in the public interest is sometimes permitted by statute as an expression of public policy considerations; for example, in cases of domestic violence. At a later stage, the victim might become part of the process as a partie civile if permissible under domestic procedural law and may thereby influence the course of the criminal process. Nonetheless, the victim is not a public officer and therefore not the primary target of this account. The same goes for the defense counsel who has discretion to raise procedural or substantive issues as well as whether to cajole a client into a plea agreement. His influence on the course and outcome of a case tends to be stronger in adversarial systems, which by definition grant the defense a much wider role. The most discussed area of discretionary decision-making is prosecutorial discretion. Criminal justice systems have adopted a huge variety of models to cope with the challenges intrinsically tied to the tasks assigned to a prosecutor in their respective jurisdictions. Large parts of their daily routine at first sight turn out to be quite similar though. For instance, prosecutors (if a national system does not rely on investigating judges for pretrial investigations) direct investigations, assess the sufficiency of the evidence, and make predictions about the circumstances under which courts or juries will convict. Likewise, they request legal assistance when neces­sary, keep the case file and control access to it, move courts for arrest, search, or surveillance warrants, and communicate with the suspect and his defense counsel. But while prosecutorial agencies universally investigate, interpret legal materials, and assess evidence, the choices and instruments at their disposal differ enormously in theory and practice.

916   frank meyer Comparative literature habitually contrasts U.S.  prosecutors with continental (usually a chiffre for German) prosecutors as ideal-types and potentially opposite ends of the spectrum. This spectrum boasts a huge variety of fascinating variations and idiosyncratic alternatives3 but the chapter must content itself with an enriched version of the ideal-types. The discretion of U.S. prosecutors is notoriously sweeping.4 At first sight no prosecutor has been bestowed with more power; at least not within the community of democratic states committed to the rule of law. His most powerful tool is charging discretion. Once probable cause has been established, prosecutors determine whether to file charges, select specific charges, and the number of counts to be charged (horizontal and vertical charging discretion). Charges can be dropped without any formalized consequences. Instead of pressing charges, a prosecutor might prefer to dispose of a case informally related to local tradition, political, social, or systematic conditions. Additionally, U.S.  prosecutors have several formal pretrial alternatives at their disposal. They can divert cases out of the criminal justice system conditioned on the acceptance of (more appropriate) non-criminal measures such as supervision, referral to treatment programs, restitution, or mediation. Prosecutors even hold the authority to drop charges after charges are filed. This motion of nolle prosequi belongs to the common law heritage of U.S. law and was only recently submitted to judicial approval, see Rule 48(a) of the Federal Rules of Criminal Procedure. A shared traditional conviction that a criminal case is virtually owned by the prosecutor leaves this restriction bereft of any effectiveness. The awesome powers of U.S. prosecutors also include the authority to plea bargain for a certain outcome to settle a case in court without a full-fledged trial.5 They can and do use their untrammeled charging authority to elicit testimonies or induce cooperation. To understand how far this power reaches one must bear in mind that current criminal codes are littered with overlapping and utterly vague provisions. To choose from this menu6 or specify their meaning and scope is left to prosecutors thus giving them yet another edge over suspects. A flood of new regulatory offenses and inchoate crimes further expands their powers. On the whole, charging is the most important decision U.S. prosecutors make. It predetermines the outcome of criminal cases as long as the overwhelming majority

3   Jörg-Martin Jehle and Marianne Wade (eds.), Coping with Overloaded Criminal Justice Systems. The Rise of Prosecutorial Power Across Europe (2006), 151 ff. with six country reports. 4   George P. Fletcher, “Some Unwise Reflections about Discretion,” (1984) 47 Law & Contemporary Problems 269, 280; James Vorenberg, “Decent Restraint of Prosecutorial Power,” (1981) 94 Harvard LR 1521. 5   Bordenkircher v.  Hayes, 434 U.S. 357, 364 (1978); Rachel Barkow, “Separation of Powers and the Criminal Law,” (2006) 58 Stanford LR 989, 1044 ff. 6   William Stuntz, “Plea Bargaining and Criminal Law’s Disappearing Shadow,” (2004) 117 Harvard LR 2548, 2558.

discretion   917 result in guilty pleas. As a byproduct of sentencing reform, their decisions even have long-range effects on sentencing. What factors to include in an indictment or to stipulate in a plea agreement (or agreeing on sentencing recommendations) will have a direct influence on sentencing ranges. By these means prosecutors can actively shape sentences. Decisions, which options to pursue, depend on a broad and heterogeneous variety of factors.7 They range from lack of funds and more case-related circumstances, namely strength of evidence, defendant-specific aspects such as good reputation and criminal record, or cooperation, to victim’s or community interests, public outcry, police–prosecutor interaction and working relationships, or even general decisions on a departmental level not to address a particular category of crime. Such internal decisions to concentrate on certain forms of crime are rooted in a general understanding that the legislature does not really want all statutes to be fully enforced and allows prosecutors to allocate their resources skillfully and ignore out-of-date laws. Many other jurisdictions do not afford prosecutors a similar authority to decline charging despite probable cause or to withdraw a charge at any time after filing. The main argument underlying these tight restrictions is the so-called principle of legality, which is a synonym for compulsory prosecution. Interpreted strictly, a prosecutor is legally obliged to press charges whenever probable cause emerges from the (admissible) evidence. Whether the abstract commitment survives in the real world of law enforcement was at the center of a classic debate. Goldstein and Marcus doubted that the German ideology could effectively bar all obvious and subtle kinds of discretion while exposing law enforcement agencies to fierce competition for resources. Compulsory prosecution, they concluded, demands the impossible.8 Langbein and Weinreb told a different story. They insisted that Germans had indeed succeeded in eliminating discretion in cases of serious crime.9 Cost–benefit thinking was, in their view, not entirely absent but confined to lesser crimes. The controversy has not lost its relevance over the decades. The traditional adherents of legality have not given up on the idea that in principle detected crimes ought to be prosecuted.10 But their ranks are less close in the sense that options to withdraw cases conditionally or unconditionally have been continuously expanded: stat­ istics reveal that in some countries these disposals outnumber trial judgments.11 The current legal situation in these jurisdictions bears traits of a tradeoff to bring the 7   A recent empirical study is available at: : Bruce Frederick and Don Stemen, The Anatomy of Discretion: An Analysis of Prosecutorial Decision Making (2012). 8   Abraham Goldstein and Martin Marcus, “The Myth of Judicial Supervision in Three ‘Inquisitorial’ Systems: France, Italy, and Germany,” (1977) 87 Yale LJ 240, 280. 9   John Langbein and Lloyd Weinreb, “Continental Criminal Procedure: ‘Myth’ and Reality,” (1978) 87 Yale LJ 1549, 1564–1565. 10   See Yue Ma, “Prosecutorial Discretion and Plea Bargaining in the United States, France, Germany, and Italy: A Comparative Perspective,” (2002) 12 International Crim. Justice Review 22, 30 ff. 11   cf. country reports in Jehle and Wade (n. 3).

918   frank meyer ideal in line with reality and changing policy preferences. That said, while legality is still at the heart of the self-conception of these models expedience has taken root. Comparative differences are nevertheless palpable. Traditionally “legality”-minded jurisdictions have not delegated sweeping charging discretion to their law enforcement agencies.12 Quite the contrary, manifestations of expedience are enshrined in statutory law and often exclude serious crime. The technique used for the implementation of expedience reveals deeper convictions and points to a more fundamental divide between these systems and others. Exceptions to the rule have to be laid out in law to substantiate their preconditions and to curb the latitude of decision-makers. It also seems that the general ban on discretion works as a useful means to curtail the actual use of it. The rise of international criminal justice has added supranational elements of discretion. International prosecutors at the ad hoc U.N. tribunals and the International Criminal Court (ICC) act outside grown comprehensive criminal justice systems. In contrast to national settings, the articulation of their powers must be seen in relation to the affected states and their sovereignty; not as an expression thereof. International prosecutors serve a different constituency: the amorphous inter­ national community. Their role is therefore also limited to the prosecution of socalled international core crimes (genocide, crimes against humanity, war crimes, aggression). This distinction has serious practical implications. Prosecutors at international criminal courts do not operate under a presumption that all crimes ought to be prosecuted and neither do “de minimus” considerations or concerns for individualized or local justice carry any significant weight. They act beyond the legality–opportunity divide. The real challenge is to establish jurisdiction of the international tribunals and to extract the most appropriate among the many meritorious cases. With regard to jurisdiction, ad hoc tribunals like the International Criminal Tribunal for the former Yugoslavia (ICTY) or the International Criminal Tribunal for Rwanda (ICTR), operate from the outset only within the tight jurisdictional (territorial and temporal) framework of their enabling instruments. The jurisdiction of the ICC is triggered by the mechanisms laid down in Arts. 13–15 of the Rome Statute. Most importantly, the ICC prosecutor unlike his colleagues has been vested with proprio motu powers to target situations at his discretion if he has a reasonable basis to believe that a crime within the jurisdiction of the ICC has been committed.13 In terms of case selection, international prosecutors—in stark contrast to most domestic prosecutors—handpick representative cases for trial before their tribunal. The decision-making process revolves around two core questions. For one, prosecutors are to extract the most appropriate cases from the specific situations under their jurisdiction. This includes identification of events, locations, dates,   See Ma, (2002) 12 International Crim. Justice Review 35.   In addition, the admissibility requirements under Art. 17 ICC Statute resulting from the complementarity principle have to be met. 12 13

discretion   919 groups, and, last but not least, individual targets to be investigated and prosecuted. For another, the legal characterization of the crimes is left to the prosecutor. Prosecutors at the ICTY and ICTR have not experienced much interference from the tribunal when making such choices. The ICC by comparison has to observe certain limits.14 The selection of situations as well as the extraction of cases may not run counter to the interests of justice (Art. 53 (1)(c), (2)(c) ICC Statute). This entails a complex balancing of all relevant aspects of the case including the gravity of the crime and the role of the suspects in the commission of the alleged crime. Within this legal framework, the Office of the Prosecutor (OTP) at the ICC has devised a strategic framework with four guideposts, namely focused investigations, positive complementarity, interests of the victims, and impact of the OTP’s work, that are to be considered as a matter of policy when exercising discretion.15 Overall, international prosecutors must confine themselves to prosecuting those who bear the heaviest responsibilities for international crimes. Their mission is to ensure impunity for the most serious crimes against the peace and security of mankind while at the same time rationalizing scarce resources and accommodating individual circumstances. Discretion is an indispensable instrument for accomplishing this objective. Its legitimacy as a prosecutorial mechanism is inherent in the founding instrument of the respective tribunal. With varying frequency and intensity between criminal justice systems, courts have to take a number of individual or collegiate discretionary decisions throughout the criminal process. These are procedural, like issuing warrants, granting bail, or pretrial release, organizing and conducting the trial, or substantive in nature. Of particular importance are decisions in the field of evidence. Judges apply exclusionary rules and determine the probative value of the evidence. Where rules on admissibility tend to be flexible, discretion fills the gap. Some jurisdictions also allow their courts to invoke procedural shortcuts at their discretion in order to solve routine and minor cases effectively. As regards substantive law, judicial discretion is most closely associated with sentencing. Calibrating and meting out punishment has traditionally been the province of judges who have consequently been endowed with considerable leeway. Judges are to ensure that the purposes of punishment are met, to find matching punishments, and to determine proportionality as limiting factor.16 Indeterminate   James A. Goldston, “More Candour about Criteria: The Exercise of Discretion by the Prosecutor of the International Criminal Court,” (2012) 8 Journal of International Crim. Justice 383 ff.; William Schabas, “Prosecutorial Discretion v. Judicial Activism at the International Criminal Court,” (2008) 6 Journal of International Crim. Justice 731 ff. 15   Kai Ambos and Ignaz Stegmiller, “Prosecuting International Crimes at the International Criminal Court:  Is There a Coherent and Comprehensive Prosecution Strategy?,” (2012) 58 Crime, Law and Social Change 391 ff. 16   In common law jurisdictions courts also decide whether terms of imprisonment for multiple offenses are to be served concurrently or consecutively. Other systems know specific doctrines of multiplicity of offenses (Konkurrenzlehre), which treat this subject as a matter of substantive law. 14

920   frank meyer sentencing is the unchallenged epitome of discretionary judicial decision-making in this area. With growing frustration about the efficacy of punishment and a lack of both predictability and accountability in sentencing, legislatures have sought to reduce or at least micro-manage judicial discretion. The 1970s brought about a sharp turn from indeterminate to determinate sentencing especially in the United States (combined with renunciation of the former treatmentist ideal). This development led to the introduction of sentencing guidelines of varying rigidity that predetermine the sentence for any given offense in many jurisdictions, most notably U.S. federal criminal law.17 Other countries have not followed this path but have relied on gradational sentencing ranges, doctrines of sentencing, and judicial review of sentencing decisions to narrow down discretion. But even when some basic policies are shared or stipulated they are usually not neatly articulated. In fact, any preventive punishment theory inevitably empowers judges to make relatively unfettered judgments. The impact of a specific sentence or potential alternatives is hardly measurable in individual cases; the flipside is greater flexibility and latitude. Less obvious is discretion inherent in legal interpretation. General parts often use highly abstract liability concepts that force judges to substantiate and individualize them for a particular set of facts. The same holds true for justifications, excuses, or other exemptions from punishment. Value judgments and subjective assessments seem to be inherent and inevitable parts of this operation. But how and by how much courts are guided by law when determining criminal liability is another aspect that distinguishes criminal justice systems worldwide. Judges in some jurisdictions rely on precedent, traditional methods of interpretation, and legal assessment from within the specific circumstances of a case; whereas others build their reasoning on a syllogistic approach using (allegedly) clear-cut multilevel analytical structures and detailed taxonomies to solve a case. Yet even this quasi-scientific method will not perfectly suppress personal or irrational influence in judging, though it does set much stricter limits. As regards the construction of offenses in special parts of criminal codes or special statutes, legal certainty and fair notice requirements expect legislatures to spell out the incriminating elements of crime in an understandable and predictable manner. However, at times legislatures tend to do the exact opposite and use vague language or blanket clauses to empower prosecutors and/or courts to react to novel social developments and purposely leave delimitation of the criminal and the non-criminal to law enforcement agencies. The loftiness of many actus reus elements may also have ideological reasons. Communist countries, for instance, have frequently resorted to criminalizing “socially dangerous activity” or at least have 17   Frank Bowman, “The Failure of the Federal Sentencing System:  A  Structural Analysis,” (2005) 105 Columbia LR 1315; Kate Stith and Jose Cabranes offer a gripping account of the emergence of the Federal Sentencing Guidelines in Fear of Judging: Sentencing Guidelines in the Federal Courts (1998).

discretion   921 conditioned criminal liability on it. Such clauses are powerful tools in the hands of judges and prosecutors and obvious cases of judicial discretion. Remnants can still be traced today.18 Generally, one may argue that all kinds of judging create new normative realities through the act of adjudicating. Not only the carving out of “new” offenses but any act of legal interpretation entails a creative element when rules and principles are individualized in a particular case. In fact, discretion already lurks in the ascertainment of facts. Judges, like prosecutors, operate under the conditions of the relative uncertainty and dynamically evolving facts of a case. Real-life decision-makers are not omniscient. Since the judicial branch, as with prosecutors, does not have unlimited time at its disposal and is plagued by severe time and resource constraints, efficiency considerations directly or indirectly influence fact-finding efforts and, as a result, impair the ability to adjudicate based on a complete picture of what actually happened. Only facts that are known can influence legal assessments, while these evaluations for their part influence the course of further investigations and fact-finding. Legal application has, therefore, correctly been termed hermeneutischer Gesamtakt (hermeneutic aggregate).19 International criminal justice is a special case when it comes to the role of courts, too. International criminal courts are faced with a fragmented legal landscape full of lacunae. They are to fill the manifold gaps and create workable standards for international trials out of sheer necessity if international criminal justice is to work at all. To this end, the enabling instruments of the ad hoc tribunals explicitly delegated powers to draft and adopt their own rules of evidence and procedure.20 With regard to incomplete statutes, conventions, and a perfunctory general part, the authority to refine abstract principles into applicable doctrines and specific rules is at least implicit in the founding instruments of the respective courts. Generally, inter­national tribunals are authorized to determine which norms have crystallized into customary international law or to derive general principles of law from national laws of the legal systems of the world.21 Judicial law creation of this kind involves criminal law and procedure, constitutional law, comparative law, legal theory, and a quantum of functionalist inventiveness. Judges have to blend rules and principles from various legal systems and traditions. The inner workings of this process are not well researched,22 and rumor has it that the legal and cultural provenance of the judges involved may be more than negligible.   Stephen Thaman, “Russia,” 415–416 and Wei Luo, “China,” 137, 147, in Kevin Heller and Markus D. Dubber (eds.), The Handbook of Comparative Criminal Law (2011). 19   Joachim Bohnert, Die Abschlussentscheidung des Staatsanwalts (1992), 125; Volker Erb, Legalität 20 und Opportunität (1999), 32–33.   See Art. 15 S.C. Res. 827/1993. 21   See Art. 38 ICJ Statute or more specifically Art. 21(1)(c) Rome Statute. Furthermore, Art. 38 para. 1 ICJ Statute expressly declares judicial decisions a supplementary source of international law. 22   Mia Swart, “Judicial Lawmaking at the Ad Hoc Tribunals:  The Creative Use of the Sources of International Law and Adventurous Interpretation” and “Is There a Text in This Court? The Purposive 18

922   frank meyer Further instances of discretion can be found in the domain of corrections. Probation and parole both involve the exercise of community supervision. Pardon or mercy remains entirely in the discretion of the top ranks of government with such decisions generally being taken by a minister or the head of state. Other areas that exhibit characteristically broad discretionary powers of public officers are the administration of prisons, especially maintaining order and security, or the organ­ ization of rehabilitation. Depending on the definition of discretion, one may even include legislative decisions. It is the legislative branch that defines the limits of the criminal law, introduces and (rarely) repeals criminal statutes, changes procedural structures, and adopts new policies. On a systemic level, there is no other actor that holds compar­ able sway over the criminal justice system at large.

iii.  A Definition of Discretion? But what exactly is discretion after all? What does it mean when we say that someone has discretion? It appears to be, first of all, a convenient label used for a plethora of individual decisions and choices despite their varying connotations and implications. But should all of the above decisions be viewed as discretionary for this reason or does it follow from the erosion of our language and conceptual clarity that each and every one of these decisions is in a sense discretionary? I would modestly suggest that discerning discretion in a literal sense and discretion in a legal sense is feasible and beneficial for further attempts at deeper analysis. Definitions of discretion have been developed from very different angles: legal, empirical, sociological, jurisprudential, psychological, functional. Jurists tend to define discretion technically as the latitude granted to officials to act under a formal set of rules and in a public capacity. The allowed latitude especially includes the power to decide or determine alternative courses of action.23 But choice is not the exclusive indicator of discretion. Davis highlights the equally defining subjective component of discretion. In this sense, discretion is both a managerial authority and a synonym for personal input. Black’s Law Dictionary introduces a further distinction:24 Discretion could mean different things for different actors. For judges, Approach to Interpretation and the Ad Hoc Tribunals,” (2010) 3 Heidelberg Journal of International Law 459, 767. 23  Gelsthorpe and Padfield (n. 1)  3; Kenneth Culp Davis, Discretionary Justice—A preliminary Inquiry (1969), 4. 24   Black’s Law Dictionary (2nd ed.), free online legal dictionary available at: .

discretion   923 discretion was a liberty allowed to a judge, within the confines of rights and justice, but independent of narrow and unbending rules of positive law, to decide and act in accordance with what is fair and equitable as determined upon the peculiar circumstances of the case guided by the spirit, principles, and analogies of the law. As regards public functionaries, discretion meant a power conferred upon them by law of acting officially in certain circumstances, according to the dictates of their own judgment or conscience, uncontrolled by the judgment of others. Hence, the modalities and extent of discretion seem to differ between various branches of government. In light of such invocations it does not come as a surprise that critical voices treat discretion as a more elegant phrase for arbitrariness. An arbitrary decision is characteristically constituted of subjective elements not constrained by external rationalities.25 It expresses the free will of the actor. Discretion, accordingly, is the liberty of deciding as one thinks fit, absolutely or within limits.26 Discretion understood this way was a position of authority that allowed certain actors to render arbitrary decisions. These actors would be relieved of the burden both to state reasons and to present intersubjectively convincing arguments. Discretion in this sense is bare power. But this notion is at odds with the normative and structural framework within which decisions are taken in the criminal justice process. While decisional autonomy is an inherent element of any discretionary decision, this authority is still explicitly or implicitly rooted in and controlled by law. Discretion in a legal sense has a legal source that grants and governs the authority to decide. Power, on the other hand, exerts impact merely because of its social context.27 An intricate question remains whether this authority is substantially different from the authority to interpret and apply the law. It seems that choice alone does not suffice to set it apart from other forms of legal decision-making. The dividing line could rather be its conscious reliance on subjective convictions and preferences and its openness for unforeseeable events. However, juristic decision-making and legal interpretation are hardly conceivable without subjective elements for even the most rigid legal rules allow a quantum of flexibility. All matters of legal interpretation (or adjudication) are to some inevitable extent discretionary in nature. Said individual element has been recognized by many scholars as a sociological and psychological fact. Nonetheless, the understanding and classification of judicial discretion has been the subject of an epic jurisprudential controversy.28 Two irreconcilable images of the law clashed in this battle. For Hart, the law was inevitably indeterminate or incomplete. When rules were in conflict or mute a judge must consequently use his or her own discretion. Gaps were to be filled by judges and   Erick Gatgens, Ermessen und Willkür im Straf- und Strafverfahrensrecht (2007), 23, 26–27, 32–33.   Oxford Dictionary, Gelsthorpe and Padfield (n. 1) 3. 27   Rudolf von Jhering, Der Zweck im Recht (1877), 346, 348, similarly used to distinguish power and discretion. 28   Gelsthorpe and Padfield (n. 1) 14; H. L. A. Hart, The Concept of Law (1994), 272. 25

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924   frank meyer collisions resolved. No one less than Dworkin disagreed. For him, it was not the law that was incomplete but the positivists view of it. Law was a seamless system in which a solution for every situation awaited its discovery by referring to general principles and general aims of the law.29 But Dworkin did not reject the idea of discretion altogether. He distinguished between lawful (weak) and unlawful (strong) types.30 The discretionary element is strong when someone has discretion in making a decision but is not bound by any standards set by any authority.31 Judges, pursuant to Dworkin, cannot be free to act upon personal preference. They must act on public standards.32 Discretion is weak, on the other hand, whenever principles can be drawn upon to solve a case despite their being vague and open-ended, when courts have final authority over a matter, or have explicitly been granted a certain latitude. The vast majority of the manifestations of discretion fall into this category. The true divide is how discretion is to be exercised and how it is bound and guided by law. Dworkin thinks there is a right legal answer to each question that legal principles and their respective weight will eventually yield.33 Even in hard cases when legal rules are mute or nonexistent, judges can fall back on abstract norms without leaving the realm of law. Solutions may be derived from principles as natural components of the legal order which sets Dworkin’s legal theory apart from Hartian positivism. Dworkin does not deny the required creativity nor the complexity of these juridical discovery missions. But critics would argue that his abstract edifice still underestimates the creative element of judging as well as the individual moment of judging given the many unspoken conflicts and imponder­ ables that may come to the fore.34 Professional draftsmanship merely conceals the influence of personal convictions and evaluations. I, therefore, suggest legal judicial discretion be understood in a broad sense that sums up the legal powers given to a judge to choose from among a number of possibilities, each of them lawful in the context of the system.35 In this sense adjudicating through the interpretation of statutes or case law cannot be described as categorically different from discretion.36 It is a necessary element of the very task of applying the law.37 This holds true even for the creation of general norms through adjudication. This so-called judicial lawmaking is also an inevitable part of judging, although necessarily only a byproduct.38 Genuine legislative decisions, on the other hand, are generally excluded from modern works on discretion. Enacting statutes and setting policy is rather seen as an expression of the prerogative of the sovereign than an ordinary discretionary decision.   Ronald Dworkin, Taking Rights Seriously (1977), 44, 81 ff. 31   Dworkin (n. 29) 31–32, 34.   Dworkin (n. 29) 34. 32   Ronald Dworkin, “Judicial Discretion,” (1963) 60 Journal of Philosophy 624, 635. 33 34   Dworkin (n. 29) 115.   Hart (n. 28) 273. 35 36   Aharon Barak, Judicial Discretion (1989), 90.   Barak (n. 35) 93–94. 37 38   Erb (n. 19) 48–49.   Barak (n. 35) 175, 231–233. 29

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iv.  Types of Discretion 1. Prosecution Against the backdrop of our definitional approach, prosecutorial discretion in particular deserves a closer look. It is not a generic concept but a category that comprises quite distinct forms of discretionary decision-making. When prosecutors determine whether to file charges, select specific charges, or the number of counts to be charged, their decisions have a twofold impact. The effective allocation of resources embodies the managerial function of the prosecution officer (managerial discretion). Whether to accept a guilty plea or pretrial alternative has identical connotations. Additionally, the charging decision (like a subsequent plea agreement) is tantamount to the disposition over the ius puniendi of the state. That prosecution and enforcement of criminal law are categorized as core executive functions in Anglo-American systems will surprise many continental lawyers but it leads to the gist of the matter. The prosecutor is the holder of the right and opportunity to punish. When modern government structures emerged that ultimately culminated in the territorial state, the new holders of sovereign power gained an additional option to enforce the peace of the land and advance their sovereign interests through prosecution of their underlings. In particular in the United States, this right was situated at the local level and conferred to the prosecutor.39 He inherited the traditional right of the sovereign. This succession is more important for the understanding of the actions of prosecutors than the much better reported gradual replacement of private prosecution.40 In comparative contrast, this dimension reflects very different conceptions of criminal justice and the separation of powers at large. Continental systems did not simply transfer the ius puniendi to a different entity when the idea of the continental state began to take hold but divided its single components between separate powers among which the legislature acquired the most powerful position. The latter observation reveals that the above description of prosecutorial discretion in the United States   The limited power to curb and control discretion today is the flipside of a traditionally stark decentralization and a shared political belief that cultural diversity and regional differences justify diverging moral convictions and results. Federal crimes with federal priorities are the exception to the rule. 40   See John Langbein, The Origins of the Adversary Criminal Trial System (2003), 11–12, 123 ff.; Robert Misner, “Recasting Prosecutorial Discretion,” (1996) 86 Journal of Crim. Law & Criminology 717, 728–731; David Garland, The Culture of Control (2001), 29–30. Admittedly, both developments are not entirely disconnected. Many contemporary problems are caused by a general disregard of the emergence of powerful state agencies and public law enforcement and its implications which is, at least partly, due to the traditional categorization of the prosecutor as a private actor. 39

926   frank meyer still does not capture the essence of this authority in its entirety. What is still missing becomes clearer when we also factor in that classification of the offense, specification of offenses, as well as non-enforcement of antiquated or inopportune statutes is left to the prosecutor, too. This does not merely add a policy-making and implementation function. What conduct ought to be punishable is a matter of prerogative, not discretion stricto sensu which means that it is intrinsically free of regulation. The prerogative of the sovereign in this sense has been delegated to the prosecutor who acts as an instrument of communal self-legislation and a proactive decision-maker; not merely as a human seismograph that responds to local sensitivities and preferences. In several countries prosecutors exercise a judicial function (adjudicatory discretion) when they are authorized to impose sanctions on the individual. Penal orders (Strafbefehle) are a case in point on the continent although procedures differ. Especially for the United States, the adjudicatory role is much more extensive. The prosecutor is determining the resolution of the vast majority of cases through plea bargaining.41

2. Police Police discretion at the entry to the criminal justice system is both managerial and adjudicatory. Cautions, warnings, and all kinds of informal diversion represent unpoliced spot-judgments about the personality and culpability of the accused.42 They settle a case for good. What complicates the assessment is that it is far less clear that legal systems accept this reality of law enforcement as lawful. In some countries warning or cautioning powers have been granted to the police. Although it is not entirely clear whether it is not just a matter of pragmatic acquiescence, many criminal justice systems apparently accept it as an inherent part of the police’s tasks. In common law jurisdictions, such convictions are historically deeply entrenched which might help to explain why these powers have defied external control. Until recently, for example, cautioning and warning had no statutory basis in the United Kingdom and were only governed by circulars.43 Only recently have informal means of disposition been increasingly formalized and regulated by statute. Other countries have taken a converse stance and expect the police to pursue and report every suspicion of a crime. They extend a strict notion of the legality  Gerard E. Lynch, “Screening versus Plea Bargaining: What Are We Trading Off?,” (2003) 55 Stanford LR 1399, 1404; Stuntz, (2004) 117 Harvard LR 2548; for a more nuanced evaluation see Maximo Langer, “Rethinking Plea Bargaining: The Practice and Reform of Prosecutorial Adjudication in American Criminal Procedure,” (2006) 34 American Journal of Comparative Law 223, 225. 42   James Q. Whitman, “Equality in Criminal Law: The Two Divergent Western Roads,” (2009) 1 Journal of Legal Analysis 119, 146. 43   Michael Jasch, “Police and Prosecutions: Vanishing Differences between Practices in England and Germany,” (2004) 5 German LJ 1207, 1208. 41

discretion   927 principle to street-level officers patrolling their beat despite an obvious awareness that effective law enforcement would be paralyzed if the police were to follow up on each suspicion. To date, many criminal justice systems nevertheless content themselves with ignoring the problem or upholding handy myths about police work and legality. Even where states that traditionally adhere to strict notions of legality acknowledge practical constraints, procedural remedies and flexible options to reduce caseloads are reserved for courts and prosecutors. An exception to this rule are regulatory offenses. Their enforcement usually goes hand in hand with some form of managerial latitude about which cases to investigate or to dispose of. This power is generally reserved for the regulatory agency in charge.

3. Courts Courts’ discretion is managerial when they exercise authority to allocate resources, organize proceedings, and, most importantly, dispose of cases for reasons of expedience. Adjudicatory discretion is used whenever courts apply or interpret the law and ultimately deliver a judgment. Carrying out one of the various possibilities embedded in the language of a statute implies discretion in the same way as does determining the ratio decidendi.44 Finally, courts engage in discretionary lawmaking when creating general norms through adjudication. If no prior rule or precedent can be found, judges may fill the void within certain legal and methodological limits set by the constitutional law, statute, or doctrine. The nullum crime sine lege rule prohibits the creation of crimes but in the general part or sentencing it is commonplace that judges conceive of new doctrines or reinvent old ones.

v. Functions Discretion is not an end in itself. The previous sections have already hinted at the functions associated with discretion although it is not easy to separate function from justification. They are often inextricably intertwined. Which functions are attributed to discretion varies from actor to actor and system to system, however U.S. prosecutors ought to guarantee individualized justice and avoid the undesirable pitfalls of strict enforcement. It is the prosecutor not the legislature or judiciary   Barak (n. 35) 93–94.

44

928   frank meyer who is called upon to seek justice and cure patent injustice. He is the answer to the perceived need for a viable check against legislative vagueness, overreaching, or incompetence. A comparable function is not recognized in many jurisdictions on the continent. The protection of civil liberties is left to other actors, such as (international) courts and the legislative branch, and is grounded in human rights doctrine or constitutional law respectively. But this is not the only difference. These standards are generally construed as minority rights, not as a (majoritarian) vehicle to respond dynamically to the preferences and sentiments of the community. Discretion is further understood to ensure more effective policy implementation. New types of socially dangerous activities can be targeted without legislative amendment, and cultural diversity and geographical variations can be preserved more easily. The greatest comparative difference may be that Anglo-American prosecutors implement policies, which they themselves have frequently adopted. In other systems, discretion is a more auxiliary element explicitly or implicitly built into bases of authorization to serve whatever goal the legislature has set. Criminal justice actors in such a system may not ignore the demands of the sovereign. Another function is managerial flexibility for the efficient use of resources. Limited resources make it impossible to enforce all laws. Since virtually all criminal justice systems suffer from a general shortage of means, these days expedience—be it in the form of broad discretion or statutorily introduced simplified exit options— has become a matter of survival. Interestingly, criminal justice systems trust very different actors with the task of determining which cases are really worthy of further prosecution. Finally, legal imprecision and gaps demand interpretation and gap-filling in order to accomplish the objectives of a perfunctory code, statute, or other regulation. It is generally impossible to legislate for all imaginable scenarios. Application of the law is therefore always determinative or even creative to a certain extent. One may call this the law-determining function of discretion. Discretion also plays a role in the mediation between jurisdictions both national and international in the absence of convincing and comprehensive criteria for the allocation of jurisdiction and the resolution of conflicts of jurisdiction.

vi. Justifications Justifications of discretion reflect its function to a large extent; justice is both its main goal and source of legitimacy. Discretion is considered essential to a humane and

discretion   929 fair system of criminal justice.45 Largely, the same goes for prosecutorial and judicial economy. As long as law enforcement agencies operate under limited resources in a world of abundant, overlapping criminal prohibitions not all accusations can be converted into a conviction through developing evidence and conducting trials. The sheer need to mediate between masses of cases and modest resources provides a strong justificatory rationale. In combination, justice and economy rationale are mutually reinforcing. Justice is a scarce good that has to be sought after discrimin­ ately and selective individualization opens the door for economic considerations. Despite a striking discrepancy in terms of implementation and scope of discretion, these rationales seem to be shared across jurisdictions. Nonetheless, below the surface one comes across another distinction. Once one zeroes in on the justice rationale it becomes apparent that Anglo-American systems follow an inductive consequentialist notion whereas continental systems are leaning toward a deontological deductive concept. An historically entrenched adamant commitment to the idea of local government and diversity forms fertile breeding ground for the former model. The latter model wants justice, proportionality, and civil liberties to be guaranteed not through bestowing unfettered powers on individual decision-makers but through structural design (addressing the institutional level and substantive law) and systematic legal application. Deference to larger margins of discretion is also being justified as a matter of separation of powers. Once selecting and framing charges are acknowledged as core executive functions, decision-making powers to do so inevitably rest with the executive branch, not the judiciary.46 Again, this understanding points to different concepts of separation of powers. For many other jurisdictions, submitting executive (including prosecutorial) activities to judicial control is the epitome of separ­ ation of power and the rule of law. On a more abstract level, the justificatory rationales unearthed here allude to societies’ different conceptions of the prosecutorial and judicial function. The divide over the proper scope of discretion and who should exercise it is an expression of different perspectives on criminal justice. For some jurisdictions it is primarily a normative system expressing social values through prohibition of conduct considered as particularly wrong or harmful for basic social norms. For other jurisdictions it is rather an institutional framework for the pursuit of individualized justice which they believe to be achievable only once trustworthy institutions are empowered to sort through the conflicting goals and principles that seem to abound in criminal justice systems. This understanding is grounded in the core belief that suspicion of   McClesky v. Kemp, 481 U.S. 279, 313 (1987).   U.S. v. Nixon, 418 U.S. 683, 689 (1974); R. (on the application of Corner House Research) v. Director of Serious Fraud Office [2008] 3 WLR 568 (H.L.); [2008] UKHL 60, cf. Sarah Summers, “Strafbefreiung und Einstellung des Verfahrens: Gedanken zu Art. 52—Art. 55a StGB aus der Perspektive des Common Law,” (2010) 128 Schweizerische Zeitschrift für Strafrecht 1. 45

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930   frank meyer a crime may never automatically trigger prosecution. Continental lawyers will not accept this proposition as either persuasive or legitimate. For them, the exercise of jurisdiction and the punishability of a given conduct must be well regulated in the law; and tied to specified legal preconditions.

vii.  Limits and Control The quest for the legal limitations and means of control for discretionary decision-making brings to light significant comparative differences and, at the same time, points toward the underlying historical, constitutional, and procedural reasons for this divide. Bearing in mind realist criticism of current practices gives reason to take official accounts of the viability of intrasystemic limitations with a pinch of salt though. Legal scholars and sociologists have repeatedly analyzed how the allocation of resources and the general shortage thereof has led to practices that deviate from each system’s normative goals.47

1. Justice While most criminal lawyers would agree that justice is the ultimate linchpin of legitimacy and also the most obvious implicit limitation of (prosecutorial) discretion, they might differ strongly over how justice ought to be understood and who defines what is just. Anglo-American-styled jurisdictions entrust prosecutors with individualizing what is just in a particular case. Imposing strict limits would threaten their boldness and flexibility and ultimately their mission to seek justice. In this respect, it is to be remembered that prosecution is not understood as the standard legal reaction to violations of criminal prohibitions.48 One may even go as far as to say that not every violation is inevitably perceived as unjust. The criminal law is not the expression of a precast understanding of justice. It is less the yardstick than the means to achieve justice. To deem this an institutional approach to justice would be too hasty a conclusion. It has a substantive core. Decisions draw on a conglomerate of criteria including personal convictions, policy considerations, legal principles, and utility. The perfect blend cannot be stipulated beforehand but is to emerge from an internal thought process.   Individualized justice and procedural economy are competing goals, Erb (n. 19) 92–93.   William Stuntz, “The Political Constitution of Criminal Justice,” (2006) 119 Harvard LR 780, 791.

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discretion   931 In this sense the U.S. Supreme Court first and foremost expressed trust in the “good sense of our prosecutors”49 to devise a just solution instead of developing stricter forms of judicial review. As a consequence, one comes across quite special mech­ anisms of accountability such as non-binding American Bar Association Model Rules of Professional Conduct or their Criminal Justice Section Standards relating to the Prosecution Function, internal or external guidelines (e.g. the U.K. Code for Crown Prosecutors and the Department of Justice guidelines including Memoranda issued by the Attorney General) and handbooks (e.g. the Canadian Federal Prosecution Service Deskbook and the U.S. Attorneys’ Manual), screening conferences and ultimately political accountability50 whereas academic efforts to strengthen control of discretion have proven futile. Such model makes many continental lawyers shudder. Yet it also shows that control mechanisms need to work within the system and therefore be fitted to its design, values, and the traditional roles of its actors. Nevertheless, for many other criminal justice systems the U.S.  model—in the absence of robust determining substantive criteria and effective control—does not lead to individualized justice but justice determined by individuals. According to their basic concepts, justice has to be done within a coherent set of constitutional and statutory rights, rules, and principles and brought about with the support of accurate legal methodology. Offenses are supposed to be clearly and unambiguously specified in the penal code. The same goes for procedural settlement mechanisms. On this score these jurisdictions worship a different notion of justice. They place a higher value on uniformity and consistency than individualizing what is just in every particular case. This does not mean, however, that these systems turn a blind eye to the particularities of a given situation. But individualization is to be ensured by other means or assigned to other actors. In a very characteristic way, additional mechanisms exist in some jurisdictions which at the same time allow for individualization of liability and punishment and operationalize the reasoning of the decision-maker. In particular, the incremental evolution of a comprehensive and integrated system of concepts, doctrines, and taxonomies of criminal liability allows for coherent and uniform determinations of what aspects of a case are relevant, in what respect, in what order, and how they relate to other factors that bear on criminal liability; said approach has been coined “Criminal Law Science”51 and is usually associated with German criminal law. Criminal law theorizing in this sense intends to curb discretion. It is envisioned as an invisible doctrinal hand which is steering decision-makers toward the most appropriate legal solution and eventually justice. It deserves mention in this respect   U.S. v. Dotterweich, 320 U.S. 277, 285 (1943).   Pugach v. Klein, 1993 F. Supp. 630 (S.D.N.Y. 1961). 51  For an insightful introduction, see Markus D.  Dubber, “The Promise of German Criminal Law: A Science of Crime and Punishment,” (2005) 6 German LJ, 1049, 1051–1053, 1061–1070. 49 50

932   frank meyer that systems of this kind tend to reward fidelity to the system and its flawless mastery for this reason. This alternative approach to justice also facilitates a much greater degree of review. The differing notions of justice are tied in with their respective jurisdictions’ basic procedural concepts. Justice dispensed by the individual actors involved in the conflict presupposes a system that is geared toward the resolution of party disputes. For systems aiming at policy implementation through criminal law, achieving justice is contingent on impeccable application of criminal law by objective and impartial arbiters of substantive truth. This strand expresses a normative ideal that became associated with the legality principle which comparative studies have identified as the classic antipode to the principles of expedience or opportunity.

2. Legality This dichotomy like no other matter, apart perhaps from the adversarial vs. inquisitorial distinction, seemed to encapsulate the generic difference between common and civil law.52 Yet there is reason to doubt. Civil law countries like the Netherlands or France have never subscribed to legality as being an important limitation of discretion. Besides, legality and expedience are less antagonistic than assumed.53 Quite often these principles complement each other. In historical retrospection legality first emerged as a check against political influence in the enforcement process.54 It took more than a century until it was interpreted as an imperative of justice and the original (discretionary!) right to punish evolved into a duty to punish.55 Proponents of deontological (absolute) theories of punishment stressed this link between the existence of a criminal prohibition and the state’s obligation to prosecute.56 Others saw the obligation to act as an inevitability of the state’s monopoly to bring criminal charges.57 From these normative sources follows a public duty to prosecute which is sometimes (mutually reinforcing) coupled with a higher vocation to seek substantive truth (materielle Wahrheit) once suspicion of a crime arises. But this notion has lost much traction in recent decades. Legislatures have deliberately cut back on law enforcement agencies’ obligation to prosecute cases indiscriminately. Apart from strained public budgets, the advent of consequentialist (relative) theories of punishment has played a part in this drift away from strict enforcement.58 National criminal procedures now provide for (un)conditional dismissals for less serious

52   Florian Went provides a brief overview of the legal situation in a larger number of countries, Das Opportunitätsprinzip im niederländischen und schweizerischen Strafverfahren (2012), 14 ff. 53 54 55   Went (n. 52) 60, 501 ff.   Erb (n. 19) 21.   Went (n. 52) 41 ff. 56   Erb (n. 19) 119. 57  Erb (n. 19)  120–121. This connection is recognized in common law countries too, Garland 58 (n. 40) 110.   Erb (n. 19) 22.

discretion   933 cases, private (instead of public) actions, or condition further activities on a victim’s demand for a penalty. The specific national implementations of the principle of expedience may vary significantly though.

3.  Rule of law Attributing far-reaching and sometimes remarkably unfettered decision-making powers to criminal justice actors raises concerns about the rule of law. The rule of law, however, is too abstract a principle to provide clear-cut limits. One rather runs the risk of brushing over conceptual differences that are hidden under the surface of a broad commitment to the rule of law. It is here where some of the biggest differences lie. The more specific subcategories to be addressed are equality, separation of powers, and legal certainty.

a)  Equality before the law The principles of equality and individualized justice are in a state of constant tension that cannot be resolved. Systems diverge in terms of the differing weight that they attach to each of these competing ideals; they also tend to choose very distinct approaches to implement their solutions. The United States, where individualized justice reigns supreme as the most cherished ideal equality, does not set tight limits. Prosecutors are not expected to act in a uniform and predictable way as long as no discriminatory effect and intent to discriminate become manifest in their charging decisions.59 But it is striking how accentuations of equality and justice ideals alter with the stage of the process even within the same criminal justice system as the discrepancy between strict control of (judicial) sentencing and wide prosecutorial discretion highlights. Whitman explains this oddity with an historically grown and culturally deep-seated emphasis on post-conviction equality over pre-conviction equality.60 Most continental systems show a much greater commitment to uniformity, predictability, and transparency that encompasses the entire prosecution and adjudication process. Accepted reasons for departure from the ideal are stipulated and decision-making processes curtailed by abstract rules and doctrine to lay the basis for the uniform application of the law and effective judicial control. But there is more to it: deeply embedded in these structures one can detect an administrative law tradition which is part and parcel of the rule of law and finds its most typical   U.S. v. Armstrong, 517 U.S. 456, 465 (1996); Barkow, (2006) 58 Stanford LR 1025.   Equality in this respect means equal treatment of like offenses after conviction. Whitman traces its origins among other reasons to a widely favored harshness in punishment that—driven by unrelenting popular Christian tradition—will tend to mean favoring sentencing equality, (2009) 1 Journal of Legal Analysis 149. 59

60

934   frank meyer modern-day manifestation in Germany. According to this ideal, the exercise of public authority has to be controllable when it could have an impact on citizens’ rights; to render them so, public powers have to be formalized to a sufficient degree and applied uniformly. This aspect much better accounts for contemporary differences than a worn-out legality–expedience dichotomy. U.S. constitutional law, despite its adamant commitment to the rule of law, has simply not developed anything akin to the so-called Wesentlichkeitstheorie—meaning that any serious public encroachment on civil rights ought to be authorized and sufficiently regulated by law.61 There is also no comparable basic rights doctrine (Grundrechtsdogmatik) that deals with public interference with civil liberties in a systematic and comprehensive manner. An explanation for this development might be drawn from the history of political thought. Civic emancipation in Germany (for want of immediate democratic pathways) expressed itself through the protection of civil liberties against authoritarian incursions of constitutional monarchies.62 Granting sweeping and unreviewable powers to servants of the state was anathema to the emerging class of self-confident liberal citoyens. They sought protection against public officials, not least through rigid court review. In the United States, it seems, it was the other way round. The prime channel of civic self-emancipation was democratic (local) government and civil servants who acted as the mediators and enforcers of the people’s will.63

b)  Separation of powers The administrative law tradition translates into a narrower scope of discretion and a limited choice as to who should exercise it. Two power relationships are particularly interesting: judiciary vs. executive branch and legislature vs. executive branch. It has previously been outlined how the categorization of prosecutor­ ial discretion affects the relationship towards the judiciary. In Anglo-American systems prosecutorial discretion commands judicial deference. That the exercise by the executive of its discretion is not adapted to judicial review may be quickly discarded as a (though powerful) myth, but the prevailing conception of separ­ ation of powers that prevents effective review of discretion is a much stronger argument that has helped the current structures to survive in the face of much criticism from preeminent scholars. By contrast, while discretion is (obviously)   Oliver Lepsius, Verwaltungsrecht unter dem Common Law (1997), 207 ff.   Hans Hattenhauer, Die geistesgeschichtlichen Grundlagen des deutschen Rechts (1996), nn. 258 ff. 63   The development of the rule of law understood as Rechtsstaatsprinzip received less attention. Andrew von Hirsch, “Die englischsprachige Strafrechtstheorie—von Interesse für die deutsche Strafrechtsdiskussion?,” in Roland Hefendehl (ed.), Empirische und dogmatische Fundamente, kriminalpolitischer Impetus (2005), 257, 265–266, makes similar observations with respect to the United Kingdom. 61

62

discretion   935 not incompatible with the German-style administrative law ideal, yielding control entirely would be. With regard to the second complicated relationship, the different perspectives on criminal justice come to the fore again. At least in the United States, prosecutors exercise a good deal of the prerogative of the sovereign without giving rise to serious constitutional concerns. The historically grown structures and powers are treated as gospel and not called into question. One may find a more solid justification in a comparatively greater democratic legitimacy that allows for understanding discretion as “representation reinforcement.” On the continent, the administrative ideal—although rule of law and democracy are, admittedly, inextricably intertwined in modern constitutional states—functions as a counterweight against majoritarian will. In this sense, prosecutors and judges are much less majoritarian figures than their Anglo-American counterparts. Especially decisions that entail or permit dispositions over the ius puniendi are reserved for the legislature. On that account, a third element of the rule of law comes into play.

c)  Legal certainty Legal certainty is an undisputed limit on the imposition and enforcement of criminal prohibitions. Yet its interpretation differs in revealing ways. From the Anglo-American perspective it serves as an umbrella term for an array of safeguards against vague laws, ex post facto laws, and (at least partly) the judicial creation of offenses. Closely associated with these restrictions is the principle of fair notice. One also comes across abstract constraints directed against arbitrariness. Criminal justice actors ought to act upon the maxims of regularity and evenhandedness.64 This contrasts with a more inclusive (and comprehensive) understanding of legal certainty according to which it is impermissible to leave the definition of the boundaries of criminal liability or the substantiation thereof to the executive or the judiciary.65 Such a constitutional principle of legislativity has not been recognized in the United States.66 The administrative ideal also emphasizes uniformity over individualization rendering decisions of its law enforcement personnel more predictable. Legal doctrine contributes to the accomplishment of this objective by way of crafting analytic tools that are accepted by all actors and applied accordingly. In this sense, the concept of “criminal law science” might actually be understood as a precondition for the viability of such a model which buttresses the indissoluble connection between procedural and substantive criminal law.

64   John Jeffries, “Legality, Vagueness, and the Construction of Penal Statutes,” (1985) 71 Virginia LR 65 201, 223–224, 226–234.   Erb (n. 19) 105–106. 66   Markus D. Dubber, Einführung in das US-amerikanische Strafrecht (2005), 13.

936   frank meyer

4. Autonomy This understanding is not only fueled by a commitment to the rule of law as an objective principle. Another pertinent source are human rights. Although individual autonomy is the cornerstone of all Western constitutions, the administrative law model appears more dedicated to its protection in the field of criminal law. The foreseeability of criminal prohibitions and ensuing prosecutorial measures is a key factor for limiting discretion in jurisdictions adhering to this ideal in light of their massive adverse effects on the autonomy of citizens. It might have a deterrent impact to keep citizens in the dark about the precise scope of criminal prohibitions and their enforcement. But such a strategy would have a chilling effect on citizens’ civil liberties and not be compatible with the constitutional safeguards in the field of criminal law in many countries and (partly) international human rights treaties such as the European Convention on Human Rights.

5.  International human rights and treaty law Much less well known are limits that derive from human rights and treaty obligations. But it is well established in modern human rights law that various human rights, namely the right to life, right to liberty, freedom from torture or slave labor, and right to personal freedom and family life, require state parties effectively to protect them against serious violations. Public authorities have to investigate and prosecute probable violations. Human rights obligations also influence sentencing. Although national courts are granted substantial deference in the choice of appropriate sanctions, judges must use their discretion to ensure that the punishment reflects the gravity of the act and has a sufficient dissuasive effect. Crime control treaties sometimes stipulate obligations to prosecute certain crimes or extradite the alleged offender to other parties (aut dedere aut judicare).67 EU law has introduced additional restraints. The duty of sincere cooperation forces Member States to protect EU norms with the same intensity that they employ for the protection of comparable national norms. The European Court of Justice has actually found a general obligation to provide for effective, proportionate, and dissuasive sanctions on the national level (if essential for the enforcement of EU law). Moreover, the new Treaty on the Functioning of the European Union contains powers which allow EU organs to pass directives compelling Member States to adjust their criminal laws and enforce them effectively. The EU’s recent victims’ rights package even empowers victims to challenge any dismissal based on considerations of expediency.   The origin of this “Hague model” is the Hague Convention for the Suppression of Unlawful Seizure of Aircraft, Dec. 16, 1970, 860 UNTS 105. 67

discretion   937

viii.  Comparative Observations and Conclusions Discretion is an omnipresent element of criminal justice. Its formal and informal manifestations and modes of operation are numerous and multifaceted as are its justifications and limitations. The brief tour d’horizon offered here makes no claim to be complete but it should have raised awareness of its pervasiveness and shed light on how and why criminal justice actors have been vested with explicit or implicit discretionary decision-making powers. After all, the criminal process is best understood as a complex sequence of decisions starting with the detection or reporting of a crime. At every stage enormous explicit or implicit decision-making powers are exercised that may channel cases out of the process, divert them, or push them further down the line. Such decisions can be interconnected and mutually influence each other. Strikingly, no all-encompassing account even within single jurisdictions can be found. No efforts are undertaken to tell the story of discretion from a bird’s eye view that tries to integrate and explain all instances of discretion as well as their intricate interplay throughout the criminal justice system. Future research should embark on an integrated and comprehensive analysis of all those instances of discretion in order better to understand their interplay and interconnectedness. It should include chapters on sociocultural context, political setting, and historical development. So far such accounts are conspicuously absent which is regrettable in various respects. Mutual influence will become clearer and intern­al tensions and incompatibilities more visible. An integrated overall view would allow for better (political) assessments and more sensitivity for the repercussions of criminal legislation and funding decisions throughout the criminal justice systems. It would also foster more self-reflection of the actors involved and raise their awareness of the impact of short-cutting fact-finding in the name of procedural economy. For the time being, the chapter has had to content itself with revealing what role substantive criminal law, doctrine, and constitutional theory play for the scope and control of discretion. In combination with the admittedly only superficial excavations of historical and societal roots, it might be clearer now from which angle to renew attempts aiming at reform and better control. These insights also cast doubt on some myths surrounding discretion and pose a formidable challenge to commonly postulated convergence theses. While one has to grant the frequently invoked convergence phenomenon intuitive appeal, congruence is superficial. How criminal justice systems have reacted to an increased need of discretionary problem-solving has spawned remarkably idiosyncratic approaches and proves the persistence of long-cherished beliefs and principles. Tied to their normative origins, supposedly shared solutions and instruments, in fact, can turn out to be expressions of fundamentally different ideals.

938   frank meyer

References Barak, Aharon, Judicial Discretion (1989) Barkow, Rachel E., “Separation of Powers and the Criminal Law,” (2006) 58 Stanford LR 989 Davis, Kenneth Culp, Discretionary Justice—A Preliminary Inquiry (1969) Dubber, Markus D., “The Promise of German Criminal Law:  A  Science of Crime and Punishment,” (2005) 6 German LJ 1049 Dworkin, Ronald, Taking Rights Seriously (1977) Erb, Volker, Legalität und Opportunität (1999) Gelsthorpe, Loraine and Padfield, Nicola (eds.), Exercising Discretion: Decision-Making in the Criminal Justice System and Beyond (2003) Gottfredson, Michael and Gottfredson, Don (eds.), Decision Making in Criminal Justice— Toward the Rational Exercise of Discretion (2nd ed., 1988) Hart, H. L. A., The Concept of Law (2nd ed., 1994) Hawkins, Keith (ed.), Uses of Discretion (1995) Jehle, Jörg-Martin and Wade, Marianne (eds.), Coping with Overloaded Criminal Justice Systems. The Rise of Prosecutorial Power Across Europe (2006) Krug, Peter, “Prosecutorial Discretion and Its Limits,” (2002) 50 American Journal of Comparative Law 643 Lasser, Mitchel, Judicial Deliberations: A Comparative Analysis of Judicial Transparency and Legitimacy (2009) Sarat, Austin and Clarke, Conor, “Beyond Discretion: Prosecution, the Logic of Sovereignty, and the Limits of Law,” (2008) 33 Law & Social Inquiry 387 Went, Floriaan H., Das Opportunitätsprinzip im niederländischen und schweizerischen Strafverfahren (2012)

SECTION D

CRIMINAL SANCTIONS

­c hapter 41

TYPES OF PUNISHMENT nora v. demleitner*

i.  Introduction to Types of Punishment The punishment regime of a country tends to be closely connected to its political and economic structure. Neoliberalism, for example, has been tied to high imprisonment rates; high welfarism within a social democratic structure appears related to a less punitive penalty regime. While the former focuses on individual responsibility—for success and failure—and accountability, the latter has traditionally emphasized social conditions to a larger extent. Nevertheless, in many countries the fear of crime and a greater emphasis on the potential for crime, combined with widening social inequality and concerns about immigration and terrorism, have led to harsher penalties. A host of individual, organizational, and governmental actors have imposed and executed punishments for actual or perceived rule violations. With the development of the modern state, the imposition of punishment has been centralized in the state (or state-like entities) and its agencies, though it may also emanate in a regulated manner from private individuals, such as parents; private organizations, including schools, companies, and non-governmental regulatory bodies; and religious

* I am grateful to Hans-Jörg Albrecht, Liz Beaumont, Doug Berman, Markus Dubber, Tatjana Hörnle, Margaret Love, Marc Miller, Kevin Reitz, Jon Sands, and Ron Wright, for their substantive insights and to my research assistant, Max Hyman, for his editorial assistance.

942   nora v. demleitner authorities, with the latter having played a crucial role in the infliction of punishment for centuries, either alone or in conjunction with worldly authorities. State-imposed punishments following the commission of an offense have varied dramatically over time and in different societies, with countries adopting, rejecting, and refining types and structures of penalties. Criminal punishments follow on from conviction and are imposed at sentencing, which may take the form of a separate hearing or be an integral part of the conviction. The modern administrative state also allows for a wide array of civil and regulatory punishments, imposed for violations that do not amount to a criminal act. In some cases such sanctions may be imposed instead of a criminal penalty though long-term ramifications often differ dramatically, with criminal convictions frequently restricting an offender’s post-sentence opportunities because of the existence of a criminal record, which is increasingly more difficult to conceal or erase. The primary focus of this chapter will be on criminal punishment, though some types of sanctions—fines, for example—may be identical in the civil, regulatory, and criminal context, albeit labeled and perceived differently. In the criminal realm, not all sanctions will be imposed after a formal finding of guilt. Occasionally, sanctions may be negotiated between prosecution and defense counsel so that a case can be dismissed before formal adjudication, assuming the conditions of the sanction have been fulfilled. In many cases, such diversionary sanction takes the form of monetary payment or community service, and its fulfillment allows the offender to avoid any criminal record. Restrictions may also result from police action, such as the English “warning,” which will generally be recorded but not be part of an official record unless a subsequent violation of the conditions or a further infraction ultimately lead to a formal judicial sentence. In domestic violence cases in which a civil court imposes a no-contact order, its violation may even automatically lead to a criminal justice sanction. Over time and space different theories of punishment have animated the imposition of criminal justice sanctions. The four most prevalent such approaches are retribution, deterrence, rehabilitation, and incapacitation.

ii.  Punishment Theories At least until the late eighteenth and even the early part of the nineteenth centuries, most punishment was designed to impact the physical body, usually through the public infliction of physical injury, or what we would today generally deem to be “torture.”1   Michel Foucault, Discipline and Punish: The Birth of the Prison (1975), 3 ff.

1

types of punishment   943 These punishments included flogging, branding, quartering, tarring and feathering, and standing in the stockade. If not leading to a painful death, they were designed to scar and mark the offender permanently as a criminal. Executions were staged in the form of a public spectacle, often as a religiously motivated retributive sanction, combined with a deterrent function. The latter impact was doubtful, however, as the famous English painting of pickpocketing at a public execution of thieves implies. Forfeiture usually accompanied other punishment, which included declaring someone an “outlaw,” a status that virtually equated to death. This was inflicted on those who held landed property, especially in cases of treason and other high crimes. Punishment, therefore, directly and intentionally impacted not only the offender but also the offender’s family (and community). Threat of that punishment, combined with religious condemnation, may have exerted social coercion and imposed social control well beyond the danger of excruciating physical punishment. Overall, these types of sanctions were designed to punish the offender and deter others; the governing assumption being that the offender was irredeemable. Even though the Biblical command of “an eye for an eye” was no longer in effect, retribution remained a governing approach. The king retained the royal prerogative, namely to dispense mercy in the form of a royal pardon. With its origin in the Quakers’ belief in redemption and the corrigibility of the offender, the prison began its ascent from the late eighteenth and early nineteenth centuries. It supported replacing the public spectacle of physical punishment with a more shrouded, more spiritually focused sanction.2 Indicative of the change was the noticeable diminution of the application of the death sentence in Europe and the United States, and its abolition in Latin America in the late nineteenth century. At the same time, England pioneered the probation sanction which allowed for a prison sentence to be served within the community. Incapacitation was no longer the ultimate goal; a strong belief in redemption began to take hold. Since World War II human rights conventions, explicating international and regional norms, have further limited acceptable types of punishment. They generally condemn physical punishments, albeit initially excluding capital punishment. Some religiously dominated countries, however, continue to use them—some schools of Islamic law, for example, permit select removal of limbs as punishment for theft and stoning as a punishment for adultery. Under strict religious interpretations, however, imposition of such punishment demands heightened evidentiary proof. Even though those proof requirements are frequently not met, the Islamic Republic of Iran and Saudi Arabia, for example, have reinstituted—or never abolished—such traditional Islamic sanctions. In highly industrialized countries, physical punishments are being replaced with other sanctions that allow for control over the offender even outside the

2

  See generally Foucault (n. 1).

944   nora v. demleitner direct supervision of the state, usually with the assistance of modern technology, including GPS systems. Concerns about recidivism and extensive demands for public safety, drive increased levels of supervision and control. Attempts to predict re­offending more accurately, often through actuarial risk assessments, have become more important as preventive efforts to proactively avoid victimization. Such risk assessments, however, may lead to a greater emphasis on incapacitation, especially when rehabilitative efforts appear ineffective or too costly. Despite the increasing proliferation of sanction types, punishment theories have remained amazingly stable:  retribution or desert (what the Canadians often call denunciation), deterrence, rehabilitation, and incapacitation remain the four domin­ant approaches, with restorative justice as a relatively new addition at least in most Western countries, though it has always been pronounced and important in more traditional societies.3 Even though the overall explanatory constructs resemble each other, in different countries the same sanction may have very different penological justifications, depending on the way it is imposed and the type of offender upon whom such a sanction is inflicted. Perhaps even more importantly, the weight assigned to penological justifications will differ over time and between countries and sometimes perhaps even within a courthouse. German legislation details which punishment purpose to privilege and how to evaluate the other purposes in similar cases. Canadian judges consider all sentencing purposes to be of equal value, generally assuring that sentencing remains relatively stable. Even though most U.S. sentencing legislation also lists all four purposes equally, changes in public opinion and political discourse and action have caused substantial differences in the approach to sentencing, especially in the last 40 years during which a noticeable shift from rehabilitation to a just deserts focus, with incap­acitation as a secondary goal, has occurred. In addition, other goals may play a role in the approach to sanctions, such as a legislative desire for a decrease in judicial discretion, often to reduce disparities along racial and socioeconomic lines. This goal played a substantial role in the adoption of sentencing guidelines in the United States, on both the state as well as the federal level. In addition to public sentiment, budgetary considerations may drive sentencing options, often leading to a reduction in the more expensive imprisonment option in favor of community-based sanctions. The array of available sanctions is generally determined legislatively, though it often leaves the court with broad discretion. That discretion may be limited when legislatures set out mandatory minimum sentences or provide guiding maxims, such as the German “Therapy before Punishment,” mandating drug and alcohol treatment instead of imprisonment. Some sanctions or consequences may also flow automatically from a conviction without being imposed   Markus D. Dubber, “Comparative Criminal Law,” in Mathias Reimann and Reinhard Zimmermann (eds.), The Oxford Handbook of Comparative Law (2006), 1287 ff. 3

types of punishment   945 by the court. Those are considered collateral sanctions,4 which often serve, though not always, an incapacitative function to protect the public. Additional punishment and restrictions may flow from judicially imposed sanctions, such as those levied by administrative agencies, civil courts, or regulatory bodies. Their functions tend to vary substantially but can include traditional punishment motives. Punishment has moved on from the crude impact on the body to the heart and spirit and now focuses on control over movement and increasingly the mind. With a heightened emphasis on risk assessment, the likelihood of penalizing offenders for longer periods of time than necessary continues, especially when the hope is for the total exclusion of future offending—an illusory certainty. As technologic­al advances facilitate supervision beyond incarceration, breakthroughs in biology and gene technology may lead to enhanced predictive capacities for future offending. Whether that will make for a better society, however, remains to be determined. Punishment tends to center on the offender, with the goal of balancing the harm inflicted on society and perhaps avoiding future offending. However, other values outside the narrow focus on the offender may play a role in sanctioning. In some countries, the impact of a sentence on the family and the community of the offender will effectively play a larger role than in others, either with respect to the type of sentence chosen, the length of imprisonment, the start date of a prison term, or in other ways. Considerations of sentence ramifications on other family members, such as the German law’s permission to delay the start date of a prison term, tend to be limited to extraordinary circumstances. In addition, in rare cases may they be formally included in law, such as the prohibition on the execution of a pregnant woman under international human rights treaties or the extension of such prohib­ ition to a nursing mother in some countries. Even though in some civil law countries the victim has her own representative and, therefore, can directly defend her rights, that is not the case in many other countries, including the United States. Here the state must represent the victim which has led to the creation of a victims’ rights movement, with the goal of enhancing the influence a victim may have, among other things, on the plea negotiated, the sentence imposed, in part through direct participation in the sentencing hearing, or the parole release decision. The goal of such involvement is to change the focus from the offender back to the offense and the harm inflicted on the victim. Effectively, this emphasis may have led to greater harshness, often without enhanced emotional or financial satisfaction for the victim. 4   “Standard 19: Collateral Sanctions and Discretionary Disqualification of Convicted Persons,” in American Bar Association, Criminal Justice Standards (3rd edn, 2004), available at:  . See Section X.

946   nora v. demleitner The discussion that follows will cover the panoply of sanctions widely avail­ able, starting with those considered the harshest. It begins with a focus on directly imposed sanctions but also includes so-called collateral sanctions.

iii.  Physical Punishments In Western democracies most physical punishments have been outlawed in recent decades as formal sanctions, and many have been declared torture, and therefore violating human rights obligations. That is undoubtedly true for punishments that, not too long ago, were clearly permissible, including lashings and floggings. The use of torturous actions has recently been debated in the context of terrorist cases. Governments either tend to dissociate themselves from torturous conduct or declare it not punitive but rather investigatory or preventive. Some forms of pure Islamic law, currently used by select states or state-like organizations in the Middle East and Asia, allow for the amputation of limbs upon commission of a crime of theft, often in medicalized procedures. Adultery has led to the imposition of stoning sentences. International human rights commentators have condemned such sanctions. Most of Islamic criminal law, however, is not religiously proscribed and therefore resembles that in other parts of the world. The last remaining physical punishment that still remains in relatively wide use is the death penalty, with China as the likely leader in its application. In the United States, the method of the execution of the death penalty has changed over time, with a heightened focus on medicalized means, such as lethal injection, that has replaced hanging, shooting, and increasingly the electric chair. The change in methods partly resulted from litigation, which focused on the humane imposition of the death sanction, in part from pressures on those assisting, directly and indir­ ectly, with the execution of this sentence. Recent challenges to the drugs used in lethal injections and the refusal of European pharmaceutical companies to provide U.S. states with these drugs has slowed down the number of executions in many U.S. states yet further. The death penalty, when used, is also no longer a public spectacle and is instead inflicted behind prison walls in front of a small group of spectators. In Australia, public executions were largely banned in the nineteenth century though they remained permissible for aboriginal offenders for longer periods, in part for deterrent, in part for “civilizing,” purposes. In Japan even the offender’s family tends not to be informed of the time of execution, shrouding the event in absolute secrecy, in conflict with human rights demands.

types of punishment   947 In many Latin American and European countries the death penalty fell into increasing disuse and was already outright rejected in the nineteenth century. The impact of human rights norms, accelerating after World War II, has led to growing restrictions and ultimately the abolition of the death penalty in scores of countries around the world, often mandated in new constitutions, or judicially or legislatively imposed. Regional and international conventions affirm the abolition of the death penalty the reinstatement of which, even in the wake of horrendous crimes, would come with a high international cost.5 The growing international consensus against the death penalty has hampered international relations and cooperation in criminal matters with countries in which a potential offender might be threatened with death as countries have refused to extradite or deport offenders to such states and have even denied judicial collaboration in some cases. In the United States and many other countries around the world, the death penalty remains, though the number of death sanctions imposed and executed has declined over the years. While in the nineteenth century a host of offenses required a death sanction, mandatory capital punishment is on the wane. National and regional tribunals, including the English Privy Council and the U.S. Supreme Court, have taken a strong stance against it, requiring that an individual’s background and the facts surrounding the commission of the offense are carefully evaluated before the ultimate sanction is imposed. In addition, the scope of offenses for which capital punishment is an available sanction has narrowed. In the United States, for example, the death sentence is no longer available for rape, including child rape, and must always include the taking of life. However, other countries, such as China, have expanded the use of the death sentence to white-collar property offenses, generally in the corruption arena. Other developments, especially in the United States, have most recently contributed to a stark decline in the imposition of the death penalty. One factor has been the availability of life-without-parole prison terms, another the perceived high litigation and imprisonment cost of such sanctions. One of the starkest indictments of the death penalty stems from an inherent racial—and socioeconomic—disparity. In the United States, African Americans are overrepresented on death row and the same holds true for Native Americans. In Australia and New Zealand, historically aboriginal people were disproportionately subject to such sanctions; a disparity that continues to be reflected in imprisonment rates. Most importantly, however, the innocence movement in the United States has highlighted serious concerns about the accuracy with which the sanction has been imposed. With the advent of DNA testing, a number of inmates have been released 5   See Protocol Nos. 6 and 13 to the European Convention for the Protection of Human Rights and Fundamental Freedoms; Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty (1989).

948   nora v. demleitner from death row after their claims of innocence were proven to be accurate, or at least their guilt could not be sufficiently proven in a court of law. Ultimately, the death penalty has been a powerful indicator of the strongest disapproval of an offense but has also symbolized society’s disbelief in an offender’s ability to change. That belief in irredeemable moral failing is replicated in other ways throughout a criminal justice system, including often through banishment and other types of removal.

iv. Removal The most direct form of removal of an offender from a territory occurs through banishment. Banishment had been a long-standing form of punishment which often turned the offender into an outlaw in his own country. Throughout the eighteenth and nineteenth centuries, many British colonies received offenders who had been banished from their homeland. This previously frequently used sentence is no longer available to countries because of the generally constitutionally guaranteed rights of citizens not to be removed from their home countries, which is also enshrined in modern human rights treaties. While banishment was a harsh sanction as it terminated all connections to an offender’s family and community and often ended in death during transportation, many offenders established themselves successfully in the colonies where they provided needed labor. In the end, it allowed an offender to reinvent herself entirely. While the old form of banishment no longer exists, modern societies have developed different forms of banishment, often even imposed before a criminal conviction occurs. Today many countries deport non-citizens back to their country of origin/citizenship upon commission of a crime, although the circumstances under which such deportations may occur vary. In European countries, long-time residency status, employment, and family status weigh heavily in favor of the offender’s right to remain even if the crime(s) committed are relatively serious. The same holds true in Canada. Mandatory removal based on conviction for a specific crime is impermissible. The United States, on the other hand, currently requires such removal even for long-term legal residents who have committed specific crimes, including some relatively minor offenses. Discretionary removal is available for a more extensive array of crimes, with immigration courts having the authority to consider an offender’s personal circumstances, at least to some extent. Deportation may be part of the criminal court’s portfolio and will then be treated as a sanction component. On the other hand, a decision on deportation may be

types of punishment   949 made separately from the imposition of the criminal justice sentence even though it may flow directly from the adjudication of guilt or the type of sentence imposed. In the United States, the latter is currently the case, with deportation treated as a collateral sanction, which has traditionally not been subject to the attendant procedural protections in the criminal justice system. In its 2010 decision in Padilla v. Kentucky, however, the U.S. Supreme Court seemed to break with its prior case law when it required criminal defense counsel to inform her client of at least one collateral consequence—removal—when advising on whether to accept a guilty plea.6 The Court singled out deportation as a particularly serious consequence as it would end a defendant’s life in the United States and would separate the alleged offender, perhaps forever, from friends and relatives. This development appears to be the Court’s (limited) reaction to the devastating consequences of criminal removal not only on the individual offender but also on her family and community. Banishment historically pursued a twofold approach: it assured those left behind that the offender could no longer victimize them, while it allowed the offender a fresh start—assuming he or she survived the passage. Modern banishment may be less reassuring at least on the latter count as receiving countries are frequently unwilling to provide the deported offender with a fresh start, even putting aside the inability of the offender to avail herself of that opportunity, often in light of lack of relevant language skills, connections, or employability. At least as practiced in the United States, imprisonment serves as an additional form of banishment, with prisons often located far from major metropolitan areas and with the offenders held there in many cases merely to incapacitate them until their (likely) release.

v.  Imprisonment: Modern Banishment? Prisons for purposes of punishment are a relatively new invention. Traditionally European governments had reserved this form of detention for high-status detainees until they were released or died. Today it has become a prevalent form of punishment in many countries, though some use it substantially more than others. Per capita, the United States is the world leader in imprisonment. Other types of facilities may increasingly resemble prisons, though they fulfill different purposes. Pretrial detainees are not under a formal criminal justice sanction but are held for preventive reasons or out of concern that they might otherwise   Padilla v. Kentucky, 559 U.S. 356 (2010).

6

950   nora v. demleitner flee. Immigration detainees include those presumptive non-citizens held subject to an assessment of their immigration status or held until they can be removed from the country because of lack of an official immigration status or because of an underlying criminal conviction. Mental health facilities, including those housing criminal offenders, are ostensibly focused on treatment and rehabilitation. The latter may, however, be an illusory promise as German psychiatric experts have found after offenders were sent to such facilities rather than being sentenced to prison. Over the last two hundred years, the growth of prisons for punishment purposes has accelerated, in part replacing other institutions, such as almshouses. Prison construction and prison locations are indicative of the guiding philosophies behind them, with the United States having pioneered the building of so-called super-max prisons for the most dangerous offenders—facilities that are often considered inhumane. England, Australia, and the United States have turned not only prison construction but the management of prisons over to private, for-profit corporations. While the concept of prisons was originally religiously animated and grounded in theories of rehabilitation and redemption, over time prisons began to reflect different philosophies. In the Southern United States, for example, prisons began to resemble slave plantations; in England they often reminded one of workhouses for the poor; and in Germany they tended to be more similar to the fortress detention of high-status political offenders. In the United States incapacitative concepts and just deserts seem to have replaced rehabilitative philosophies, which were prevalent up to the mid-1970s. The sole sentence limit is implicit in the Eighth Amendment, which prohibits cruel and unusual sanctions. European countries, however, remain governed by concepts of sentence proportionality requirements and the notion of human dignity, which have largely prevented the adoption of the same types of long sanctions so prevalent in the United States, and have kept prison populations in check. With time and in different societies, penological justifications for imprisonment have changed, resulting in widely different prison capacities. Even Canada, which had been contrasted with the United States, has noticed a marked stiffening of its penal climate. The adoption of actuarial risk assessments there has led to a dramatic increase in the prison population. In addition, some have argued that risk assessments further serve to exclude those already marginalized as some of the relevant risk factors, such as employment before commission of the offense, are closely tied to deprived life situations. The imposition of a prison sentence and the way in which it is served may differ. Some countries have adopted mandatory (minimum) prison terms for certain offenses, while in others courts operate with discretion within a broad sentencing band. The sentence imposed and the sentence served may differ. German law connects early release to the type of offense committed, the offender’s prior record, and the length of sentence imposed. In the United States, many parole boards consider the crime committed in conjunction with behavior while imprisoned and a set of risk-assessment factors to determine the specific release date. Generally,

types of punishment   951 parole boards may consider an offender who has served one-third of his time and mandate release after no more than two-thirds of the sentence has been served. Indeterminate sentences allow for discretion at the back end, in addition to the judicial discretion at the time of conviction and sentence imposition. Such indeterminate regimes differ from determinate ones in which the length of the sentence imposed closely reflects the time served, perhaps subject to some limited deduction for good behavior. The length of prison terms imposed in the United States may be misleading as the actual time served often resembles more that imposed in other countries. This is especially true in jurisdictions that have used so-called “good (earned) time” sentence deductions granted for good behavior to reduce their prison populations. Earned time and parole release, together and separately, can and have functioned as effective means to decrease prison overcrowding but have also triggered public and political backlashes when it became obvious that the sentences imposed and time served bore no relationship, and often the discount awarded was highly discretionary and not predictable to the prosecution or the court. Many U.S.  states and the federal system have replaced their indeterminate regimes, which were a product of a rehabilitatively based system, with determinate sentences and sentencing guidelines. Different jurisdictions have structured these in various ways but their core characteristic is that judges work with a much more limited range of sentences than statutorily permitted, must provide an explanation for the specific term chosen, and are subject to more searching appellate review. Frequently, the sentence range is determined through a grid system that considers offense characteristics and an offender’s prior criminal record. The former consists of a host of quantifiable factors, which appear, however, in some cases unrelated to the offender’s actual culpability. The goal of guidelines has been to cabin judicial discretion and to assure greater consistency to avoid inappropriate disparity, especially if based on an offender’s race. U.S.-style guidelines have found few adherents abroad. While England also has a sentencing guidelines system, it has not adopted a grid and instead courts must follow a series of steps when determining a sentence and are granted relatively broad discretion to depart from a presumed sentence when it appears to be in the interests of justice to do so. This indicates that other countries appear either less concerned about judicial discretion or have developed different institutional mechanisms to restrict disparity. Narrower sentence ranges, more stringent appellate review, greater identical professional socialization of judges, may all contribute to these differences. In addition to a straight prison term, courts may impose more targeted detention sentences. While used only rarely in some U.S.  jurisdictions, courts may impose intermittent custody, including weekend incarceration, especially when a young nonviolent first offender might otherwise lose employment. Shock incarceration is also occasionally imposed, especially on younger offenders who should experience

952   nora v. demleitner prison but should not be exposed to its degrading features and crime-generating potential for any length of time. In addition, the United States pioneered the boot camp concept, which was based on a military-style training model, generally designed for younger men. Despite initial enthusiasm, boot camps have increasingly fallen into disuse because of abuse that occurred in them and because of their limited impact on recidivism. In many countries, release from prison—or a prison-type facility—for the purposes of outside work or for weekend leave is possible toward the end of a sentence to facilitate reintegration and adjustment to life outside prison. A combination of determinate sentencing combined with a proliferation of mandatory minimum sanctions for drug and weapons offenses and public demands for punitiveness led to the unprecedented prison built-up in the United States. The United States became the leader in imprisonment, although it remains disputed whether the increase was primarily due to longer sentences or to an enhanced number of prison admissions. In light of the economic downturn following the 2007/08 housing and financial crisis, many U.S. states had to develop alternatives to imprisonment to halt the growth in incarceration or decrease overall imprisonment numbers. While some states have experienced a dramatic decline in imprisonment, in others—and especially in the federal system—the number of inmates has continued to climb. Overall, prison population numbers are stagnant. The length of prison terms as compared with the impact of the prison experience has been subject to dispute in European countries. During the 1970s Germany, for example, moved away from short prison terms because of their disruptive effect on the offender’s work and family life. Instead such sentences were suspended. Other countries, such as the Netherlands, however, favor very short, six-month sentences, presumably because of their deterrent influence. Many European countries impose long sentences on those convicted of transporting and selling illegal narcotics and often these sentences seem comparable to those imposed in the United States. Nevertheless, the concept of average and median sentence length varies dramatically, and the sheer classification of short, medium, or long prison terms often conceals dramatic differences. Life terms have increasingly come under scrutiny. Life sentences in Germany, for example, rarely mean a life-long sentence but presumptively end with release upon parole after 15 to 18 years. Most European and Latin American countries constitutionally reject the concept of life-without-parole sentences because of their deeply ingrained belief that even the most depraved offender can change and should such change occur must be rewarded with release. On the other hand, the United States has dramatically expanded life-without-parole sanctions. Juries tend to opt for this sentence as a safe and less costly alternative to the death penalty and prosecutors and judges favor it as it promises public safety. Recently the U.S. Supreme Court has held that it cannot be imposed on juven­ iles in non-homicide cases and cannot be mandatory in homicides committed

types of punishment   953 by someone aged under 18.7 International opposition to the sanction is increasing, and some have predicted that it will be the next frontier in the abolition of inhumane penalties. In the end this debate reflects a wider discourse on limits on punishment, a conversation in which the United States has not participated as the U.S. Constitution focuses on “cruel or unusual sentences” rather than on proportionality, a requirement the Supreme Court has not read broadly into the Eighth Amendment. The Eighth Amendment to the U.S. Constitution has provided only loose guidance with respect to limits on punishment, with the Court focusing largely on specific population groups, such as juveniles, and the death penalty. In Europe the European Court of Human Rights has provided some guidance on sentencing as have various U.N. documents. Proportionality and human dignity are also enshrined in many countries’ constitutions, thereby guaranteeing additional and more effective limits on excessively long prison terms. Prison release may be a function of executive privilege and in common law countries takes the form of parole, a discretionary release with substantial obligations. Should the parolee violate the rules of parole or commit a new crime, the parole period may be rescinded and the offender will have to serve the remainder of his prison time. In civil law countries, the notion of parole also exists though it is often a judicial tribunal that oversees the execution of the sentence and ultimately determines release. Prison release may also take the form of outright expiration of a sentence, in some cases with supervision to follow. Finally, and most rarely, prison release may occur as a result of executive clemency, which involves sentence commutation, or a pardon. In many countries this takes the form of a general “Christmas pardon”; in other situations it is more directly focused on individual offenders, perhaps because the sentence is now perceived as too long as a result of changes in the law or societal views or because doubts may have arisen about an offender’s culpability. In the United States, at least one governor commuted the sentences of women convicted of killing an abusive spouse before the law had developed defenses or allowed for mitigation in such cases. In many countries the prison population does not reflect the demographic make-up of the country. In Canada and Australia, for example, aboriginal groups are dramatically overrepresented, as are African Americans in the United States. In many Western European countries immigrants and/or their descendants, especially if they are non-white or Muslims, are often found in prisons in disproportionate numbers. In Eastern Europe, Roma and Sinti are incarcerated at a higher percentage than their representation in the population would indicate. Even though many 7   Miller v. Alabama, 567 U.S. __, 132 S. Ct. 2455 (2012) (prohibiting mandatory life-without-parole sanctions to be imposed on those who committed homicides while under the age of 18); Graham v. Florida, 560 U.S. 825 (2010) (prohibiting life term without the possibility of parole for a juvenile who committed a non-homicide offense).

954   nora v. demleitner countries note concerns about such disparities, they usually justify them because of differences in crime rates. To address the high incarceration rate of Natives, Canadian sentencing legislation requires courts to consider aboriginal status in deciding whether to impose a prison term. This contrasts with the federal sentencing guidelines in the United States, which mandate that the court should not consider race in sentencing decisions. The impact of race and ethnicity in the criminal justice system remains disputed in most countries. The United States, in contrast to most other developed countries, generally fails to theorize and to consider socioeconomic status within the criminal justice system even though poor and un(der)educated offenders constitute the vast majority of prisoners. The punitiveness inherent in U.S.  sentences practices has been ascribed, at least in part, to the racism inherent in society and the criminal justice system.8 Other explan­ations, however, are also viable, especially as other countries with demographic disparities do not display the same harshness that characterizes the U.S. sentencing regime in its entirety. Differences in political structure, combined with elections for district attorneys and trial-level judges, may contribute to this harshness. The impact of religion on public life, often played out in stark terms of “good and evil,” may also play a role. One commentator has indicated that the perception of social status may be an important consideration, as Germany elevated the status of all inmates to that usually given to political prisoners while the United States has instead chosen to degrade all those convicted, and perhaps even all those accused of offenses.9 Likely it is a combination of such explanations that accounts for the virtually unique U.S. set-up. In addition to supervision in prison, supervision can also occur in the community. Modern technology and the desire for cost savings have driven the demand for more extensive and intensive community supervision.

vi.  Supervision in the Community Prison sentences are not always executed and a court may instead suspend them for a period of time subject to good behavior. Alternatively, a probationary sentence can be imposed the violation of which may result in imprisonment. 8   See e.g. Michael Tonry, Punishing Race: A Continuing American Dilemma (2011); Michael Tonry, Malign Neglect—Race, Crime, and Punishment (1995). 9   See James Q.  Whitman, Harsh Justice:  Criminal Punishment and the Widening Divide between American and Europe (2005).

types of punishment   955 Probation in the United States is usually imposed on first offenders and those responsible for minor, generally nonviolent, offenses. To what extent supervision occurs will depend on the probation office. Generally, probationers have to adhere to a catalog of standing requirements, such as no use of illegal drugs or alcohol and no affiliation with convicted felons. In addition, a court may impose tailored obligations, depending on the felon’s specific situation. Convicted offenders frequently have to report to their probation officers and are subject to spot checks. The Fourth Amendment to the U.S. Constitution does not protect them against warrantless searches. Supervision may be enhanced through electronic means. Electronic supervision has become popular in some jurisdictions, though it carries with it relatively high costs because of the need to monitor potential violations. In addition, false positives may lead to an inability to detect actual violations. Electronic supervision is frequently tied to a sentence of “house arrest,” which may be part of a probationary sentence or be a condition imposed on release from prison. Probation may be revoked on conviction of a new offense or in the case of serious and/or repeat violations of probation conditions. The likelihood of incarceration for probation violations varies by state, with probation and parole violators constituting a relatively large percentage of the prison population in some states. Community supervision may also occur after an offender has served time. It may follow automatically after an imposed prison sentence has been served, as is the case in the federal criminal justice system where this is called “supervised release.” Alternatively, offenders may be released discretionarily before they have served their entire prison term. Once parole is granted, the remaining prison term remains executable if a new conviction occurs or in the case of violation of parole conditions. California’s prison system grew as dramatically as it did throughout the 1990s and the first decade of the new century in part because probation officers generally returned parolees to prison even for relatively minor offenses. Starting in the 1990s, a few jurisdictions in the United States began to establish so-called drug courts. Their goal has been to avoid incarceration of (nonviolent) drug offenders in the hope of rehabilitating them. While the results of these drug courts have been mixed, the best research indicates that they may be more effective than imprisonment in avoiding recidivism and leading to rehabilitation. Similarly to drug courts, other specialty courts have also been established, including mental health and veterans courts. Their goal is to address either a particular (limited) set of offenses or to focus on a specific type of offender. Different jurisdictions set different rules as to offenses and offenders who may become subject to the jurisdiction of these courts, the function of which varies dramatically from that of mainstream criminal courts as they are based on regular attendance and ongoing monitoring of the offender. They require a team of experts, including prosecutor and defense counsel, to work together in a non-adversarial style toward the offender’s rehabilitation. This approach has challenged assumptions of lawyering, including the attorney–client relationship, and the entire structure of the criminal

956   nora v. demleitner justice system. Ultimately, these types of courts may lead to a change in the function of courts the dual goals of which may become protection of public safety and the offender’s rehabilitation. The development of such alternative courts has been greeted with some concern about “net-widening,” which means the expansion of sanctions on a group of offenders who might either not have been prosecuted in the past or whose sentences would have been more limited and less onerous. This concern is of particular importance when failure or violation of conditions can or will lead to imposition of an incarceration sentence. In that case, an attempt at rehabilitation will lead to enhanced punishment. For that reason, some offenders prefer a determinate sentence over transfer to an alternative court. The latter, however, may hold out hope of expunging their criminal record or even dismissal of the case on successful completion of treatment. Alternative courts have not been widely imitated outside the United States, perhaps because other systems already emphasize rehabilitative measures to a greater extent in their systems, perhaps because the particular population serviced by specialized courts is more limited in other countries and therefore can be easily accommodated within their existing structures. We may witness the expansion of alternative courts, with their risk-assessment and rehabilitation approaches, but financial sanctions have already become widespread in all developed countries.

vii.  Financial Sanctions: When Are They Too Much? Among the most widespread sanctions in any criminal justice system are financial penalties, so-called fines. In addition, some countries, including the United States and Germany, ask the offender to contribute payments to cover some of the case-processing costs and part of the cost of incarceration. Fines are to be distinguished from restitution payments or so-called “compensation orders” in Britain, which are designed to alleviate some of the harm inflicted upon the victim. Fines constitute the primary method of sanctioning in developed countries and may be assessed in the form of lump sum payments or levied as day fines, a system common in continental European countries. While the former are tied to the offense of conviction, the latter are based not only on the offense but also on the individual defendant’s ability to pay. For the same offense, the number of days of payment will be identical for all offenders but the amount to be paid per day will vary based on

types of punishment   957 the defendant’s financial ability and income. Day fines have not caught on in the United States, in part because of different notions of equality, in part because of apparent concerns about the state’s ability accurately to ascertain income. In Germany once a fine is paid, the criminal record is usually expunged. The vast majority of criminal cases and of (traffic) violations are resolved through fines, with expungement as the incentive for payment. In the United States, on the other hand, the fine may be imposed as a free-standing sentence or as part of a more comprehensive criminal justice sanction. In many cases fines are mandatory, even though the offender may not, perhaps ever, be able to pay. In addition to fines, courts may forfeit property. This can be done through civil— non-conviction-based—or criminal forfeiture, with the latter being subject to more stringent requirements. Criminal forfeiture, which occurs after a criminal conviction, applies to property illegitimately acquired, either directly or through payment from illegitimate sources. Property that has been used as a tool in the commission of crimes may also be forfeited. Forfeiture has proven particularly challenging, though legally permissible, in situations of co-owned property, such as a car or a home, where one owner is qualified as the “innocent spouse.”10 In many European countries forfeiture has been increasingly allowed even without a concomitant criminal conviction to fight organized crime and money laundering. Even though financial sanctions remain the mainstay of sentencing systems, more creative sanctions have recently captured the public’s imagination.

viii.  Integrative and Disintegrative Sanction: Rehabilitation or More? When probationary or suspended sentences are imposed, courts frequently add to the standard probationary conditions additional conditions which may include a community service component or a shaming sanction. Among the former are situations where defendants have been asked to lecture to suitable audiences about their offenses to provide a cautionary tale. In other cases, defendants are required to donate their time to charitable organizations. Shaming sanctions have been introduced in the United States largely from Australia and Canada where they have been built upon Indigenous approaches to crime, including sentencing circles. John Braithwaite has studied such sanctions in Australia where

  See e.g. Bennis v. Michigan, 516 U.S. 442 (1996).

10

958   nora v. demleitner aboriginal groups have used them to allow for apology and, ultimately, community reintegration of the offender.11 In the United States, however, they may have had either a disintegrative effect or not been as impactful as urban communities in particular are substantially less cohesive, with people often less dependent on each other than in traditional soci­eties. Among popular shaming sanctions have been identification of specific offenses on license plates or publication of the names of those seeking out the services of street prostitutes. The publication of the names of sex offenders is defended as a protective rather than a shaming measure. It is legally distinguishable as it is not court-imposed but, rather, is a corollary of the conviction.12 Another victim-centered approach that has been derived from these alternative forms of sanctioning is victim–offender mediation which is only available in select cases, with the consent of the victim. The goal is to bring offender and victim together to help each other to understand the situation and background of the offense and to allow for an apology. It is often effective as a rehabilitative measure for younger offenders and frequently proves more satisfying to a victim than the imposition of a sanction. The goal of reintegration is presumably more expansive than mere rehabilitative efforts that are solely designed to decrease recidivism. While most sanctions—other than the death penalty and life without parole—carry a rehabilitative hope, the focus of some is exclusively on rehabilitation as part of an offender’s broader re-entry into society. Among those are drug, alcohol, and sex offender treatments which may be imposed as part of a sentence, in lieu of a sanction, or even as the sanction. While forced treatment has traditionally been rejected as ineffective, in recent years studies have indicated the effectiveness even of forced treatment. Some offenders may choose to undergo alcohol and drug treatment in particular even before a sentence is imposed in order to indicate their acceptance of treatment, but also in the hope of a more mitigated sentence. Such treatment may also be available in prisons where it could lead to early release. Aboriginal offenders in Australia, New Zealand, and Canada have increasingly focused on “healing,” as opposed to rehabilitation, to include the community as well as the individual in the aftermath of an offense and aim at the offender’s restoration to full group membership. As aboriginal communities frequently deem crime and its resultant penalty to be a function of colonialism and racially based oppression, the focus on healing allows them to address those larger issues rather than merely the criminality of the offender. In this context, the offender’s individual behavior is recognized as inappropriate but acknowledged within this wider framework of shared oppression. Among special aboriginal healing practices are sentencing circles and healing lodges, which are based on traditional knowledge.   John Braithwaite, Crime, Shame, and Reintegration (1989).

11

  See Sections IX and X.

12

types of punishment   959 In stark contrast to these efforts at reintegration and healing may be the expansion of preventive sanctions, imposed on offenders who are viewed as constituting a very special risk.

ix.  Preventive Sanctions in a World of Risk Assessment Some sanctions are explicitly imposed to prevent future offending, at least for some period of time. Those sanctions may be levied in different ways in different countries, though their goals are often similar. They have become increasingly popular as the fear of specific offenders has increased and the use of risk-assessment tools promises successful predictions of recidivism. Likely the most prevalent preventive sanction is the suspension of a driver’s license which may be imposed automatically after an offender commits particular types of traffic offenses, or commits them repeatedly. Obviously the goal is to disable the driver from committing more such infractions, which presumably endanger fellow citizens. Driving privileges may be restored automatically after a certain period of time; alternatively, a hearing may be required to regain one’s license. Preventive sanctions can also occur when offenders abuse their position to commit an offense, such as government officials or (high-level) employees in the corporate and not-for-profit worlds. As a result of an offense which was facilitated or made possible by the person’s position, the court may impose a ban on specific employment or prohibit the offender from holding political office. Increasingly popular on both sides of the Atlantic are outright restrictions on employment or on specific employment functions, such as the ability to enter into contracts with a state government or the European Union. Such bars may make an offender effectively unemployable in certain industry sectors. In the United States, firearms restrictions have become widespread in response to convictions for potentially violent offenses, including misdemeanor domestic violence. Such a bar may have an impact on offenders whose employment otherwise requires them to carry such weapons. In the case of sex offenders, prison terms have increased in the United States as well as in continental Europe and the United Kingdom, with sensational child abductions, rapes, and murders triggering these increases. Legislation allows for the addition of non-incarcerative sanctions so that courts are now often in a position to impose a select set of additional restrictions. In some countries courts can impose a form of non-criminal confinement on offenders who are assessed as posing an ongoing danger to the community. The specific requirements for such confinement

960   nora v. demleitner vary between jurisdictions. In the United States, for example, the Supreme Court has determined that a mental defect is required to permit civil confinement of sex offenders. The Court also found most criminal procedural protections not to apply to this form of confinement as they do not include any retributory component and serve solely as an incapacitative function.13 On the other hand, the European Court of Human Rights has held that the German Sicherungsverwahrung—security detention—cannot be imposed retro­actively and cannot look like imprisonment. This implies that a penal component had been an inherent feature of that sanction, especially as the location for those sentenced to Sicherungsverwahrung was generally part of a prison, though they were housed in a separate wing. The Court mandated greater markers of separation for those civilly and those criminally confined and at least implied that it might consider criminal procedural protections necessary for those under Sicherungsverwahrung.14 Release from civil confinement or Sicherungsverwahrung has proven challenging for those confined. Proving the absence of dangerousness has been difficult, especially as experts have become increasingly risk-averse in their assessment of the potential danger an offender may continue to pose. In the 1970s and 1980s Germany and other European countries also experimented with castration as a sentence mitigator. While it was not directly imposed as a sentence, at least one-high profile German offender chose to be surgically castrated to lower his likelihood of reoffending. When he died during surgery, surgical castration was no longer considered, although pharmaceutical castration remains a possibility in European countries as well as the United States. In the United States many sex offenses also lead to mandatory registration requirements. Depending on the specific nature of the offense committed, they may be limited to a particular number of years, though in the case of some crimes, they are life-long, with imprisonment as a consequence should an offender fail to register. In addition to registration requirements, states have also adopted notification requirements so that select groups—schools and daycare centers, for example— and/or neighbors will be notified should a certain type of sex offender move into an area. Public notifications of this sort are not currently acceptable in continental Europe because of a different approach to the offender’s right to privacy. Banishment has seen a modern resurgence for some groups of offenders, including those convicted of sex crimes. In the United States, sex offenders, who generally suffer from the largest set of restrictions imposed on any group of offenders, may be barred from living near schools, daycare centers, churches, parks, and other areas in which children may congregate. Domestic violence offenders may not be   Kansas v. Hendricks, 521 U.S. 346 (1997).   Kallweit v.  Germany, App. no.  17792/07, Mautes v.  Germany, App. no.  20008/07, Schummer v. Germany, App. nos. 27360/04 and 42225/07, ECtHR, Judgment of 13 Jan. 2011; M. v. Germany App. no. 19359/04, ECtHR, Judgment of 17 Dec. 2009. 13

14

types of punishment   961 allowed to return to their homes and be mandated to stay away from a particular person, such as a spouse. In Europe some soccer fans are prevented from leaving their home country during international matches to prevent hooliganism. Finally, some cities have attempted to impose curfews on juveniles to prevent them from getting together in known trouble spots. These types of banishments are generally not styled as punishments and are rarely imposed in the form of criminal sanctions. They are, however, part of the growing number of collateral sanctions, and sometimes even result without the (prior) imposition of a criminal sanction. European sanctioning regimes allow for the separation of retributive and risk-based/preventive sanctions even though the sentencing court is permitted to assess both types of sentences. Such a regime allows for a limitation on retributive punishments while, at least ostensibly, still guaranteeing public safety. In the United States, on the other hand, criminal justice sanctions are expected to fulfill all sentencing goals. The Supreme Court has drawn what long seemed to be a clear line between civil and criminal sanctions, with sentencing courts imposing only the latter. Civil sanctions may result directly and mandatorily from a criminal conviction or may be imposed by an administrative tribunal.

x.  Collateral Sanctions The United States has a wide array of collateral sanctions, some of which are governed by state law, others by federal law.15 While some of these sanctions are intimately connected to the offense, others seem to have no or only a most tenuous connection to the conviction. Among the most discussed collateral sanctions in the United States is the denial of voting rights. With the exception of two states, prisoners are excluded from the ballot box. Whether probationers and parolees are barred from casting their ballot depends on state law and varies widely. Most disturbingly, in some, largely Southern, states even those released from any criminal justice sanction may remain disenfranchised unless they receive a gubernatorial pardon or relief through another often difficult to navigate process. Because of the highly racialized criminal justice system, African Americans are disproportionally disenfranchised. Despite recent efforts to reinstate voting rights for those released from criminal justice sanctions, the number of those disenfranchised appears to have barely moved.   Margaret Colgate Love, Jenny Roberts, and Cecelia M.  Klingele, Collateral Consequences of a Criminal Conviction: Law, Policy and Practice (2012). 15

962   nora v. demleitner Between European countries, disenfranchisement of those imprisoned appears to vary dramatically. Continental Western European countries seem more likely to allow prisoners to vote while Eastern European countries and the United Kingdom are substantially less receptive to prisoner enfranchisement. In recent decisions the European Court of Human Rights has addressed whether disenfranchisement during imprisonment is a violation of the European Convention on Human Rights. The Court has concluded that under certain circumstances an offender may lose the right to vote during the entire term of his imprisonment; the state, however, must be able to provide more than a generalized explanation for such disenfranchisement.16 Other restrictions may also flow automatically from a conviction. In the United States, for example, an offender can be banned from receiving student loans upon multiple drug convictions and even be barred from welfare benefits. These consequences flow largely from drug convictions, presumably indicating the seriousness with which the state takes such crimes but otherwise unconnected to them. In some states, for example, drug offenders lose their driver’s license for a limited period of time, clearly not a preventive but apparently a punitive sanction. Only some of these types of sanctions would be permissible in European countries where they would generally be more limited in length and scope. Another example of the different approaches taken in Europe and the United States is the availability and use of deportation resulting from a criminal conviction.17 Many of these collateral sanctions raise questions regarding their penological justification. They are often overbroad in light of the underlying offense or individual offender characteristics. In the United States, for example, because of the classification of sex offender registration and notification statutes as non-criminal the ex post facto clause of the Constitution does not apply. Therefore, even those who have lived crime-free lives for many years after such a conviction may be subjected to registration and notification requirements. In those cases, the preventive impact of such requirements appears marginal, and may even be counterproductive as it may lead to the exclusion of such offenders from society, including their job loss. Nevertheless, the U.S. Supreme Court has continued the fiction that such requirements do not serve any retributive or punitive function, rendering criminal proced­ ural protections inapplicable. In addition to sanctions that result directly, whether automatically or not, from a criminal conviction, others may flow more indirectly from a criminal conviction, often imposed through semi-private or professional entities. For some offenders, a criminal conviction may lead to action by a professional licensing body, such as medical or bar licensing authorities. While those are entirely independent decision-makers, certain convictions or the facts underlying a conviction will lead to the loss of a professional license, therefore making it impossible for an individual   Scoppola v. Italy (No. 3), App. no. 126/05, ECtHR, Grand Chamber, Judgment of 22 May 2012.   See Section IV.

16 17

types of punishment   963 to exercise such a profession. Non-governmental as well as governmental agencies may therefore dramatically restrict an offender’s employment options based on a criminal conviction. Such ramifications may go well beyond the sanction contemplated by the legislator or the offender.

xi. Conclusion Despite broad international agreement about the rationales for punishment and widespread availability of the same or similar sanctions around the world, state reaction to different types of offenses and punitiveness vary widely. Criminal punishment does not occur in a vacuum but rather reflects the political attitudes, social mores, and economic characteristics of the broader society. For those reasons, sentencing and penality are of crucial importance not only for those interested in matters of criminal law and procedure but also for those deeply interested in law and society.

References Ashworth, Andrew and Roberts, Julian V., Sentencing Guidelines:  Exploring the English Model (2013) Ashworth, Andrew and Zedner, Lucia, Preventive Justice (2014) Demleitner, Nora V., Berman, Douglas A., Miller, Marc L., and Wright, Ronald F., Sentencing Law and Policy (3rd ed., 2013) Garland, David, Peculiar Institution: America’s Death Penalty in an Age of Abolition (2010) O’Malley, P. (ed.), Crime and the Risk Society (1998) Petersilia, Joan and Reitz, Kevin R., The Oxford Handbook of Sentencing and Corrections (2012) Sarat, Austin and Martschukat, Jürgen (eds.), Is the Death Penalty Dying? European and American Perspectives (2011) Stuntz, William J., The Collapse of American Criminal Justice (2011) Tonry, Michael (ed.), Prosecutors and Politics: A Comparative Perspective (2012)

­c hapter 42

SENTENCING erik luna

i.  Introduction to Sentencing Sentencing provides one of the basic measures of societal norms and values. When a jurisdiction punishes an individual for having committed an act denomin­ ated as a “crime,” the type of sentence and its magnitude represent a critical judgment about the wrongfulness of that act, the culpability of the actor, and the threat posed by the incident and the individual, with the ensuing sentence purportedly serving any number of consequentialist and non-consequentialist goals. As a formal stage in a criminal justice system, sentencing is the result of a chain of decisions by various players both inside and outside of court, culminating in an official statement of what awaits the now-convicted defendant and, at times, triggering a process of review by judges and executive officials. The potential outcomes of sentencing encompass some of the most potent actions any government can take against the governed: the deprivation of status, property, liberty, and even life itself. This chapter begins by considering the role of punishment theories in sentencing practice. It then examines several themes of sentencing, namely:  the nature of discretion and multiple decision-makers; the tension between individualized sentences and unjustifiable disparities; and the comparative punitiveness of certain criminal justice systems. Finally, the chapter reviews different schemes based on their relative level of determinacy, with a particular focus on sentencing in the United States.

sentencing   965

ii.  Punishment Theories A number of theoretical justifications for punishment may inform the practice of sentencing, as codified in a jurisdiction’s penal law or administered by criminal justice actors.1 In general, punishment theories can be separated into a handful of philosophical camps distinguished by their focus and goals. Consequentialist theor­ies are forward-looking, concerned with the future consequences of punishment. The primary consequentialist theory—utilitarianism—imposes criminal penalties only to the extent that social benefits (utility) outweigh the costs (disutility) of punishment. In particular, the imposition of criminal sanctions might: discourage the offender from committing future crimes (specific deterrence); dissuade others from committing future crimes (general deterrence); reform the particular offender against committing future crimes (rehabilitation); and disable the particular offender from committing future crimes (incapacitation). One or more of these utilitarian goals can be seen in almost every criminal justice system. Although India’s statutory scheme does not explicitly state the applic­ able theories of punishment, one commentator maintained that “Benthamite philosophy with its emphasis on utilitarianism has had a strong influence on the [Indian Penal] Code’s approach to punishment.”2 The resulting emphasis on deterrence and incapacitation in India is borne out by the high maximum sentences for most crimes. Such consequentialism may carry internal limitations, however, as suggested by the Indian Supreme Court’s recognition that “an excessive sentence defeats its own object and tends to further undermine respect for the law.”3 Apparently, the utilitarian foundation of the Indian Penal Code “gave no room for the theory of rehabilitation.”4 By contrast, most European systems espouse some form of treatment, education, skills training, and so on, seeking to reform offenders as law-abiding members of society. Indeed, the Spanish Constitution explicitly states that “Punishments entailing imprisonment and security measures shall be aimed at reeducation and social rehabilitation.”5 The utilitarian triumvirate of deterrence, incapacitation, and rehabilitation also shaped the development and current state of U.S. criminal justice. Until the 1970s, sentencing in the United States was animated by the so-called “rehabilitative ideal.”6 Originating in the penitentiary movement of the nineteenth century, 1  See Zaibert, “Philosophy,” Chapter  7 and Melissaris, “Theories of Crime and Punishment,” Chapter 16, in this volume. 2   Stanley Yeo, “India,” in Markus D. Dubber and Kevin Heller (eds.), The Handbook of Comparative 3 Criminal Law (2010), 288 ff., 291.   Dulla v. State, AIR 1958 (Allahabad) 198, 203. 4 5   Yeo (n. 2) 305.   C.E., BOE n. 311, Dec. 29, 1978, art. 25(2) (Spain). 6   See generally Francis A. Allen, The Decline of the Rehabilitative Ideal (1981).

966   erik luna the rehabilitative ideal viewed the offender as suffering from a criminogenic dis­ order that could be treated through prison-based therapeutic programs and pro-social instruction. Some of these efforts continue in U.S. penology, and, in fact, many jurisdictions retain rehabilitation as an express goal of sentencing.7 More recently, however, deterrence and incapacitation have ascended as utilitarian desiderata of U.S. sentencing. Particularly during the nation’s “tough on crime” period of the 1980s and 1990s, many U.S. jurisdictions enacted punishment schemes such as mandatory minimum sentences and anti-recidivist statutes (e.g. “three strikes and you’re out”), which spurned the idea of rehabilitation and were justified, if at all, by their harsh deterrent or incapacitative effects. The best-known non-consequentialist rationale for the criminal sanction, (deonto­ logical) retributivism, often conceptualizes punishment as “just deserts.” Moral blameworthiness may be seen as a function of an offender’s subjective state of mind, the wrongful nature of his acts, and (arguably)8 the harm he has caused. Punishment for culpable wrongdoing must be proportionate to the gravity of the offense,9 where an offender’s mental state and the quality of his actions may demonstrate a greater level of moral depravity that justifies increased punishment. So conceived, retributive responsibility is often associated with the highly contested concept of “free will”10 and the idea that offenders deserve to be punished because they freely chose to commit crime. Retribution is accepted to some degree in most criminal justice systems. The common law world often gives pride of place to retribution and its principle of proportionality. In Australia, court precedent and statutory law require that a sentence be proportionate to the gravity of the offense and “punish the offender to an extent and in a manner which is just in all of the circumstances.”11 The same is true in Canada, where the nation’s criminal code states as a “fundamental principle” that a “sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”12 Criminal justice in England is guided by retributive notions as

7   See e.g. Colo. Rev. Stat. § 18-1-102(1)(b) (stating that purpose of the penal code includes “rehabilitation of those convicted”); N.Y. Penal Law § 1.05(6) (similar). 8   See generally “Symposium: Harm v. Culpability: Which Should be the Organizing Principle of the Criminal Law?,” (1994) 5 Journal of Contemporary Legal Issues 1 ff. 9   See generally Andrew von Hirsch and Andrew Ashworth, Proportionate Sentencing: Exploring the Principles (2005). 10  See e.g. George P.  Fletcher, The Grammar of Criminal Law:  American, Comparative, and International (2007), 10–11, 269–270, 273–281; Herbert L. Packer, The Limits of the Criminal Sanction (1968), 132. But see Stephen J.  Morse, “The Non-Problem of Free Will in Forensic Psychiatry and Psychology,” (2007) 25 Behavioral Science & Law 203 ff. (critiquing “free will” in criminal law). 11   Sentencing Act 1991 (Vic.), § 5(1)(a) (Australia). See also Veen v. The Queen (No. 2) (1988) 164 CLR 465 (Australia). See generally Arie Freiberg, “Australia: Exercising Discretion in Sentencing Policy and Practice,” (2010) 22 Federal Sentencing Reporter 204 ff., 208. 12   Criminal Code, RSC 1985, section 718.1 (Canada). See also R. v. M. (C.A.) [1996] 1 SCR 500, para. 41.

sentencing   967 well, making proportionality the “touchstone” of sentencing law.13 Civil law nations also take retribution into consideration, as evidenced by the German Criminal Code’s statement that an offender’s culpability provides the basis for sentencing,14 for instance, and Spanish court rulings that a sentence cannot be disproportionate to the offender’s just deserts.15 In the United States, the rehabilitative ideal came under attack during the 1970s, particularly from retributive thinkers who promoted sentencing schemes premised on proportionality. Among the influential works published during this period, a report authored by Andrew von Hirsch declared that “Those who violate others’ rights deserve punishment” and “the severity of the penalty should depend on the seriousness of the offense.”16 Sentencing reforms often tracked the goals of retribution, or at least parroted its language. In 1976, for instance, California adopted a new sentencing scheme that declared that “the purpose of imprisonment for crime is punishment,” which “is best served by terms proportionate to the seriousness of the offense.”17 For the most part, however, no single theory stands today as the universally accepted goal of punishment around the world or, for that matter, the exclusive justifying aim of a given system. Prominent scholars have offered “mixed” or “hybrid” theories of punishment containing an amalgam of consequentialist and non-consequentialist principles, placing different emphases on culpable past conduct versus future consequences. Such theories tend to adopt a general rationale for punishment constrained on the edges by principles of another justification, such as a basically utilitarian approach constrained by retributive principles or an essentially retributive theory constrained by consequentialist concerns.18 As an example, the current revision of the U.S. Model Penal Code’s sentencing provisions borrows from Norval Morris’s theory of “limiting retributivism,” which used retributive considerations to limit the potential excesses of utilitarianism.19 Interestingly, a number of Western nations have adopted hybrid approaches, some of which resemble the notion of limiting retributivism. As mentioned, Australia, 13   Andrew J. Ashworth, “United Kingdom,” in Dubber and Heller (n. 2) 531 ff., 535. See also Criminal Justice Act 2003, sections 142(1)(a), 143(1) (United Kingdom). 14   § 46 Strafgesetzbuch (StGB, Criminal Code), Nov. 13, 1998 (Germany). 15   See Carlos Gómez-Jara Díez and Luis E. Chiesa, “Spain,” in Dubber and Heller (n. 2) 488 ff., 497 (referencing court decisions). 16   Andrew von Hirsch, Doing Justice: The Choice of Punishments (1976), 54, 77. 17   Cal. Penal Code § 1170(a)(1). 18   See e.g. H.  L. A.  Hart, Punishment and Responsibility:  Essays in the Philosophy of Law (1968), 8–13; Norval Morris, The Future of Imprisonment (1974); Paul H. Robinson, “Hybrid Principles for the Distribution of Criminal Sanctions,” (1987) 82 Northwestern University LR 19 ff. But see Mirko Bagoric and Kumar Amarasekara, “The Errors of Retributivism,” (2000) 24 Melbourne University LR 124 ff., 150 (critiquing Hart’s theory); Andrew von Hirsch, “Hybrid Principles in Allocating Sanctions,” (1987) 82 Northwestern University LR 64 ff. (critiquing Robinson’s theory). 19   See American Law Institute, Model Penal Code: Sentencing, Tentative Draft No. 1 (April 9, 2007).

968   erik luna Canada, and England all deem retributive proportionality to be fundamental to sentencing, but they also permit considerations of utilitarianism and restorative justice to play a part in setting appropriate sanctions. For instance, Canada’s Criminal Code lists the following objectives in sentencing: (a) (b) (c) (d) (e) (f)

to denounce unlawful conduct; to deter the offender and other persons from committing offences; to separate offenders from society, where necessary; to assist in rehabilitating offenders; to provide reparations for harm done to victims or to the community; and to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.20

Similarly, a British law states that, in addition to punishment (i.e. retribution), the purposes of sentencing include crime reduction (including deterrence), rehabilitation, public protection, and reparation.21 Such listings do not eliminate overarching retributive limits, however. Rather, the non-retributive goals are “expected to operate within the parameters of the proportionality principle,” Andrew Ashworth noted. “For example, if a court wishes to pursue rehabilitation, it should not exceed the proportionate sentence.”22 Roughly analogous approaches are adopted in some civil law nations. Although the German Criminal Code takes into account the expected impact on “the offender’s future life in society”23—for instance, the deterrent or rehabilitative effect of a given sentence—the principle of proportionality sets both upper and lower limits of sentencing that cannot be pierced by utilitarian concerns.24 Other jurisdictions have sentencing schemes that reference various objectives of punishment but fail to designate one goal as cardinal and lack a methodology to deal with potential conflicts among justifications. In the United States, a case in point is the enabling act of federal sentencing. Judges are instructed to impose sentences that “reflect the seriousness of the offense” and “provide just punishment”— in other words, retribution—and that serve the utilitarian objectives of “adequate deterrence to criminal conduct,” protecting “the public from further crimes of the defendant,” and providing the offender “needed educational or vocational training, medical care, or other correctional treatment.”25 But federal law does not set

  Criminal Code, RSC 1985, section 718 (Canada).   See Criminal Justice Act 2003, section 142(1) (United Kingdom). 22   Ashworth (n. 13) 535. See also Veen v. The Queen (No. 2) (1988) 164 CLR 465, 472–473 (Australia). 23   § 46(1) StGB (Germany). 24   Thomas Weigend, “Germany,” in Dubber and Heller (n. 2) 252 ff., 258–259. It should be noted that German law—and, in fact, the law of many Western nations—allows for preventative detention of offenders who present an ongoing danger to society. See e.g. § 66 StGB. 25   18 USC § 3553(a)(1). 20 21

sentencing   969 a pecking order among these goals, apparently opting instead for a sort of buffet approach to sentencing theory.

iii.  Discretion and Decision-Makers Several common themes of sentencing resound across nations and continents, the first being the idea of discretion, understood as the power to choose between two or more courses of conduct. Discretion is a “residual concept,” as James Vorenberg suggested, “the room left for subjective judgment” after taking into consideration the applicable constraints, most notably, statutes and court decisions.26 Or, to use Ronald Dworkin’s famous simile, discretion is “like the hole of a doughnut,” which “does not exist except as an area left open by a surrounding belt of restriction.”27 When the issue is discretion in sentencing, the primary focus tends to be the authority of the courts, especially that exercised by trial judges. Other important sentencing bodies include: lay judges who determine punishment in mixed panels with professional judges (e.g. in Germany and Japan); lay jurors who deliberate with professional judges (e.g. the Cour d’assises in France), who provide advice or limit the potential sentence of professional judges (e.g. in Russia), or who themselves determine the exact punishment (e.g. capital juries in the United States); and parole boards that set release dates for inmates, and prison administrators who calculate reductions in sentence length for an inmate’s good behavior. The decisions of formal sentencing bodies can be cabined, checked, or influenced by the “discretionary” actions of other entities. Most obviously, legislatures enact sentencing provisions or entire statutory schemes, while appellate judges review individual sentences and provide direction for future cases. In addition, a number of jurisdictions have established specialized commissions to promulgate guidelines, principles, rules, and so on, for sentencers to follow in setting punishment. Although the foregoing entities are the focus of this chapter, various other individuals and groups can influence sentencing, if not effectively determine the punishment in a given case. In some common law and civil law nations, the process begins with a presentence investigative report that provides information about the criminal conduct at issue, the defendant’s personal background and criminal history, and the available options for punishment. The document may culminate in 26   James Vorenberg, “Narrowing the Discretion of Criminal Justice Officials,” (1976) Duke LJ 651 ff., 654. 27   Ronald Dworkin, Taking Rights Seriously (1977), 31. See also Meyer, “Discretion,” Chapter 40, in this volume.

970   erik luna sentencing calculations under a jurisdiction’s guidelines or a recommendation for a particular outcome. The report’s author—typically a probation officer in the United States—may exercise substantial discretion in the type and depth of the presentence investigation and the information ultimately included within the filed document. Though seldom described as “sentencers,” defendants, victims, and law enforcement officials may wield such power over case outcomes as to be dispositive decisionmakers. A criminal defendant does not sentence himself, of course, but the extent of his (provable) criminal behavior sets limits on possible punishments. Moreover, a defendant’s consent is necessary for case settlements such as plea bargains, which typically involve agreements or understandings as to the ensuing punishment. In turn, much crime is dependent on victims for detection and prosecution, where a failure to report a crime or provide evidence in court serves as a de facto acquittal and refusal to punish. Likewise, the opinions of crime victims often carry great weight with police and prosecutors, not only with regard to the decision to pursue a case but also as to the appropriate sentence upon conviction. Most jurisdictions provide victims the opportunity to present their views during sentencing hearings. In some legal systems and with regard to some crimes, victim consent may be required to bring a criminal case in court or, conversely, to drop it from the system. A few jurisdictions accord a victim legal standing as an interested party and may even allow the victim to bring a private prosecution against the accused. In fact, one emerging approach to sentencing known as “restorative justice” explicitly incorporates the victim, the defendant, and perhaps other stakeholders (e.g. family members and law enforcement representatives) in a group decisionmaking process to reach a mutually agreeable outcome.28 Several forms of restorative justice exist around the world, including victim–offender mediation, family group conferencing, and circle sentencing. All of these programs are premised on an admission or finding of guilt on the part of the offender, and they assume the voluntary, informed participation of the parties. Restorative justice emphasizes non-adversarial, informal procedures and provides the participants with a degree of process control over time, place, and format. Moreover, the processes employ a collaborative, consensus-based decision-making process to reach an appropriate outcome. Of note, however, restorative justice programs have tended to focus on relatively low-level crimes (or juvenile offenders), and the processes typically generate sanctions other than imprisonment (e.g. reparations and community service). A very different form of victim-oriented sentencing concerns quite serious crimes and punishments under Islamic law (shari’a). The holy book of Islam, the Koran (or   For a positive account and normative justification of restorative justice, see John Braithwaite, Crime, Shame and Reintegration (1989); and John Braithwaite and Philip Pettit, Not Just Deserts: A Republican Theory of Criminal Justice (1990). See also Erik Luna, “Punishment Theory, Holism, and the Procedural Conception of Restorative Justice,” (2003) Utah LR 205 ff. (articulating a process-based theory of restorative justice). 28

sentencing   971 Quran), distinguishes among several categories of offenses, including those that can be met with restitution to the victim or surviving family members. For instance, the punishment for intentional homicide under Islamic law is qisas, which generally requires the infliction of an injury upon the perpetrator equal to the injury to the victim. Instead, however, the victim’s family members may demand blood money (diya) from the perpetrator or may forgive him entirely. “Islamic law gives preference to the wronged individual’s wishes when administering Qisas,” one English-language text notes. When the crime is intentional homicide, “The Sharia is victim-centered because the victim has three options: pardon the offender, ask the offender for Diya, or ask the State to enforce the death sentence against the culprit.”29 Arguably, the most powerful actors in any given criminal justice system are police officers and prosecutors, whose discretionary decisions necessarily impact whether a putative offender will be punished and, if so, the type and severity of the ensuing punishment. For the police, much of this authority involves the refusal to act, that is, the failure to investigate a particular crime or the decision not to pass a case along to prosecutors. Though hardly uncontroversial, such power has long been recognized in common law countries.30 Moreover, some systems authorize law enforcement to issue quasi-penalties. Police in England may dispose of some cases through an official warning known as a “caution,” for instance, or by issuing a fixed monetary sanction for public disorder offenses. Although not a member of the common law tradition, the Netherlands also adopts the so-called “principle of opportunity” (or “expediency”) and openly acknowledges the discretionary power of the police to drop otherwise viable cases, sometimes on the condition that a suspect pay a fine. In theory, nations within the civil law (or continental law) tradition—and, more generally, those systems that abide by the “principle of legality”—should require police to pass along to prosecutors all cases where there is sufficient evidence to file criminal charges. As a matter of statutory exception or studious indifference, however, virtually all such systems accept that the police may refuse to pursue at least some types of cases that might otherwise be subject to criminal punishment.31 A similar dynamic applies to public prosecution services. In England, the now-classic statement on prosecutorial discretion was made in 1951 by Lord Hartley Shawcross, the British Attorney General: “It has never been the rule in this   Farrukh B. Hakeem, M. R. Haberfeld, and Arvind Verma, Policing Muslim Communities: Com­ parative International Context (2012), 15–16. See also Tellenbach, “Islamic Criminal Law,” Chapter 12 in this volume. 30   For a discussion of the common law and civil law traditions and the adversarial and inquisitorial styles of adjudication, see Langer, “The Long Shadow of the Adversarial and Inquisitorial Categories,” Chapter 39 in this volume. 31   See e.g. Jörg-Martin Jehle and Marianne Wade (eds.), Coping with Overloaded Criminal Justice Systems:  The Rise of Prosecutorial Power Across Europe (2006). See also John O.  Haley, “Japan,” in Dubber and Heller (n. 2) 393 ff., 406 (noting that, in the exercise of their discretion, Japanese police fail to report over one-third of all identified offenders). 29

972   erik luna country—I hope it never will be—that suspected criminal offences must automatically be the subject of prosecution.”32 The U.S. prosecutor exercises even greater discretionary power. In a system driven by charging and plea bargaining decisions, “the prosecutor, rather than a judge or jury, is the central adjudicator of facts[,]‌as well as replacing the judge as arbiter of most legal issues and of the appropriate sentence to be imposed,” said Gerard Lynch, a distinguished scholar and federal appellate court judge. Any defense mitigation “is argued not to the judge, but to the prosecutor, who decides what sentence the defendant should be given in exchange for his plea.”33 Interestingly, several recent studies suggest that prosecutors in civil law nations, which are ostensibly bound by the rule of mandatory prosecution pursuant to the principle of legality, nonetheless possess a wide range of options to cease criminal proceedings. Moreover, they exercise a remarkable degree of influence over criminal convictions and sentences in various proceedings that avoid full-fledged trials, with prosecutors virtually leading the judicial hand in signing those orders that require formal court approval.34 Regardless of legal tradition—common law, civil law, or other—prosecutorial adjudication and sentencing share a common denominator: caseload pressure. Around the world, prosecutors cannot clear their desks by bringing cases to trial. More generally, most systems lack the time and resources to try every potential criminal case, thus necessitating relief valves in the form of discretionary decision-making by police, prosecutors, and other criminal justice actors.35 How this is received within a given nation depends on societal views of state authority: whether officer discretion is perceived as necessary and beneficial or rather a violation of the rule of law and a source of arbitrariness, for instance, and whether prosecutors are considered members of the executive branch and partisans in the criminal process or instead judicial actors as a matter of formal assignment, training and education, and role conception.

iv.  Individualization and Disparity Concerns about discretion lead to another major theme in sentencing: the seemingly inevitable conflict between ensuring appropriately individualized sentences versus avoiding undue disparities in punishment. At the heart of this tension is the concept   Crown Prosecution Service, The Code for Crown Prosecutors (2010), 9 (quoting Shawcross).   Gerard E. Lynch, “Screening Versus Plea Bargaining: Exactly What Are We Trading Off?,” (2003) 55 Stanford LR 1399 ff., 1403–1404. 34   See e.g. Erik Luna and Marianne Wade (eds.), The Prosecutor in Transnational Perspective (2012); Stephen C. Thaman (ed.), World Plea Bargaining: Consensual Procedures and the Avoidance of the Full Criminal Trial (2010); Jehle and Wade (n. 31). 35   See e.g. Luna and Wade (n. 34); Jehle and Wade (n. 31). 32 33

sentencing   973 of equality embedded in modern liberal thought and typically deemed fundamental to a just society. Equality in the Aristotelian sense requires decision-makers to treat like cases alike and, just as importantly, to treat dissimilar cases differently.36 It would thus be a violation of equality for relevantly similar offenders to receive disparate sentences and for relevantly dissimilar offenders to receive analogous sentences. In practice, however, these mirroring conditions may generate very different governmental responses. “The like-cases-alike intuition gives rise to various attempts to reduce or eliminate sentencing disparities,” Michael Tonry has noted, while “The different-cases-differently intuition gives rise to calls for individualized [sentencing].”37 The appeal of individualized sentencing—embodied in the maxim of making the punishment fit the crime (and criminal)—has deep legal roots, especially in the common law tradition. Historically, sentencing has been seen as a quintessential judicial function entailing an eclectic decision-making process that brings to bear all suitable sources of information in considering the arguments of the parties and others. To reach a fitting punishment in a given case, the offender and his offense must be judged individually, a process that necessarily involves a context-sensitive evaluation of the defendant’s personal background and the specific conduct at issue, as well as a true-life assessment of the larger community which has shaped the individual and, in turn, is concretely affected by his behavior. Consistent with this understanding, the U.S. Supreme Court has acknowledged the “wisdom, even the necessity, of sentencing procedures that take into account individual circumstances,” recognizing the “judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.”38 Similar sentiments have been expressed elsewhere in the common law world. “[T]‌here are many conflicting and contradictory elements which bear upon sentencing an offender,” the High Court of Australia opined, and “the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all.”39 To be clear, a concern for individualized sentencing is not an Anglo-specific phenomenon but instead exists to some extent throughout the world. For instance, the Costa Rican Supreme Court of Justice has said that sentencing: is a time of special relevance for considering the characters of both the conduct being judged and the person involved. These two elements are very much favored by the immediacy of   cf. Aristotle, The Politics (transl. Carnes Lord, 1984), 97.   Michael Tonry, “Punishment Policies and Patterns in Western Countries,” in Michael Tonry and Richard S. Frase (eds.), Sentencing and Sanctions in Western Countries (2001), 3 ff., 20. 38   Koon v. U.S., 518 U.S. 81, 92, 113 (1996). 39   Markarian v. The Queen (2005) 228 CLR 357, 373. 36 37

974   erik luna the evidence and all of the occurrences in the trial, which makes it possible to more closely approach—although tempered by the circumstances—the accused and the reality in which the event occurred and that summarizes the individual need for a penalty. Therefore, it is . . . difficult to set the limits for the penalty and to have it match all these variables—it is not for nothing that setting the penalty is recognized as a difficult job. . . .40

The prevention of unjustifiable sentencing disparities has also become a key desideratum of criminal justice systems. Disparities in punishment may take a variety of forms.41 A given judge may punish inconsistently across cases, meting out different sentences for similarly situated offenders. Different judges within a given sub­national jurisdiction—a municipality, county, province, region, etc.—may hand down different sentences in relevantly similar cases, perhaps because they place different weights on certain factors (e.g. an offender’s criminal history). Moreover, judges residing in different subnational jurisdictions may issue different sentences, with a defendant in one jurisdiction receiving a harsher (or dissimilar) punishment from his equally criminal doppelgänger in a neighboring jurisdiction. Disparities in punishment are not always illegitimate. Inter-jurisdictional disparities may be perfectly compatible with the notion of “federalism” (as it is known in the United States and elsewhere), which calls for the devolution of some or all government authority on certain issues to smaller geopolitical units within a nation. In a pluralistic society, one might expect that citizens of different communities hold distinct views on crime and punishment. Local decision-makers are more likely to be attuned to such preferences, or so the argument goes, because these actors are closer to the affected community and because citizens have greater opportunities to be involved in the criminal justice system. Subnational jurisdictions may even become virtual laboratories of experimentation in punishment, allowing jurisdictions to adopt or eschew sentencing approaches based on the experiences of their neighbors.42 Intra-jurisdictional disparities are far harder to justify. Some variation might be expected due to the complexity involved in assessing and weighing various sentencing factors, but most jurists and scholars recognize that there is a point at which inconsistency becomes a symbol of unfairness and a form of unequal treatment under law. Although individualized sentencing remains its polestar, the High Court of Australia has also stated that punishment “ought to depend as little as possible upon the identity of the judge who happens to hear the case.”43 In the United States,  Carolina Muñoz, “Sentencing and Punishment in Costa Rica,” (2010) 22 Federal Sentencing Reporter 217 ff., 221 (quoting opinion). 41   See e.g. Cassia Spohn, “Sentencing: Disparity,” in Joshua Dressler (ed.), Encyclopedia of Crime & Justice, Vol. 4 (2nd ed., 2002), 1423 ff., 1423–1424. 42  See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) (“It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country”). 43   Wong v. The Queen (2001) 207 CLR 584, 591. 40

sentencing   975 the adage was that punishment could depend on what the judge had for breakfast. As for significant sentencing disparities among judges within the same jurisdiction, defendants may face a sort of “sentencing lottery” where punishment hinges upon the luck of the draw in case assignments.44 For many commentators, the most troubling disparities stem from the influence of illegitimate considerations such as race or ethnicity. When it comes to prejudice in sentencing, the most investigated topic of all is capital punishment in the United States. The gold standard was set by David Baldus and his colleagues in their study of the death penalty in the state of Georgia, in which they found that defendants charged with killing white victims were 4.3 times more likely to receive a death sentence than defendants charged with killing blacks.45 Most subsequent studies have confirmed a general, robust race-of-victim discrimination in U.S. capital punishment, with a few models finding bias based on the defendant’s race as well.46 Some works have also suggested a correlation between the death penalty and ethnicity, gender, age, and socioeconomic status. Certainly, the concerns about unjustifiable disparities extends to non-capital sentencing in the United States and, more generally, to punishment schemes around the world.47 For instance, America’s northern neighbor, Canada, has a history of disparities in the imprisonment of its indigenous (aboriginal) population. In 1996, the Canadian Parliament responded by amending the nation’s sentencing scheme to require consideration of non-custodial sanctions “with particular attention to the circumstances of aboriginal offenders.”48 But even nations with relatively homogenous populations may suffer from the appearance, if not reality, of unwarranted sentencing disparities. In South Korea, a survey found that nearly three-quarters of the public thinks that punishment is inconsistent and unfairly distributed. At least 44   cf. Paul H.  Robinson, Stephen P.  Garvey, and Kimberly Kessler Ferzan (eds.), Criminal Law Conversations (2009), 163–183 (pieces by Bernard Harcourt and commentators regarding randomization in punishment). Maybe the starkest (and most literal) example of randomized sentencing was provided by a New York state judge who flipped a coin to determine whether a defendant would go to jail for 20 days or instead 30 days. See E. R. Shipp, “Friess Is Barred From Ever Being New York Judge: Panel Acts on Ex. Jurist in Coin-Toss Decision,” The New York Times, Apr. 7, 1983, B3. 45   See David C. Baldus, George Woodworth, and Charles A. Pulaski, Jr., Equal Justice and the Death Penalty: A Legal and Empirical Analysis (1990). 46   See e.g. David C. Baldus and George Woodworth, “Race Discrimination in the Administration of the Death Penalty: An Overview of the Empirical Research with Special Emphasis on the Post-1990 Research,” (2003) 39 Crim. Law Bulletin 194 (2003) (reviewing studies). See also U.S. General Accounting Office, Death Penalty Sentencing: Research Indicates Pattern of Racial Disparities (1990). 47   See e.g. Robert D. Crutchfield, April Fernandez, and Jorge Martinez, “Racial and Ethnic Disparity and Criminal Justice: How Much Is Too Much?,” (2010) 100 Journal of Crim. Law & Criminology 903 (summarizing U.S. studies); Michael Tonry (ed.), “Comparative and Cross-National Perspectives on Ethnicity, Crime, and Immigration,” (1996) 21 Crime & Justice 1 ff. (cross-national analysis of racial and ethnic differences in, among other things, sentencing). 48   Canada Criminal Code, RSC, section 718.2(e). See e.g. Philip Stenning and Julian V.  Roberts, “Empty Promises: Parliament, the Supreme Court, and the Sentencing of Aboriginal Offenders,” (2001) 64 Saskatchewan LR 137.

976   erik luna part of this problem comes from the belief that defendants represented by former Korean judges and prosecutors receive special consideration in court.49

v. Punitiveness The tension between the “good” of individualized decision-making and the “bad” of unjustifiable disparities has animated punishment debates and reform efforts for decades. One of the prime difficulties of modern sentencing is that individualized decisions require discretion and discretion tends to produce disparities.50 The sentencing schemes discussed in the next section represent different emphases on individualization versus consistency, as well as attempts to temper the problems associated with discretion. But just as societies differ as to their tolerance for discretion, they may vary as to the relative importance of individualization and consistency in sentencing. When understood as ensuring “horizontal equity”—more or less, treating like cases alike—equality may be less significant in many Western nations. As Richard Frase has suggested, “a certain amount of sentencing disparity (especially between a country’s different regions) is tolerated,” with some nations placing “much greater emphasis on avoiding sentences that are too severe than on avoiding sentences that are too lenient or on achieving a higher degree of sentencing uniformity.”51 The consequences of disparity are directly related to a system’s punitiveness, conceived as a function of the types and amounts of punishment measured on some sort of rational continuum or hierarchy. We might stipulate that the death penalty is a more severe case outcome than life imprisonment, which is a harsher sentence than incarceration for a term of years or months, which is more punitive than non-custodial sanctions such as community service and fines. Sentencing dispar­ ities thus matter far more in systems where idiosyncratic judgments produce terms of imprisonment differing by years or even decades, for instance, than in systems where the eccentricities of decision-makers can only generate differentials of days or months.

49   See Hyungkwan Park, “The Basic Features of the First Korean Sentencing Guidelines,” (2010) 22 Federal Sentencing Reporter 262 ff., 263 (discussing survey and phenomenon of Jeon-kwan-ye-woo). 50   See Michael Tonry, Sentencing Matters (1995), 180. 51   Richard S.  Frase, “Comparative Perspectives on Sentencing Policy and Research,” in Michael Tonry and Richard S. Frase (eds.), Sentencing and Sanctions in Western Countries (2001), 259 ff., 273, 278.

sentencing   977 Comparative sentencing analysis raises all sorts of problems, however. When it comes to imprisonment, a high rate of custodial sentencing may not accurately reflect the punitiveness of a given system, since the average sentence length may be quite short or the procedural norm may be case dismissal and pretrial diversion in all but the most serious cases. There is also a question of “penal bite,” that is, the comparable severity of sentences.52 No one could claim with a straight face that being sentenced to Norway’s Halden Prison is comparable to incarceration at, say, the Louisiana State Penitentiary (a.k.a. Angola or the “Alcatraz of the South”).53 Putting these issues aside, the world’s prison populations have grown in recent times, with increases witnessed on every continent. Prison growth varies across regions, however, as do imprisonment rates, which are typically measured as the number of prisoners per 100,000 national inhabitants. In 2011, Scandinavia had the lowest imprisonment rates in Europe (e.g. 59 in Finland and 74 in Denmark), the former Soviet states tended to have the highest rates (e.g. 338 in Ukraine and 568 in Russia), and other European nations fell somewhere in between (e.g. 96 in France and 153 in England).54 The United States is the global incarceration leader with nearly 750 inmates for every 100,000 inhabitants and a total custodial population of around 2.3  million people, constituting almost a quarter of the world’s inmates. Some sophisticated analysis suggests that U.S. penal policies are the most punitive among Western nations. A statistical review of eight such nations found that “the high U.S. imprisonment rate results primarily from much greater lengths of prison sentence by every punitiveness measure we were able to use—years of imprisonment per recorded crime or conviction, or average sentence length given a commitment—than are imposed in other countries.”55 The U.S. imprisonment rate was also a function of the relatively high probability of imprisonment upon conviction. Comparisons of probable case outcomes further supports the exceptional nature of U.S. sentencing. European nations certainly differ among themselves as to the likely punishment in standard cases,56 but those differences pale in comparison to their collective divergence from U.S. sentences.   See Andrew von Hirsch, Censure and Sanctions (1993).   See e.g. William Lee Adams, “Norway Builds the World’s Most Humane Prison,” Time, May, 2010. See also van Zyl Smit, “Prison Law,” Chapter 43 in this volume. Although beyond the scope of the pres­ ent work, another interesting issue concerns inter-subjective comparisons of given sentences. See e.g. Adam J. Kolber, “The Subjective Experience of Punishment,” (2009) 109 Columbia LR 182 ff. 54   See International Centre for Prison Studies (ICPS), World Prison Population List (9th ed., 2012). See also Roy Walmsley, “Trends in World Prison Population,” in Stefan Harrendorf, Markku Heiskanen, and Steven Malby (eds.), International Statistics on Crime and Justice (2010), 153 ff. 55  Alfred Blumstein, Michael Tonry, and Asheley Van Ness, “Cross-National Measures of Punitiveness,” in Michael Tonry and David P.  Farrington (eds.), Crime and Punishment in Western Countries, 1980–1999 (2006), 347 ff., 348. 56   See e.g. Bruno Aubusson de Cavarley et  al., “Dealing with Various Offense Types in Different Criminal Justice Systems—Case Examples,” in Jehle and Wade (n. 31) 127 ff. 52 53

978   erik luna For instance, criminal law experts in six European nations were queried as to the expected sentence for a first-time offender convicted of selling relatively small amounts of marijuana (eight ounces) and possessing (but not brandishing or using) firearms. The likely punishment in each country was as follows: a sentence of two to four years’ imprisonment in England; a one-year sentence or probation in France; a five-year sentence or less in Germany; a fine of €300–350 in the Netherlands; a three-and-ahalf-year sentence or less in Poland; and a one-year sentence or less in Sweden.57 But in an actual U.S. case prosecuted in federal court, the foregoing fact-pattern generated a mandatory minimum sentence of 55 years’ imprisonment.58 Moreover, such a harsh sentence would be at least a theoretical possibility in a few other U.S. jurisdictions.59 The case also demonstrates concerns of “vertical equity,” that is, treating different cases differently with more serious crimes receiving harsher sentences. A 55-year term of imprisonment for drug sales and gun possession exceeds the federal sentence for, among others, an aircraft hijacker, a second-degree murderer, a kidnapper, and a child rapist. In fact, the sentence is more than twice the federal sentence for a kingpin of a major drug trafficking ring in which a death results, and more than four times the sentence for a marijuana dealer who shoots an innocent person during a drug transaction.60 Though remarkable, this is hardly the only instance of irrational sentencing in the United States. Indeed, Markus Dubber has argued that some U.S. laws are arational in the sense that the government’s punishment power is exercised “without reference to rational advance the legitimate goals of state punishment.”61 In recent times, scholars have attempted to explain U.S. punitiveness, oftentimes with reference to sentencing in other parts of the world. For instance, Michael Tonry has suggested that U.S. crime control policy has been shaped by a series of “moral panics,” intense outbursts of emotion that impede rational deliberation, lead individuals to overestimate a perceived threat and to demonize a particular group, and generate a public demand for swift and stern government action.62 Likewise,   See Erik Luna and Marianne Wade, “Prosecutors as Judges,” (2010) 67 Washington & Lee LR 1413 ff., 58 1496–1501.  See U.S. v. Angelos, 345 F. Supp. 2d 1227 (D. Utah 2004). 59   In Wyoming, e.g., the foregoing fact-pattern could lead to imprisonment for up to 51½ years. See e.g. Wyo. Stat. Ann. § 6-8-104(a) (carrying a concealed weapon), § 35-7-1031(a)(ii) (distribution of certain Sch. I substances, including marijuana), § 35-7-1038(a) (sentences for second and subsequent offenses); Baker v.  State, 260  P.3d 268 (Wyo. 2011)  (stating that Wyoming judges have discretion to run sentences concurrently or consecutively). This is a mere theoretical possibility rather than a likely outcome in Wyoming, however. In fact, the state employs an indeterminate sentencing scheme which provides, inter alia, “the court imposing the sentence shall not fix a definite term of imprisonment but shall establish a maximum and minimum term within the limits authorized for the statute violated.” Wyo. Stat. Ann. § 7-13-201. More generally, the fact-pattern would result in substantially lower punishment in many state systems. See e.g. Angelos, 345 F. Supp. 2d at 1242–1243 (noting that if the defendant had been prosecuted in Utah state court, he likely would have been paroled after serving about two to 60 three years in prison).  See Angelos, 345 F. Supp. 2d at 1244–1246, 1258–1259. 61   Markus D. Dubber, “Recidivist Statutes as Arational Punishment,” (1995) 43 Buffalo LR 689 ff., 689. 62   See Michael Tonry, Thinking About Crime: Sense and Sensibility in American Penal Culture (2004), ch. 4.  See also Anthony Bottoms, “The Philosophy and Politics of Punishment and Sentencing,” in 57

sentencing   979 Jonathan Simon has made the case that over time politicians have exploited citizen anxiety over crime and security, exemplified by the declaration of a “war” on crime (or drugs or, most recently, terrorism), such that the United States now governs through crime.63 On the other side of the Atlantic, criminal justice issues are less influenced by raw politics. Instead, legal experts and practitioners help to shape continental European policy, opting for progressive approaches (e.g. diversion) rather than following populist calls for punitiveness. Some scholars have offered interdisciplinary theories of cross-national divergences in sentencing. James Q. Whitman has argued that continental Europe’s historic aversion to degrading penalties for the upper classes and its maintenance of relatively mild punishments for high-status offenders offered a standard for sentencing reform in a new egalitarian age.64 In other words, modern class-neutral sanctioning regimes arose from a “leveling up” of lenient treatment previously reserved for the upper classes. Conversely, Professor Whitman points to a “leveling-down” trend in the United States, with harsh punishments meted out to all people regardless of status. Other prominent scholars have presented thick cultural, political, and economic accounts of punitiveness in the United States (and the United Kingdom) versus other Western countries.65 Regardless of espoused theories—all of which may contain some explanatory value, none of which proves mutually exclusive—it seems clear that U.S. sentencing is exceptional. The United States is not only unique among Western nations in terms of punitiveness, but as will be seen later, also with regard to legal developments and variations within the United States. In Winston Churchill’s words, “The Americans can always be trusted to do the right thing, once all other possibilities have been exhausted.”66 Christopher M.  V. Clarkson and Rod Morgan (eds.), The Politics of Sentencing Reform (1995), 17 ff. (describing concept of “populist punitivism”); Stanley Cohen, Folk Devils and Moral Panics:  The Creation of the Mods and Rockers (1972) (articulating a theory of moral panics).   See Jonathan Simon, Governing Through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear (2007). 64   See James Q.  Whitman, Harsh Justice:  Criminal Punishment and the Widening Divide Between America and Europe (2003). But cf. Richard S. Frase, “Historical and Comparative Perspectives on the Exceptional Severity of Sentencing in the United States,” (2004) 36 George Washington International LR 227 ff. (offering a partial critique of Whitman’s theory). 65   See e.g. David Garland, The Culture of Control: Crime and Social Order in Contemporary Society (2001); Michael Cavadino and James Dignan, Penal Systems: A Comparative Approach (2006); Nicola Lacey, The Prisoner’s Dilemma: Political Economy and Punishment in Contemporary Democracies (2008); Bernard E. Harcourt, The Illusions of Free Markets: Punishment and the Myth of Natural Order (2011). But cf. David Nelken, “Comparative Criminal Justice: Beyond Ethnocentricism and Relativism,” (2009) 6 European Journal of Criminology 291 ff. (critiquing Cavadino and Dignan’s theory); James Q. Whitman, “The Free Market and the Prison,” (2012) 125 Harvard LR 1212 ff. (critiquing Harcourt’s theory). 66  See Richard Langworth (ed.), Churchill by Himself:  The Definitive Collection of Quotations (2008), 124. 63

980   erik luna

vi. Determinacy Discussions of sentencing in general, and within the United States in particular, often revolve around the relative determinacy of a particular scheme.67 Traditionally, a system of indeterminate sentencing allowed incarceration for a range of time, such as a prison term of one to ten years, with the actual release date determined by a body other than the court (e.g. a parole board). The concept might also refer to a system where the trial court has broad and perhaps unguided discretion to set punishment in a given case. Sometimes, indeterminate sentencing is considered synonymous with indefinite sentencing, although the latter phrase may refer to a sentence with no maximum term (e.g. imprisonment for one year to life). In contrast to indeterminate approaches, determinate sentencing has usually meant a specific term of incarceration (e.g. ten years’ imprisonment) without eligibility for early release via parole, but perhaps with the possibility of time off for an inmate’s good behavior (i.e. “good time credit”). Determinate sentencing is often used interchangeably with the phrases “definite,” “fixed,” “flat,” or “mandatory” sentencing. The concept of a mandatory sentence typically refers to a punishment set by statute that is not subject to the discretion of the trial judge. A variation on this idea is a mandatory minimum sentence, which requires that an individual convicted of a given offense be incarcerated for at least the minimum term set by statute. For instance, defendants found guilty of a crime carrying a five-year mandatory minimum could not be sentenced to a term of imprisonment of less than five years, though trial judges may have the discretion to impose longer sentences. Still another approach, sentencing guidelines, attempts to provide a level of determinacy by channeling the exercise of discretion. Guidelines regimes may be enacted by the legislature, adopted by the judiciary, or worked out by a special commission, which may also be tasked with monitoring a regime’s implementation. The guidelines can take a “narrative” form, stating the general principles of sentencing, identifying those characteristics of the offense and offender that should shape sentencing decisions, and setting out policies on the appropriate circumstances for certain types of sentences (e.g. incarceration). Alternatively, a guidelines scheme may be “numerical” by assigning points or setting levels for particular crimes and crim­ inal histories, with which a judge can then determine the appropriate sentencing range by consulting a “grid” that lists all categories of current and past offending, perhaps with the possibility of adjustments for aggravating and mitigating factors. The ability to deviate from the guidelines depends on whether the scheme is “voluntary,” and thus broadly subject to the judge’s discretion; or instead “presumptive”   For definitions, see e.g. Dressler (n. 41) 1713–1714; “Sentencing,” Bryan A. Garner (ed.), Black’s Law Dictionary (9th ed., 2009). 67

sentencing   981 (or “mandatory”) in the sense that they allow departures from sentencing ranges in extraordinary circumstances. Each of these approaches can be seen in action in systems around the world. For instance, France employs a largely indeterminate sentencing scheme based on a tripartite division of crimes: felonies may carry a term of imprisonment of anywhere from five years to life; a misdemeanor is punishable by incarceration ranging from two months to five years or a fine of up to €1,000; and a petty offense allows for fines of €38 or more.68 The Canadian Parliament has enacted a number of mandatory minimum sentences, such as a minimum four-year term of imprisonment for armed robbery and a one-year mandatory minimum sentence for weapons trafficking.69 Punishment in England is pursuant to narrative guidelines that set out a series of steps for courts to determine the offense category, the starting point for sentencing, and any adjustments due to aggravating and mitigating circumstances.70 Most interesting of all is the United States, however, precisely because it has opted for different levels of determinacy over time and across its jurisdictions. For much of U.S. history, punishment by imprisonment was pursuant to indeterminate sentencing provisions. For instance, an eighteenth-century Connecticut law punished burglary and nonviolent robbery with imprisonment of up to ten years “at the Discretion of the Superior Court before whom the Conviction is had.”71 The First Congress also enacted crimes with indeterminate sentences, such as the offense of perjury in federal court made punishable by imprisonment “not exceeding three years.”72 Trial judges traditionally “considered a wide variety of factors in addition to evidence bearing on guilt in determining what sentence to impose on a convicted defendant,” the U.S. Supreme Court has noted.73 “Both before and since the American colonies became a nation, courts in this country . . . practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law.”74 The rehabilitative ideal provided the theoretical underpinnings of indeterminate sentencing in the twentieth century. Offenders would remain in custody until they were deemed “rehabilitated” by parole or correctional officials, who would periodic­ ally review a prisoner’s progress to assess whether he presented a continuing threat  See Code pénal, arts. 111-2, 131-1–131-5, 131-13 (France). The maximum punishment depends on the degree of the felony or misdemeanor. 69   See Canada Criminal Code, RSC, sections 99, 344(a). 70   See e.g. Julian V. Roberts, “Sentencing in England and Wales: Recent Developments and Emerging Issues,” (2013) 76 Law & Contemporary Problems 1 ff. 71   Gall v. U.S., 552 U.S. 38, 65 (2007) (Alito, J., dissenting) (quoting Acts and Laws of the State of Connecticut (1784), 18). 72   An Act for the Punishment of certain Crimes against the United States § 19, 1 Stat. 112, 116 (1790). 73   Wisconsin v. Mitchell, 508 U.S. 476, 485 (1993). 74   Williams v. New York, 337 U.S. 241, 246 (1949). 68

982   erik luna to the community. Before 1981, the state of Washington divided felonies into three broad categories: “class A,” which carried a sentence of 20 years to life; “class B,” which carried a sentence of zero to ten years; and “class C,” which carried a sentence of zero to five years.75 In conjunction with parole boards, trial courts had nearly absolute discretion to sentence felony convicts to any term falling within the statutory range, including no incarceration at all (i.e. probation). Prior to 1976, the same was true in California, where many crimes were punishable by anywhere from no custodial time to a life sentence, and the exact date of release depended on the level of reform demonstrated by the offender.76 Until 1987, the federal system also followed an indeterminate approach to sentencing, which was summarized by the Supreme Court as follows: Within “customarily wide” outer boundaries set by Congress, trial judges exercised “almost unfettered discretion” to select prison sentences for federal offenders. In the usual case, a judge also could reject prison time altogether, by imposing a “suspended” sentence. If the judge decided to impose a prison term, discretionary authority shifted to parole officials: Once the defendant had spent a third of his term behind bars, they could order his release. This system was premised on a faith in rehabilitation. Discretion allowed “the judge and the parole officer to [base] their respective sentencing and release decisions upon their own assessments of the offender’s amenability to rehabilitation.” A convict, the theory went, should generally remain in prison only until he was able to reenter society safely. His release therefore often coincided with “the successful completion of certain vocational, educational, and counseling programs within the prisons.” At that point, parole officials could “determin[e]‌that [the] prisoner had become rehabilitated and should be released from confinement.”77

The scheme thus amounted to a “three-way sharing” of sentencing authority: Congress set the maximum sentence for a given crime; the trial judge imposed a sentence within the statutory range (including the possibility of probation); and the executive branch’s parole officials determined the ultimate length of incarceration.78 As suggested earlier, rehabilitation came under fire during the 1970s. Some studies suggested that treatment programs were largely ineffective at behavior modification, leading to the dour conclusion that “nothing works.”79 Critics argued that treatment in practice meant little more than warehousing inmates, subject only to the arbitrary decisions of courts, prison authorities, and parole boards, thus generating unwarranted disparities among offenders. Although a national movement

 See Blakely v.  Washington, 542 U.S. 296, 315 (2004) (summarizing Washington’s pre-guidelines system). 76  See In re Rodriguez, 14 Cal.3d 639, 645–646 (1975) (describing California’s indeterminate sentenc77 ing law).   Tapia v. U.S., 131 S. Ct. 2382, 2386–2387 (2011) (internal citations omitted). 78   Mistretta v. U.S., 488 U.S. 361, 365–365 (1987). 79   The “nothing works” aphorism is most frequently associated with the work of Robert Martinson and his associates. See e.g. Robert Martinson, “What Works? Questions and Answers About Prison Reform,” (1974) 35 Public Interest 22 ff. 75

sentencing   983 sought to replace this “lawless”80 approach, a few U.S. jurisdictions have maintained indeterminate sentencing schemes to this day. In Utah, for instance, all first-degree felonies are punishable by incarceration for five years to life, and second-degree felonies carry a prison sentence of one to 15 years. The actual release date is set by the Utah Board of Pardons and Parole, which uses a set of guidelines to decide whether an inmate should be paroled or kept in prison. Typical considerations include the gravity of the inmate’s crime of conviction, any prior offenses, and his supervision history. The board will also take into consideration various aggravating and mitigating factors, such as whether a defendant presents a serious threat of future violence or whether he had substantial grounds to excuse his behavior.81 Many jurisdictions rejected this type of open-ended sentencing and parole, however, in favor of determinate sentencing regimes, such as the one adopted by California in 1976.82 If a defendant is convicted of a felony offense and sentenced to prison, a California court may impose one of three sentences—a triad of lower, middle, and upper terms—with, for instance, voluntary manslaughter subject to imprisonment for three, six, or 12  years. By law, the court is required to impose the middle term unless it finds aggravating or mitigating circumstances listed in California court rules. Although the state’s sentencing reform statute contains language suggestive of retribution, the court rules incorporate both consequentialist and non-consequentialist factors in choosing among the sentencing triad for a specific crime.83 Determinate sentencing in the United States also includes get-tough recidivist statutes, epitomized by the “three strikes” laws enacted in about half of the states and by the federal government. Under these laws, an offender must receive a life sentence or a multi-decade prison term if he has been convicted of a specified number of predicate felonies.84 Such a lengthy sentence for sometimes trivial offenses (e.g. petty theft with a prior larceny conviction) was difficult to reconcile with trad­itional conceptions of retribution and instead had to be justified, if at all, by its deterrent or incapacitative effects.85 Yet the political rhetoric surrounding the enactment of   See e.g. Marvin E. Frankel, Criminal Sentences: Law Without Order (1973).   See Utah Sentencing Commission, 2013 Adult Sentencing and Release Guidelines (July 2013); Utah Sentencing Commission, Penalty Distribution for Selected Crimes (July 2008). 82   See Cal. Penal Code § 1170. See also Cunningham v.  California, 549 U.S. 270, 276–279 (2007) (describing California’s sentencing scheme). 83   See Cal. Rules of Court, Rules 4.421 and 4.423. 84   See John Clark, James Austin, and D. Alan Henry, “ ‘Three Strikes and You’re Out’: A Review of State Legislation,” National Institute of Justice Research in Brief (Sept. 1997) (reviewing state schemes). 85   See e.g. Ewing v. California, 538 U.S. 11 (2003) (upholding application of California’s “three strikes” to defendant convicted of stealing three golf clubs, worth $399 apiece); Lockyer v. Andrade, 538 U.S. 63 (2003) (same for theft of $150 worth of videotapes). See generally Franklin E.  Zimring, Gordon Hawkins, and Sam Kamin, Punishment and Democracy:  Three Strikes and You’re Out in California (2001) (reviewing and critiquing California’s scheme). In 2012, California voters adopted a ballot initiative modifying the three strikes law to require a life sentence only when a defendant’s current conviction is for a violent or serious offense. 80 81

984   erik luna California’s recidivist statute had a distinctly retributivist tone—that it is only “just” that recidivists receive lengthy sentences, that they have “made a choice and now must pay the price,” and so on. Such policies are often justified by “the populist rationale that punishments may legitimately reflect (nebulous) popular demands for vindictive punishment.”86 Nonetheless, courts applying the laws often point out that they are not in a position to question the legislative wisdom of obligatory penalties for repeat offenders.87 Over the past few decades, provisions setting mandatory minimum penalties have been a particularly popular form of determinate sentencing.88 Mandatory minimums tend to follow a basic pattern: someone who commits a given crime, typically involving an objective trigger (e.g. the possession of a certain quantity of contraband), must be sentenced to at least the legislatively prescribed prison term. Some of the best examples involve drug-related crimes in the federal system. For instance, if a defendant possessed and intended to distribute 500 grams (1.1 pounds) of methamphetamine, he must be sentenced to at least ten years’ imprisonment.89 Other mandatory sentencing laws in the United States involve gun violations, sex offenses, and many other crimes that have inspired a purported need for extreme, determinate punishment. As with recidivist statutes, these laws are difficult to square with any decent conception of retribution and may be hard to justify using utilitarian rationales. Some scholars have suggested that three-strikes laws and mandatory minimum sentences are part of “ominous trends in our penal practices,”90 stemming, at least in part, from the perceived failures of utilitarian-based indeterminate sentencing, the subsequent rise of retribution and determinate sentencing schemes, and the political co-opting of punishment theories to rationalize seemingly irrational (or arational) punishment systems. The clarion call of determinacy, as well as the existence of mandatory minimums, profoundly affected the era’s signal reform: the federal government’s adoption of a sentencing guidelines regime. In the 1980s, Congress ended indeterminate sentencing, eliminated parole, and required that judges set a specific term to be served in full by the defendant.91 An administrative agency, the U.S. Sentencing Commission, was charged with promulgating guidelines that limited punishment ranges to 25% of the maximum sentence. The Commission’s work product, the

  Michael Tonry, “Rethinking Unthinkable Punishment Policies in America,” (1999) 46 UCLA LR 87 1751 ff., 1753.   See e.g. State v. Johnson, 709 So. 2d 672, 676 (La. 1998). 88   It should be noted, however, that mandatory minimums have existed throughout the nation’s history, stretching back to 1790 with Congress’s enactment of life sentences for murder and piracy, and a ten-year minimum prison term for causing a ship to run aground by using a false light. See 18 USC §§ 1111, 1651–1653, 1655, 1658. See also U.S. Sentencing Commission, Special Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System (1991), 6–11 (providing 89 history of federal mandatory minimums).   See 21 USC § 844(b)(1)(A)(viii). 90   Stephen P. Garvey, “Punishment as Atonement,” (1999) 46 UCLA LR 1801 ff., 1839. 91   See Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1987. 86

sentencing   985 U.S. Sentencing Guidelines, provided an elaborate system that might be roughly summarized as follows:  in setting punishment, a federal sentencing court must determine which of 43 categories applies to the crime at issue (“offense level”), and which of six categories applies to the defendant’s prior record (“criminal history”). The court then turns to a two-dimensional grid that fixes the range of punishment based on the defendant’s criminal history and offense level. The range may be adjusted by aggravating and mitigating circumstances (referred to as “departures” or “variances”). The guidelines system revolutionized the practice of punishment in federal courts, although not necessarily for the better.92 Among other things, the system aggregated defendants—sometimes based on quantitative factors such as the amount of illegal drugs possessed—but it then prevented judges from considering facts about the offender that seem highly relevant in fixing an appropriate punishment, such as the defendant’s age or physical and mental condition. The punishment process thus tended to dehumanize the offense and offender by mechanically inserting certain variables into a sentencing formula and then scoring punishment on a two-dimensional grid. Because the guidelines were “mandatory,” the defendant had to be sentenced within the relevant range, which at times was pegged to mandatory minimums. The resulting inflexibility shifted sentencing authority from trial courts to prosecutors through their exclusive power over charging and plea decisions, while also inspiring judges and practitioners to collude in a massive scheme to evade the guidelines’ rigid strictures. In 2005, the Supreme Court’s decision in U.S.  v.  Booker93 struck down one standard practice under the guidelines:  increasing punishment beyond the guidelines ranges based on facts proven by a preponderance of the evidence to the sentencing judge rather than to a jury by proof beyond a reasonable doubt. Of relevance here, the Booker Court resolved this infirmity by excising a pair of statutory provisions, a move that rendered the Guidelines advisory rather than mandatory for sentencing judges and established a standard of reasonableness for appellate review of punishment. Federal judges were now permitted to sentence defendants outside the tight ranges and to consider factors that were verboten prior to Booker, thereby alleviating at least some of the major criticisms of the guidelines scheme. All told, the United States has been both a microcosm of sentencing regimes and a laboratory of experimentation. The development of U.S. sentencing also offers lessons, or at least some strong warnings for the rest of the world. “Reformers in other   See e.g. Erik Luna, “Gridland: An Allegorical Critique of Federal Sentencing,” (2005) 96 Journal of Crim. Law & Criminology 25 ff.; Kate Stith and José A. Cabranes, Fear of Judging: Sentencing Guidelines in the Federal Courts (1998). But see Kevin Reitz, “Sentencing: Guidelines,” in Dressler (n. 41) 1429 ff. (discussing various sentencing guidelines systems in the United States, including those that lack some 93 of the core problems of the U.S. Sentencing Guidelines).   543 U.S. 220 (2005). 92

986   erik luna countries, beginning somewhat later but moved by similar concerns, are following more than a decade or more later in American footsteps to the same destination and are at various stages along the way,” Professor Tonry noted in 1997, meaning that “America’s today could be other countries’ tomorrow.”94 In 2001, Professor Frase likewise suggested that “America’s yesterday may be other countries’ today,” where “ ‘old ideas’ not only illustrate different approaches that could be (and once were) adopted in a given jurisdiction, they also have a way of coming back periodically, even when we do not recognize them as ‘reruns.’ ”95 Turning back the clock to the early 1800s, Alexis de Tocqueville expressed a certain admiration for U.S. penology as it then existed. “In no country is criminal justice administered with more mildness than in the United States,” he wrote in the opening chapters of Democracy in America.96 A few years before, Tocqueville and Gustave de Beaumont had issued a report on U.S. prisons, concluding their study with a warning to Europe in the form of “one of the wisest rules”—“guard against extremes, and do not let the zeal with which you advocate certain means obscure the object sought to be obtained by them.”97 Nearly two centuries later, however, continental Europe has become the home of mild penology, while in its zeal to punish, the United States appears to have lost sight of the goals and limits of a decent system of sentencing.

References Cavadino, Michael and Dignan, James, Penal Systems: A Comparative Approach (2006) Dubber, Markus D. and Heller, Kevin J. (eds.), Handbook of Comparative Criminal Law (2010) Fletcher, George P., The Grammar of Criminal Law: American, Comparative, and International (2007) Garland, David, The Culture of Control:  Crime and Social Order in Contemporary Society (2001) Lacey, Nicola, The Prisoner’s Dilemma: Political Economy and Punishment in Contemporary Democracies (2008) Luna, Erik and Wade, Marianne (eds.), The Prosecutor in Transnational Perspective (2012) Stith, Kate and Cabranes, José A., Fear of Judging: Sentencing Guidelines in the Federal Courts (1998) Tonry, Michael, Thinking About Crime:  Sense and Sensibility in American Penal Culture (2004)

  Michael Tonry, “Sentencing Reform,” in Michael Tonry and Kathleen Hatlestad (eds.), Sentencing 95 in Overcrowded Times: A Comparative Perspective (1997), 3 ff., 3.   Frase (n. 51) 285. 96   Alexis de Tocqueville, Democracy in America, Vol. 2 ([1840] transl. Henry Reeve, 1899), 654. 97   Gustave de Beaumont and Alexis de Tocqueville, On the Penitentiary System in the United States and its Application in France (transl. Francis Lieber, 1833), 301. 94

sentencing   987 Tonry, Michael and Farrington, David P. (eds.), Crime and Punishment in Western Countries, 1980–1999 (2006) Tonry, Michael and Frase, Richard S. (eds.), Sentencing and Sanctions in Western Countries (2001) Tonry, Michael and Hatlestad, Kathleen (eds.), Sentencing in Overcrowded Times: A Comparative Perspective (1997) Whitman, James Q., Harsh Justice: Criminal Punishment and the Widening Divide Between America and Europe (2003)

­c hapter 43

PRISON LAW dirk van zyl smit

i.  Introduction to Prison Law What is prison law? This question could be answered formally, by postulating that prison law is the law governing all aspects of imprisonment. However, such a defin­ ition is both too wide and too narrow for the purposes of this Handbook. It is too wide as imprisonment may refer to detention for a range of purposes that have nothing to do with the criminal law. It is too narrow as it pays insufficient attention to the purpose of the implementation of the prison sentences, which may shape prison law in crucial ways. How does prison law relate to criminal law generally? This Handbook has placed prison law in the section on criminal sanctions. Since “Sentencing” and “Types of Punishment” are considered in separate chapters of this section, prison law will be approached primarily from the perspective of the law governing the implementation of the sanction of imprisonment. Such an approach to prison law has its roots in German criminal law doctrine, where the law on the implementation of sentences of imprisonment (Strafvollzugsrecht) is regarded as part of the wider crim­ inal law. This approach is less developed, or largely nonexistent, in common law jurisdictions. In these jurisdictions the primary impetus for the development of prison law has come from the direct assertion that fundamental, constitutional, and human rights are also applicable to prisoners. Even in the United States, where the law of “corrections” is recognized as a separate field of study, little attention is paid to the principles that distinguish the imprisonment of sentenced prisoners from the law governing other incarcerated persons.

prison law   989 This chapter begins by sketching the movement, in diverse jurisdictions around the world, toward the recognition that a body of prison law, however defined, is required, not only to regulate the powers of the state in establishing and governing institutions for sentenced offenders, but also to define the rights of prisoners vis-àvis their gaolers. The initial focus is on this body of law and its interaction with modern human rights law, articulated in both international human rights standards and in national constitutions. From these administrative and human rights sources the legal position of prisoners can be deduced and a legal framework to protect it constructed. The focus of the chapter then shifts to contemporary theories of prison law. In developing the analysis of the legal position of prisoners, which is at the heart of prison law as it has emerged with increasing sophistication in various jurisdictions, the theoretical section pays attention both to rights that offenders lose as a result of their sentences of imprisonment and to limitations of rights which are an inevitable result of the administration of prisons. It argues that a clear positive purpose for the implementation of punishment can contribute greatly to the development of a body of prison law that can clearly define the rights and duties of prisoners and prison officers. Decisions in different systems about prison labor, the right of prisoners to found a family, and the review of whole life sentences are used to illustrate the outcomes that may be reached as a result of varying conceptions of the reach and substance of prison law. The final section of the chapter turns to the important challenges that prison law now faces. Particular attention is paid to prison overcrowding, the growing move toward privatization and the rise of international imprisonment as key challenges that prison law must address.

ii.  The Emergence of Prison Law Although prisons have existed for as long as people have been able to build secure structures in which others can be detained against their will, the emergence of prison law as a specialized body of law is a much more recent phenomenon. Its roots are in the development of the modern administrative state, which coincided with the movement from the mid-eighteenth century onwards, toward imprisonment becoming the primary punishment for more serious criminal offenses.1 Imprisonment as a routinely imposed sentence required well-ordered prisons. Enlightenment thinking   Norval Morris and David Rothman (eds.), The Oxford History of the Prison (1995).

1

990    dirk van zyl smit recognized the essential humanity of all offenders, who should not be subject to disproportionately severe sentences and who, if they became prisoners, should not be subject to random cruelty. The former position is most closely associated with the writings of Cesare Beccaria, whose book, Dei Delitti e Delle Pene, shaped the ideas of penal reformers of the Enlightenment.2 The latter is linked to John Howard, whose book, The State of the Prisons, first published in 1777, exposed the appalling conditions to which prisoners were subject throughout the modern United Kingdom and in much of Europe.3 However, Howard stopped well short of asserting that prisoners had certain rights. On the contrary, his concern was more with tighter prison discipline which required clear legal rules. Such rules would also ensure that prisoners had the basic necessities and were not exploited by corrupt practices.

1.  Prison law and public administration Initially, prison law was concerned with imperatives of public administration. The 1791 Gaols Act was passed in England in response to Howard’s call for orderly management. It required local justices to appoint gaolers and to make “Rules and Orders for receiving, separating classing, dieting, clothing, maintaining, reforming, governing, managing, treating and watching all offenders during their respective confinement.”4 Subsequent legislation dealt specifically with the central control of local gaols and gaolers. In England national prison legislation was introduced at an early stage: the Gaols Act of 1823 was followed by the Prison Acts of 1877 and 1898. The function of this legislation was to bring prisons under the control of the central government and give legally delineated powers to the prison authorities. It was not designed to spell out prisoners’ rights or even the duties that prison officials had to prisoners under their authority. In England and Wales, the Prison Act 1952, which, as amended, is still the governing prison legislation, largely follows the model of its predecessors in that it is relatively brief and places prisons under the primary authority of a government minister. It is elaborated by the Prison Rules, which the primary Act gives the Secretary of State the power to make in order to provide for the management of prisons, and for the classification, treatment, employment, discipline and control of prisoners.5 This British model of statutory prison law, focused on administrative process rather than rights, was highly influential throughout the British Empire and has   Cesare Beccaria, Dei Delitti e Delle Pene (1764).   John Howard, The State of the Prisons in England and Wales, with Preliminary Observations, and an Account of some Foreign Prisons and Hospitals (1792). 4   For details of this and subsequent English legislation, see Stephen Livingstone, Tim Owen, and Alison MacDonald, Prison Law (4th ed., 2008), 3–5. 5   Prison Act 1952, section 47(1). There are very similar Acts and Rules in other parts of the United Kingdom: i.e. in Scotland and Northern Ireland, which have separate, although broadly similar, prison systems. 2 3

prison law   991 continued to provide the framework for prison law in some former British col­ onies. Thus, in both modern Bangladesh and Pakistan the Prisons Act, 1894 and the Prisoners Act, 1900, which were introduced by the British, are still in force today. They follow the nineteenth-century English law almost exactly and provide the basis for authoritarian systems of prison law, down to the detailed Rules made in terms of them. These Rules too reflect Victorian mores and in more than a century have only been amended to a limited extent. Similarly, the 1952 English Prison Act lives on in Malawi, where the pre-independence 1956 Prisons Act is still in force. This Act follows the colonial model closely and does not correspond with the extensive prisoners’ rights now guaranteed by the Constitution of Malawi, which therefore are unlikely to be applied in practice. In the English context there was initially some limited recognition that even a narrow legal framework could give some purchase to litigators. There are some examples of aggrieved prisoners relying successfully on early English prison legislation. Thus in 1850 a court ruled that a plaintiff was being held in a harsher form of debtors’ prison than the statute allowed;6 and in 1886 it was again held that a civil prisoner should have been treated as a “first class misdemeanant” and not as a criminal prisoner detained under a stricter regime.7 However, such decisions were rare and in subsequent years courts declined to follow them. In 1943 in Arbon v.  Anderson Lord Goddard dismissed any action based on English prison law against conditions of imprisonment that would infringe prisoners’ rights. In a much-quoted, passage he held: it seems to me impossible to say that, if [a prisoner] can prove some departure from the prison rules which caused him inconvenience or detriment, he can maintain an action. It would be fatal to all discipline in prisons if governors and warders had to perform their duty always with the fear of an action before their eyes if they in any way deviated from the rules. The safeguards against abuse are appeals to the governor, to the visiting committee, and finally to the Secretary of State, and those, in my opinion, are the only remedies.8

As late as 1972 these views were enthusiastically endorsed by Lord Denning, who declared that “If the courts were to entertain actions by disgruntled prisoners, the governor’s life would be made intolerable. The discipline of the prison would be undermined.”9 In countries other than the United Kingdom the progress of reform of the law governing the administrative framework of prisons was even slower. In the United States the federal system ensured a patchwork of federal penitentiaries, state prisons, and local jails and lockups that have remained subject to many different bodies of law. Although the federal penitentiary system and some of the larger states have quite detailed primary prison legislation, generally speaking it does not purport 7   Cobbett v. Grey (1850) 4 Ex. 729.   Osborne v. Milman (1886) 17 QBD 514.   Arborn v. Anderson; De Laessoe v Anderson [1943] 1 K.B. 252, 255. 9   Becker v. Home Office [1972] 2 Q.B. 407, 418. 6 8

992    dirk van zyl smit to regulate systematically the rights of prisoners. Instead, the focus is on internal administrative regulation and the duties of the prison authorities. Local jails and lock ups are even less tightly regulated.10 Even in Germany, where all prison law until recently was a federal matter and thus more susceptible to centrally driven reform than in the United States, primary prison legislation was not introduced until 1976. In the nineteenth century and for most of the twentieth century such legislation was regarded as unnecessary because the state was thought to stand in a particular authority relationship (ein besonderes Gewaltsverhältnis) with prisoners.11 This administrative law doctrine held that the state had the authority to curtail the rights of groups subject to this particular authority relationship, which included, in addition to prisoners, school children and military personnel, without such authority being spelled out in primary legislation. The result was that into the 1970s German prisons continued to be run according to regulations that were agreed by the ministers of justice of the federal states. Such regulations had no formal statutory basis and were not a source of prisoners’ rights. All they achieved was a degree of administrative conformity across (West) Germany.12 The situation in other Western European countries was similar. In Belgium, for example, a mixture of royal decrees and regulations, modified only to ensure state control of the system, continued to provide the basis of prison law until as late as 2005.13

2.  Prison law and human rights If administrative control is the first step in the overall emergence of prison law as a recognizable field of law, the second step is undoubtedly the gradual recognition of human rights in national constitutions and international law, and the application of such rights as legally binding rules, applicable also in prisons. One of the earliest examples of a constitutional provision with the potential to impact on prisons is the Eighth Amendment of the U.S. Constitution, adopted in 1791. Its prohibition of “cruel and unusual punishment”14 was initially used only to outlaw certain forms of punishment and not applied to internal prison conditions. Initially, imprisonment was regarded a form of “civil death” and prisoners as “slaves of the state.”15 That was to change in the United States from the late 1960s onwards, as a concern   Giovanna Shay, “Ad Law Incarcerated,” (2010) 14(2) Berkeley Journal of Crim. Law 329.   Klaus Laubenthal, Strafvollzug (6th ed., 2011), 73. 12   The history of prison law in the German Democratic Republic (East Germany) was somewhat different to that in the Federal Republic of Germany. In the former, national legislation, heavily influenced by the dominant Marxist ideology of the time, was introduced in 1968: Laubenthal (n. 11) 47. 13   Sonja Snacken, “Penal Policy and Practice in Belgium,” (2007) 36 Crime & Justice 127. 14   The Eighth Amendment followed the wording of the English Bill of Rights of a century earlier. 15   Words used in Ruffin v. Commonwealth, 62 Va. 790 (1871). For a discussion of the evolution away from them in the subsequent century, see James B. Jacobs, “Macro-Sociology and Imprisonment,” in James B. Jacobs (ed.), New Perspectives on Prisons and Imprisonment (1977), 17–32. 10 11

prison law   993 for prisoners’ rights became an issue in domestic constitutional law. Before that happened, and indeed while it was happening, however, there was further development of human rights law at an international level that potentially could be made applicable to prisons.

a)  International law The initial impetus for the development of international human rights law came in the aftermath of World War II when a determined effort was made to create a new world order in which the human rights of individuals were recognized and given legal force in international law.16 The content of these rights and how they could be enforced was (and is) a matter of dispute. Initially, the focus was largely on civil and political human rights, such as the right to life, liberty and the integrity of the person, the freedoms of expression and religion, and legal due process. Subsequently however, attention was increasingly paid also to economic, social, and cultural rights and their international recognition.17 Human rights theorists now accept that the distinctions between different categories of human rights are somewhat artificial, as civil and political rights cannot be exercised effectively without at least a basic minimum of socioeconomic provision.18 Both civil and political rights and socioeconomic rights have potential application in the prison context. Civil and political rights, in particular, were soon reflected in a range of inter­ national instruments with clear implications for imprisonment. In 1948 the Universal Declaration of Human Rights recognized human dignity and a range of other rights, including in Art. 5 the prohibition of torture and cruel, inhuman, or degrading treatment or punishment. This was echoed in similar prohibitions in regional human rights conventions, which also included both treatment and punishment: in 1950, the European Convention on Human Rights (ECHR) (Art. 3), in 1969, the American Convention on Human Rights (Art. 5) and, in 1981, the African Charter on Human and Peoples’ Rights (Art. 3). The latter two regional conventions also recognized important economic, social, and cultural rights, but did not relate them directly to questions of the treatment of prisoners. At the international level, both the prohibition of torture and cruel, inhuman, and degrading treatment or punishment, and the recognition of the human dignity of prisoners were given additional significance as concepts underpinning the regulation of prison conditions by the International Covenant on Civil and Political 16   James Whitman notes that Enlightenment concerns with human dignity had an ameliorating impact on punishment in Europe even before they were enshrined in (human rights) law:  James Q.  Whitman, Harsh Justice:  Criminal Punishment and the Widening Divide between America and Europe (2003). 17   Manfred Nowak, Introduction to the International Human Rights Regime (2003). 18  Theo van Boven, “Categories of Rights,” in Daniel Moeckli, Sangeeta Shah, and Sandesh Sivakumaran (eds.), International Human Rights Law (2010), 173–188.

994    dirk van zyl smit Rights (ICCPR), adopted in 1966. For present purposes the ICCPR is of special interest: not only does it provide that “no one should be subjected to torture or to cruel, inhuman or degrading treatment or punishment” (Art. 7),19 but it also contains an important further positive provision that could be interpreted as setting implicit requirements in respect of prison conditions, namely, that “all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person” (Art. 10(1)).20 In addition, Art. 10(3) of the ICCPR goes further than any other binding international instrument in declaring that “social rehabilitation” should be provided for the purpose of treatment in institutions for sentenced prisoners. The crucial question is how these somewhat abstract human rights are converted into binding national legal rules that apply to prisons. It can be answered in different ways. An international lawyer may stress that these instruments are binding on the states that have ratified them, but that their impact is likely to depend on whether they are self-executing or whether further national legislation is required to ensure their full incorporation. From the perspective of someone interested in prison law, the first question is likely to be how these rights are applied in developing legal standards that can be used in shaping prison regimes. Sometimes this is done by the international or regional tribunals responsible for enforcing a binding human rights convention. There are, for example, instances not only of the ICCPR, but also of the European Convention, the African Charter, and the American Convention being used to outlaw various forms of inhuman and degrading treatment in prison.21 For other prison issues more detailed guidance is required. At the international level much of this detail is contained in more specific rules. The earliest and best known of these is the 1955 United Nations Standard Minimum Rules for the Treatment of Prisoners (UNSMR). The UNSMR set out “Rules of General Application” that apply to all prisoners and deal with the most basic requirements such as accommodation, food, exercise, medical services, and discipline, that are the substance of prison law in all jurisdictions. The UNSMR then go on to deal separately with “special categories,” including “prisoners under sentence.” In this latter section “guiding principles” are spelled out. For example Rule 57 provides: Imprisonment and other measures which result in cutting off an offender from the outside world are afflictive by the very fact of taking from the person the right of self-determination   There was only a single reservation to this Art.:  “The United States considers itself bound by article 7 to the extent that ‘cruel, inhuman or degrading treatment or punishment’ means the cruel and unusual treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.” 20   This positive focus on the human dignity of all persons deprived of their liberty is also found in identical terms in Art. 5 of the American Convention on Human Rights. 21   Nigel Rodley and Malcolm Pollard, The Treatment of Prisoners under International Law (3rd ed., 2009), ch. 9; Dirk van Zyl Smit, “Regulation of Prison Conditions,” (2010) Crime & Justice 503, 510–529. 19

prison law   995 by depriving him of his liberty. Therefore the prison system shall not, except as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in such a situation.

The impact of the UNSMR on prison law depends in part on their legal status. The UNSMR is clearly not a binding treaty. Nevertheless, individual Rules have been used to interpret an existing treaty. In this regard it is significant that the Human Rights Committee, the body responsible for interpreting the ICCPR, has relied on the UNSMR in a number of instances. It has done so in its evaluation of national reports on compliance with the ICCPR, in its general comments on Art. 10 of the Covenant, and in its response to individual petitions by prisoners who claim that their human dignity is being infringed or that they are subject to cruel, inhuman, or degrading treatment or punishment. The result is that the UNSMR has grown in status to the point where it is recognized that “some of their specific rules may reflect legal obligations.”22 For example, the prohibition on placing a prisoner in a dark cell (Rule 31 of the UNSMR) is a form of treatment that is specifically forbidden and therefore regarded as a form of treatment outlawed by Art. 7 of the ICCPR. A similar process is to be observed in the case of the European Prison Rules (EPR) adopted by the Council of Europe. Although the most recent (2006) version of the EPR is written in more peremptory terms than either its European predecessors or the UNSMR, declaring as its first principle in Rule 1 that “All persons deprived of their liberty shall be treated with respect for their human rights,” it is also not a binding treaty. In practice, the legal authority of the 2006 EPR has been reinforced even more strongly than that of the UNSMR. The European Court of Human Rights (ECtHR) has referred to it on numerous occasions,23 both on issues of principle and in order to give very specific instructions when interpreting the ECHR which is of course binding on all European states (except Belarus which is not a party to the ECHR). The decision of the ECtHR in the case of Gülmez v. Turkey24 is an example of how the EPR can influence the evolution of national prison law. The case turned on whether the disciplinary process in Turkish prisons met the due process requirements of Art. 6 of the ECHR. The ECtHR ruled that it did not. It then went on to instruct the Turkish government to reform its prison law and to do so in light of the specific requirements for prison disciplinary procedure set out in the EPR. For practical purposes, the EPR was treated as binding and the Turkish government was ordered to comply with it. A regional instrument such as the EPR can also influence national prison law, other than through the intervention of a court. Thus a survey conducted by the   Rodley and Pollard (n. 21) 383.   A survey undertaken by the author reveals that the EPR were cited with approval by the ECtHR in 110 of its judgments between 2008 and August 2012. 24   Gülmez v. Turkey, App. no. 16330/02, Judgment of 20 May 2008. 22 23

996    dirk van zyl smit Council of Europe in 2011 revealed that 24 European states had reviewed their prison legislation in light of the 2006 EPR.25 One further strand of the international human rights framework applicable to prisons needs special mention. International and regional conventions that are designed to combat torture have a growing impact on prison policy and prison law in many parts of the world. In Europe the Committee for the Prevention of Torture (CPT) has taken the lead. The CPT operates in terms of the 1987 European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. The mandate to the CPT is to examine “by means of visits, the treatment of persons deprived of their liberty with a view to strengthening, if necessary, the protection of such persons from torture and from inhuman or degrading treatment or punishment”26 and to report on its findings. From the beginning, the CPT interpreted this simple brief widely. It did not regard itself as bound by the ECtHR’s interpretations of the words “torture” and “inhuman or degrading treatment or punishment,” which are contained in identical form in the ECHR. Instead, it developed its own understanding of the implications of these terms. Thus, it made extensive recommendations in its reports on individual countries about what prison conditions should be like to ensure that they did not allow inhuman or degrading treatment. The CPT has consolidated the most important of these recommendations into standards which countries are expected to adopt. As all European states (with the exception again of Belarus) have ratified the Convention in terms of which the CPT operates and are therefore bound to attach weight to its recommendations, and as ECtHR often refers to the CPT recommendations and standards with approval in its judgments, they have considerable impact on national prison law. More recently, a similar international body to the European CPT has been created in the United Nations by the Optional Protocol to the Convention against Torture (OPCAT).27 In order to prevent torture and other cruel, inhuman, or degrading treatment or punishment, OPCAT also sets up a system of regular visits. What is unique about OPCAT is that it facilitates visits to prisons and other places of detention not only by creating a new visiting body, the Subcommittee for the Prevention of Torture (SPT) but also by requiring state parties themselves to enforce the Convention against Torture through the creation of what it calls National Preventive Mechanisms (NPMs). While the SPT is clearly modeled on the CPT, the NPM is a new concept. The idea is that states should develop a new independent inspection body or bodies, or designate their existing inspecting bodies, if they are sufficiently 25  Council of Europe, Report presented to the 16th Conference of Directors of Prison Administration: Summary of the replies given to the questionnaire regarding the implementation of the most recent Council of Europe standards related to the treatment of offenders while in custody as well as 26 in the community (2011).   Art. 1. 27   Elina Steinerte, Malcolm David Evans, and Antenor Hallo De Wolf, The Optional Protocol to the UN Convention Against Torture (2011).

prison law   997 independent, as NPMs. In this way states can contribute directly to meeting the objectives of the Convention against Torture. At the conceptual level, the structure put forward by OPCAT, with its flexible combination of an international inspectorate (the SPT) combined with NPMs, has the potential both to build on existing national institutions and to facilitate the creation of new institutions, particularly in developing countries where they may not have existed previously. Initially, ratifications of OPCAT were somewhat tardy and it took a while for OPCAT to come into effect. However, a major international campaign to encourage further states to ratify it and to assist states to set up NPMs is bearing fruit. By July 2013, 69 states had ratified OPCAT, 18 further states had signed OPCAT but not yet ratified it, and 48 states had designated their NPMs.28 These numbers are likely to increase, with the result that prison inspection mech­ anisms shaped into NPMs that meet the requirements of OPCAT will become a permanent feature of the prison law structure in many counties. On the other hand, key states such as the United States and China show no signs of ratifying OPCAT in the foreseeable future.

b)  National law It would be a mistake to see the growing recognition of human rights as a foundational aspect of prison law as primarily a product of formally articulated international human rights law. Initially at least, in many countries internal political developments and national constitutional principles were a much stronger force for the recognition of the human rights of prisoners. • In Germany the recognition of the fundamental rights of prisoners happened in the aftermath of the student uprisings and social unrest of the late 1960s. In 1972 the constitutionality of the existing prison regulations was challenged in the Federal Constitutional Court. In a sweeping judgment the Court affirmed that the rights of sentenced prisoners could be limited only by an Act of Parliament and not by an administrative law doctrine that was already being discredited by scholars.29 In the Court’s view the doctrine of the particular authority relationship had created unbearable uncertainty with respect to the constitutional rights of prisoners. It would have to be replaced by primary legislation. Moreover, the Court warned that even statutory limitations of the rights of prisoners would be acceptable only insofar as they served an essential purpose that was compatible with the values of the Basic Law and the good of the community. The prisoners’ rights to which the Court referred were all derived from the catalog of rights in the Basic Law, which has as its governing principle the recognition of human dignity. 28   The international NGO, the Association for the Prevention of Torture, which has taken a lead in the propagation of OPCAT, has a database on its implementation, available at: .   BVerfG, 14.03.1972 - 2 BvR 41/7.

998    dirk van zyl smit • In 1973 the Federal Constitutional Court went further and specified a positive purpose for imprisonment, when it ruled that prisoners had the right to be given an opportunity to resocialize themselves. Significantly, this view also rested squarely on human rights principles contained in the German Basic Law. As the Court explained in the Lebach case: From the point of view of the offender, this interest in resocialization develops out of his constitutional rights in terms of Article 2(1) in conjunction with Article 1 of the Basic Law [i.e. the right to develop one’s personality freely in conjunction with the protection of human dignity]. Viewed from the perspective of the community, the constitutional principle of the Sozialstaat requires public care and assistance for those groups in the community who, because of personal weakness or fault, incapacity or social disadvantage were retarded in their social development: prisoners and ex-prisoners also belong to this group.30

• This pronouncement reflects the development of human rights arguments about how prisoners should be treated that go beyond the right not to be subject to unacceptable punishment to the recognition that they have a particular right to “public care and assistance,” a typical social right. The latter was derived in part from the constitutional status of the Federal Republic of Germany as not only a Rechtsstaat (a state governed by the rule of law) but also a Sozialstaat (loosely, a social welfare state). Significantly, these rights were not related, at that stage, by the Federal Constitutional Court to any other international or regional catalog of prisoners’ rights. In 1976 they did, however, form the basis for the first comprehensive German law on the execution of prison sentences.31 • In the United States too, the emergence of a discrete body of law governing prisoners’ constitutional rights happened independently of international human rights developments, although it coincided with or even preceded some of them. In the United States international prison standards played almost no role. Instead, the rise of prisoners’ rights litigation was linked to the wider civil rights movement of the 1960s and the legal space provided by the Civil Rights Act to challenge state laws, including prison legislation, in the federal legal system. As the U.S. Supreme Court famously ruled in 1974: “There is no iron curtain drawn between the Constitution and the prisons of this country.”32 The result was an upwelling of litigation aimed at ensuring that the constitutional rights of prisoners, both sentenced and unsentenced, were recognized. Understandably the rights claims were colored by the specific provisions of the U.S. Constitution, including but not   Lebach judgment: BVerfG, 05.06.1973 - 1 BvR 536/72 (author’s own translation).   The 1976 Strafvollzugsgesetz (StVollzG, German Prison Law). In 2006 the Grundgesetz (Basic Law of the Federal Republic of Germany) was amended and primary prison legislation became the responsibility of the individual Länder (federal states). So far, 11 out of the 16 Länder have introduced new laws of their own. These laws build upon but do not depart greatly from the 1976 Act. This is not surprising, for the Länder are bound by the principles laid down by the Federal Constitutional Court. 32   Wolff v. McDonnell, 418 U.S. 539, 555–556. 30 31

prison law   999 limited to the prohibition on cruel and unusual punishment. Thus, for example, prisoners claimed rights to freedom of speech, association, and religion based on the First Amendment to the U.S. Constitution.33 Although these claims were not always successful, collectively they succeeded sufficiently often to contribute to a body of legal principle that has formed an integral part of U.S. prison law. This led to many U.S. prisons, and indeed whole prison systems, being bound by court orders that specify in considerable detail how they should operate.34 • In the U.S. context it is important to note that the constitutional prohibition of “cruel and unusual punishment” does not include a reference to prohibited forms of treatment, as most more modern national constitutions and international human rights instruments do. The result has been that only sentenced prisoners have been able to rely directly on this prohibition, while unsentenced American prisoners have had to rely on other constitutional provisions (usually the due process provisions, that is, the Fifth and Fourteenth Amendments, and the presumption of innocence they guarantee) to base their claims to being treated in a way that recognizes their fundamental rights. In practice, this has made relatively little difference, as the U.S. courts have interpreted the prohibition against cruel and unusual punishment narrowly, insisting that prisoners have to demonstrate both objectively, that their treatment has been cruel, and subjectively, that the prison authorities were deliberately indifferent to how they were treated, before their treatment can be regarded as being a constitutionally prohibited form of punishment. Moreover, the courts have continued to show great deference to the prison authorities’ judgment of what rights of prisoners need to be curtailed.35 • In other countries the emergence of a body of prison law was a product of the wider constitutionalization of their human rights standards. In Canada, for example, the enactment of a justiciable bill of rights in the form of the Canadian Charter of Rights and Freedoms was followed by the adoption of comprehensive national prison legislation.36 Similarly, in South Africa the post-apartheid constitution, which guarantees a wide range of rights, including some specific rights for prisoners, was followed by prison legislation that built on the newly guaranteed rights.37 • Even the “unwritten” constitutions of common law jurisdictions may provide a basis for the recognition of prisoners’ rights. Thus, for example, in 1982 the House of Lords, then the court of final instance in England and Wales, held unanimously   Lynn Branham, The Law and Policy of Sentencing and Corrections (8th ed., 2010).   Malcolm Feeley and Edward Rubin, Judicial Policy Making and the Modern State: How the Courts Reformed America’s Prisons (1998). 35   Sharon Dolovich, “Cruelty, Prison Conditions and the Eighth Amendment,” (2009) 84 New York University LR 881. 36   Alan Manson, “Canada,” in Dirk van Zyl Smit and Frieder Dünkel (eds.), Imprisonment Today and Tomorrow: International Perspectives on Prisoners’ Rights and Prison Conditions (2nd ed., 2001), 37 124–150.   Dirk van Zyl Smit, “South Africa,” in Van Zyl Smit and Dünkel (n. 36) 589–608. 33

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1000    dirk van zyl smit “that under English law, a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication.”38 As a point of departure this is not significantly different from the position adopted in countries that proceed from constitutional principles explicitly articulated in national bills of rights or international or regional human rights instruments.

c)  Interactions and developments It should not be thought that the growth of the human rights element in prison law is unilinear, or that the mix between national and international influences has remained constant. Particularly in the United States, which has remained largely impervious to the increasingly sophisticated body of international human rights law dealing with prisoners’ rights, conscious attempts have been made to restrict the development of court-made prison law. The 1996 Prison Litigation Reform Act (PLRA) sought to make it harder for prisoners to approach federal courts to enforce their constitutional rights and also sought to limit the relief that could be ordered by compelling the courts to give only narrow relief that extends no further than necessary to correct the violation of the federal right, and is the least intrusive means ne­cessary to correct the violation. While the 1996 Act did have some effect on prison litigation in the United States, it has not suppressed such ligation entirely.39 In Europe the tendency of the international influences has been the opposite to that in the United States. After the fall of the Soviet Union, countries that wished to join European institutions, such as the Council of Europe and the European Union, were required not only to abolish the death penalty but also to reform their prison systems.40 The result was a crop of new laws governing prisons that sought broadly to reflect the standards developed by these bodies in countries such as Poland, Lithuania, and Russia. Existing Western European systems too have turned increasingly to outside standards for guidance. Significantly, in 2006 the German Federal Constitutional Court, which initially did not deign to refer to European or international sources in prison law matters, warned the legislature that, when it was considering new legislation on prisons, it should take into account “international standards with human rights implications, such as the guidelines or recommendations adopted by the organs of the United Nations or the Council of Europe.”41 It explained, that, even if, strictly speaking, such standards were not binding international law, failure to do so, could, “be an indication that insufficient attention has been paid to the constitutional requirements of taking into account current knowledge and giving appropriate   Raymond v. Honey [1983] 1 A.C. 1 (H.L.), 10H.   Sharon Dolovich, “Forms of Deference in Prison Law,” (2012) 24 Federal Sentencing Reporter 245. 40   Dirk Van Zyl Smit and Sonja Snacken, Principles of European Prison Law and Policy: Penology and 41 Human Rights (2009), 25–26.   BVerfG, 31.5.2006–2 BvR 1673/04. 38

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prison law   1001 weight to the interests of the inmates.”42 Recently the Federal Constitutional Court again indicated that, when deciding on whether conditions of imprisonment for awaiting trial prisoners imposed disproportionally heavy restrictions on them by requiring them to remain in their cells for 23 hours a day, courts should consider international human rights standards.43 In this regard it referred specifically to the EPR, the Council of Europe Recommendation on Remand Detention, and the standards developed by the CPT as instruments that should have been considered. In the United Kingdom too, European law has shaped prison law in ways that have complemented its development through the common law. Much of the European influence has come about through decisions of the ECtHR, which has held various British prison practices to infringe the ECHR. Thus, for example, access to lawyers was guaranteed in the early case of Golder v. U.K.,44 while in Silver and others v. U.K.45 prisoners’ rights to correspond, not only with their lawyers but also with their family and friends, was expanded. Following these decisions, detailed amendments were made to the Prison Rules that govern prison practice. These cases were decided before 1998 when the ECHR was incorporated into U.K. domestic law.46 Since then U.K. courts have made increasing use not only of ECtHR jurisprudence, but also of various European instruments in developing national prison law. A good illustration of how these various sources of prison law can be combined is to be found in the 2004 Scottish case of Napier v. The Scottish Ministers.47 In Scotland it had long been the custom for prisoners to be held in cells without access to lavatories. At night they had to use chamber pots, which had to be “slopped out” in the mornings. In 1994 this practice had been heavily criticized by the CPT, which was told in mitigation by the Scottish Prison Service that integral sanitation would shortly be introduced in all cells. This had not been done by 2001, as the Scottish Executive had chosen to spend money earmarked for prisons elsewhere. In that year Napier was admitted to prison while awaiting trial. As a result of the unsanitary conditions in the prison he suffered from severe eczema and sued for damages based on the infringement of his right not to be subject to inhuman or degrading treatment under the ECHR, which was now applic­ able directly in Scotland. The Scots court found in Napier’s favor. In its judgment the court referred to the report of the CPT and drew a negative conclusion from the failure of the Scottish Executive to implement the changes it had admitted were necessary. It also noted that the conditions did not comply with recommendations with respect to sanitary facilities of both the UNSMR and the EPR. Finally, the Scots court gave considerable weight to the many recent judgments of the ECtHR that   At § 5c (author’s own translation).    43  BVerfG, 17.11.2012–2 BvR 736/11.   Golder v. U.K., App no. 4451/70, Judgment of 21 February 1975 (1979–80) 1 EHRR 524. 45   Silver and others v. U.K., App. nos. 5947/72, 6205/73, 7052/75, 7061/75, 7107/75, 7113/75 and 7136/75, 46 Judgment of 25 March 1983 (1983) 5 EHRR 347.   By means of the Human Rights Act 1998. 47   Napier v. Scottish Ministers 2004 SLT 555. 42

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1002    dirk van zyl smit had interpreted more strictly the duty of states to ensure that prison conditions are not inhuman or degrading. The outcome was not only that Napier won his case and that urgent steps were taken to ensure that the practice of “slopping out” was discontinued throughout Scotland, but also that the legal definition of what constitutes inhuman and degrading treatment was broadened significantly.

iii.  Theorizing Prison Law Thus far, this chapter has sketched how prison law has emerged, somewhat chaotic­ ally, in a number of different jurisdictions. What the different bodies of prison law have in common is that, to a greater or lesser extent, they function both to establish legal order in the administration of prisons and to protect prisoners. Is it possible to develop some general insights into what prison law ideally should do in order to fulfill its twin roles? A number of legal theorists have addressed this question. Among them the Dutch scholar, Constantijn Kelk, is prominent.48 Kelk argues that key to prison law is the recognition that prisoners are Rechtsburgers (legal citizens) and a focus on constructing what he calls a legal position for prisoners. This is imperative, not only because prisoners have human rights, but also because modern sociology of prisons makes it clear that prisons, as “total institutions,”49 tend to strip prisoners of basic humanity. In Kelk’s view appropriate prison law can help to combat what the famous prison sociologist, Gresham Sykes, called the “pains of imprisonment.”50 For Kelk the legal position of prisoners is constituted by elements that are external to the prison and those that are internal to it. External elements are the rules relating to admission of persons to prison and their release from the prison, which potentially may be early and conditional. Internal elements are the substantive rights that prisoners have, the procedural rights to the enforcement of these substantive rights, and the availability of information that enables them to enforce these rights. The external element is largely governed by substantive criminal law (which includes sentencing law) and the law of criminal procedure. The focus should therefore be primarily on the 48   Constantijn Kelk, Recht voor Geïnstitutionaliseerden (1983); Nederlands detentierecht (4th ed., 2000). 49   Erving Goffman, “On the Characteristics of Total Institutions,” in Donald Cressey (ed.), The Prison: Studies in Institutional Organization and Change (1961), 15–64. 50   Gresham Sykes, The Society of Captives (1958). For a recent reinterpretation of Sykes, see Ben Crewe, “Depth Weight and Tightness: Revisiting the Pains of Imprisonment,” (2011) 13 Punishment & Society 509.

prison law   1003 internal element. However, he recognizes that in theory and in reality there is a measure of overlap between the two elements. For example, how prisoners are treated and how they respond to the treatment may influence not only their experience of prison life but may be a factor in determining when they should be released. Nevertheless, prison law should focus primarily on the internal legal position of prisoners, as it is in prison that their rights need to be most fully recognized. In defining the (internal) legal position of prisoners, Kelk and other prison law theorists51 argue that one must draw insights from a number of legal fields that impact on prison law. We have already seen how the assertion of the constitutional rights of prisoners emerged as a result of the growing recognition of their human rights. The development of administrative law played a crucial part as well. Scholars from legal systems as different as those of the United States and Germany have recognized that to a large extent prison law is a form of applied administrative law. What this means is that doctrines of procedural fairness and reasonableness as developed by the common law, and the key administrative law principle in civilian systems that all administrative actions must be proportionate, should govern decision-making by prison authorities as well. As Lord Steyn explained in the English prison law case of Daly,52 the proportionality test sets a stricter standard than the traditional common law test of reasonableness of administrative action. It requires the reviewing court to assess the balance that the decision-maker struck; not merely whether it was within the range of rational or reasonable decisions. It also requires that attention should be paid to the relative weight given to various interests and considerations. Since the adoption of the Human Rights Act 1998, both tests now apply in English law. As a result, the House of Lords in Daly’s case upheld the right of a prisoner to be present during the search of his confidential legal documents, even though the prison authorities had claimed that prisoners should be excluded to prevent the potential intimidation of the searchers. The relationship of prison law to criminal law is particularly complex. In this regard German theorists have taken the lead. They have argued strongly that prison law must be regarded as a separate but important component of the overall criminal law. In order to explain this, they have developed theories that describe criminal law as consisting of various stages or steps,53 each with their own primary purpose. Thus the legislative threat of punishment for prohibited acts serves the function of general prevention; the sentence of the court is primarily based on the principles of retribution; and the purpose of the execution of the (prison) sentence  See, in particular, the leading German theorists, Horst Schüler-Springorum, Strafvollzug im Übergang (1969) and Heinz Müller-Dietz, Strafvollzugsrecht (1978). 52   R. (Daly) v. Secretary of State for the Home Department [2001] 2 A.C. 532 (H.L.). 53   For the step theory (Stufentheorie) and the pillar theory (Drei-Säulen-Theorie), see Günther Kaiser, Hans-Jurgen Kerner, and Heinz Schöch, Strafvollzug:  Ein Lehrbuch (5th ed., 2002), 247. For an argument that these three steps or pillars should be combined systematically, see the “dialektische Vereinigungstheorie” of Claus Roxin, “Sinn und Grenzen staatlicher Strafe,” [1966] Juristische Schulung 377. 51

1004    dirk van zyl smit is individual prevention, to be achieved, as the Sozialstaat requires, by offering the prisoner the opportunity of resocialization. These purposes are not exclusive but complementary; ideally working together to provide a coherent system while allowing the component parts to develop in relative autonomy. Does this concern with the different purposes of the components of criminal law have any practical significance for prison law? There is a strong case for arguing that it does.54 In order to establish the legal position of prisoners, we need to recognize that, while prisoners lose their liberty, they retain some human rights. These rights should not be limited unduly. What is required further is a clear understanding of when it is justifiable to limit prisoners’ remaining (residual) human rights. A limitation is justifiable only when it has a clear legal basis and is proportionate to the purpose to be achieved. Even then one should not limit the prisoners’ residual rights more than strictly necessary. When considering whether a limitation is necessary and proportionate, one should make a key distinction between what is required by the exigencies of administering a prison and what is required as a consequence of the sentence of imprisonment. While limitations of the former kind are inevitable, limitations of the latter kind depend on what one regards as the consequences of imprisonment. Are they a mere loss of liberty? Or should the implementation of imprisonment have a further purpose, such as making prison life more punitive, or some other purpose, such as giving prisoners opportunities for self-improvement? Liora Lazarus has demonstrated the importance of having a clearly defined purpose of imprisonment by comparing the development of prison law in Germany with that in England and Wales.55 She finds that, while in both jurisdictions the courts have recognized that prisoners retain their human rights subject to some limitations, the German courts have found it easier to delineate the limits to which these rights are subject. This is because the German courts have not had to consider a limitation that went beyond the requirements of administrative necessity, for they do not accept any further restriction that is supposedly inherent in the penal nature of imprisonment. Ironically, in this respect German courts have been truer than the English courts to the insight of Alexander Paterson, the English prison reformer of the 1930s, that sentenced prisoners are sent to prison as punishment not for punishment.56 English courts have vacillated on this point. Sometimes they concede that imprisonment should not restrict the remaining rights of prisoners where this is not administratively essential.57 In other instances they decline to intervene: for example, where prisoners have objected to administrative segregation in what is de facto solitary   Liora Lazarus, “Conceptions of Liberty Deprivation,” (2006) 69 Modern LR 738.   Lazarus (n 54). For more detail, see Liora Lazarus, Contrasting Prisoners’ Rights: A Comparative Examination of England and Germany (2004). 56   S. K. Ruck (ed), Paterson on Prisons. The Collected Papers of Sir Alexander Paterson (1951). 57   R. v. Secretary of State for the Home Department, ex p. Simms and another [2000] A.C. 115 (H.L.). 54 55

prison law   1005 confinement, which understandably they perceive as effectively an unauthorized additional punishment.58 In U.S. law the scope for intervention is narrower, for additional punitive aspects of imprisonment are not regarded as inherently problematic. Therefore they are not questioned merely because they limit some rights of prisoners other than liberty. U.S. prison law jurisprudence has accepted unhesitatingly that prison authorities have the power to punish prisoners by the prison regime they institute; the limitation on this power is only that such punishments should not deliberately be “cruel and unusual.”59 This has resulted in a marked reluctance of the courts to intervene in any aspects of the prison regime that the authorities claim is justified for penal purposes, or to challenge legislation that is designed to ensure that there are “no frills” in prison life. German prison law60 and latterly the jurisprudence of the ECtHR61 have both moved in the opposite direction and postulated that “resocialization” or “rehabilitation”62 is the core purpose of the implementation of prison sentences and that, to this end, life in prison should be as much like life on the outside as possible: the principles of resocialization and normalization. The acceptance that there should be a positive purpose for prison administration has given the German courts and the ECtHR conceptual tools with which to approach some of the most difficult questions of prison law. The following examples illustrate how this principled approach can be applied to prevent unnecessary restrictions on prisoners and shed light on some of the most controversial issues in modern prison law.

1.  Prison labor Both national constitutions63 and international human rights instruments64 have provisions on prison labor. Typically, they are couched as a partial exception to a prohibition   R. v. Deputy Governor of Parkhurst Prison and others, ex p. Hague [1992] 1 A.C. 58 (H.L.).   Dolovich (n. 35). 60   § 2 StVollzG states specifically that the objective of imprisonment is to enable prisoners to lead a socially responsible and crime-free life. This treatment objective is complemented by § 3 that specifies that the prison regime should seek to normalize prison life by making it as much like life on the outside as possible. 61   See recent decisions of the Grand Chamber of the ECtHR: Dickson v. U.K., App. no. 44362/04, (GC), Judgment of 4 December 2007 (2008) 46 EHRR 41, para. 75; Boulois v.  Luxembourg, App. no. 37575/04 (GC), Judgment of 3 April 2012 (2012) 55 EHRR 32, para. 83; and Vinter and others v U.K., App. nos. 66069/09, 130/10 and 3896/10 (GC), 9 July 2013, para. 114. 62   The terms are often used interchangeably: See Vinter (n. 61) paras. 113–115. 63   Thus, e.g., the Thirteenth Amendment to the U.S. Constitution provides that: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” 64   Gerard De Jonge, “Still Slaves of the State: Prison Labour and International Law,” in Dirk van Zyl Smit and Frieder Dünkel (eds.), Prison Labour: Salvation or Slavery? (1999), 313. 58

59

1006    dirk van zyl smit of slavery and forced labor, which allows sentenced prisoners to be compelled to work. The general prohibition is sufficient to allow courts in the United States and elsewhere to find that compelling unsentenced prisoners to work is illegal,65 and that the prohibition on cruel and inhuman punishment or treatment may protect sentenced prisoners from the most demeaning work. However, these prohibitions contain no positive indication of the form that prison labor should take and how it should be rewarded. The German Federal Constitutional Court has addressed these questions.66 It ruled that, as the German Basic Law allowed compulsory prison labor for sentenced offenders, the state was entitled to compel prisoners to work, but it could only do so as part of its wider duty to provide them with opportunities to resocialize. This meant that the work should be of a kind that would make a positive contribution to their resocialization. Moreover, it had to be rewarded appropriately, for work would not have the desired resocializing effect unless it were compensated adequately. Although the Court did not specify precisely what such reward should entail, it did hold that it was unconstitutional to pay prisoners a small amount that bore no relationship to the value of their work or to minimum wages on the outside. This conclusion, which goes much further than U.S. courts have done to protect working prisoners, illustrates the power of a purpose-based interpretation of prison law.

2.  Family life It is widely recognized that prisoners do retain some rights to family life. For example, in almost all jurisdictions they are permitted to marry whilst in prison. However, may they also found a family? Where prisoners have access to visits that allow sexual contact with their partners the answer is obviously yes, but not all prison systems allow such visits. The question then arises whether prisoners should be allowed access to artificial insemination so that, in the case of male prisoners, for example, their wives or partners can bear their children outside prison.67 One approach would be simply to declare that the right to found a family is lost on imprisonment. A more nuanced approach, however, would be that the right is not lost, only restricted. In appropriate circumstances a prisoner should be allowed to father a child, artificially if necessary. In deciding when this is to be allowed, the ECtHR has ruled that where a woman is nearing the end of her child-bearing age and is unlikely to be able to have children when her prisoner husband is eventually released, artificial insemination should be considered sympathetically. In weighing whether it should be allowed in a particular case, the authorities must also bear in   For the United States, see Branham (n. 33) 349–353; for England, see Livingstone, Owen, and MacDonald (n. 4) 230–233. 66   BVerfG, 01.07.1998 - 2 BvR 441/90, 2 BvR 493/90, 2 BvR 618/92, 2 BvR 212/93, 2 BvL 17/94. 67   The reverse position of a woman prisoner creates the additional, although not insuperable, complication that her child may be born in prison and have to be raised there. 65

prison law   1007 mind the criminological truism that founding a family contributes to an offender desisting from a life of crime and that the authorities should be striving to encourage rehabilitation, a factor on which European prison law places increasing value.68 In this instance again the emphasis on the rehabilitative purpose of imprisonment allowed a more generous interpretation of the prisoner’s rights than would otherwise have been the case.

3.  Reviewing whole life sentences The release of prisoners serving life sentences may be seen as a factor external to the core concerns of prison law. However, the ruling by the German Federal Constitutional Court in 1977 that all prisoners serving this sentence have a right to have their sentences reviewed is based squarely on the right to human dignity of prisoners and the expectation that the imprisonment of all prisoners will be oriented to their eventual resocialization.69 In 2013 in Vinter and others v.  U.K. the ECtHR explicitly built on the German approach when concluding that a whole life sentence which offered no prospect of release was an inhuman and degrading punishment that infringed Art. 3 of the ECHR. The ECtHR found that “There is also now clear support in European and international law for the principle that all prisoners, including those serving life sentences, be offered the possibility of rehabilitation and the prospect of release if that rehabilitation is achieved.”70 What this means is that the internal regime of the prison has to encourage rehabilitation and that prisoners have a legal right to know when they will be considered for release so that their prison program can be planned accordingly. This is an illustration of Kelk’s theoretical insight that the external legal position of prisoners may influence positively the way prisoners’ internal legal position, and therefore the regime to which they are subject, evolves.71 It may be contrasted to the position in England and Wales where the courts had consistently held that the most heinous offenders could only be punished adequately by being kept in prison until they died there.72 Although some English judges were uncomfortable with the denial of human dignity that that entailed,73 they were reluctant to accept that it amounted to inhuman and degrading treatment. In so doing, they weakened the 68   This account is based on Dickson v.  U.K., App. no.  44362/04 (GC), Judgment of 4 December 2007 (2008) 46 EHRR 41 in which the ECtHR rejected the more restrictive approach to artificial insemination adopted by the English Court of Appeal in R. (Mellor) v. Secretary of State for the Home 69 Department [2001] 3 WLR 533.   BVerfG, 21.06.1977 - 1 BvL 14/76. 70 71   Vinter (n. 61) para. 114.   Kelk (n 48). 72   R. v. Bieber [2008] EWCA Crim. 160; R. v. Oakes and others [2012] ECWA Crim. 2435. 73   The Queen on the application of Ralston Wellington v. The Secretary of State for the Home Department [2007] EWHC 1109 (Admin.) at [39] where Lord Justice Laws equated the loss of hope engendered by a whole life sentence to the death penalty. The U.S. Supreme Court has been even less keen to challenge

1008    dirk van zyl smit ability of prison law to ensure that all prisoners were given hope of release, based on a prison regime that would allow them to improve themselves.

iv.  Challenges for Prison Law This chapter has sought to argue that, notwithstanding its somewhat chaotic emergence as a recognizable field of legal study, prison law now has a core set of administrative principles and human rights values that allow it to address questions of how prisoners should be treated in prison. It has also sought to sketch a theoretical approach that facilitates the recognition of prisoners’ rights and removes some of the uncertainly about when there can be legal intervention that would structure and restrict the discretion of the prison authorities. However, there are major systemic challenges that prisons are likely to face that will require further development of prison law, which may go beyond the claims of individual prisoners for the recognition of their rights.

1. Overcrowding First among these is the problem of prison overcrowding. Prison authorities have long felt somewhat helpless, bound in most jurisdictions simply to accept the prisoners legally referred to them by the courts or the police. Overcrowding causes massive infringement of prisoners’ rights. To what extent can prison law limit overcrowding? The ECtHR has addressed this issue and has found not only that overcrowding leads to an infringement of the human right to adequate accommodation but it has also confirmed that in European law the fact that the authorities were short of resources and had not intended to treat the prisoners under their care in an in­human or degrading way did not mean that the law has not been infringed.74 However, the ECtHR has not suggested any systematic intervention to deal with the problem. In this regard the U.S. Supreme Court has gone further: in spite of the strictures of the PLRA in 2011 it upheld an order of a federal court that the state of California should release 37,000 sentenced prisoners, as this was the only way in which systemic overcrowding and inadequate medical services that amounted to cruel and whole life sentences on these grounds (Harmelin v. Michigan, 501 U.S. 957 (1991)), except in the case of juveniles where their rehabilitation prospects have been considered: Graham v. Florida, 560 U.S. __ (2010); Miller v. Alabama, 567 U.S. __ (2012).   Kalashnikov v. Russia, App. no. 47095/99, Judgment of 15 July 2002 (2003) 36 EHRR 34.

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prison law   1009 unusual punishment could be prevented.75 The fact that such drastic intervention could pass muster is an indication of the potential power of constitutional law to shape prison policy, even where restrictions are placed upon it.

2. Privatization A second policy area that is being subjected to closer legal scrutiny is the growing privatization of prisons, particularly in common law countries such as Australia, the United Kingdom, and the United States.76 The legally interesting question is not so much whether conditions in private prisons meet legally acceptable standards,77 but whether, in principle, private prisons should be allowed at all. In this regard the Supreme Court of Israel has held that use of private prisons to incarcerate persons sentenced by the state to loss of liberty was fundamentally incompatible with their human dignity. The Court explained that while imprisonment necessarily violated the liberty and therefore the human dignity of offenders, only the state had the constitutional authority to do so. If this function were performed by a private company, it would be violating the dignity of the offender in a way that could not be justified, since the public purposes that give imprisonment legitimacy would be undermined if prisoners became a means for the private corporation to make profits.78 In practice, the argument of the Israeli Court may be difficult to sustain in the face of ideological commitments in many societies to reducing the direct role of the state, for it applies not only to prisons but also to other forms of incarceration, such as mental institutions. It also raises difficult issues about what is to be regarded as a “private prison,” for many of the services that prisons provide may be privatized without the state relinquishing full control. Nevertheless, the judgment raises wider policy questions about the role of the state and the dangers that commercial interests, such as private prison corporations, may attempt to shape penal policy in order to have more prisoners from whom they can profit.

3.  International imprisonment Finally, it is worth recognizing that prison law, like criminal law generally, has an international dimension. In recent years the international community has   Brown v. Plata, 563 U.S. __ (2011).  For an overview of the current debate, see Alison Liebling, “Prison Privatisation in Europe and Beyond: Changing States and Penal Rationalities,” in Tom Daems, Dirk van Zyl Smit, and Sonja Snacken (eds.), European Penology? (2013), 217–245. 77   If they do not, they should be open to legal challenge in the same way as public prisons, for the same legal rules should apply to them. 78   Academic Center of Law and Business v. Minister of Finance, HCJ 2605/05 27, Nov. 19, 2009. 75

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1010    dirk van zyl smit established facilities to hold prisoners who are facing trial before bodies such as the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone, and the International Criminal Court.79 In the process it has drawn on international prison law to develop a body of law to govern these institutions. This is an interesting development, for it illustrates that prisons can be run according to principles that are informed by international human rights. It is also a challenge to the United States and its treatment of prisoners it detains at Guantánamo Bay. The United States claims that they are neither prisoners of war subject to the Geneva Conventions, nor for jurisdictional reasons are they subject to U.S. prison law. Both these claims have been challenged.80 However, even if the U.S. position is accurate, Guantánamo prisoners should at least be subject to protections provided by international human rights law and applied to prisoners held in the detention facilities of the international tribunals. A notable feature of the detention facilities attached to the international courts and tribunals is that they have not been set up as prisons to incarcerate sentenced offenders,81 as the Allied powers did at Spandau after World War II. Instead, the modern international criminal system has relied on the goodwill of states that have undertaken to house sentenced “international prisoners” in their national prisons. In practice, it has proved difficult to ensure that these sentenced international prisoners are treated fairly, scattered as they are in jurisdictions around the world.82 Problems have arisen relating to prisoners held far from home and who therefore have no access to their families. Deciding on when and under what conditions they should be released has proved difficult, and there are fundamental questions about the prison regimes to which these prisoners are subjected. There is a need for more central supervision by bodies such as the International Criminal Court, or even for an international prison that would not only hold prisoners who are awaiting trial but also sentenced offenders. Both of these developments would mean that there would be an increased need for a body of international prison law applicable also to sentenced prisoners. The challenge is to expand rules such as the UNSMR and EPR, so that could serve as a comprehensive model on how sentenced prisoners should be treated in a prison system that is fully in accordance with international human rights principles.

  Denis Abels, Prisoners of the International Community (2012).   Dirk van Zyl Smit, “International Imprisonment,” (2005) 54 ICLQ 357 and the sources cited therein. 81   In practice, sentenced prisoners are sometimes held in these facilities awaiting transfer to the countries where they will serve their sentences. If the sentences are relatively short, they may serve their whole sentence there. This is unsatisfactory, for these facilities are not geared to the requirements of sentenced prisoners. 82   Róisín Mulgrew, Towards the Development of the International Penal System (2013). 79

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prison law   1011

References Branham, Lynn, The Law and Policy of Sentencing and Corrections (8th ed., 2010) Feeley, Malcolm and Rubin, Edward, Judicial Policy Making and the Modern State: How the Courts Reformed America’s Prisons (1998) Laubenthal, Klaus, Strafvollzug (6th ed., 2011) Livingstone, Stephen, Owen, Tim, and MacDonald, Alison, Prison Law (4th ed., 2008) Morris, Norval and Rothman, David (eds.), The Oxford History of the Prison (1995) Rodley, Nigel and Pollard, Malcolm, The Treatment of Prisoners under International Law (3rd ed., 2009) Van Zyl Smit, Dirk and Snacken, Sonja, Principles of European Prison Law and Policy: Penology and Human Rights (2009)

part iv

CONTEXTS AND COMPARISONS

SECTION A

PROVINCE OF CRIMINAL LAW

­chapter 44

PARADIGMS OF PENAL LAW markus d. dubber

i. Introduction The critical analysis of law thrives on context. Placing, in our case, criminal law within some context or other facilitates both analysis and critique, by elucidat­ ing the cluster of norms, practices, and institutions under investigation (thereby facilitating analysis) and by taking up vantage points from which the newly illu­ minated object of inquiry can be assessed (in this way making critique possible). The present Handbook illustrates a great many contexts that might frame critical analysis of criminal law, including comparison across and within legal systems (external and internal comparative law), as well as any number of “interdiscip­ linary” approaches, including those from the perspectives of history, political theory, criminology, sociology, economics, literature, technology, critical race theory, and feminist studies. This chapter places criminal law in a different context, not through doc­ trinal comparison or by adjusting one’s disciplinary point of view, but by locating it within the conception and actuality of state power, with the aim of facilitating its critical analysis as an exercise of the state’s penal power, that is, as state penal action. The discussion will begin conventionally enough (in Section II), by considering criminal law’s place within the familiar distinction

1018   markus d. dubber between public law and private law (though, even here, the classification is less obvious than one might expect).1 Things will get more interesting, however, when the analysis digs deeper—or reaches higher, depending on one’s standpoint—to place law within an account of state action in general (in Section III). At this point, it will prove useful to distin­ guish law from another mode of state governance: police. Law and police here are treated as the modern manifestations of two long-familiar modes of governance, autonomy and heteronomy, that can be traced back at least to the (public) gov­ ernment of the polis and the (private) government of the oikos in classical Athens, respectively. After briefly exploring the distinction between law and police, and autonomy and heteronomy, we will move on (in Section IV) to illustrate its operation in the realm of state penal action, by pointing out some of its manifestations in the fundamen­ tally different yet, at the same time, intimately connected paradigms of penal law and penal police. We will also place the distinction between penal law and penal police within the broader context of the long-standing project of drawing paradig­ matic distinctions within the penal sphere, as illustrated, for instance, by Herbert Packer’s distinction between the due process and the crime control model of the “criminal process” and Günther Jakobs’s between citizen and enemy criminal law. Throughout this chapter, it is important to keep the point of the conceptual exer­ cise in mind:  not to categorize for its own sake, but to facilitate critical analysis. Placing criminal law within the context of state action permits its critical analysis as an exercise of the state’s law power. What’s more, it reveals the critical analysis of penal law itself as part of a comprehensive critique of state power in the penal realm, which also encompasses penal police. The dualistic conception of state penal action explored here, in other words, is derivative and contextual, rather than originary and independent:  it is an example of the applied critical analysis of state action, rather than the study of criminal law in isolation. It is one way of locating penal law, of putting it in its place.

ii.  Private and Public Law The most immediate, and obvious, attempt to find penal law’s place within the complex of state action would be to locate it among types of law, in particular the familiar (if decreasingly significant) distinction between public and private law. It is   See also Alon Harel, “Public and Private Law,” Chapter 45 in this volume.

1

paradigms of penal law    1019 generally taken for granted that criminal law is a species of public law. Upon closer inspection, however, this classification is more contested than meets the eye. In Germany, for instance, while it is simply assumed that criminal law is a part of pub­ lic law, in fact law faculties have traditionally distinguished between departments of (and chairs in) criminal law and public law, and there is surprisingly little overlap between the scholarly agendas of both fields. This has begun to change recently, with the ascent of constitutional law (and the Federal Constitutional Court), but the relationship between the two disciplines remains uneasy and, at any rate, has remained just that, an interdisciplinary relationship: the gap may have narrowed, but the distinction remains. The assumption appears to be that criminal law must be public law because it clearly isn’t private law and, at any rate, involves the state in some, oddly ill-specified, way. At the same time, however, criminal law scholars may be wary of overemphasizing the centrality of the state’s role in criminal law for fear of abandoning what is often portrayed as a deep-seated commitment to an individualistic—or “personal”—conception of criminal law and criminal victim­ hood—that is, of crime and criminal harm—in particular. The Rechtsgut principle, for instance, is often interpreted to require some ultimate grounding in the rights (or, more mysteriously, the dignity) of the person.2 These personal rights may be aggregated into communal—or public—rights or interests, but the recognition of a separate state interest (and therefore of the state as “victim”), which might help to account for the public law nature of criminal law, is another matter. Like German law, French law treats the classification of criminal law as public or private as obvious. Unlike in Germany, however, in France criminal law clearly is private law, not public law. This is so for the simple, procedural, reason that crim­ inal law cases fall within the jurisdiction of the Cour de cassation (rather than the Conseil d’État), with criminal courts disposing of both criminal and civil aspects of a case in the same proceeding.3 Matters involving the state are instead handled by the administrative courts, rather than the “judicial courts”; the “Court” of Appeals sits atop the hierarchy of the latter, the “Council” of “State” hears final appeals from the former. In Germany and France, then, the question whether criminal law is public law or private has an obvious answer: “public law” in Germany, and “private law” in France. In England, the question does not have an obvious answer; in fact, the ques­ tion may have no answer at all because it implies that there is a distinction between public and private to begin with. That distinction, however, and in particular the recognition of something called “public law,” historically was regarded as distinctly

2   See e.g. Markus D. Dubber, “Theories of Crime and Punishment in German Criminal Law,” (2005) 53 American Journal of Comparative Law 680; Tatjana Hörnle, “Theories of Criminalization,” Chapter 30 in this volume. 3   Michel Troper, “La distinction droit public-droit privé et la structure de l’ordre juridique,” in Pour une théorie juridique de l’État (1994), 183.

1020   markus d. dubber un-English, and—what’s more—as distinctly French. The very notion of special courts, or a body of law adjudicated in these courts (or rather councils) was thought to fly in the face of the English notion of rule of law, under which all Englishmen, state official as well as private citizen, were subject to the same (“common”) law adjudicated by the same court. All law, in this view epitomized by Dicey’s celebration of a quintessentially English “rule of law,” was private law.4 Public law was an oxymoron, which reflected the French failure to comprehend the very nature of law, and more specifically the fundamental confusion between the power hierarchies typical of an oppressive regime and the utterly egalitarian English conception of government, reflected in a common (private) law. In England, the underlying quaint notion of the stateless realm of peace through law (courts) has more recently given way to the recognition of the existence of a powerful (and long-established) central state administration beyond the actions of individual constables having to defend themselves against a tort action before a common law judge. Even so the question of the conception of criminal law as a species of public or private law has received little attention. Public law scholars, at any rate, concern them­ selves with matters of constitutional and administrative law—much like in Germany— and leave crime to the criminal lawyers.5 Blackstone, as is well known, spoke of crimes as “public wrongs,” though this observa­ tion was not meant to add anything to—not to mention, challenge—the long-standing conception of crime as a violation of “the king’s peace.”6 Here “public” was that which concerned the king on account of his duty—and his power—to protect his peace, just as any householder would protect the peace of his household, however modest, throughout early English legal and political history.7 The king’s household was merely larger than the others’, encompassing the entire realm and all lesser, micro, households within it. Private wrongs could be left to the king’s subjects to sort out amongst them­ selves, with the aid of one of his royal (common law) courts. Public wrongs were public insofar as they concerned the king, threatening his authority, and, more specifically, his authority to keep the peace within his kingdom. Not surprisingly, this conception of crime as “public wrong” made little sense to Blackstone’s most acerbic critic, Bentham. Bentham instead saw the criminal law as generally “adjectival,” or supplemental:  it dealt with wrongs, that is, with vio­ lations of rights “presumed to be already defined in another department of the law,” as the broadly Benthamite early nineteenth-century English Criminal Law Commissioners put it.8 But this presumption was not irrebuttable: even if criminal   See A. V. Dicey, Lectures Introductory to the Study of the Law of the Constitution (2nd ed., 1886), 174.   See e.g. Martin Loughlin, The Idea of Public Law (2003). 6   See e.g. Simon Stern, “Blackstone’s Criminal Law: Common-Law Harmonization and Legislative Reform,” in Markus D. Dubber (ed.), Foundational Texts in Modern Criminal Law (2014), 61. 7   Pollock and Maitland, The History of English Law Before the Time of Edward I, Vol. 1 (2nd ed., 1898), 454. 8   See generally Lindsay Farmer, “Reconstructing the English Codification Debate:  The Criminal Law Commissioners, 1833–45,” (2000) 18 Law & History Review 397. 4 5

paradigms of penal law    1021 law concerned itself primarily with violations of rights defined elsewhere, there was no reason why this should be so. Nothing hung on the characterization of criminal law as adjectival; as a result, that characterization attracted little attention, and cer­ tainly no more attention than our question of the classification of criminal law as an instance of either private law or public law. In the United States, too, the question of whether criminal law is private law or public law remained largely unresolved, and even unaddressed, and for a similar reason: that the underlying distinction between private law and public law either was pointless or, if it had a point, had nothing to do with criminal law. Despite the supposed laissez-faire conception of the nightwatchman state in the Early American Republic (which recently has been challenged9), there was no denying that the U.S. government exercised considerable power in its creation of an entirely new regime and system of state power. The Americans of the Revolutionary Generation may have been eager to deny the existence of a strong national state; they had no similar qualms about the existence, and the breadth and depth of state power in general, and at the state level in particular. And there was never any doubt that the power to punish was an essential aspect of this comprehensive power of sovereignty. The conception of the sovereign’s penal power thus survived the American Revolution unchanged, even as the sovereign changed from the king to “the people.”10 As Horwitz has argued, that distinction between private law and public law arose only later, as an attempt to carve out a sphere of “private” legal relations beyond, or beneath, the reach of state control.11 In this realm, of “private law,” commercial actors were free to go about their business, including their business of building a massive national economy, on the basis of market transactions that provided both stability and flexibility, as appropriate. Public law, by contrast, dealt with affairs of state and, given the general irrelevance of these affairs to commercial dealings, attracted lit­ tle attention, except at the very margins, where its norms might interfere with the operation of the market (and its actors, including corporations). To American eyes, public law may not have been quintessentially French, but it was nonetheless a nuis­ ance and thus to be abated as much as possible. Even against the backdrop of this distinction between private law and public law, however, the classification of criminal law attracted little attention. Public law here was the exercise of state power to regulate business or, through the courts, to place constitutional limits on corporate—or more generally private–commercial activ­ ity. Public law, in this intellectual milieu, was commercial regulation and, perhaps, constitutional law, on the margins. It was not criminal law.   William J. Novak, The People’s Welfare: Law & Regulation in Nineteenth-Century America (1996).   See generally Markus D. Dubber, The Police Power: Patriarchy and the Foundations of American Government (2005). 11  Mortin J.  Horwitz, “The History of the Public/Private Distinction,” (1982) 130 University of Pennsylvania LR 1423. 9

10

1022   markus d. dubber Criminal law, instead, continued its unchallenged existence as a self-evident com­ ponent of state sovereignty. More precisely, the state’s penal power in the United States remained essentially unchanged, not only during the Revolutionary Period of supposedly fundamental reassessment of the very nature of government but also during the later creation and consolidation of a U.S. economy with the help of a distinction between private law and public law. It is not surprising, then, that the conception of the state’s penal power would remain unaffected by the sustained attack on the distinction between private law and public law beginning in the early twentieth century, and leading to its virtual disappearance from legal discourse by the second half of that century (along with, incidentally, the project of legal sci­ ence). Since then, standing nineteenth-century English jurisprudence on its head, all law in the United States is public law, the very notion of “private” law having been reduced to a quaint anachronism, revealing anyone invoking it as lacking a sophis­ ticated appreciation of the nature of all law as backed by state institutions, state offi­ cials, and state power.12 Either way, the distinction between public law and private becomes pointless: law is either one or the other, but not both. But if the distinction between public law and private is pointless in English and U.S. jurisprudence, for diametrically opposed reasons, what is the point of classifying criminal law as one rather than the other? At this point, it might be useful to turn to what is generally acknowledged (includ­ ing by those who regard the distinction as a foreign transplant13) as the origin of the distinction between private and public law—or at least as its first statement, or more precisely, the first attempt at a statement—in the beginning of Justinian’s Digest.14 There, Ulpian distinguishes between private law (ius privatum) and public law (ius publicum) as follows: “Publicum ius est, quod ad statum rei Romanae spectat, privat­um, quod ad singulorum utilitatem,” that is, public law concerns “the govern­ ment of the Roman Empire” and private law “the welfare of individuals.” Public law, then, is further differentiated into three parts: “Publicum ius in sacris, in sacerdo­ tibus, in magistratibus consistit,” that is, public law deals with sacred rites, priests, and public officers [magistrates]. Having drawn this distinction between public and private, and illustrating the scope and variety of public law, the Digest then pro­ ceeds to ignore public law and instead focuses on private law, in great detail. This first, and still foundational, formulation of the distinction between the realms of public and private law is significant for several reasons. For one, it exemplifies, and presages, the later tendency to draw a distinction among types of law only to then privilege one type over another to such an extreme extent as to undercut the distinction, or rather to reframe it as a distinction between (true, real) law and something else. More specifically, the type of law that is revealed as   John C. P. Goldberg, “Pragmatism and Private Law,” (2011) 125 Harvard LR 1640, 1641.  John Allison, A Continental Distinction in the Common Law:  A  Historical and Comparative 14 Perspective on English Public Law (1996).   Dig. 1.1.1.2 (Ulpian); Inst. 1.1.1.4. 12 13

paradigms of penal law    1023 insignificant, if not as insufficiently legal, concerns the exercise of state power in its various institutional and normative manifestations. As Loughlin puts it, public law is “a set of practices concerned with the establishment, maintenance and regulation of the activity of governing the state . . . the nature of [which] can be grasped only once that activity has been conceptualised as constituting an autonomous sphere; the political realm.”15 “Public law,” then, gestures at a mode and realm of state action beyond private law, and thus, in the end, given the virtual coincidence of private law with law unmodified, beyond law itself. Public law, in the Roman sense, is about the state as state, and ultimately, about the manifestation of sovereignty. Now, Roman criminal law, to the limited extent it figures into the traditional con­ ception of Roman law, reflects the distinction between public law and private law. Like law in general, Roman criminal law is primarily a matter of private law, rather than of public law. While the distinction between delicta privata and delicta publica, private and public delicts, remains fairly obscure, it is clear enough that, in the con­ ception of Roman law, the former far outweigh the latter. When it comes to differ­ entiating one from the other in light of the broader distinction between private and public law—as opposed to in the vague terms of some distinction between “private” and “public”—public criminal law then would deal with those delicts that concern the state, and more specifically, the state as sovereign. Private criminal law instead dealt with conflicts among individuals that did not threaten, or at least directly implicate, the state’s sovereign authority. There is no doubt, for instance, that laesae majestatis is a matter of public criminal law; in fact, it can be regarded as the para­ digmatic public crime. Regarding Roman criminal law, as public law, in this way, opens up a wider his­ torical and conceptual spectrum that allows us to locate Roman criminal law within a genealogical context that extends in both directions, backward and forward in time. For, as Mommsen, the author of the still definitive and by far the most detailed study of Roman criminal law, concluded, the state’s power to punish ultimately derived from the power of the householder to discipline his household, which in turn is only one, if arguably the sharpest, aspect of the householder’s authority over his household.16 The power of the Roman paterfamilias, in this account, exemplifies the householder’s power over his household, which can be traced throughout the history of Western political thought and practice, going back at least as far as clas­ sical Athens and—less obviously—reaching into contemporary governance.17 In Athens, household governance was distinguished categorically from city gov­ ernment. Within the private realm of the household (oikos), the householder held   Martin Loughlin, “Theory and Values in Public Law: An Interpretation,” [2005] Public Law 48, 58.   Theodor Mommsen, Römisches Strafrecht (1899), 16–17. 17  See e.g. Gustav Radbruch, “Der Ursprung des Strafrechts aus dem Stande der Unfreien,” in Elegantiae Juris Criminalis: Vierzehn Studien zur Geschichte des Strafrechts (2nd ed., 1950), 1 (English translation and discussion in Dubber (n. 6)). 15

16

1024   markus d. dubber essentially unlimited authority over every aspect, or constituent, of his household. Household governance was radically heteronomous: the governing of the house­ hold by the householder, of the governed by the governor. Only the householder was capable of governing; his household, by contrast, was only capable of being gov­ erned. The household included all the household resources at the householder’s dis­ posal, and under the householder’s authority, from human resources (wife, (minor) sons, (unmarried) daughters, slaves) to nonhuman and inanimate ones (flora and fauna, natural resources, movables and immovables). By contrast, within the public realm of the city (polis), governance was radic­ ally autonomous. Householders now appeared as citizens, and exercised their distinctive capacity for government to govern themselves. Whereas authority backed by superior force was the coin of the realm of governing the household, city government required persuasion through rhetoric. In the household, only one person was capable of government; in the city, everyone was. The household required other-government, of the household by the householder; the city required self-government, of the householder-citizen by the householder-citizen. The householder’s authority over his household was discretionary, flexible, and beyond outside scrutiny. Oikonomia was treated as an art, or perhaps a science, char­ acterized by general guidelines of prudence, collected in manuals of good housekeep­ ing addressed to the householder, who was free to consult or ignore them as he saw fit (Xenophon’s Oikonomikos is an early example). By contrast, public government was, in principle, structured and constrained by rules co-generated and -applied by the householder-citizens comprising the public sphere, who could be assumed to jeal­ ously guard their (elite and distinctive) capacity for autonomy against interference through nonconsensual exercises of city-state power. Household governance was the realm of prudence; it lay beyond the realm of justice, which was characteristic of, and limited to, city-state governance. The householder thus may be imprudent or unwise, inartful or inexpert, but his action cannot be unjust. Punishment, too, differed categorically in the household and among citizens. Within the household, household constituents were subject to the authority of the householder, including the power to discipline if, when, how, and for what he deemed appropriate, with few if any constraints on the quality or quantity of disciplinary measures. Punishment of citizens by citizens, and of householders by householders, by contrast, involved a comparably elaborate process of indirect self-judgment through judgment by fellow citizens whom the accuser—or his legal representative—had the opportunity to sway through the use of the same rhetoric­al tools that were necessary to conduct the business of city (self-)government in gen­ eral. Inter-citizen punishment within the public realm of the city-state government also placed limits on the quantity and, most important, the quality of punishment; corporal punishment, which was associated with intra-household discipline of the governed by the governor was considered inappropriate for citizens. Justice demanded no less. Prudence, in the household, does not demand anything; it may

paradigms of penal law    1025 at best counsel restraint insofar as it might further whatever prudential aim the householder decided to set himself, including maximizing the welfare of the house­ hold. (So depriving a slave of life or limb may be imprudent insofar as it deprives the household of a human resource.) Much more could be said about the conception of punishment within the dichot­ omy between oikos and agora in Athens, but let us widen the focus back from crim­ inal law as public law to public law in general and shift it back from Athens to Rome. Roman public law now marks the mode and realm of the power of the Roman imperial state that reflects the conception of the state as sovereign-householder. Note that by the time of Justinian, in the sixth century, the dichotomy between pri­ vate heteronomy and public autonomy has collapsed. Justinian is the paterfamilias of the Roman state, the pater patriae. The model, and mode, of household govern­ ance has been expanded from the oikos, or the familia, to the city-state and, in the case of imperial Rome, the Roman Empire. At the same time, note that “law” has appeared as a central all-encompassing category. The Digest does not differentiate among realms of governance: private households and the public city-state; it distin­ guishes between types of law: private law and public law. Now public, however, no longer refers to the realm of autonomy, where citizens interact govern themselves, and each other, through the shared exercise of their capacity for autonomy. Instead, the “public” in Roman public law is the “private” in Greek political and economic thought and practice, publicized; public law concerns the authority of the state, while private law deals with conflicts among state household constituents resolved by state courts as (supposedly) objective arbiters. Once the connection between public law and household governance is made explicit, the virtual absence of public law from Justinian’s Digest is no longer a sur­ prise. A public law that deals with sacred rites, priests, and state officials, in other words, with affairs of state broadly speaking, falls within what Loughlin calls the “political realm,” a sphere of state sovereignty subject at best to counsels of pru­ dence, rather than a system of rules applied by state courts and backed by state force. “Public law” consists of flexible guidelines of state management for the sover­ eign emperor-householder and his delegates. Private law is the system of rules that constrains and thereby also makes predictable, reliable, enforceable, and possible interaction among household members. Note also, however, that at this point, both public and private law remain spe­ cies of law. Private law may get all the intention in the Digest, but public law is not denied legal status. The conception of law is (still) wide, and thin, enough to accom­ modate both types of law, no matter how mutually inconsistent their underlying conceptions of governance might be. In the end, especially in an imperial bureau­ cracy such as Rome’s at the time of Justinian, even the multitude of inter-individual conflicts falls squarely within the oeconomic conception of state power, as expanded household governance. The resolution of private disputes by the householder is simply one way in which the macro household of the state integrates lesser (micro)

1026   markus d. dubber households; just as the paterfamilias might adjudicate disputes among members of his familia—as an exercise of private jurisdiction—so the pater patriae resolves disputes among the members of his public familia, the Roman Empire. His courts spread peace through the land—his peace through his land, the pax Romana—just as the pater familias maintained, and defended, the peace of his private familia. Going forward, rather than backward to Athens, it is not difficult to find other instances of this gradual publicization of private household governance through the expansion of one householder’s peace at the expense of others’ and the eventual integration of micro households into a single macro household that encompassed the entire realm. Pollock traced this development in England through the grad­ ual expansion of the “King’s peace” through his “common law” and his “common law courts” that displaced local law, and the patchwork of medieval local jurisdic­ tions, as England moved from feudalism to a centralized government under a sin­ gle sovereign, a single law, and a single peace.18 Crimes remained violations of the householder’s peace, and offenses against his sovereignty; the paradigmatic offense remained that of treason, in the fourteenth century (finally) “defined” as including imagining the death of the king (high, or grand, treason) or, in the case of lesser householders, rather more narrowly as the actual killing of the householder by a human member of his household (petit treason).19 Radbruch traced a similar development in the history of German criminal law (following Binding).20 Pollock focused on the history of English constitutional law, with obvious—though still underappreciated—implications for the history of English criminal law, which arguably remains committed to the conception of crime as offense against the King’s peace.21 Radbruch, as a criminal law scholar, instead took up the history of (German) criminal law directly and traced it to the householder’s discipline of household members, and serfs (or rather the unfree) in particular. Radbruch’s account is both more and less interesting than Pollock’s for our present purposes; while it deals with criminal law explicitly, it fails to place it within the evolution of the general conception of state governance that is the subject of Pollock’s study and of the preceding discussion. Radbruch puts particu­ lar emphasis on the eventual expansion of dishonorable punishments, notably cor­ poral punishments (as mentioned earlier in the discussion of Greek penality), from household members to citizens, that is, from the unfree to the free, or yet more pointedly, from the household to the erstwhile householder, who eventually found himself reduced to the status of the object of penal power as his once sovereign household was overtaken by the royal householder’s macro household.   Frederick Pollock, “The King’s Peace,” (1885) 1 LQR 37.   Treason Act 1351, 25 Edw. 3 stat. 5 c. 2. 20  Radbruch (n. 17); see also Mireille Hildebrandt, “Radbruch on Origins of the Criminal Law: Punitive Interventions Before Sovereignty,” in Dubber (n. 6) 219. 21   On this point, see Markus D. Dubber, “Preventive Justice: The Quest for Principle,” in Andrew Ashworth and Lucia Zedner (eds.), Prevention and the Limits of the Criminal Law (2013), 47. 18

19

paradigms of penal law    1027 Putting it most broadly, both Pollock and Radbruch trace the dominance of heter­onomy as a mode of governance since the fall of the Roman Republic, which we may take as the fading of autonomy as an alternative, co-equal, paradigm of power. In classical Athens, heteronomy and autonomy were mutually incompatible and yet interconnected:  the autonomy of city-state government presupposed the heteronomy of household government insofar as participation as a citizen in the former presupposed the status of householder in the latter. With the expansion of the householder model through the expansion of the imperial household to encom­ pass the entire patria, the realm of once public government disappeared, and the ideal of autonomy with it. Pollock and Radbruch’s accounts chart the continuation of this hegemony of heteronomy in England and Germany after the collapse of the Roman Empire. Both Pollock and Radbruch, though once again Radbruch more explicitly than Pollock, also emphasize the continued significance of this household- and peace-based conception of state power in general, and state penal power in particu­ lar. But it is important to recognize why this emphasis is necessary, and important, and even critical (in both senses of the word): because there was a moment when that hegemony was challenged and even, according to many, broken and then, moreover, replaced with its direct opposite: the hegemony of autonomy. This is the moment of the Enlightenment. Radbruch’s argument that criminal law today (or, in his case, in the mid-twentieth century) continues to bear traces of its origins in household discipline is provoca­ tive precisely because, according to the conventional story, modern criminal law marks a radical departure from what came before, just as radical—and in the exact same sense—as that marked by the creation of the modern state. As this account would have it, the Enlightenment launched the modern state project with the inven­ tion of the ideal of the state under the rule of law, the Rechtsstaat. Modern crim­ inal law simply is one aspect of the modern law state; it is the manifestation of the Rechtsstaat ideal in the penal realm. The Rechtsstaat, however, is simply the reasser­ tion of autonomy as a mode of public governance after centuries, if not millennia, of the hegemony of heteronomy in the public realm. The law state (Rechtsstaat), more specifically, is the radical rejection of the police state (Polizeistaat), which in the seventeenth and eighteenth centuries had systematized, expanded, and imple­ mented the patriarchal conception of state power with the help of the new dis­ cipline of “police science,” itself a refinement of the oeoconomic advice literature (Hausväterliteratur) going back to the Oikonomikos of Xenophon. The enlightened Rechtsstaat, in other words, sought nothing less than to turn the hegemony of heter­onomy upside down, and into a hegemony of autonomy. That autonomy, how­ ever, also is itself radically transformed, from a marker of distinction (identifying those few capable of governing, rather than of merely being governed) in ancient Greece, to a universal (or at least far more common) capacity shared by all persons as such. Autonomy remains the marker of personhood; but personhood is now a

1028   markus d. dubber characteristic of all moral beings, not merely a status conferred upon those entitled to participate in political and legal discourse (sui iuris, standing), rather than indir­ ectly as someone else’s man (or woman, as the case may be: feme covert). Radbruch’s observation about patriarchal remnants in contemporary criminal law thus suggests that the enlightened project is at least incomplete. It may further suggest, perhaps more interestingly, that this project is ultimately misguided insofar as heteronomy and autonomy may—and perhaps even ought to—remain incom­ patible yet complementary fundamental modes of governance in a comprehensive critical analysis of state action, and of state penal action in particular.

iii.  Law and Police In the juxtaposition of the law state vis-à-vis the police state, the Enlightenment critique of patriarchal governance uses law as a critical concept: law is superior to police, and therefore the law state is superior to the police state. Law no longer func­ tioned as a vague term that could encompass, for instance, private law and public law in the sense of Justinian’s Digest, including state-enforced norms governing the interaction of individuals but also internal guidelines for the operation of the state apparatus; law now became associated with justice and right, and with the rights of individuals also, and crucially, against the state and not only against other indi­ viduals. The reference to law now signaled a novel demand for legitimation of state action, and of state penal action in particular, as consistent with the rights of the person, and ultimately, with each person’s capacity for autonomy. The call for a law state was synonymous with the call for the legitimation of state power, in theory and in practice, in norm and in application. Law, thus, was not merely superior to police; law was legitimate, and police was not. The law state acknowledged and addressed the challenge of its legitimacy; the police state did neither. The law state both sought and achieved justice; the police state did neither. The police instead sought peace, welfare, efficiency, prudence; at best, the police state was a manifestation of benevolent patriarchy, a well-ordered state where the sovereign uses his unconstrained discretion to maximize the welfare of his human resources, perhaps even fashioning himself as Public Servant Number One (as did Friedrich II in Prussia). A conception of “public law”—like the one underlying the distinction between public and private law in the Digest—as affairs of state or as state administra­ tion, that is, the internal management of the state apparatus according to unpub­ lished norms shielded from legitimacy critique in definition and compliance, was

paradigms of penal law    1029 no longer compatible with the critical conception of “law.” In fact, developing a new conception of public law that complied with the demands of legitimation in terms of justice, and in particular was consistent with the newly discovered autonomy of the person, proved difficult, especially when it came to the crim­ inal law. P. J. A. Feuerbach developed a vaguely Kantian account of criminal law around the idea of crime as a violation of personal right.22 That idea, however, bore little resemblance to criminal law in fact, as Birnbaum, among others, pointed out.23 Even Feuerbach’s own Bavarian Criminal Code (1813) was more notable for implementing his theory of general—as opposed to specific—prevention, which some—including, for instance, Hegel—in fact regarded as inconsistent with the recognition of its addressees as persons capable of autonomy, rather than as dogs controlled through the threat of violence.24 Feuerbach acknowledged that the criminal law at the time encompassed a great many offenses that did not amount to a violation of personal right, no matter how far that notion might be stretched. Rather than removing these offenses—including certain offenses against morals or religion—from the reach of state power altogether, however, Feuerbach reclassified them, from criminal offenses to “police offenses.”25 This distinction between right (or law) violations (Rechtsverbrechen) and police vio­ lations presaged a common attempt to resolve the tension between law and police even after the supposed triumph of the law state over the police state; the law state could tolerate police offenses not as an alternative paradigm of crime but as a lesser type of offense subject to less intrusive state interference (often the deprivation of liberty in the form of imprisonment26). More recently the so-called Rechtsgut principle has become associated with the effort to construct a criminal law qua law, that is, a criminal law compatible with the critical requirements of the law state. According to the Rechtsgut principle, crim­ inal law legitimately concerns itself with violation of Rechtsgüter (legal goods), and nothing else.27 But, as has been shown time and time again the idea of Rechtsgut was introduced at the turn of the twentieth century by a radical positivist, Karl Binding, who grounded the state’s penal power in the state’s “right to obedience of the law” and saw the purpose of its exercise as “the inmate’s subjugation under the power of law for the sake of maintaining the authority of the laws violated.”28 Ironically, 22   P. J. A. Feuerbach, Lehrbuch des gemeinen in Deutschland gültigen peinlichen Rechts (1801) (English translation and discussion in Dubber (n. 6)). 23   Johann Michael Franz Birnbaum, “Ueber das Erforderniß einer Rechtsverletzung zum Begriffe des Verbrechens, mit besonderer Rücksicht auf den Begriff der Ehrenkränkung,” [1834] Archiv des Criminalrechts, Neue Folge 149 (English translation and discussion in Dubber (n. 6)). 24   G. W. F. Hegel, Grundlinien der Philosophie des Rechts (1821), § 99 (Zusatz). 25   Hugo Hälschner, Das gemeine deutsche Strafrecht, Vol. 2 (1884), 10–11. 26   See e.g. Alan Brudner, Punishment and Freedom: A Liberal Theory of Penal Justice (2009) (focus­ ing on Canadian criminal law). 27   Hörnle, “Theories of Criminalization,” Chapter 30 in this volume. 28  K. Binding, Die Normen und ihre Übertretung, Vol. 1 (2nd ed., 1890), 340.

1030   markus d. dubber the origin of the Rechtsgut principle is traced to the previously mentioned article by Birnbaum attacking Feuerbach’s personal right account of criminal law for its failure to make room for crimes that do not violate a person’s right: Feuerbach’s non-criminal police violations. Birnbaum’s 1834 article in fact amounted to a prolonged plea for a conception of criminal law not in terms of rights, personal or otherwise, but in terms of goods, which were considered by the state as worthy of protection. It is in fact difficult not to read this text as an attempt to divert Feuerbach’s critical project into a positivistic account of criminal law that is content to remark that in fact the state continues to exercise its penal power from a police, rather than a law, perspective, despite efforts by theorists like Feuerbach to develop a “philosophy” of criminal law that bears lit­ tle resemblance to the reality of state penal power as exercised in doctrinal fact. Law has completely lost its critical edge when, some decades later, Binding merged the two opposing concepts of right and good into the concept of Rechtsgut—literally “right good.” A similar resolution of the radical critical conflict between law and police can be seen in the development of the field of “police law” (Polizeirecht), which combines both sides of the critical divide created by the Enlightenment insistence on the legit­ imation of state power. Here then was a field of law that, in its very name, combined the two fundamental modes of governance posited as essentially incompatible in the struggle of the law state against the police state. In the launch of a project of police law, as in the previously mentioned development of so-called police offenses (as distinct from right offenses), one can see an acknowledgment of the continued viability of police as a mode of governance despite the claim that the police state gave way to the law state. The challenge of replacing alegimate police with legit­ imate law was transformed into the apparently more modest one of retaining but taming police by means of external control through law, both in the form of legisla­ tive norms (as opposed to executive missives) and of judicial supervision (“judicial review”). Rule of law had turned into rule of police by law. Eventually, the obviously oxymoronic police law morphed into the less obvi­ ously oxymoronic project of administrative law. Administrative law, as paradig­ matic public law, ever since has been defined by the tension between law and police that it has internalized, and obscured; this is the tension between (the law of) administration and administrative law, between green-light and red-light admin­ istrative law, between facilitative and evaluative administrative law, between the totality of norms and practices of state administration and legal constraints on them, between the many and varied everyday actions of myriad administrative officials and the occasional actions of judicial officials second-guessing them on the margins, and between the Roman law conception of public law as concerning the affairs of state and the Enlightenment’s conception of public law as one mani­ festation of the state’s duty to legitimize its actions against the citizen-persons who constitute it.

paradigms of penal law    1031 The difficulty—if not the impossibility—of developing an account of public law qua law has spawned other avoidance strategies besides the resolution by taxonom­ ical fiat, that is, by the naming of a field of law that, on its face, reconciles the fac­ tual and normative aspects of public law (police law, administrative law). Take, for instance, the lack of interest in matters of public law among the contributors to the most important jurisprudential project of the nineteenth century in Germany: his­ torical jurisprudence. Savigny’s school of historical jurisprudence originally focused exclusively on Roman law, and on the study of Roman law sources in particular. As we saw, however, Roman law was essentially private law. As a result, the bulk of German legal thought in the first post-Enlightenment century followed the Roman practice of essentially treating law as synonymous with private law. Public law was treated, much as the Romans had done, as a matter not of law but of administration, management, politics, and policy. Across the Channel, particularly in the second half of the nineteenth century, a similar development occurred, without however having anything to do with Roman law. In England, too, the bulk of jurisprudential attention was devoted to private law. Recall that Bentham and his English followers saw criminal law as adjectival, that is, as the threat of state force backing up private law norms, and that Dicey, a little later on, saw public law as inconsistent with the very idea of rule of law; all law was private law simply because there was no other type of law, at least in England. Public law, by contrast, was an oppressive statist French invention incom­ patible with the egalitarian spirit of the English common law (despite the fact that the common law was royal law). We can now see that Dicey conceived of public law in terms of Justinian’s Digest, as an internal state affair, as administration rather than as law. In other words, public law, to Dicey, was a matter of police, not of law. It is no accident that a century earlier, the concept of “police” was dismissed by English commentators for the same reason: that it was an alien, French, mode of governance inconsistent with the inborn rights of Englishmen and the myth of a stateless government that largely stayed out of the way of the common exercise of common sense in all things, including legal disputes.29 (Note that the intervening French Revolution—with its call for liberty, equality, and fraternity—did not affect English perceptions of typically “French” attitudes toward law and government in the eighteenth and nineteenth centuries.) Now, to attribute the English tendency to equate law with private law to an avoid­ ance strategy may be misleading insofar as this tendency predates the Enlightenment moment, at least in continental Europe or, more controversially, in North America. It would have been difficult for the English to attempt to avoid a fundamental cri­ tique of the police state (or public law) in the name of law since they denied the 29   See, “police (n.),” in Oxford English Dictionary (“from an aversion to the French . . . and something under the name of police being already established in Scotland, English prejudice will not soon be reconciled to it”).

1032   markus d. dubber existence of an English police state (or public law) to begin with. There was no legit­ imacy challenge to avoid. The question of the relationship between Enlightenment ideas and English political history is too complex, and tangential, for current pur­ poses. Suffice it to speculate that the insistence on the absence of public law, and of police, served, if not to avoid a recognized legitimacy challenge, then to obscure and to deny a legitimacy crisis in the first place. The United States of the Early Republic falls somewhere between Germany and England: while it did recognize the need to radically critique the legitimacy of the existing mode of state power—in fact, the very mode that the English found beyond challenge—the scope of the challenge was drastically narrowed to exclude the exer­ cises of state power most in need of critical analysis. Unlike English jurisprudence, U.S. law had no trouble acknowledging the existence of police as a fundamental mode of governance. From the beginning of the Early Republic, the concept of “police power” took on central significance as a comprehensive, flexible, and discretionary mode of government defined only by its indefinability: “the power of sovereignty, the power to govern men and things within the limits of its dominion,”30 where dominion—as opposed to “jurisdiction”—should be taken quite literally as the spa­ tial limits of the sovereign-state household, with the “men and things” constituting the household’s human and non-human resources. Despite the laissez-faire myth of nineteenth-century U.S. government, Americans of the Founding Generation were busy governing men and things within their new dominion, with the help of the conveniently all-encompassing and malleable police power. Now a system of government that leans heavily on an all-encompassing, flexible, discretionary, and—in a word—patriarchal state power called the “police power” can hardly be said to radically replace police with law as the fundamental mode of governance. This may raise difficult question for the American Revolutionary pro­ ject as a whole, and its connection to the Enlightenment enterprise; we will leave these more general concerns aside for our purposes and instead focus on the state’s penal power. It has long been assumed, generally without elaboration, that the state’s penal power in the United States is an aspect of its police power. In this conception, the state’s penal power serves to manifest the state’s sovereignty, with the paradigm of crime being an offense against the state’s sovereignty.31 As an object of the police power, however, an offender is regarded as among the “men and things within the limits of [the sovereign’s] dominion,” instead of as a right-bearing person with the distinctive capacity for autonomy. Within the realm   License Cases, 46 U.S. (5 How.) 504, 583 (1847).   As a result, the federal constitutions’ double jeopardy (ne bis in idem) protection against double punishment for a single offense has been held not to apply to two prosecutions for the same physical act insofar as it violates two states’ criminal norms and, in this way, amounts to two “offenses”: one against each state sovereign (“dual sovereignty exception”). Heath v. Alabama, 474 U.S. 82, 88 (1985) (“common-law conception of crime as an offense against the sovereignty of the government” and viola­ tion of the sovereign’s “peace and dignity”). 30 31

paradigms of penal law    1033 of police, rather than of law, the offender is not considered as an equal citizen entitled to justice; instead, he falls within the realm of prudence, at best, under the discretionary power of the state-householder. He is a resource to be managed, and disciplined if, and as, necessary, or appropriate, within the discretion of the sovereign (as still illustrated by the wide charging discretion enjoyed by prosecutors in an informal penal process dominated by plea bargaining). In fact, the prisoner came to be regarded as a rightless “slave of the state,”32 and when, after the Civil War, the Thirteenth Amendment abol­ ished slavery and involuntary servitude, it retained an exception for “punishment for crime whereof the party shall have been duly convicted.” Offenders, in other words, were not part of the American political project; they did not benefit from the critique of political institutions of state power because they were not political subjects, but merely objects of government. Along with women, slaves, and the unpropertied, they lacked that supposedly universal capacity for autonomy that drove the revolutionary rhetoric of “taxation without representation.” In this way, the state’s penal power remained untouched, and unchallenged, by the American Revolution. The conception of penal power as the manifestation of the sovereign’s power to maintain the peace of his state household, the “King’s peace,” survived the comprehensive rethinking of state power largely unchanged, the only difference being a transfer of sovereignty from the king to “the people,” that is, the political community of citizens, which pointedly and plainly did not include the offender. U.S. penality thus remained a pacification project, with the sovereign as the subject and the offender as the object to be pacified (or rendered harmless).

iv.  The Dual Penal State and Other Penal Dualisms In the remainder of this chapter, let us further narrow our focus to take a closer look at the continued significance of the distinction between law and police in the crit­ ical analysis of state penal power and its exercise as state penal action. We will also place the resulting account of a “dual penal state” within the context of the broader project of distinguishing between paradigms of penality. The core idea of the conception of contemporary penality as a dual penal state is the continued coexistence of two mutually incompatible yet inseparable com­ prehensive paradigms of state penal power, penal law and penal police.33 These   Ruffin v. Commonwealth, 62 Va. 790 (1871).   Ernst Fraenkel’s account of the “dual state” (Doppelstaat) under National Socialism differentiated between the normative state (Normenstaat, norm state) and the prerogative state (Maßnahmenstaat, 32 33

1034   markus d. dubber penal paradigms, or ideal types, in turn are manifestations of a fundamental, and long-standing, tension between two modes of governance, heteronomy and auton­ omy, which can be traced back at least to the governance of the (private) household and of the (public) city-state in classical Athens, respectively. Let us take a brief look at some of the features of this dualistic framework. As was mentioned at the outset, the purpose of this taxonomic exercise is to facilitate the critical analysis of state action, in this case of state penal action. The classification of a given state action makes critique possible because different modes of state action may be subject to different critical norms. From the perspective of law—in particu­ lar the modern concept of law as grounded in the principle of personal autonomy— the legitimacy of a state action may be scrutinized in light of its compliance with the fundamental norm of autonomy. From the perspective of police—for instance, the patriarchal conception of police laid out in the previous discussion—the legitimacy of state action arguably would not be at issue in first place, insofar as police govern­ ance is unconcerned with the legitimation of state power given that it regards the objects of governance as household resources essentially incapable of autonomy. To critique a policial state action as unjust is beside the point since, from the perspec­ tive of police, justice is an irrelevant consideration. If police seeks anything, it might be prudence, or efficiency, or welfare, but not justice, and certainly not justice in the modern sense of respect for the dignity of persons with the capacity for autonomy. At the same time, to critique state action as an exercise of the law power, that is, from the perspective of law, as insufficiently wise or benevolent or efficient is inap­ propriate for the same reason: it is beside the point. Here it might be useful to think of police and law as genres of state action, and of penal police and penal law as subgenres. Genre classification in literary theory serves the purpose of determining the appropriate critical vocabulary (among other things). A novel, for instance, would be subjected to different aesthetic norms than a short story. Likewise, within the genre of the novel, a subgenre such as that of the “realistic” novel should not be critiqued in terms of criteria more properly applied to another subgenre, such as that of the “experimental” novel.34 In fact, thinking of police and law, and penal police and penal law, in terms of genre, rather than other more familiar—if not necessarily more illuminating—terms such as mode, para­ digm, or ideal-type, may also shed light on the relationship between the two con­ cepts under investigation, with the help of Alistair Fowler’s concept of “antigenre.”35 An anti-genre relates to a genre much like law relates to police in this sense: modern law as an anti-genre of state action emerged as a radical response to police, the measure state). In effect, it was a dualistic account of Nazi administrative law that traced what Fraenkel saw as the expansion of the prerogative state at the expense of the normative state. In the end, the nor­ mative state was limited to the regulation of commercial activities required to maintain the domestic economy.   See David Lodge, “The Novelist at the Crossroads,” (1969) 11 Critical Quarterly 105.   Alastair Fowler, Kinds of Literature: An Introduction to the Theory of Genres and Modes (1982), 175.

34 35

paradigms of penal law    1035 orthodox genre of state action at the time. Modern law did not seek to develop, or refine, or improve the police state, but to replace it with a comprehensive and fundamentally different model of the state, the law state. The law state thus was both intimately and necessarily connected to the police state, both historically and conceptually, while at the same time violently denying that connection to the point of revolution. The concept of ideal-type, which is often invoked in this context (Jakobs’s distinc­ tion between “citizen criminal law” and “enemy criminal law” comes to mind), can also be useful, particularly if one keeps in mind what work it was meant to do in Weber’s project. The juxtaposition of ideal types, to Weber, facilitated historical and comparative analysis, notably at a high level of generality that made constant refer­ ence to detailed points of similarity or difference, continuity or disruption, imprac­ tical. Ideal-types, through explicit and conscious creation of abstract concepts with features that manifest themselves if in no particular phenomenon then in a recog­ nizable cluster of phenomena, may perform a task similar to that of genres: even if they have no critical function themselves (although this is of course debatable), they may make critique possible. Similarly, police and law are ideal-types in the sense that they can be seen as contrasting clusters (or “clouds”) of concepts, practices, and—borrowing from Foucault here—governmentalities, that add up to a compre­ hensive framework for critical analysis. Thinking of police and law as paradigms may be helpful by highlighting the cru­ cial historical aspect of the critical analysis they facilitate. The relationship between police and law is historical in at least two senses. Their interrelation and -connection fits into a yet broader historical context insofar as they reflect the interplay between heteronomy and autonomy as fundamental modes of governance since classical Athens. Moreover, the positing of the modern ideal of law marked a particular his­ torical moment: the radical critique of the long-standing hegemony of heteronomy manifested in the all-encompassing police state of the seventeenth and early eight­ eenth centuries. Still, talk of paradigm change may also be misleading if it suggests that the relation between law and police is one of succession, one taking the place of the other, rather than both coexisting, with alternating yet always imperfect hegem­ onies of one over the other. In this respect, the present account of the concept of police differs from Foucault’s, at least insofar as Foucault’s notion of police reflects its patriarchal character but regards it as a specific genealogical moment, which gives way to other governmen­ talities.36 This is not to say that the transition from police to, say, “neoliberal” (self-) governance cannot be seen as a way of capturing what has here been described as the radical juxtaposition of modern law and police. Nor is it to suggest that Foucault would have considered the inquiry into police as a merely antiquarian exercise, with   See e.g. Michel Foucault, Omnes et Singulatim: Towards a Criticism of “Political Reason” (Tanner Lectures on Human Values) (1979). 36

1036   markus d. dubber no contemporary analytic salience; the point of genealogical inquiry, after all, was to find history in the present, to reveal continuity in the face of apparent discontinuity. The historical aspect of the distinction between police and law is therefore both essential, rather than incidental, and possibly misleading. Its significance becomes clear if it is placed next to the comparative dimension of critical analysis in terms of police and law. Like historical analysis, comparative analysis operates to open up a critical perspective on the object of analysis. The above discussion of developments in Germany, England, and the United States was meant to point out both that the contrast between law and police must be seen within a specific historical and sys­ temic (“domestic” or “oeconomical”) context. At the same time, however, apparent systemic singularity should go no less unchallenged than apparent historical con­ tinuity. In other words, the specificity of each historical-systemic account should not obscure opportunities to explore continuities and similarities that emerge from within a broader, more abstract, framework (defined, for instance, by Weberian ideal types). Focusing on the specific topic at hand, the critical analysis of modern state penal action within the framework of the “dual penal state” attempts to develop a com­ prehensive historical-comparative account of state penality from the perspectives of police and law as modes of modern state governance rooted in the distinction between heteronomy and autonomy. This distinction was once associated with the distinction between private and public government. This division of labor—or rather of governance—has faded away with the expansion of heteronomous house­ hold governance into the public sphere, particularly after the collapse of the Roman Republic. The Enlightenment critique of state action sought to replace the police (heteronomous) state with the law (autonomous) state, rather than merely recover­ ing the old division of governance, once again limiting heteronomy to the private sphere of, say, household government. The unit of government was to be the person, no longer the household resource. This radical shift, this turning upside down (or right side up), of the traditional hegemony of heteronomy, in fact, led to tensions within the remnants of private government, as micro householders found their dis­ ciplinary authority challenged. (This trend continues to this day, as illustrated, for instance, by the struggle to retain, yet restrain, parental disciplinary power through the use of state penal power.37) As a comprehensive dualistic account of penal action, the dual state approach resembles Herbert Packer’s account of the “criminal process” based on the dis­ tinction between the due process model and the crime control model. Packer’s ambition is comprehensive in two senses: despite Packer’s particular interest in the criminal process, in The Limits of the Criminal Sanction (1968), he addresses state penal action in its entirety—from the definition of penal norms and the conditions

  See e.g. Canadian Foundation for Children, Youth and the Law v. Canada [2004] 1 SCR 76.

37

paradigms of penal law    1037 of liability for, and the consequences of, their violation (substantive criminal law), to their imposition in the criminal process narrowly speaking (criminal proced­ ure), to the infliction of threatened sanctions for their violation (prison law, corrections law). Clearly, any critical analysis of criminal law with even modest contextual ambitions cannot limit itself to any one of the components of the penal process. Nonetheless, this remains common practice today, though different sys­ tems privilege different aspects of penal action; civil law countries (and Germany in particular) tend to focus on substantive criminal law, and common law coun­ tries (and the United States in particular) on procedural criminal law. The inflic­ tion of sanctions—that is, punishment itself—attracts the least attention in both systems. The present Handbook makes some effort at comprehensiveness, even if its consideration of criminal procedure and prison law is fairly limited. More interesting, Packer’s account is also comprehensive in the sense that it con­ siders the criminal process as a whole from the perspective of the due process and crime control models, rather than confining each model to some aspect, or aspects, of the process. Roughly, the due process model pursues justice, seeks formal and fair procedures defined by clear and specific rules that meaningfully limit the discretion of state officials, and proceeds from a presumption of innocence. The paradigm of the due process model is the jury trial. The crime control model, by contrast, pursues the repression of criminal conduct, with the help of informal procedures governed by broad and flexible standards that grant significant discretion to state officials to efficiently identify and process offenders, and operates with a presump­ tion of guilt. The paradigm of the crime control model is plea bargaining. Packer’s treatment of substantive criminal law is rather more pedestrian: it fol­ lows the conventional practice of framing the discussion as a choice between retrib­ utivism and utilitarianism, and then goes on to propose a conventional compromise position (similar to the sort of limited retributivism previously endorsed by Rawls and H. L. A.—and Henry—Hart). Packer showed little interest in trying to integrate his accounts of substantive and procedural criminal law or, more specifically, to relate his distinction between the crime control and due process models in crim­ inal procedure to that between utilitarian and retributive accounts of punishment in substantive criminal law. It would not be difficult to read Packer’s distinction between the due process and the criminal control models as illustrating the broader distinction between law and police that frames critical analysis of the dual penal state. Packer’s account, thus, may be comprehensive—at least within the scope of crim­ inal procedure—but it is not contextual in a broader sense. While it does consider the criminal process narrowly speaking within the context of the criminal process broadly speaking, it does not take the additional step of locating the latter within an account of state power, nor within a wider historical or comparative context. Günther Jakobs’s distinction between citizen and enemy criminal law, like Packer’s distinction between the due process and the crime control model, focuses on only

1038   markus d. dubber one aspect of state penal action. Packer focuses on procedure, Jakobs on substan­ tive criminal law, each reflecting the respective biases of American and German criminal law scholarship. Like Packer, Jakobs also does not seek a comparative per­ spective. Jakobs does show greater interest in historical context, primarily to note the distinction between citizens and enemies, insiders and outsiders, to earlier writ­ ers associated with the liberal tradition, including notably Rousseau and Fichte. The distinction between citizen and enemy criminal law, according to Jakobs, turns on the classification of offenders; citizens are subject to citizen criminal law, and enemies to enemy criminal law. Citizens are treated as persons; enemies as human threats. They differ in that a citizen is “a person who acts according to loyalty to law”; an enemy is not, and does not. Without this all-important loyalty, the enemy cannot “provide sufficient cognitive guarantee for conduct as a person.” To prevent enemies from violating citizens’ “right to security,” they must be incapacitated.38 Jakobs has been widely criticized, particularly for the normative implications of his account, some of which he has made explicit. At the same time, many of those who have taken umbrage at Jakobs’s explicit—and what they take to be the implicit—endorsement of particular forms of “illiberal” state penal action, have either conceded or left unchallenged the potential of the distinction between citi­ zen and enemy criminal law as a tool of critical analysis (particularly in the face of a ubiquitous rhetoric of “combating,” or waging “war,” on crime). The distinction, in fact, can claim roots not only in liberal legal and political theory (some of which Jakobs mentions), but also in legal history (see, e.g., Heinrich Brunner’s influential account of punishments as aspects of outlawry39) and sociology (see, e.g., George Herbert Mead’s brilliant “The Psychology of Punitive Justice”40).

v. Conclusion Modern legal science—if it is no longer to busy itself with charting the heaven of juristic concepts, divining the ontological essence of law, or properly labeling doctrin­al specimens—might profitably dedicate itself to the critical analysis of state action qua modern law. This critical analysis requires—after a preliminary investi­ gation into the normative requirements that modern law (in the “law state”) places upon state action—a contextual analysis of the particular state action in question. 38   Günther Jakobs, “Bürgerstrafrecht und Feindstrafrecht,” (2004) 5 HRR-Strafrecht 88, 91, 93, 94. (English translation and discussion in Dubber (n. 6)). 39   Heinrich Brunner, “Abspaltungen der Friedlosigkeit,” in Forschungen zur Geschichte des deutschen 40 und französischen Rechtes (1894), 444.   (1918) 23 American Journal of Sociology 577.

paradigms of penal law    1039 The dual penal state framework of critical analysis in terms of the distinction between penal police and penal law discussed in this chapter illustrates how a mod­ ern science of criminal law might proceed.

References Brudner, Alan, Punishment and Freedom: A Liberal Theory of Penal Justice (2009) Dubber, Markus D., The Policer Power:  Patriarchy and the Foundations of American Government (2005) Feuerbach, P. J. A., Lehrbuch des gemeinen in Deutschland gültigen peinlichen Rechts (1st ed., 1801) (English translation and discussion in Markus D. Dubber (ed.), Foundational Texts in Modern Criminal Law (2014)) Foucault, Michel, Omnes et Singulatim: Towards a Criticism of “Political Reason” (Tanner Lectures on Human Values) (1979) Fowler, Alastair, Kinds of Literature: An Introduction to the Theory of Genres and Modes (1982) Fraenkel, Ernst, The Dual State (1941) Goldschmidt, James, Das Verwaltungsstrafrecht (1902) (discussed in Ohana, “Regulatory Offenses and Administrative Sanctions:  Between Criminal and Administrative Law,” Chapter 46 in this volume) Jakobs, Günther, “Zur Theorie des Feindstrafrechts,” in Henning Rosenau and Sanyun Kim (eds.), Straftheorie und Strafgerechtigkeit (2010) 167 (English translation and discussion in Foundational Texts in Modern Criminal Law, see above) Mead, George Herbert, “The Psychology of Punitive Justice,” (1918) 23 American Journal of Sociology 577 Packer, Herbert L., Limits of the Criminal Sanction (1968) Pollock, Frederick, “The King’s Peace,” (1885) 1 LQR 37 Radbruch, Gustav, “Der Ursprung des Strafrechts aus dem Stande der Unfreien,” in Elegantiae Juris Criminalis: Vierzehn Studien zur Geschichte des Strafrechts (2d ed., 1950) 1 (English translation and discussion in Foundational Texts in Modern Criminal Law, see above) Weber, Max, On the Methodology of the Social Sciences (ed. and transl. Edward A. Shils and Henry A. Finch, 1949)

­c hapter 45

PUBLIC AND PRIVATE LAW alon harel

i.  Introduction to Public and Private Law The concepts of public and private law are characterized by conceptual chaos and confusion. Further, the use of these terms is also characterized by ideological and political disagreements: libertarians, liberals, Marxists feminists, and others strug­ gle either to defend the use of these concepts and to preserve the distinct values governing each of these spheres as necessary for protecting freedom or expose the fact that the use of these terms is incoherent, manipulative, and harmful. In light of this chaotic order, I hope to provide a survey of some of the primary debates and raise several normative and historical speculations.1 There are two primary political debates relevant to the differentiation between public and private law. The primary (and earlier) debate has been the debate con­ cerning the status of private law and, in particular, the concern of libertarian and liberal legal and political theorists to protect the “autonomy of private law” and resist the “instrumentalization” of private law, namely using private law to promote 1   While the distinction between private and public law is much more prominent in European legal systems which are characterized, e.g., by separate public and private courts, this chapter focuses exclu­ sively on the distinction as understood in the Anglo-American world.

public and private law    1041 public ends. The second debate is a more recent debate and it concerns the desir­ ability of privatizing public services, such as prisons, security, education, etc. While these two debates are perceived to be independent of each other there are connec­ tions between the two debates.2 Liberal/libertarian theorists defend the autonomy of private law on principled grounds; they believe that the autonomy of private law is necessary for protect­ ing a sphere of individual autonomy. In contrast, the opposition to privatization is typic­ally (although not invariably) grounded in instrumental collectivist concerns to promote public ends. I wish to establish in this chapter (particularly in Section IV) the claim that what needs special protection is not the autonomy of private law but the autonomy of public law and that such protection is needed for principled rather than pragmatic or instrumental reasons.3 Section II examines some of the ways to differentiate between public and private law and also provides a brief explanation of the relations between political the­ ory and legal doctrine. Section III examines the debates concerning the autonomy of private law. Section IV examines and establishes the need for maintaining the autonomy of public law. It also argues that the real nature of public law is misun­ derstood and it seeks to remedy this misunderstanding. Section V provides a short summary.

ii.  Public and Private Law: Definitions and Preliminaries In examining the nature of public and private law, one inevitably has to start with a crude characterization—one which later will be subjected to criticisms, revisions, and modifications. This is not merely the byproduct of the inherent imprecise­ ness and characteristic confusion of these terms, but also because the dichotomy between public and private law has been transformed and the boundaries between the categories have become less rigid, more fluid, and nuanced. This also implies that what is being said in this section is highly general and abstract and is vulnerable to challenges and criticisms.

  See Michel Rosenfeld, “Rethinking the Boundaries between Public Law and Private Law for the Twenty First Century: An Introduction,” (2011) 11 I-CON 125, 126. 3   To do so I  use the analysis developed in Alon Harel and Ariel Porat, “Commensurability and Agency: Yet Two Unmet Challenges to Law and Economics,” (2011) 96 Cornell LR 749; Avihay Dorfman and Alon Harel, “The Case Against Privatization,” (2013) 41 Philosophy & Public Affairs 67. 2

1042   alon harel Public law governs relationships between the government to itself and between the government and individuals. It consists of constitutional law, administrative law, criminal law, and tax law. It contains both norms governing horizontal rela­ tions between different branches of the government and norms governing vertical relations between the government and individuals or private entities. In contrast, private law contains norms governing the horizontal relationships among private entities. The fields of law that are most paradigmatically classified as private law are contract law, property law, and tort law. This classification is valuable because alleg­ edly it has normative (or even political or ideological) consequences. It is believed that public law is a sphere designed to promote the public good or the common good of the community while private law protects individual freedom, typically negative freedom—the freedom to follow one’s objectives without intrusion.4 Let me elaborate on these differences. Sometimes public law is designed to promote collective interests such as public welfare or distributive justice. Yet, often public law is designed to protect the pri­ vate sphere from private intrusions.5 Criminal law is a clear example; it is designed to protect individuals from the intrusions of other private individuals. At other times public law objectives require modification of private law in order to promote the public good, creating an altruistic order, bringing about distributive justice, or solving coordination problems.6 In contrast, private law protects the freedom of individuals to pursue their own objectives.7 Contract law is designed to enable indi­ viduals to pursue their projects and promote their ends by providing assurances that their commitments (and the commitments of others) be enforced. Tort law protects individual interests from the wrongdoings of others. Under one prominent view, property law is designed to create a protected sphere within which the per­ son could pursue her objectives free of intrusion. The protection of such a private sphere is sometimes justified on the grounds that the private sphere is “natural” and exists prior to the state. Under this view, the state does not create property; it simply protects property that preexisted the state.8 It also follows from this description that 4   This view has been, of course, highly controversial. For a recent attack on the claim that private law protects primarily negative freedom, see Hanoch Dagan, “Pluralism and Perfectionism in Private Law,” (2012) 112 Columbia LR 1409, 1413–1421. 5   Arthur Ripstein, Force and Freedom: Kant’s Legal and Political Philosophy (2009), 32–34; Rosenfeld (n. 2) 126. 6   Bruce Ackerman, “Regulating Slum Housing Markets on Behalf of the Poor: Of Housing Codes, Housing Subsidies and Income Redistribution Policy,” (1973) 80 Yale LJ 1093; John Finnis, Natural Law and Natural Rights (1980); Duncan Kennedy, “Form and Substance in Private law Adjudication,” (1976) 89 Harvard LR 1685; Anthony T. Kronman, “Contract Law and Distributive Justice,” (1980) 89 Yale LJ 7 472.   Ernest J. Weinrib, The Idea of Private Law (2012). 8   Famously this view influenced U.S. courts in the early part of the twentieth century. A characteris­ tic example can be found in Ives v. South Buffalo Ry. Co., 201 N.Y. 271 (1911) in which the judge declared a provision forcing employers to pay compensation for accidents as void on the grounds that: “One of the inalienable rights of every citizen is to hold and enjoy his property until it is taken from him by due process of law.”

public and private law    1043 economic and social inequality within the private sphere is not attributable to the political state. It is merely the byproduct of a natural state of affairs (and therefore need not and ought not to be redressed by the state). The dichotomy between public and private law involves two dimensions:  a descriptive dimension and a normative one.9 The discourse concerning public and private law requires first classifying a certain entity or a certain activity as “pri­ vate” or as “public” and then it requires drawing normative consequences from this classification. The first stage requires identifying whether the entity or activity is public or private. The classification of an entity, an activity, or a sphere as public or private changes in accordance with the context. Thus, for instance, in Marxist theory the public is identified with the political state while civil society and the market are clas­ sified as private. In contrast, feminists have used the term private to denote the fam­ ily and contrasted it with the market and civil society that are classified as public.10 The second stage requires identifying the implications of classifying an entity, activity, or sphere as public or private. Thus for instance, some liberal theorists believe that the fact that a contract is private implies that its provisions ought to be interpreted in accordance with the intention or the will of the parties rather than in ways that promote the public good.11 Similarly if tort law is private, the consider­ ations which ought to bear on the wrongfulness of an action or on the remedies are designed to protect the equality and freedom among the parties rather than to serve collective ends such as efficiency or deterrence.12 The classification of an entity or an activity as public or private dictates, under this view, the types of reasons and considerations applying to it, and consequently such a classification may dictate the outcome of the litigation. The differentiation between public and private law has become highly signifi­ cant because of the strong affiliations between political values and ideology and legal doctrine. Most typically (but not invariably), libertarians and some liberals have been keen to protect the autonomy of private law, to insulate it from public intrusion and, at times, to expand its boundaries. Left-wingers, Marxists femin­ ists, and also advocates of law and economics challenge the autonomy of private law. It has been argued that the protection of private law serves to promote a sec­ tarian ideology—militant privatism—that cherishes individualism at the expense of solidarity and community.13 Legal realists and critical theorists also maintain that the distinction between the public and the private is not used consistently by   Ruth Gavison, “Feminism and the Public/Private Distinction,” (1992–93) 45 Stanford LR 1, 4.   Frances E. Olsen, “The Family and the Market: A Study of Ideology and Legal Reform,” (1983) 96 Harvard LR 1497. 11   Richard Epstein, “Unconscionability: A Critical Reappraisal,” (1975) 18 Journal of Law & Economics 12 293.   Weinrib (n. 7). 13  Karl Marx, “On the Jewish Question” (1843); Alan Freeman and Elizabeth Mensch, “The Public-Private Distinction in American Law and Life,” (1987) 36 Buffalo LR 237. 9

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1044   alon harel courts and does not or even cannot guide courts in their decisions. The incongru­ ence between libertarian or liberal legal theory (defending a sharp dichotomy between public and private law) and the incoherent legal realities is a challenge for the defenders of the dichotomy.14 Generally speaking (but not invariably), the more individualistic the political ideology is, the greater scope it provides to pri­ vate law at the expense of public law and vice versa.

iii.  The Autonomy of Private Law: A Political Philosophy Perspective The last section established that there is a strong link between one’s political phil­ osophy and ideology, on the one hand, and one’s views concerning the autonomy of private law. This section examines the relations between different traditions of political theory and the way they treat the dichotomy. I examine here seven trad­ itions: the libertarian/liberal tradition, the Marxist tradition, legal realism, the crit­ ical legal studies movement, the feminist movement, utilitarianism and the law and economics movement, and, last neo-Kantian and neo-Hegelian theories.

1.  The libertarian/liberal tradition The source of the concern for the autonomy of private law is ultimately normative not doctrinal and it is often grounded in the conviction that there are some rights that are pre-political and which the establishment of a state must take account of. The classical advocates of this view are John Locke and his later prominent follower Robert Nozick.15 Locke believed that “every man has property in his own person:  this nobody has a right to but himself. The labor of his body, and the work of his hands, we may say, are properly his.”16 The right to property is therefore a natural pre-political 14  Often, in order to maintain the coherence of the dichotomy, legal theorists speak of a con­ tinuum such that the relevant entities are not “absolutely one thing or another.” See Gavison (n. 9) 15; Duncan Kennedy, “The Stages of the Decline of the Public/Private Distinction,” (1982) 130 University of Pennsylvania LR 1349, 1351. 15   John Locke, Two Treaties of Government: Second Treatise (ed. Peter Laslett, 1960); Robert Nozick 16 Anarchy, State and Utopia (1974).   Locke (n. 15) ch. V, section 27.

public and private law    1045 right which governs individuals in the state of nature and its normative force does not depend on the establishment of a state. Robert Nozick developed this famous Lockean insight and proposed a Lockean entitlement theory of distributive justice. This theory relies on three basic principles:  (a)  a principle of initial distribution; (b) a principle of transfer of resources; and (c) a principle of rectification. A distri­ bution is just if it is done in conformity with these three principles.17 Nozick’s three principles have their equivalents in private law. The principle of initial distribution is part of property law; it specifies the ways in which individuals become owners of previously unowned objects. The principle of transfer consists (at least partly) of contract law (and also consists of the law governing presents and other legitimate means of transferring property).18 The principle of rectification consists primarily of tort law and the provisions of contract law which regulate rem­ edies. The principle of rectification specifies the normative consequences in cases in which either the principle of initial distribution or the principle of transfer are violated. The state ought to protect entitlements acquired in accordance with these prin­ ciples of distribution. The autonomy of private law is a natural implication of the view that these principles ought to be honored by the state. The state cannot deprive individuals of their pre-political entitlements just in order to promote the public good, to help the needy, or to promote equality, as its rules are designed in the first place to protect the rights individuals have pre-politically, that is, in the state of nature. As a matter of fact, Nozick’s theory does not protect merely the autonomy of private law; it protects the normative priority of private law over public law. Taken seriously his view implies that public law consists merely in designing public insti­ tutions in ways that promote and protect private law. Richard Epstein explored the implications of this view to private law. Epstein argued that: One of the first functions of the law is to guarantee to individuals a sphere of influence in which they will be able to operate, without having to justify themselves to the state or to third parties: if one individual is entitled to do within the confines of the tort law what he pleases with what he owns, then two individuals who operate with those same constraints should have the same right with respect to their mutual affairs against the rest of the world.19

This view has broad influence much beyond the narrow confines of the libertarian movement. Some non-libertarian philosophers regarded private law as a paradigm to help to understand the nature of rights as such. Most famously H.  L. A.  Hart developed his choice theory of rights on the basis of the private law paradigm. He concluded that rights consist of three elements: (a) the rightholder may waive or

  Nozick (n. 15) 150–153.   Under some views, the law governing presents is part of the law of contracts. 19   Epstein (n. 11) 293–294. 17

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1046   alon harel extinguish the duty owed to him by others; (b) the rightholder can leave the duty unenforced, or alternatively, enforce it; and (c) the rightholder may waive or extin­ guish the obligation to pay compensation.20 Legal theorists often develop doctrines designed to protect distinctive private law values. Dagan described this view as rest­ ing on the conviction that: “private law . . . is a realm with its own inner intelligibility, isolated from the social, economic, cultural, and political realms.”21

2.  The Marxist tradition The most influential critique of the distinction between the public and the private can be found in Marx’s essay “On the Jewish Question.”22 Marx establishes the exist­ ence of two spheres of existence of the person: the political and the communal or societal. In the political realm, individuals are free and equal: property, religion, or race are no more prerequisites for being a citizen or for voting. But, Marx argues, true emancipation requires not merely cutting the link between religion, wealth, or race and citizenship (or more generally participation in the political life) but abol­ ishing these distinctions altogether, namely abolishing them in the civil society. In his characteristically powerful rhetoric Marx says: Nevertheless, the political annulment of private property not only fails to abolish private property but even presupposes it. The state abolishes, in its own ways, distinctions of social rank, education, occupation when it declares that birth, social rank, education, occupation, are non-political distinctions, when it proclaims without regard to these distinctions, that every member in the nation is an equal participant in national sovereignty, when it treats all elements of the real life of the nation from the standpoint of the state. Nevertheless the state allows private property, education, occupation to act, in their way, i.e., as private property, education and to exert the influence of their special nature. Far from abolishing these real distinctions, the state only exists on the presupposition of their existence.23

Marx describes persons in modern capitalist societies as leading a dual life: the lives in the political community are lives of complete equality and freedom and the lives in the civil society are lives of oppression and inequality. In his view: “In the political community he regards himself as a communal being, but in civil society he is active as a private individual, treats other men as means . . . and becomes the plaything of alien powers.”24 Further Marx believed that it is the life of the “private man” which describes the “immediate reality” for people, while in the political state the persons are “deprived of real individual lives and endowed with unreal universality.” Lives in the civil society are more significant immediate and concrete than the lives of 20   H. L. A. Hart, “Legal Rights,” in H. L. A. Hart, Essays on Bentham, Jurisprudence and Political Theory (1982), 162–193. 21   Hanoch Dagan, Reconstructing American Legal Realism and Rethinking Private Law Theory (2013), 4. 22   Marx (n. 13).    23  Marx (n. 13).    24 Marx (n. 13).

public and private law    1047 the citizen, and it is there that individuals are un-free and unequal. It follows from Marx’s observations that full emancipation requires complete subjugation of the private sphere to the public sphere.25 As will be shown later, this view has greatly influenced the Critical Legal Studies and the feminist movements.

3.  The legal realist tradition As Duncan Kennedy said “The history of legal thought since the turn of the [twen­ tieth] century is the history of the decline of a particular set of distinctions—those that, taken together, constitute the liberal way of thinking about the social world.”26 Those who contributed more than anybody to the erosion of these legal distinctions (including the distinction between public and private law) were the legal realists. In two highly influential articles Morris Cohen tried to establish the public nature of private law. In “The Basis of Contract,” Cohen argued that contracts are pub­ lic because they are defined and regulated by the law. The law confers the “private powers” to make a contract. Arguably if the state recognizes contracts and enforces them, then contracts must be designed also to promote the public interest.27 The law of contracts is not based on an unselective mechanical enforcement of what­ ever the parties want. Instead, “enforcement . . . puts the machinery of the law in the service of one party against the other. When that is worthwhile and how that should be done are important questions of public policy.”28 Cohen points out that a contract “confers sovereignty on one party over another”29 and “the question natur­ ally arises: For what purposes and under what circumstances shall that power be conferred?”30 Interestingly, Cohen also believes that to realize the traditional val­ ues for the sake of which private law is perceived to be autonomous, the law must interfere in the contracts to promote security and other values that are cherished by the parties to a contract. The parties to a contract would benefit from intervention designed to promote their interests.31 Cohen pursued the same theme in “Property and Sovereignty.”32 In contrast to the liberal or libertarian conviction that property law protects autonomy, Cohen argued that property law is coercive as it grants one person—the property owner— a right to exclude others. To the extent that a property owner excludes others from things that are necessary to their well-being, the law confers power on the property   For a more detailed discussion of Marx’s views and their implications for contemporary theor­ ists of law, see Gerald Turkel, “The Public/Private Distinction Approaches to the Critique of Legal 26 Ideology,” (1988) 22 Law & Society Review 801, 805–809.   Kennedy (n. 14) 1349. 27   Morris R. Cohen, “The Basis of Contract,” (1933) XLVI Harvard LR 553, 562. 28 29 30   Cohen (n. 27) 562.   Cohen (n. 27) 587.   Cohen (n. 27) 587. 31   Cohen (n. 27) 588. 32   Morris R.  Cohen, “Property and Sovereignty,” in Morris R.  Cohen, Law and the Social Order (1933). 25

1048   alon harel owner. Property should therefore be regarded as a form of sovereignty—economic sovereignty. A similar argument was made by Richard Hale who maintained that: To take this control from the owner of the plant and to vest in a public official or in a guild or in a union organization elected by the workers would neither add to nor subtract from the constraint which is exercised with the aid of government. It would merely transfer the constraining power to a different set of persons. Consequently, property is not a sphere of freedom; it is merely a private form of coercion and therefore it ought to be regulated for the sake of promoting the public interest.33

There are two distinct arguments raised by Cohen, Hale, and other legal realists. First, they argue that the fact that the law creates, protects, and enforces property rights and contracts implies that the creation and enforcement of contracts and property rights should be informed by public concerns. Secondly, their argument rests on the belief that the protection of contracts and property grant powers given to one person against another, and such powers can often be very extensive given the economic dependence of some people on others. Hence it is false to regard con­ tracts (and other fields of private law) as a sphere of autonomy as the autonomy of one person entails the denial of autonomy to another. The legal doctrines governing property and contract are not protective of freedom; they are merely one form of distributing freedom—granting freedom to some at the expense of others. I believe both arguments fail. The mere fact that the law protects property or enforces contracts does not imply that the creation or enforcement of contractual rights ought to promote public ends. It could instead be designed to protect the preexisting autonomy and equality of the parties to the contract.34 Similarly, the mere fact that the government sides with one party against another does not imply that the state’s intervention does not protect or promote freedom or autonomy. To the extent that one believes that autonomy requires enabling individuals to commit themselves and to benefit from the commitments of others in order to realize their ends, it follows that legal enforcement of contracts promotes or protects autonomy. Other arguments raised by legal realists were also endorsed by the Critical Legal Studies movement and will be explored in the next section.

4.  Critical Legal Studies movement The Critical Legal Studies movement combined and extended the insights of legal realism and Marxism and developed the following two arguments:  (a)  the 33   Richard Hale, “Coercion and Distribution in a Supposedly Non-Coercive State,” (1923) 38 Political Science Quarterly 470, 478. 34  Gavison (n. 9)  16; Eyal Zamir “The Inverted Hierarchy of Contract Interpretation and Supplementation,” (1997) 97 Columbia LR 1777–1778.

public and private law    1049 indeterminacy argument—the distinction between the public and the private is not (and also cannot be) consistently sustained and used by courts or guide their deci­ sions; and (b) the sectarian argument—the dichotomy between public and private law serves various sectarian ideological and political interests and concerns, in par­ ticular the concern to protect and legitimize inequality and oppression.

a)  The indeterminacy objection One primary accusation made by the Critical Legal Studies movement, following the legal realists, is the accusation of indeterminacy. The use of the terms is nothing but a rationalization of decisions rather than an independently valid justification. As Gavison pointed out, this accusation can rest on two arguments: (a) there is no rational way to identify what is private and what is public and therefore the decision to classify something as public or private is arbitrary and conclusory and (b) while there is a way to identify what is private and what is public, such an identification does not imply clear normative consequences.35 In “An Essay in the Deconstruction of Contract Doctrine,” Clare Dalton defended the first claim, namely the claim that there is no rational way to identify what is private and what is public. For instance, she argued that drawing the lines between real autonomy-enhancing consent and duress or unconscionability cannot rest on the public–private divide.36 Other fields of law have become notorious for mixing private and public concerns in ways which fail to provide useful guidance to the decision-maker. Labor law is a good example. Karl Klare asserted that: it is seriously mistaken to imagine that legal discourse or liberal political theory contains a core conception of the public/private distinction capable of being filled with determinate content or applied in a determinate manner to concrete cases. There is no public/private distinction. What does exist is a series of ways of thinking about public and private that are constantly undergoing revision, reformulation, and refinement.37

The indeterminacy challenge often led legal theorists and judges to speak of inter­ mediate entities or activities—ones that have public and private dimension. But, as Duncan Kennedy argues, developing an intermediate category of entities or activi­ ties may itself contribute to indeterminacy for the second reason mentioned by Gavison, namely that it is often difficult to draw normative conclusions from such a classification. If an entity or an activity is partly public and partly private, it is more difficult to determine whether in a particular context it ought to be treated as a public or as a private entity.38

  Gavison (n. 9) 11–12.   Clare Dalton, “An Essay in the Deconstruction of Contract Doctrine,” (1985) 94 Yale LJ 997, 1024–1039. 37   Karl Klare, “The Public-Private Distinction in Labor Law,” (1982) 130 University of Pennsylvania 38 LR 1358, 1361.   Kennedy (n. 14) 1352–1353. 35

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1050   alon harel The difficulties of classifying an entity or an activity as public or private raise doubts concerning the value of the distinction and its potential to guide judges and dictate decisions. But the defenders of the classification argue that all that can reasonably be established is that the use of the classification is difficult and must be more nuanced than previously thought. Such a conclusion does not undermine the distinction as such.39

b)  The sectarian ideology objection Some theorists argue that preserving the autonomy of private law is an ideological tool designed to create illusions which legitimize inequality and injustice. Under this view, the so-called protected private sphere facilitates distancing the sense of injustice, paralyzing any political attempt to undo it, and legitimizing the status quo. What happens in the so-called private sphere is natural; it is not our choice and is therefore not attributable to us. For instance, protecting the autonomy of private law: “allows us to experience the social reality of minorities trapped in ghettos as a fact, however regrettable of private rather than public life. Therefore it is something outside the range of our direct concern, something about which we do not have to feel utterly outraged.”40 More generally, the sense of legitimacy is based on the false belief that the private sphere protects a neutral and apolitical sphere which over­ comes the fear of tyranny of the majority.41 This objection has limited force for several reasons. The sophisticated advocates of protecting the autonomy of private law do not deny that by doing so the legal system promotes certain values that they cherish, such as negative freedom.42 As a matter of fact it would be a powerful argument against sustaining the distinction between public and private law if it were entirely neutral, namely if it did not serve any moral, political, or ideological purposes. Further, some of the advocates of the autonomy of private law are advocates of progressive changes including dis­ tributive justice; they simply deny that private law ought to be used to realize this purpose.

5.  Utilitarianism and law and economics Both utilitarianism and law and economics theorists deny the significance of a prin­ cipled distinction between public law and private law. Although the observations I make in this section apply both to utilitarianism and to the law and economics movement, I will focus here on the law and economics movement.

40   Gavison (n. 9) 13–14.   Freeman and Mensch (n. 13) 244.  Morton J.  Horwitz, “The History of the Public/Private Distinction,” (1982) 130 University of 42 Pennsylvania LR 1423, 1425.   Epstein (n. 11). 39 41

public and private law    1051 Morris Cohen captured best the law and economics position toward the auton­ omy of private law when he argued that: Certain things have to be done in community and the question whether they should be left to private enterprise dominated by the profit motive, or to the government dominated by political considerations, is not a question of man versus the state, but simply a question of which organization and motive can best do the work.43

This paragraph conveys total indifference (and even impatience) towards the the­ oretical and doctrinal effort to differentiate between private and public law and protect the autonomy of the former. There is work to be done and it ought to be done in the best possible way irrespective of whether it is done by private or pub­ lic agents or through public or private law. The work to be done is often under­ stood in the law and economics tradition in terms of efficiency. The assumption is always that the choice of agent (private or public) is a contingent matter that depends on the agent’s motivations and abilities.44 For instance, if we wish to deter individuals from harming others, we can assign public officials to inflict criminal sanctions or we can attribute civil liability and thereby “assign” the task to pri­ vate individuals—plaintiffs. The choice between the two is a pragmatic choice that depends on a comparison between the expected efficacy of public officials and plaintiffs in performing the job. Let us illustrate this approach by looking at the boundaries between criminal law and tort law. Law students learn that criminal law is a branch of public law designed to promote the public interest. Public law is contrasted with private law (e.g. con­ tract and tort law) which is designed to promote private interests.45 Under the view held most famously by Blackstone, crimes “affect the whole community, considered as a community in its social aggregate capacity.”46 But this distinction between pub­ lic and private harm is considered to be unintelligible to law and economics theor­ ists. Public harm is nothing but the aggregation of private harms. To decide what field of law should be used to deter wrongful behavior, law and economics theorists identify two major differences between criminal and tort law. One difference is that criminal sanctions are often nonmonetary (e.g. imprison­ ment, capital punishment, or, in ancient legal systems, exile or torture). Further, criminal sanctions are typically much more severe than the harms resulting from the wrong. In contrast, tort law sanctions are characteristically monetary and are based on the size of the harm. The second primary difference is the identity of the agent in charge of imposing the sanction. Typically, victims of a tort sue the wrong­ doer (and control the process) while criminal sanctions are initiated and controlled by agents of the state—public officials. The primary concern of theorists of law and

  Cohen (n. 32) 64.    44  Harel and Porat (n. 3) 767–768.   Jerome Hall, General Principles of Criminal Law (2nd ed., 2005), 241–246. 46   William Blackstone, Commentaries on the Laws of England, Vol. 4 (1769), ch. 1. 43 45

1052   alon harel economics is to examine which mechanism is superior to the other in terms of its costs and benefits. Monetary sanctions (characterizing tort law) have two advantages over nonmon­ etary ones. First, monetary sanctions involve nothing but transferring money from one person (the wrongdoer) to another (the victim).47 In contrast, the typical crim­ inal sanction such as imprisonment imposes costs on the criminal but (excluding satisfying sentiments of revenge and hatred) does not promote the well-being of the victim. Secondly, there is an advantage in victims’ greater participation in the private law process (resulting from the compensation they expect to receive), as victims often have information concerning the nature of the act committed and the size of the harm. The greater willingness of plaintiffs to actively participate in the private law proceedings contributes to the quality of decision-making. This analysis implies that as a general rule it is better to use tort law than criminal law as a means of deterring wrongdoing. But as Polinsky and Shavell have shown, despite the advantages of tort law, private law sanctions are not always effective for several reasons. First, the wrongdoer may be insolvent.48 If the wrongdoer cannot compensate the victim, tort law provides no incentives, as the effectiveness of monetary sanctions hinge on the solvency of the wrongdoer. This is particularly a serious concern when the probability of detection of the wrongdoer is small, and consequently the sanction necessary to deter is par­ ticularly large. To deter a person from stealing when only one in a hundred thieves is caught requires a particularly harsh sanction and, to the extent that the sanction is monetary, the prospects of insolvency are high. Furthermore, private law sanc­ tions may require an overly lengthy and expensive process and therefore may fail to incentivize victims to seek remedy. Sometimes the wrongdoer harms many victims and the harms caused to each victim are too small to incentivize any one victim to seek remedy. At other times victims do not have the relevant information necessary to seek remedy. In such cases, tort law fails to reach optimal deterrence and conse­ quently it is necessary to resort to criminal sanctions. Yet, despite the dismissal of a principled distinction between public and private law, economists have provided some economic arguments supporting the view that private law ought not to be used to promote distributive justice concerns. In a series of articles Kaplow and Shavell argued that it is always more efficient to promote just distribution (or any other social ideals) by using tax law rather than by using private law. If a poor person is not required to compensate a rich person to promote dis­ tributive justice, the poor will not have an incentive to act optimally. If, on the other hand, tax law is used to promote distributive justice there will be no such distortion and the distributive justice concerns could be promoted without undermining the   Richard Posner, Economic Analysis of Law (7th ed., 2007), 223.   Mitchell A.  Polinsky and Steven Shavell, “The Theory of Public Enforcement of the Law,” in Handbook of Law and Economics, Vol. 1 (2007), 403–454; Posner (n. 47) 192. 47

48

public and private law    1053 incentives to take optimal precautions.49 Note, however, that this argument applies not only to private law but also to fields of public law. Regulation designed to pro­ mote distributive justice concerns is also likely to distort optimal incentives. It is only tax law that avoids such a distortion. This analysis is far from being complete. It is only meant as a short illustration of the approach of law and economics.50 It is sufficient, however, to illustrate that law and economics regards the difference between public and private law in pragmatic terms. In the language of Cohen, there is work to be done—deterring wrongdoers— and the methods for doing it need to be evaluated in accordance with their costs and benefits.

6.  Feminist legal theory Many feminists regard the relationship between the public and the private as central to feminist theory.51 Some feminists regard the private sphere as an enemy of women and call for its total abolition. Traditionally women have been relegated to the pri­ vate sphere (understood here as the family or home rather than the market) and the discrimination of women has often been the byproduct of the relegation of women to the private sphere. One of the proponents of this view is Catherine MacKinnon who argued:  “For women the measure of intimacy has been the measure of the oppression. This is why feminism has had to explode the private. This is why femin­ ism has seen the personal as the political.”52 Many of the challenges and concerns raised by feminists against the private sphere have been taken from Marxism, from the realist movement, and from the Critical Legal Studies movement. The feminist movement has had, however, several distinctive contributions to the controversy. First, the feminist discussion has naturally focused upon a different dimension of the private, namely the family rather than the market or civil society. As a mat­ ter of fact, some feminists have argued that the dichotomy between public (under­ stood as political) and private (understood as consisting of civil society) has been replicated in the contrast between the market (understood as public) and the family (understood to be private).53 Furthermore, it was shown that very often attempts at

  Louis Kaplow and Steven Shavell, “Why The Legal System is Less Efficient than the Income Tax in Redistributing Income,” (1994) 23 Journal of Legal Studies 667; Louis Kaplow and Steven Shavell, “Should Legal Rules Favor the Poor? Clarifying the Role of Legal Rules and the Income Tax in Redistributing Income,” (2000) 29 Journal of Legal Studies 821. For a critique, see Daphna Lewinsohn Zamir, “In Defense of Redistribution Through Private Law,” (2006) 91 Minnesota LR 326–397. 50   For a more complete account, see Alon Harel, “Economic Analysis of Criminal Law: A Survey,” in Alon Harel and Keith Hylton (eds.), Research Handbook on the Economics of Criminal Law (2012), 51 10–50.   Gavison (n. 9) 1. 52   Catharine A. MacKinnon, Towards a Feminist Theory of the State (1989), 191. 53   Olsen (n. 10) 1501. 49

1054   alon harel reforming the market involve importing doctrines and values that apply in the fam­ ily and vice versa.54 One similarity between the Marxist and the feminist views is par­ ticularly important. The worry discussed earlier that social and economic inequality is being legitimated by describing (or classifying) it as “private” (and therefore not the state’s concern) has been used also to attack the autonomy of the family.55 More specifically, it was argued that failing to regulate the family for the reason that it is “private” protects and preserves the hierarchical structures in the family and, in par­ ticular, gender hierarchy.56 Another major distinctive contribution of the feminist movement has been in identifying the strong connections between the private and the public. Many femin­ ists argue that nothing is really private as citizens are socialized in families and the socialization in families affect the public sphere.57 Whatever happens in the family deeply influences social and political structures, as habits of thoughts, stereotypes, and beliefs concerning gender and sexuality are developed in the family. To the extent that the family is unequal, the protection of the family inevitably reinforces public inequality, as it protects and reinforces the gender hierarchy in the fam­ ily. Michel Foucault’s work has added an important dimension as it showed also how mechanisms of power in the public sphere influence the private sphere and attempted to undermine the very existence of a free “private sphere.” The private sphere is as oppressive as the public.58 One famous example illustrating the interrelations between the private and the public is the treatment of pornography. MacKinnon believes that the consumption of pornography influences the ways in which individuals perceive maleness and femaleness. More specifically, she believes that pornography constructs maleness as dominance and femaleness as subordination. The images that develop in the private sphere due to the influence of pornography are crucial in sustaining and reinforcing inequality not only in the family but also in the social and in the political spheres.59 Similarly, the values of the political sphere may penetrate the market and the family. No sphere is therefore really autonomous and, consequently, it is wrong to protect the autonomy of the private sphere as such a protection has repercussions in the public sphere and vice versa. Despite the power of this argument, it does not necessarily undermine the distinction between the public and the private. To address the interdependence between the different spheres, Ruth Gavison suggests to speak not in terms of pri­ vate self-regarding or public other-regarding activities but in terms of the degree to which an activity is self-regarding or other-regarding. Drawing more nuanced

55 56   Olsen (n. 10) 1529–1560.   Gavison (n. 9) 30.   Olsen (n. 10) 1509–1513.   Susan Moller Okin, Justice, Gender, and the Family (1989), 131–133. 58   Michel Foucault, The History of Sexuality (1978). 59   Catharine A. MacKinnon, Feminism Unmodified: Discourses on Life and Law (1987), 148. 54 57

public and private law    1055 distinctions and using intermediate concepts can perhaps overcome this feminist challenge.60

7.  Neo-Kantian formalism/neo-Hegelian theory A highly sophisticated liberal attempt to defend the dichotomy between public and private law can be found in the work of neo-Kantian and neo-Hegelian liberals. In an influential neo-Kantian book, The Idea of Private Law, Ernest Weinrib defends the autonomy of private law.61 Kant’s own view of private law has been analyzed by Arthur Ripstein in Force and Freedom:  Kant’s Legal and Political Philosophy.62 Brudner’s The Unity of the Common Law defends the autonomy of private law from a Hegelian perspective.63 Weinrib’s, Ripstein’s, and Brudner’s ambition (the “Toronto School”) is similar to the traditional ambition of liberal and libertarian thinkers (discussed in Section I), namely to protect private law from being subjected to col­ lective or public ends. In Weinrib’s view, what is distinctive to private law is the relations between the parties—the defendant and the plaintiff.64 The reasons that can be used to deter­ mine liability must be reasons that apply to the relationships between these parties. Neither reasons that apply to one of the parties (e.g. the subjective incompetence of the defendant), nor reasons that rest on concerns for promoting societal welfare (deterrence or efficiency) can be used in determining liability (or in determining the scope and the nature of the remedy). Weinrib believes that this observation explains many of the existing doctrines of tort law. It explains, for instance, why it is not sufficient that the defendant pays a fine to the state or that the plaintiff receives compensation from the state. The defendant is entitled to get a remedy from the plaintiff and the plaintiff has to compensate the defendant. The concept of justice which takes seriously the correlativity of the parties is corrective justice—justice that aims to restore and maintain the notional equality between the parties, namely to guarantee that they have what lawfully belongs to them. The law corrects the injustice when it re-establishes the equality between the parties by taking from the defendant what is not his and giving what is due to the plaintiff. Weinrib further argues that corrective justice is linked with the concept of rights as understood by Kant. The autonomy of private law protects the freedom of individuals by insisting that they need not exercise their rights in a way that pro­ motes the societal good, or even in a way that promotes their own good.

61 62   Gavison (n. 9) 17–18.   Weinrib (n. 7).   Ripstein (n. 5).   Alan Brudner, The Unity of Common Law: Studies in Hegelian Jurisprudence (1995). 64   Weinrib (n. 7); Ernest J. Weinrib, “Corrective Justice in a Nutshell,” (2002) 52 University of Toronto LJ 349, 350. 60 63

1056   alon harel Despite the abstractness of Weinrib’s theory, the underlying intuition is clear. A plaintiff needs to establish not only that he was harmed but also that he is en­titled to be compensated by the defendant. To use considerations which are external to the relations between the parties in order to establish liability violates the rights of the defendant. The defendant can ask why it is she who ought to bear the costs inflicted on the plaintiff just in order to promote societal ends. Arguably those costs ought to be taken care by the community as a whole. Similarly, to use con­ siderations which are external to the relations between the parties in order to deny liability violates the rights of the plaintiff who could ask why it is he who ought to bear the costs of an accident negligently caused by the defendant just in order to promote societal ends. Similar considerations also apply to the type and the size of the remedy. Yet, the autonomy of private law does not imply that public law is irrelevant in contexts where private law applies. In a recent article Weinrib recognizes the impact of public right on private law.65 Weinrib argues that in the absence of pub­ lic institutions assigned to interpret and enforce the law, the interpretation and enforcement are left to the unilateral will of the stronger party. To overcome this problem, public institutions (such as courts) are necessary. Once these public insti­ tutions are established two normative ideas come into being: publicness and sys­ tematicity. Publicness is satisfied when courts use justifications that are accessible to citizens. Systematicity implies that courts operate within the boundaries of their jurisdiction and that their decisions apply to all individuals rather than merely to the litigants. Weinrib’s corrective justice theory hinges on a very particular view of what autonomy and equality consist of. Weinrib’s Kantian foundations of liberalism are currently hotly debated.66 The fact that the soundness of Weinrib’s theory depends on its Kantian foundations exposes it to the objections raised against Kant’s moral and political philosophy. The Kantian view of private law was also developed and defended by Ripstein.67 Ripstein develops the view that private right protects a right to external objects. Protecting such a right is necessary to enable individuals to realize their objectives. Under the interpretation given by Ripstein, public right is necessary only because public authority is necessary for the efficacious protection of private rights.68 Brudner’s The Unity of Common Law also defends a robust private law jurispru­ dence which is separate from public law. Brudner believes that the system of com­ mon law has traditionally been: “an ordering of human interactions independent of the political order directed to common ends.”69 To do so Brudner uses Hegelian philosophy and tries both to describe the common law and to justify it.70 In doing   Ernest J. Weinrib, “Private Law and Public Right,” (2011) 61 University of Toronto LJ 191. 67   Joseph Raz, The Morality of Freedom (1986).   Ripstein (n. 5). 68 69 70   Ripstein (n. 5) 23.   Brudner (n. 63) 1.   Brudner (n. 63) 9. 65

66

public and private law    1057 so, Brudner defends the view that private law ought to provide a place to the atom­ istic self.71 In analyzing property law, Brudner argues that private law orders “inter­ actions between persons considered to be otherwise dissociated.” He also adds that property law must do justice “to those institutional features of the common law that suit it to its role as a law for atomistic people and that render it notoriously ill-suited as an instrument of collective action.”72 The core of private law is therefore apolitical; it is intelligible apart from the ends of political association. Some legal theorists working in the field of private law endorse a weaker posi­ tion and advocate protecting a limited autonomy to private law. Hanoch Dagan defends the position that private law is indeed grounded in the bipolar relation­ ship between the parties, but insists that these relationships rely on our public val­ ues. Like autonomists, Dagan argues that in general only considerations that touch upon the relationship between the parties can be used to affect the legal doctrines governing it. Thus, for instance, demographic concerns to increase or decrease the population cannot be used in designing the rules concerning marital property. But Dagan further claims that because the values that inform the parties’ entitlements inter se are necessarily public, these social ideals of interpersonal relationships play a crucial role in private law. Thus, our shared ideals concerning the marital relation­ ship and what makes them valuable can and ought to be used in designing marital property law.73

8. Summary This chapter examined the ways in which different political theorists treated the alleged autonomy of private law. Libertarians and liberals care deeply about the auton­ omy of private law while Marxists, legal realists, feminists, theorists of the Critical

  Brudner (n. 63) 14.    72  Brudner (n. 63) 22.   Dagan (n. 21) 104–128. Another contemporary influential attempt to capture what is distinctive about private law emphasizes “the principle of civil recourse” as characteristic of private law. Under this view, what characterizes private law is the standing that the plaintiff has to resort to the courts or to the judicial system. Benjamin Zipursky writes: I shall argue that our institution of private rights of action embodies a “principle of civil recourse.” According to this principle, an individual is entitled to an avenue of civil recourse—or redress— against one who has committed a legal wrong against her. This principle is a civilized transformation of what is often considered a quite primitive “instinct” of retributive justice, the instinct that I am entitled to “settle a score” or to “get even” with one who has wronged me . . . A private right of action against other person is essentially a response to having been legally wronged by that person, and therefore exists only where the defendant has committed a legal wrong against the plaintiff and thus violated her legal right. See Benjamin C. Zipursky, ‘Rights Wrongs, and Recourse in the Law of Torts,” (1998) 51 Vanderbilt LR 1. For a recent more developed exposition of this theory, see John C. P. Goldberg and Benjamin C. Zipursky, “Torts as Wrongs,” (2010) 88 Texas LR 917. 71

73

1058   alon harel Legal Studies movement, and theorists of the law and economics movement question and challenge the autonomy of private law. Without getting into the intricacies of legal doctrine, it is fair to say that public ends have gradually become part of private law jurisprudence. Even those who believe in the autonomy of private law theory lament the fact that private law has been subjected to social ends.74 Yet what may seem as the victory of the left in this battle was a pyrrhic victory. Public ends are recognized now as part of private law but it is not necessarily the public ends favored by progressives; the law and economics movement has greatly influenced the social ends that have become part of private law jurisprudence and typically its ends are not the ones favored by the left. I would argue in the next section that the contemporary debates concerning pri­ vatization of public services require focusing attention on the autonomy of pub­ lic law (rather than the autonomy of private law). Understanding the significance of preserving the autonomy of public law could shed light on the contemporary debates concerning privatization. In particular I will argue that privatization rests on a misconceived understanding of what public law is about.

iv.  The Autonomy of Public Law As shown earlier, the main concern of libertarian and liberal legal theorists was to protect the autonomy of private law. Left-wing theorists were critical of the attempt to protect the autonomy of private law and argued that such an attempt is both inco­ herent and undesirable. Somewhat ironically, I wish in this section to borrow the strategies used by libertarian and liberal theorists (aiming to maintain the auton­ omy of private law) in order to defend the autonomy of public law. To do so let us examine the justifiability of privatization of services. As discussed previously, the opposition of legal realists and left-wing theorists to the “autonomy of private law” has been based on instrumental concerns. Private law ought to be used to promote public ends because there is a job to be done (e.g. promoting equal­ ity and justice) and one ought to think about the best ways of performing success­ fully this job. The same type of arguments is used by opponents of privatization. Under the prevalent view of opponents of privatization, privatizing public services undermines “accountability.”75 Private agents are less likely than public officials to

  Brudner (n. 63) ch. 1.   Martha Minow, “Public and Private Partnerships: Accounting for the New Religion,” (2003) 116 Harvard LR 1229. 74 75

public and private law    1059 pursue the public good. Instead I suggest that principled autonomy-based concerns (of the type used by libertarians and liberals in defending the autonomy of private law) can justify the autonomy of public law and, most importantly, can justify the opposition to privatization. This flaw of opponents of privatization is grounded in another premise underly­ ing the discussion concerning public law, namely the conviction that public law is ultimately defined by the ends it promotes and not by the agents who bring about these ends.76 Under this view, the agents are mere instruments to promote the pub­ lic law ends. To the extent that privatization is wrong, it is only because private agents are less likely to promote the public good than private agents.77 In the rest of this section I will develop a principled rather than an instrumen­ tal objection against privatization. More specifically, I  will argue that the artifi­ cial separ­ation between the public ends and the agents which bring them about is flawed and that some goods can only be provided by public agents. If this is so, pri­ vatization is wrong not because of the empirical conjecture that private individuals are less likely to promote public ends but because private individuals cannot bring about some public ends. Let me defend this claim. It is here that I believe that the leftist opponents of privatization can learn from the principled non-instrumental thinking of libertarian and liberal thinkers aim­ ing to sustain the autonomy of private law. Libertarians and liberal thinkers did not ask whether protection of private law promotes any desirable ends; instead, they regarded the protection of private law as a component of freedom. Similarly, I  believe that principled reasons ought to justify the protection of public law. To establish the necessity of public provision of certain goods I shall first establish that there are goods that are agent-dependent goods, namely that they can only be pro­ vided by particular agents. Then it will be argued that some agent-dependent goods are intrinsically public; they cannot as a logical matter be provided by private agents. The public provision of intrinsically public goods is a prerequisite for the successful provision of these goods.78 Some agents are chosen to execute an enterprise because of their expected excel­ lence in doing so, when excellence in executing an enterprise is understood and evaluated independently of the agent’s identity or status. At other times, however, excellence (or even competence) in executing an enterprise is inseparable from the 76   A paradigmatic example of the view that identifies public law purely on the basis of the ends it promotes, rather than on the basis of the actors engaged in promoting those ends, is the view that equates privatization with “publicization.” Jody Freeman develops the view that privatization is “a means of publicization through which private actors increasingly commit themselves to tradition­ ally public goals. . . . So rather than compromising democratic norms of accountability, due process, equality, and rationality—as some critics of privatization fear it will—privatization might extend these norms to private actors . . .” See Jody Freeman, “Extending Public Law Norms Through Privatization,” 77 (2003) 116 Harvard LR 1285.   Dorfman and Harel (n. 3) 67–68. 78   The argument is developed more carefully in Harel and Porat (n. 3); Dorfman and Harel (n. 3).

1060   alon harel identity or status of the agent. In the latter cases, the quality of the execution of the enterprise cannot be measured independently of the agent’s identity. The case of blood feuds is a good example of an agent-dependent good.79 Blood feuds are ritualized ways of seeking vengeance for a wrong by killing or punishing a person belonging to a tribe or clan of the original perpetrator who committed the wrong. Although the reader most probably shares my dislike of this practice, it deserves attention, and the institutional norms governing it provide us with a para­ digmatic case of an agent-dependent practice. Most significantly, anthropologists say it is only a male relative of the deceased who is capable of performing a blood feud. A killing by the “wrong agent” is not merely an inappropriate or an impermis­ sible blood feud; it does not even count as a blood feud, and it cannot redress the injustice. To apply this observation to our context, one needs to establish that at times the performance of a task by a public agent is crucial for the successful provision of the good. In other words, some governmental tasks simply cannot be successfully executed by private entities since the goods resulting from these inherently public goods can be realized only if the right agent performs these tasks and the right agent is a public agent.80 Prisons and security can be used as an example of an inherently public good. Most of the arguments of opponents of privatizing prisons are grounded in concerns about accountability of private individuals. Yet such arguments fail to capture a prevalent intuition, namely that the involvement of the state in the infliction of punishment is not a mere contingency hinging on the (alleged) ability or inability of an agent to “get it right.” Such intuitions can easily be detected in the discussions of punishment which emphasize the significance of the agents inflicting the sanctions. David Lyons, for instance, argued that “it is not generally accepted that I have the right sim­ ply to hurt another who has done something wrong, just because he has done

79   Alon Harel, “Why Only the State May Inflict Criminal Sanctions:  The Case against Privately Inflicted Sanctions,” (2008) 14 Legal Theory 113. 80   Some support for the conviction that some goods are inherently public can be provided by exam­ ining legal doctrine. Let me provide here two examples. The term “inherently governmental functions” is defined in the United States in the Federal Activities Inventory Reform (FAIR) Act of 1998. This Act describes an inherently governmental function as “a function that is so intimately related to the public interest as to require performance by Federal Government employees.” It seems that there is a strong sense that some functions must be performed by the government. Another indication is a recent decision of the Israeli Supreme Court in which the Court decided to strike down the establishment of a private prison on principled grounds. HCJ 2605/05 Academic Center of Law and Business v. Minister of Finance . Chief Justice Beinisch argued that: “The power of imprisonment and the other invasive powers that derive from it are therefore some of the state’s most distinctive powers as the embodiment of govern­ ment, and they reflect the constitutional principle that the state has a monopoly upon exercising organ­ ized force in order to advance the general public interest. . . .” (HCJ 2605/05 68–69).

public and private law    1061 it, where there is no special relation between us.”81 Further, “neither one’s gen­ eral level of virtue nor one’s particular talents in the area of punishing . . . are normally taken to establish any special claim to be the one who should punish others.”82 The view emerging from these texts is that one ought to separate two questions: (a) whether an agent “deserves” to be punished or ought to be pun­ ished and (b) whether a particular agent is the “appropriate agent” to inflict the sanction.83 The rationale underlying this view is related to an understanding of what pun­ ishment is about. Punishment is a pubic manifestation of condemnation and dis­ approbation of the criminal deeds.84 Unlike deterrence or even certain forms of retribution, public condemnation is possible in the first place only if it emanates from the appropriate agent. Condemnation is ineffective unless done by an agent who is in a privileged status to that of the one subjected to the condemnation, one whose judgments concerning the appropriateness of the behavior is worthy of atten­ tion or respect.85 Otherwise, an infliction of “a sanction” amounts to an act of vio­ lence which cannot express or communicate censure for the culpable and wrongful acts done. Arguably in a liberal society, it is only the state that can make such judg­ ments and as the privatized activities are not the doings of the state, private entities vested with formal authority to execute the activities in question cannot speak and act in the name of the state. The private provision of “punishment” in fact amounts to the mere imposi­ tion of pain and suffering by one private person on another, necessarily failing to realize punishment’s intrinsic good of expressing, not to mention conveying, condemnation for public wrongs. If this is so, it follows that the goods of pun­ ishment cannot be provided privately. The alleged separation between the good (punishment) and the agent providing the good (public official or a private indi­ vidual) collapses. Public law is not only about public ends but also about public means and in particular about the agents who are assigned with providing these goods.   David Lyons, “Rights Against Humanity,” (1976) 85 Philosophical Review 208, 210.   John A. Simmons, “Locke and the Right to Punish,” (1991) 20 Philosophy & Public Affairs 311–349. 83   Thomas Hill, “Kant on Wrongdoing, Desert, and Punishment,” (1999) 18 Law & Philosophy 407, 425. 84   An early articulation of this claim was developed by Robert Nozick who believes that “Retributive punishment is an act of communicative behaviour.” Robert Nozick, Philosophical Explanations (1981), 370. Joel Feinberg believes that: “Punishment is a conventional device for the expression of attitudes of resentment and indignation and, of judgments of disapproval and reprobation.” See Joel Feinberg, “The Expressive Function of Punishment,” in Joel Feinberg, Doing and Deserving (1970), 95, 98. 85   This observation has practical implications, e.g., implications concerning the debate concerning the privatization of prisons. It suggests that the authorization granted to private wardens to lock a per­ son in solitary confinement, to conduct body searches, and to perform other disciplinary measures is illegitimate, as it grants one citizen power over another. The concern that private entities are in charge of making such decisions was in fact what led the Israeli Supreme Court to strike down the establish­ ment of a private prison. See HCJ 2605/05 (n. 80). 81

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v. Conclusion This chapter examined two historical battles:  the historical battle to preserve the autonomy of private law and the contemporary battle for and against privatization. The progressive camp has won the first war but seems to be losing the second war. I also argued that there are principled rather than pragmatic arguments against pri­ vatization and the failure to use principled arguments reflects a misunderstanding of what is at stake. Let me end this discussion with a speculation. Ironically it is the victory of the left in undermining the autonomy of private law that made privatization possible. The erosion of the autonomy of private law implied that private individuals who sign a contract or who commit a tort can be used to promote public ends such as efficiency or distributive justice. If this is so, there is no principled reason why private agents should not be used to provide or facilitate the provision of other public services. I mentioned earlier that the victory of the left in eroding the autonomy of private law was a pyrrhic victory because, while it has been recognized that private law can be used to promote public ends, the ends that judges choose to promote are not the ones that are favored by the left. I should add now that it is a pyrrhic victory for another reason: the use of private agents to promote public ends in the context of contract or tort law legitimized the use of private agents to provide public services, that is, legitimized the privatization of public services.

References Brudner, Alan, The Unity of Common Law: Studies in Hegelian Jurisprudence (1995) Cohen, Morris R., “The Basis of Contract,” (1933) XLVI Harvard LR 553, 562 Dorfman, Avihay and Harel, Alon, “The Case Against Privatization,” (2013) 41 Philosophy & Public Affairs 67 Gavison, Ruth, “Feminism and the Public/Private Distinction,” (1992–93) 45 Stanford LR 1 Hale, Richard, “Coercion and Distribution in a Supposedly Non-Coercive State,” (1923) 38 Political Science Quarterly 470 Kennedy, Duncan, “The Stages of the Decline of the Public/Private Distinction,” (1982) 130 University of Pennsylvania LR 1349 Klare, Karl, “The Public-Private Distinction in Labor Law,” (1982) 130 University of Pennsylvania LR 1358, 1361 Kronman, Anthony T., “Contract Law and Distributive Justice,” (1980) 89 Yale LJ 472 Locke, John, Two Treaties of Government: Second Treatise (ed. Peter Laslett, 1960) Marx, Karl, “On the Jewish Question” (1843) Minow, Martha, “Public and Private Partnerships: Accounting for the New Religion,” (2003) 116 Harvard LR 1229

public and private law    1063 Nozick, Robert, Anarchy, State and Utopia (1974) Olsen, Frances E., “The Family and the Market:  A  Study of Ideology and Legal Reform,” (1983) 96 Harvard LR 1497 Ripstein, Arthur, Force and Freedom: Kant’s Legal and Political Philosophy (2009) Weinrib, Ernest J., The Idea of Private Law (2012)

­c hapter 46

REGULATORY OFFENSES AND ADMINISTRATIVE SANCTIONS: BETWEEN CRIMINAL AND ADMINISTRATIVE LAW daniel ohana*

i. Introduction The distinction between regulatory offenses and what are variably termed “trad­ itional,” “true,” or “real” crimes (e.g. murder, rape, and theft) is found in most systems of penal law. Although caution must be taken when making generalizations, there exist in most jurisdictions clearly noticeable differences between the norms and practices of enforcement relating to each of these two categories of offenses. With the exceptions of fiscal and road traffic offenses, regulatory offenses are directed at circles of actors involved in specific spheres of commercial or professional activity.

*  I wish to thank the Center for German Studies at the European Forum of the Hebrew University for its financial support.

regulatory offenses   1065 Compliance is often monitored and enforced by a specialized governmental author­ ity, through an administrative sanctioning process that is not necessarily subject to the same procedural and evidentiary regime that prevails in a judicial criminal trial.1 Fault requirements that apply as a rule with respect to traditional crimes are relaxed or dispensed with altogether in this arena. In an administrative setting, pen­ alties available do not include sanctions that amount to a deprivation of liberty, and the person concerned does not receive a criminal record—although some jurisdic­ tions authorize the use of adverse publicity. The sanction most frequently imposed by an administrative authority for a failure to comply with regulatory norms is a monetary penalty. Other sanctions include confiscation of goods, suspension or revocation of special permits or licenses, closure of a business establishment, and debarment from government contracts. Lastly, prosecutorial policy with respect to the enforcement of regulatory offenses tends to be diverse and flexible, as the administrative authority has at its disposal a vast array of alternative responses that stop short of imposing a penalty or setting in motion a criminal prosecution, such as issuing a warning, making a conditional order, or reaching a settlement with the actor concerned. In both common law and civil law systems, the legitimacy of the aforementioned variations has been considerably debated among judges, scholars, and law reformers. For the most part, this question has been addressed in a piecemeal manner, with the focus being primarily on whether regulatory offenses are qualitatively different than criminal offenses and whether there is a clear difference in the purposes or effects of the sanctions imposed on actors who commit regulatory offenses, as opposed to the purposes or effects of criminal punishment.2 This chapter adopts a more compre­ hensive and systematic perspective, placing the issues at stake on a broad canvas, so as to explore the various ways in which they interrelate and interconnect and expose the challenges inherent to undertaking a theoretical endeavor of this order. It probes the divide between the traditional criminal law and the law governing regulatory offenses by examining in detail four seminal theoretical accounts offered over the past two centuries to explain and justify some or all of the variations noted above.   In some common law jurisdictions—notably, the United States, Australia, and New Zealand— there is also a judicially applied “civil” (non-criminal) penalty that blurs the distinction between civil and criminal law. This penalty is imposed after a civil trial which is conducted subject to the rules of civil procedure and evidence, so that liability is imposed based on the civil standard of proof—i.e. the balance of probabilities. In this context, there is no risk of imprisonment and no criminal record is received by the individual concerned. The discussion in this chapter will not attend to such “hybrid” judicial penalty mechanisms. Nor will it examine the use of “civil” preventive orders, whereby a judicial authority imposes conditions on an individual in order to reduce the risk of criminal conduct on his part, while making their violation subject to criminal sanctions. 2   Some jurisdictions have witnessed constitutional challenges pertaining to those aspects of the law governing regulatory offenses which fall short of standard principles of criminal law. See e.g. in Canadian law: Wholesale Travel Group Inc. v. The Queen [1991] 3 SCR 154; R. v. Wigglesworth [1987] 2 SCR 541; Martineau v. M.N.R. [2004] 3 SCR 737. 1

1066   daniel ohana Significantly, each account is nested within a particular, historically determined vision of the proper mission of the state in ordering society and wielding coercive power over the individual: the classical liberal state, the authoritarian welfare state, the egalitarian-liberal welfare state, and the new regulatory state. The discussion focuses on such foundational issues in political theory and moral philosophy as the relationship of the individual to the state and society in a modern democratic polity, the legitimate grounds for criminalization and state punishment, the aims which the state may pursue through the criminal law, the relationship between regulatory enforcement and the pursuit of justice, the differences in function between the leg­ islative, administrative, and judicial branches of government, the manner in which the state should address citizens and induce them to comply with regulatory norms, and the use which may be made of administrative sanctioning mechanisms to miti­ gate the deleterious effects of overcriminalization. Taking a critical perspective, I consider with respect to each account whether the different parts form a sufficient, coherent, and comprehensive whole; whether its structural integrity is vulnerable to destabilization due to the blurring of the boundaries between the law governing traditional crimes and the law governing regulatory offenses; and whether it gives rise to concerns of procedural and substantive justice or otherwise stands in tension with the defining principles of a liberal polity.

ii.  The Classical Liberal State A good starting point for exploring the similarities and differences which exist between traditional crimes and regulatory offenses is the work of Paul Johann Anselm von Feuerbach, the father of modern German criminal jurisprudence.3 With the onset of the criminal law reform movement on the European continent at the beginning of the nineteenth century, Feuerbach suggested that a special code should be supplemented to the criminal code for “police” contraventions. Police offenses constituted a vestige of the early modern Polizeistaat of enlightened abso­ lutism, in which rulers closely administered and regulated all spheres of economic and social life with a view to instituting and perpetuating an order generative of 3   See generally Paul Johann Anselm Feuerbach, Lehrbuch des gemeinen in Deutschland gültigen peinlichen Rechts (1812), § 22; Paul Johann Anselm Feuerbach, Revision der Grundsätze und Grundbegriffe des positiven peinlichen Rechts, Vol. II (1800), 221–223; Paul Johann Anselm Feuerbach, “Über die Polizeistrafgesetzgebung überhaupt und den zweiten Teil eines ‘Entwurfs des Strafgesetzbuchs, München 1822’,” in Ludwig Feuerbach (ed.), Paul Johann Anselm Ritter, Von Feuerbachs Leben und Wirken, Vol. II (1853), 590.

regulatory offenses   1067 material and spiritual prosperity. Significantly, police (administrative) authorities, rather than the judiciary, were given the power to impose penalties (mainly, a fine or a short term of imprisonment) for these offenses. Feuerbach’s account bore the imprint of classical liberalism. Holding the view that freedom is the basis of the state and its overarching aim, he conceived of the law as delineating spheres of freedom in which each citizen could exercise his natur­al rights without being constrained by the interference of others, and as defending these rights against infringement by others through the deterrent threat of pun­ ishment. Although Feuerbach insisted that conduct fit to be criminally prohibited should be limited to injuries of rights (Rechtsverletzung), he qualitatively differenti­ ated such wrongs from police contraventions, arguing that the latter do not embody “natural” wrongs which are accessible to all through reason (and thus impose themselves on all through the common will). In his proposal for a criminal code of Bavaria, Feuerbach defined the police contravention as “an action or omission which, although it does not harm the rights of the state or an individual by itself, is prohibited or commanded with a penalty by reason of the danger for the legal order and security.”4 He added that the penalty for a police contravention is visited upon the offender solely by reason of his disobedience to the commands of the police authority, which possesses a special right to obtain the cessation of acts it deems threatening to public security. Feuerbach’s account was not well received throughout the greater part of the nine­ teenth century. In the 1871 imperial criminal code promulgated following the uni­ fication of Germany into a federal constitutional monarchy, criminal offenses and police offenses were grouped together, reflecting the view that a generic distinction between the two categories of offences is not feasible.5 Many criminal law scholars took issue with Feuerbach’s theory of criminal wrongdoing as a Rechtsverletzung, arguing that its ambit is unduly narrow.6 It was also argued that Feuerbach over­ emphasized the element of disobedience in his account of police offenses, and failed to mark out in a sufficiently rigorous fashion the contours of what can be legitimately prohibited by the state as a police contravention. The validity of this objection was borne out in part in the writings of Feuerbach himself, in which he called for the prohibition of morals offenses, such as sodomy and prostitution, as 4  Feuerbach, Lehrbuch des gemeinen in Deutschland gültigen peinlichen Rechts (n. 3), § 22 (author’s own translation). It should be noted that a slightly, yet significantly, amended version appeared in Art. 2 of the Bavarian Criminal Code enacted in 1813, which was based on Feuerbach’s draft proposal. It added that police contraventions also include minor Rechtsverletzungen with respect to which police author­ ities are statutorily empowered to conduct the investigation and impose penalties. 5   Joachim Bohnert, “Einleitung,” in Lothar Senge (ed.), Karlsruher Kommentar zum Gesetz über Ordnungswidrigkeiten (3rd ed., 2006), 1, 9. 6  See the seminal critique by Johann Michael Franz Birnbaum, “Über das Erforderniß einer Rechtsverletzung zum Begriffe des Verbrechens,” (1834) Archiv des Criminalrechts 149. For an over­ view of the literature, see Heinz Mattes, Untersuchungen zur Lehre von den Ordnungswidrigkeiten, Vol. I (1977), 109–121.

1068   daniel ohana police contraventions, even though such offenses should have been abolished with the emergence of the Rechtsstaat, so as to mark a clear break with the Polizeistaat, which actively sought to cultivate the eudaimonic well-being of its subjects, even by way of penal sanctions.7 Feuerbach sought to pave the way for the transition from an absolutist system of government to a constitutional Rechtsstaat. However, he did not articulate what the justificatory basis is, in a Rechtsstaat, for granting an administrative authority the power to demand the obedience of citizens and visit penalties on those who fail to comply. Nor did he explain with sufficient clarity why the imposition of such penalties does not amount to an exercise of the power to punish, which is subject to the exclusive authority of the judiciary. Still, this brief overview of Feuerbach’s dif­ ferentiation of police contraventions from criminal wrongs is instructive, because it brings into relief the delicate task faced by theorists who wish to single out the rights of the individual as both the interest at whose protection state power should be directed and the source from which constraints on state power should be derived. Setting highly restrictive conditions for the prohibition of conduct by means of the criminal law in order to curb the incidence of criminalization eventually gener­ ates the need to institute an additional vehicle for the use of penal coercion, be it for the sake of thwarting potential future threats to public security or, more broadly, of facilitating governmental administration and regulation of social and economic affairs. Yet the creation of a separate basis for penal coercion by the state risks undermining in spirit or substance the framework, rooted in individual rights, which was originally designed to keep in check the power of the state to invoke the criminal law. The problem is further complicated by the assumption that the separ­ ation of powers doctrine arguably requires the prosecution of regulatory offenses in a criminal sanctioning process in cases where the penalty sought against the offender involves deprivations (e.g. of liberty or respect) which can only be imposed by a judicial authority. These intricacies would first be systematically grappled with at the turn of the twen­ tieth century by James Goldschmidt in his monograph Das Verwaltungsstrafrecht (the administrative penal law).8 Goldschmidt endeavored to come to grips with the reality that had emerged following the rise of the authoritarian welfare state in the closing decades of nineteenth-century Germany. Whereas Feuerbach sought to limit the powers of police authorities by defining police contraventions as solely   See Paul Johann Anselm Feuerbach, Kritik des Kleinschrodischen Entwurfs zu einem peinlichen Gesetzbuche für die Chur-Pflaz-Bayerischen Staaten (1804), 16. See also Knut Amelung, Rechtgüterschutz und Schutz der Gesellschaft (1972), 35–36. 8  James Goldschmidt, Das Verwaltungsstrafrecht (1902). See also James Goldschmidt, “Begriff und Aufgabe eines Verwaltungsstrafrechts,” (1903) Goltdammer’s Archiv für Strafrecht 49; James Goldschmidt, “Das Verwaltungsstrafrecht im Verhältnis zur Moderne Staats- und Rechtslehre,” in Festgabe für Richard Koch (1903), 415; James Goldschmidt, “Was ist ‘Verwaltungsstrafrecht’?,” (1914) Deutsche Strafrechts-Zeitung 222. 7

regulatory offenses   1069 targeting risks of harm to public security, Goldschmidt aspired to carve out the con­ tours of a power of penal coercion specific to the administrative branch of the state government. By articulating the rationales for such a power, as distinguished from the judicial authority to punish offenders within the framework of the criminal law, he introduced a series of new concepts and principles which considerably expanded the terms of the debate about the differences between crimes and police offenses.

iii.  The Authoritarian Welfare State Goldschmidt based the necessity for separate branches of penal law—namely, the criminal law and the administrative penal law—on the distinction between indi­ vidual and collective human nature. The fact that individuals are both independent agents and members of a group, Goldschmidt maintained, gives rise to a funda­ mental division within the state between two orders of government: the legal order (Rechtsordnung) and the order of the public administration (Verwaltungsordnung). The legal order secures peaceful coexistence by demarcating the power spheres (Machtsphäre) of actors in society. These actors, which include the state, are taken as will-bearers (Willensträger). The criminal law prohibits conduct which encroaches upon their power spheres, which Goldschmidt termed “legal goods” (Rechtsgüter). The judiciary, for its part, speaks with the voice of the law by delivering a counter­ response when an actor culpably oversteps the bounds set by it, while manifesting an attitude of defiance toward the legal order. Judicial pronunciation of the convic­ tion and sentence of the offender, in turn, restores the legal order by injuring the Rechtsgüter of the offender proportionally to the wrong committed. Whereas the legal order manifests the common will (allgemeiner Wille), the administrative order is governed by the particular will of the administration (besondere Wille). In the administrative order, state power does not have its basis in law (Recht). Rather, its exercise is solely guided by the aim of attaining public welfare. For Goldschmidt, welfare constitutes a goal which is never fully reached, and it is necessary for the public administration to actively pursue it in a creative and dynamic fashion. Consequently, the public administration must be independent from the other branches of government and sovereign in both its conception of the public welfare and its choice of the means required to translate it into con­ crete action. The “legality” of measures taken by the administration thus cannot be reviewed following objective standards of Recht. Rather, the content of welfare (as a goal and as the means needed to bring it about in reality), is specified solely based on the public administration’s vision of its mission—although in a Rechtsstaat

1070   daniel ohana the public administration is subject to the formal requirements of legality, which is why its penal law is properly denominated Verwaltungsstrafrecht. Goldschmidt stressed nonetheless that even when its prohibitions are set forth in primary legisla­ tion, these remain in essence administrative in nature and, as such, do not belong to the legal order. Whereas in the legal order, the individual agent is the subject of rights and duties, welfare concerns the public as a whole, which is viewed as an “object” that needs to be taken care of (Fürsorgeobjekt). The public forms an entity in its own right, which consists of more than the sum of the interests of each one of its members. Significantly, within the administrative order, the individual is viewed as immersed in the collective entity and not as a separate agent. Although the duty to promote welfare is incumbent on the public administra­ tion—no such duty is imposed upon individuals in relation to each other as a matter of Recht, which is solely determined by the mutual rights and obligations of will-bearers—it may call upon (members of) the public to help. Specifically, it can defend its interests by “calling to order” a member of the public and visiting a penalty upon him for failing to comply with its requirements. This power is not dele­gated or assigned to the administration by the legal order; rather, it constitutes an exercise of its prerogative to obtain the assistance of a member of the public. Tellingly, Goldschmidt characterized the imposition of a penalty by the adminis­ tration as an act of “self-help.” He insisted that the administration need not pass through the judicial system to impose a penalty, for it is not a matter of justice, that is, of redressing a wrong done to the legal order by retaliating against the offender and injuring his Rechtsgüter.9 Rather, it amounts to an act of administrative com­ pulsion (Verwaltungszwang), the purpose of which is to discipline a member of the public for not carrying out his duty.10 At the same time, Goldschmidt likened the administrative penalty to a contractual penalty enforced to obtain compensation for the damages caused to the public administration. Since welfare corresponds to an interest of the “public,” an entity which has no subject (neither an individual nor the state), and constitutes a goal which is con­ tinually pursued yet never fully attained, it cannot be harmed in the same way a Rechtsgut is harmed within the criminal law. Hence, Goldschmidt conceptualized an offense within the administrative order as an omission, a failure on the part of a member of the public to fulfill his duty to assist the public administration in its ongoing pursuit of welfare, which amounts to an infringement upon the good of the public as a whole, over and above the interests of each of its individual members.   This is also why Goldschmidt maintained that the principle of compulsory prosecution (the Legalitätsprinzip) need not apply with respect to an administrative offense. 10  Revealingly, Goldschmidt’s argument in support of the administrative penal law con­ tains numerous analogies to the law of disciplinary sanctions. See especially Goldschmidt, “Das Verwaltungsstrafrecht im Verhältnis zur Moderne Staats- und Rechtslehre,” (n. 8) 415. 9

regulatory offenses   1071 Goldschmidt additionally claimed that administrative offenses and criminal wrongs differ in that the norms underpinning administrative offenses are not firmly anchored in the moral conscience of society; rather, they constitute an artifact produced by the will of the public administration for the purpose of advancing the public welfare. Turning to the liability conditions which mark administrative offenses as a cat­ egory distinct from criminal offenses, Goldschmidt made it clear that the culpability (Schuld) of the actor does not constitute a central component of an administra­ tive offense because the “wrong” chiefly consists of the external violation of the administrative norm, which objectively harms the interests of the administration by impairing its ability to pursue the public welfare. For this reason, Goldschmidt saw no reason why there should be a differentiation in the administrative penal law based on levels of fault, so that an actor who advertently commits a violation may receive the same penalty as one who does so inadvertently. Yet, although in the administrative penal law the element of culpability recedes into the background, it does not disappear altogether. The presumption of culpability established by the violation is rebuttable, so that the defendant may not be held liable if its occurrence was objectively unavoidable. In the same vein, Goldschmidt claimed that there should be no liability for an administrative offense if the actor made an unavoidable mistake concerning the existence or applicability of the relevant norm. A particularly thorny issue concerned the circumstances under which an admin­ istrative offense could turn into a criminal offense as a result of changes over time in the legal consciousness of society. Goldschmidt stated that it is quite possible for an administrative interest to achieve the status of a Rechtsgut through what he called an Abschichtungsprozeß (a re-grading process), whereby a given public good that is not tied to a specific subject of rights transmutes into a secondary Rechtsgut because it is considered to be of vital importance for the protection of primary legal goods. He thus recognized that the lines between crimes and administrative offenses are more fluid than may appear at first, as the difference between the two categories is contin­ gent on the prevailing conceptions within a given society at a given time. Moreover, in the event that an administrative offense turns into a criminal offense, sanctions of a more intrusive nature than an administrative penalty may statutorily apply. Goldschmidt’s theory spawned in its wake a number of law reform proposals calling for the removal of offenses akin to administrative offenses from the crim­ inal code and the assignment to administrative authorities of the power to enforce them with non-criminal penalties. But it is only in the nascent Federal Republic of Germany that his work decisively influenced the course of legislation, by providing the theoretical infrastructure for the Ordnungswidrigkeit administrative sanction­ ing system put in place in the late 1940s and early 1950s.11 11   See generally, Daniel Ohana, “Administrative Penalties in the Rechtsstaat: The Emergence of the Ordnungswidrigkeit Administrative Sanctioning System in Post-War Germany,” (2014) 64 University of Toronto Law Journal 243.

1072   daniel ohana In the literature, Goldschmidt’s theory of the administrative penal law encountered opposition on several points.12 Some theorists took issue with Goldschmidt’s charac­ terization of an administrative offense as an offense of disobedience which necessitates a “call to order” in the form of an administrative penalty. Using such terminology, they objected, does not befit a democratic Rechtsstaat, for it casts the individual as a “slave of the state,” a subject of rule toward whom the administrative authority has no obligations and whom it may discipline at will for failing to abide by its commands.13 Goldschmidt’s adversaries also contested the notion that the norms of the crim­ inal law, which protect Rechtsgüter, distinguish themselves in that they fully over­ lap with the moral convictions of the community, unlike the norms underpinning administrative offenses, whose binding nature stems solely from their being laid down by the state. For members of the community may, over time, also integrate administrative norms into their moral principles. Moreover, the fact that the moral convictions of the community are mirrored in the norms of the criminal law can­ not, by itself, provide a basis for qualitatively distinguishing criminal wrongs from administrative offenses, as inner moral judgments only pertain to a quantitative attribute, namely, the actor’s level of culpability, as measured in part by the extent of his awareness of the applicable norm.14 Goldschmidt also drew criticism for assimilating the administrative penalty to a compulsion measure, on the basis that the administrative penalty is susceptible of being imposed on an actor who satisfies the constituent elements of an administra­ tive offense, irrespective of whether he continues to be in breach thereof or whether the need to comply has subsided. Moreover, Goldschmidt’s characterization of an administrative penalty as a forward-looking measure was further faulted because it did not concur with the remedial thrust of his account of the administrative penalty as a form of compensation.15 Goldschmidt’s opponents also voiced doubts as to whether administrative authorities will only need to avail themselves of relatively non-intrusive sanctions in their pursuit of the public welfare. They pointed out that it does not follow from the premises of Goldschmidt’s theory of the administrative penal law that the penal powers of the administrative authority should be confined to merely “calling to order” an actor found in breach of its rules, without significantly infringing upon his Rechtsgüter. More intrusive measures than just a pecuniary sanction, including deprivation of liberty, may be required to secure the welfare of the public, especially in dealing with repeat offenders.16   Goldschmidt’s theory was endorsed by a number of his contemporaries. Most notably, it was further developed by Erik Wolf in an important article published in 1930. See Erik Wolf, “Die Stellung der Verwaltungsdelikte im Strafrechtssystem,” in August Hegler (ed.), Festgabe für Reinhard Frank, Vol. II (1930), 516. 13   See Fritz Trops, Begriff und Wert eines Verwaltungsstrafrechts (1926), 28. 14   See Amelung (n. 7) 286–297. 15   See Robert von Hippel, Deutsches Strafrecht, Vol. II: Das Verbrechen (1930), 113; Trops (n. 13) 89–93. 16   Trops (n. 13) 93–95. 12

regulatory offenses   1073 Another vulnerability discerned in Goldschmidt’s theory concerned his claim that administrative offenses could transfigure into criminal offenses, and that sub­ sequently imprisonment could be prescribed as a sanction. Even if one accepts the notion that the quality of a public good within the administrative order may change in the eyes of society (thereby transforming it into a secondary Rechtsgut), critics argued, this does not solve the problem posed by recidivists, as the persistence of the repeat offender in breaking the law cannot, by itself, confer a different status to the wrong concerned. Moreover, the Abschichtungsprozeß does not necessarily entail that more severe penalties will be warranted once the administrative offense turns into a criminal offense, since Goldschmidt distinguishes the two spheres of penal law in qualitative terms, based on the essence of their wrongs, rather than in quantitative terms, based on their level of seriousness.17 Goldschmidt’s theory of the administrative penal law gradually fell out of favor in Germany in the late 1950s and early 1960s. Most importantly, commen­ tators argued that Goldschmidt’s conception of Recht (and its contradistinc­ tion from welfare) is outdated, as prevailing conceptions of justice no longer limit themselves to ensuring that wrongs done to the individual are redressed by the judicial system; rather, they also encompass notions of distributive and social justice concerned with the duty of the state to put in place the struc­ tures necessary to facilitate individual flourishing.18 Consequently, the admin­ istrative order should be embedded within, and subject to, the legal order. In 1968, a comprehensive revision of the Ordnungswidrigkeit system was enacted. This revision definitively relinquished the theoretical conception rooted in Das Verwaltungsstrafrecht, which had formed its original matrix, and brought the substantive principles of liability and rules of procedure in administrative sanc­ tioning proceedings in greater consonance with the norms that correspondingly apply in the criminal process.19 By this juncture in time, the administrative and criminal sanctioning processes were no longer pitted against each other in terms of the quality of their wrongs and the purposes and functions of their atten­ dant sanctions; rather, they came to be viewed as distinct yet interconnected sanctioning systems, both of which serve to protect and uphold Rechtsgüter— including both individual goods and goods pertaining to the public welfare.20 The only limitation laid down by the Federal Constitutional Court on the pro­ liferation of administrative offenses pertained to prohibitions belonging to the “core” of the criminal law. These prohibitions, the Court ruled, cannot be con­ verted into Ordnungswidrigkeit violations, because they attract a particular type   Von Hippel (n. 15) 115–116; Trops (n. 13) 34–44.   For elaboration, see Ohana (n. 11). 19  See generally Thomas Weigend, “The Legal and Practical Problems Posed by the Difference between Criminal Law and Administrative Penal Law,” (1988) 59 Revue Internationale de Droit Pénal 57. 20   See also Mireille Hildebrandt, “Justice and Police: Regulatory Offenses and the Criminal Law,” (2009) 12 New Crim. LR 43. 17

18

1074   daniel ohana of social condemnation implicit in the notion of crime as a rebellion against the legal order.21 Significantly, the Court has not struck down a single administra­ tive offense on this basis to this day.

iv.  The Egalitarian Liberal Welfare State In many Western jurisdictions, administrative penalties have gained considerable prominence over the past decades, and are currently used to enforce an extremely wide gamut of offenses, ranging from road traffic offenses and trivial breaches of reporting requirements subject to small fixed amounts, to egregious cartel and securities offenses, the monetary sanctions for which can reach astronomical fig­ ures. The growing frequency with which administrative sanctioning mechanisms are pressed into service is attributable in no small part to the fact that these mecha­ nisms reduce judicial overload and enable the administrative authority with the required expertise to control the fact-finding process, and flexibly tailor the penalty to serve its public policy objectives. There have been different responses to this configuration, whereby the criminal law singles itself out by the potential for imprisonment and social stigmatization that it carries,22 while the administrative sanctioning process serves primarily as a deterrent unsaddled by the heightened procedural and evidentiary barriers to conviction that apply in a criminal trial.23 Some commentators have viewed it positively, arguing that administrative sanctioning mechanisms provide a vehi­ cle to scale down the scope of the criminal law with respect to minor or middlerange offenses.24 In a similar vein, others have suggested that these mechanisms should serve as an alternative to enforce “morally neutral” regulatory offenses that diminish the moral credibility and condemnatory power of the criminal law, both of which play a crucial role in motivating citizens to comply with its 21   BVerfGE 27, 18. See also BVerfGE 45, 272; BVerfGE 51, 60, 74; BVerfGE 80, 182, 186; BVerfGE 90, 145, 173. Specifically, the Court ruled that adjudication of these offenses is subject to the exclusive authority of the judiciary under Art. 92 of the Basic Law. 22   In addition, there are police and judicial powers of search and arrest that are only available with respect to criminal offenses. 23   cf. Anthony Ogus, “Enforcing Regulation: Do We Need the Criminal Law?,” in Hans Sjögren and Göran Skogh (eds.), New Perspectives on Economic Crime (2004), 42. 24   Kenneth Mann, “Punitive Civil Sanctions: The Middleground Between Criminal and Civil Law,” (1992) 101 Yale LJ 1795.

regulatory offenses   1075 norms.25 Conversely, some have complained that monetary penalties assessed in an administrative process blur the distinction between a punitive response to a statutory breach and a tax designed to shape the incentives motivating citi­ zens’ behavior, thereby detracting from the public wrongfulness of regulatory offenses.26 Viewed as no less problematic is the fact that administrative penal­ ties often allow white-collar offenders to receive differential treatment and avoid exposure to the criminal justice system.27 Concerns have also been raised about the relative freedom with which law­ makers may opt to sidestep stringent safeguards that apply in a criminal trial by putting in place an administrative sanctioning process which is less burdensome and less costly for the state than the machinery of the criminal law.28 The wide discretion afforded to administrative authorities in making administrative pen­ alty decisions has also attracted criticism, even though many jurisdictions have broadened the scope of judicial review to ensure substantive and procedural fair­ ness in administrative sanctioning proceedings and conformity with statutory rules.29 Lastly, some commentators have taken issue with the fact that administra­ tive authorities exert sway over regulated actors by threatening to directly visit upon them sanctions, thereby entrenching a hierarchical relationship which is antithetical to the principle of equality between those who govern and those who are governed.30 Taken together, these criticisms compel one to consider whether   Paul H. Robinson and Michael T. Cahill, Law Without Justice: Why Criminal Law Doesn’t Give People What They Deserve (2006), 190–191. See also Paul H. Robinson and John Darley, “The Utility of Desert,” (1997) 91 Northwestern University LR 453, 479–482. 26   R. A. Duff, Lindsay Farmer, Sandra Marshall, and Victor Tadros, The Trial on Trial, Vol. 3: Towards a Normative Theory of the Criminal Trial (2007), 189–198; R. A. Duff, “Perversions and Subversions of Criminal Law,” in R. A. Duff et al. (eds.), The Boundaries of the Criminal Law (2011), 88. There has been debate as to whether regulatory offenses are truly morally wrongful. See Stuart Green, “Why It’s a Crime to Tear the Tag Off a Mattress: Overcriminalization and the Moral Content of Regulatory Offenses,” (1997) 46 Emory LJ 1533; R. A. Duff, Answering for Crime (2007), 166–174; Douglas Husak, Overcriminalization (2008), 103–119; A. P.  Simester and Andrew von Hirsch, “Remote Harms and Non-Constitutive Crimes,” (2009) 28 Crim. Justice Ethics 89. 27   See e.g. Celia Wells, Corporations and Criminal Responsibility (2001), 25–31. 28   See Duff et al. (n. 26) 191–193. The European Court of Human Rights ruled in a landmark decision that the failure to guarantee a defendant the free assistance of an interpreter in Ordnungswidrigkeit pro­ ceedings amounted to a breach of his right to a fair trial under Art. 6(3)(e) of the European Convention on Human Rights. Notwithstanding the fact that Art. 6(3) nominally applies to persons charged with a criminal offense, the Court extended the rights specified therein to defendants in administrative sanc­ tioning proceedings as well. See Öztürk v. Germany, App. no. 8544/79 (1984) 6 EHRR 409. 29  Markus D. Dubber, “Regulatory and Legal Aspects of Penality,” in Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey (eds.), Law as Punishment/Law as Regulation (2011), 19; Markus D. Dubber, “The Criminal Trial and the Legitimation of Punishment,” in R. A. Duff, Lindsay Farmer, Sandra Marshall, and Victor Tadros (eds.), The Trial on Trial, Vol. 1: Truth and Due Process (2004), 85; Markus D. Dubber, “Criminal Law between Public and Private Law,” in Duff et al., The Boundaries of the Criminal Law (n. 26), 190, 209–210. 30   Markus D. Dubber, “Criminal Police and Criminal Law in the Rechtsstaat,” in Markus D. Dubber and Mariana Valverde (eds., Police and the Liberal State 2008), 93. 25

1076   daniel ohana the growth of administrative penal powers over recent decades is fundamentally at odds with the principles of a liberal state governed by the rule of law. The fol­ lowing discussion assesses this point by engaging with the work of Alan Brudner, which explains why the subjection of traditional crimes and regulatory offenses to different normative regimes contributes to the realization of the ideals and values deemed inherent to a liberal Rechtsstaat, rather than doing them a disservice. In his monograph Punishment and Freedom,31 Brudner sets out to articulate a theory of penal justice whereby coercion is imposed on an individual in a manner which “could be accepted by the sufferer, considered as a free and independent person, as being consistent with his or her freedom.”32 Brudner asserts that the dif­ ferences in the norms and practices of enforcement related to traditional crimes and regulatory offenses are anchored in a natural division within the structure of human agency, which maps onto two distinct conceptions of freedom, namely, formal agency and real autonomy. As explained later, each of these conceptions of freedom generates a distinct paradigm of penal law with its own wrongs, standard of fault, punishment rationale, and grounds for negating liability. The two sanction­ ing paradigms, along with a third segment based on the ideal of communal soli­ darity, combine to form the penal law of a fully developed liberal polity. Brudner strives to bring together the paradigms of formal agency and real autonomy into a mutually supporting relationship, whereby they limit and complement each other to make up a plural whole within a larger conception of public reason as dialogic community. The paradigm of formal agency centers on the capacity of the individual to freely choose the ends of his action. A criminal wrong is constituted by an act or omis­ sion which is publicly interpretable as embodying a denial of an agent’s right to be free from interference with his capacity to act from the ends he chooses. Although a criminal wrong only materializes if the offender acts with subjective fault, it does not have to result in actual harm. It may take the form of an inchoate offense, such as conspiracy, attempt, or possession of dangerous instruments. Defending a retrib­ utivist account of penal justice, Brudner argues that punishment is intrinsically jus­ tified because it brings to bear on the offender the logical implication of his denial of the equal rights of others. By exercising his freedom in a manner which implies a right to liberty unlimited by respect for others, he reasons, the offender impliedly consents to the violation of his own right to freedom. The paradigm of real autonomy is rooted in the notion that it does not suffice for the state to secure the right of the individual to act from the ends he chooses against an interference which amounts to a denial of that right; it must also secure the basic conditions for the individual to autonomously lead his life according to a 31   Alan Brudner, Punishment and Freedom (2009). This monograph expands on ideas developed by the author in two previous works: Alan Brudner, Constitutional Goods (2004); Alan Brudner, The Unity 32 of the Common Law (1995).  Brudner, Punishment and Freedom (n. 31) 2.

regulatory offenses   1077 self-authored plan and scheme of values, notably by countering the contingencies and inequalities (e.g. poverty, disease, or a disabling accident) which might hamper his ability to do so. Revealingly, Brudner calls the paradigm of real autonomy the welfare paradigm. Yet, in contrast to Goldschmidt’s conception of welfare, which was framed as the product of the (subjective) will of the public administration, Brudner’s conception of welfare derives from the common will. By reconceiving welfare as real autonomy, Brudner elaborates a conception of welfare which presup­ poses the atomized self (posited by the formal agency paradigm). Accordingly, it is neutral as to the ideal of the “good life” and thus can be recognized as a valid source of authority by all individual agents, without compromising their independence or self-interestedness. For the duty of the state to promote welfare is correlative to a right of the individual to real autonomy; it does not cast the individual as a member of the public whose rights and obligations are constituted exclusively in relation to the needs of the collective entity to which he belongs.33 The real autonomy paradigm differs from the formal agency paradigm in that it is goal-oriented and guided by an instrumental rationality of means-ends effi­ ciency. The questions of whether a statutory offense should be enacted to promote the common welfare, whether sanctioning proceedings should be initiated against a specific actor found in breach of the law, and what the penalty imposed should be are all determined with a view to achieving the common welfare (real autonomy).34 As Brudner puts it, “regulatory sanctions are neither deserved nor undeserved; they are rather efficacious or inefficacious.”35 Although he does not discuss administra­ tive sanctioning mechanisms, the instrumentalist logic and emphasis placed on effi­ ciency in the real autonomy paradigm can easily account for the growing use made of such mechanisms to facilitate the enforcement of regulatory offenses. Brudner sets forth a series of constraints on the state’s authority to impose sanc­ tions for regulatory offenses, so as to ensure that the actor concerned does not exper­ience his penal fate as one over which he had no control. These constraints include, most notably, the requirement that the state abide by the principle of legal­ ity and abstain from imposing sanctions where, although the defendant outwardly violated the law, he acted with due diligence. Significantly, an offender who knowingly commits a regulatory breach may be visited with punitive sanctions for retribution because he thereby implicitly denies the authority of the law which makes the actualization of the right of the individual to real autonomy possible. Yet, the court may only pronounce a sentence of impris­ onment for the knowing violation of a regulatory offense which specifically protects   cf. Brudner, Constitutional Goods (n. 31) 167.   By contrast, Brudner asserts that within the formal agency paradigm “the state ought to punish as a general rule” wrongdoers who engage in conduct which publicly denies the validity of the right of the individual to be free from interference with his capacity to act from the ends he chooses. Brudner, Punishment and Freedom (n. 31) 45. See also Brudner, Constitutional Goods (n. 31) 106. 35  Brudner, Punishment and Freedom (n. 31) 177. 33

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1078   daniel ohana against the risk of harm to goods indispensable to the coherent self-expression of agency.36 It is striking that Brudner does not endeavor to develop an account of the desert of an actor who negligently fails to exert himself to meet regulatory standards, thereby committing a regulatory offense. Rather, his notion of desert remains tied to the forfeiture of rights rationale underpinning the paradigm of formal agency. In his view, “because regulatory sanctions aim to prevent harm rather than to vindicate rights against denials of their existence, the language of ‘desert’ and ‘punishment’ is foreign to them.”37 Brudner thus treads a tightrope between, on the one hand, assimilating the penalty for inadvertent regulatory violations to a neutral incentiveshaping measure and, on the other hand, characterizing the punishment visited on an actor who commits regulatory violations committed with subjective fault as a deserved response to his denial of the law’s authority. Yet, as I will explain later, Brudner’s account encounters intractable difficulties in its attempt to negotiate the transition from the formal agency paradigm to the real autonomy paradigm. These difficulties produce doubts as to whether, even after he has reconceived welfare as real autonomy (while adding the side-constraints mentioned earlier), the pursuit of this goal can truly coexist with the formal agency paradigm without undermining its essential tenets in both substance and spirit. Brudner reduces the imposition of liability and sanctions for regulatory offenses committed inadvertently to a technique, among others, for inducing behavior. He relies on the difference between a price and penalty to mark off a tax from a regula­ tory offense, arguing that a tax leaves the actor a margin of freedom to decide when to perform the discouraged action (and incur the tax), whereas a penalty is intended purely and simply to prohibit the conduct.38 However, this argument only awakens the question of whether it is wrong for the citizen to negligently fail to avoid con­ duct prohibited by the state for the sake of promoting the common welfare. For it makes sense to provide for side-constraints to preclude the imposition of liability on an actor who committed a regulatory violation due to circumstances beyond his control if, to begin with, the failure to comply with the regulatory norm is construed as wrongful and worthy of blame. Indeed, it is precisely because other mechanisms commonly used by the state to steer behavior—such as taxes and rewards—lack a central retrospective dimension, that side-constraints (similar to the ones specified by Brudner with respect to regulatory offenses) are generally not built-in to deal with cases in which the actor concerned did not have a fair opportunity to meet the requirements of compliance. 36   See also Alan Brudner, “A Reply to Critics of Punishment and Freedom,” (2011) 14 New Crim. LR 495. In this manner, Brudner addresses the thorny problem of recidivism, for the assumption is that an actor who commits a regulatory offense after having been visited with a penalty is obviously acting knowingly, with subjective fault. Brudner, Punishment and Freedom (n. 31) 182. 37  Brudner, Punishment and Freedom (n. 31) 176. 38  Brudner, Punishment and Freedom (n. 31) 174.

regulatory offenses   1079 Since Brudner does not recognize the wrongfulness of inadvertently committing a regulatory offense, he is driven to couch his account in the language of deterrence, cast­ ing non-criminal penalties as threats. The purpose of sanctions in the regulatory con­ text, he writes, is to “threaten setbacks to individual happiness sufficient to outweigh the expected benefits of a breach.”39 The question arises, however, whether the public goal of real autonomy can coherently be pursued in this fashion. For threats violate the formal agency of the actor by infringing upon his freedom of choice and, as Hegel famously remarked, treat him “like a dog instead of with the freedom and respect due to him as a man.”40 The use of threats also overshadows the need for the public author­ ity to address citizens with reasons for its authority and so too is inconsistent with the idea of a dialogic community. These worries are compounded by the fact that, in Brudner’s view, there is but a contingent relation between the imposition of liability and sanctions for regulatory offenses and the achievement of real autonomy, which entails that the state would be justified in deliberately engaging in selective enforcement, just because the demands of efficiency warrant such a course of policy. In this respect, it is telling that Brudner, like Goldschmidt, maintains that non-criminal sanctions for regulatory offenses need not be differentiated based on the level of fault of the actor concerned. Hence, the principle of proportionality carries no weight in determining the non-custodial sanctions which may (or should) be imposed for a regulatory offense. To be sure, it is a central premise of Brudner’s account that it is the state, rather than the individual, that is duty-bound to promote real autonomy. Indeed, the “cold respect”41 which typically characterizes relations between individual agents in the formal agency paradigm entails that these agents have no right to demand from one another benefits which it is the duty of the public authority to provide, as this would amount to conscripting the individual into public service.42 However, it is difficult to see how this notion is honored if in discharging its duty to promote real autonomy, the state is given the power to compel obedience to its commands on pain of penal sanctions. Surely, it would have been more in keeping with the vision of public reason as dialogic community and the egalitarian impulse behind the real autonomy paradigm to speak of a “mutual lukewarm concern” between individ­ ual citizens and to claim that just as citizens have a right to real autonomy vis-àvis the state, so too they have a correlative duty to show concern for the security and flourishing of others.43 From this viewpoint, citizens would not just figure as  Brudner, Punishment and Freedom (n. 31) 182.   G. W. F. Hegel, The Philosophy of Right ([1821] 1942), 246. 41  Brudner, Constitutional Goods (n. 31) 63. 42  Brudner, Punishment and Freedom (n. 31) 118. 43   Brudner comes close to recognizing such a duty when he states that within the real autonomy paradigm the authority of law entails a correlative duty in the citizen to both obey the law and to act with due diligence in order to gain awareness of the rules to follow. Brudner, Punishment and Freedom (n. 31) 186. 39

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1080   daniel ohana beneficiaries of the services provided by the state; they would also be duty-bound to share (within reasonable bounds) in the burdens involved in actualizing the right to real autonomy of their fellow members of the polity as well. It is important to note that this need not entail a commitment to a full-fledged communitarian worldview which emphasizes group solidarity and, in so doing, obliterates the independence of individual agents by assimilating them into the community. In fact, Brudner implicitly acknowledges that there is an element of wrongdoing and penal desert in the real autonomy paradigm when he affirms that the com­ mission of a regulatory offense with knowledge can justify retributive punishment (including, in certain cases, imprisonment). Yet in order to justify retributive pun­ ishment, there must be a wrongful denial of rights. In the formal agency paradigm, advertently interfering with the capacity of the individual to choose the ends of his action will meet this requirement, whereas in the paradigm of real autonomy, knowingly committing a regulatory breach will suffice. What is not fully worked out, however, is the relationship between this basis for retributive punishment and Brudner’s previous statement that there is nothing intrinsically wrong with com­ mitting the act prohibited by a regulatory offense. Surely, the intention to categoric­ ally deny rights cannot, by itself, justify a retributive response; consequently, the violation of the regulatory statute must have a substrate of wrongfulness, albeit one that does not materialize, according to Brudner, unless it is committed with subject­ ive fault.44 Even Brudner’s attempt to adapt the retributive “forfeiture of rights” rationale to the paradigm of real freedom in cases where a regulatory offense is knowingly com­ mitted is not free of difficulties.45 In the paradigm of formal agency, the justification for punishment rests on the fact that the “transgression” committed by the offender signifies a denial of rights, so that his right to liberty is lost by implication of his act. However, this argument does not stand valid in all cases where an actor knowingly breaches a regulatory statute, because such a breach does not necessarily amount to a denial of the very category of rights. Rather, it may represent a failure on his part to accept the authority of the state to specify the measures and prohibitions needed to promote real autonomy. He may be acting on his viewpoint as to the most suit­ able manner to realize the right to real autonomy, which differs from the specific requirements contained in the regulatory statute. Surely, the internal consistency of Brudner’s account would be strengthened by adding a requirement that the public authority make an attempt to gain the rational assent of the actor to the regulatory 44   The same observation follows from Brudner’s insistence that when retributive punishment is imposed within the real autonomy paradigm, the principle of proportionality will only authorize imprisonment as a sanction for regulatory offenses which pose a threat to agency goods. 45   For an attempt to justify the criminalization of regulatory offenses based on a rights-forfeiture theory of punishment, see Christopher Heath Wellman, “Rights Forfeiture and Mala Prohibita,” in R. A. Duff, Lindsay Farmer, S. E. Marshall, Massimo Renzo, and Victor Tadros (eds.), The Constitution of the Criminal Law (2013), 77.

regulatory offenses   1081 norm which applies in the particular circumstances of the case and, if reasonably possible, attempt to adjust its scope as suggested by him.46 The next section further examines these possibilities by discussing the work of John Braithwaite on regula­ tory enforcement.

v.  The New Regulatory State Over the past three decades, John Braithwaite has vigorously advocated parsimony in punishment, favoring non-punitive responses to lawbreaking over punitive responses. His approach to regulatory enforcement, commonly known as “respon­ sive regulation,”47 bears intimate affinities with restorative justice, an approach to criminal justice which seeks to bring together wrongdoers with their victims and affected communities, so as to resolve the conflict between them in a constructive and mutually agreed-upon way. Based on a “tit for tat” style of conflict resolution, it aims to offer a more focused, problem-solving approach to regulatory govern­ ance than the strategy of “command and control.” It is formalized in the influential “regulatory pyramid” model, which indicates that regulatory bodies should resort initially to “soft” strategies, such as negotiation, persuasion, and education and only visit an administrative penalty upon the actor in the event that he reoffends. Should the offender persist further, making it necessary to resort to stronger measures of deterrence or incapacitation, criminal charges may be filed against him in court, and the regulatory authority may suspend or revoke any licenses or permits it previ­ ously issued to him. The ascent of responsive regulation ties in closely with the broader economic and social developments of recent decades, as many countries have undergone a transition from Keynesian welfarism to neoliberalism, ushering in what Braithwaite has called “a new regulatory state”48 in which actors from the private sector are encouraged to assume an active role in self-policing and internal risk-management relating to regulatory compliance, while the state governs “at a distance” via such mech­anisms as the audit and enforced self-regulation. What distinguishes this framework of governance from the conceptions examined previously is that the 46   Brudner elaborates an analogous requirement in discussing contexts where an administrative agency deprives an individual of the entitlement to certain goods or services. Brudner, Constitutional 47 Goods (n. 31) 225.   Ian Ayres and John Braithwaite, Responsive Regulation (1992). 48   John Braithwaite, “The Transformation of Criminology and the New Regulatory State,” (2000) 40 British Journal of Criminology 222. See also Christine Parker and John Braithwaite, “Regulation,” in Peter Cane and Mark Tushnet (eds.), The Oxford Handbook of Legal Studies (2005), 119.

1082   daniel ohana autonomous actor is projected as an energetic entrepreneur and a trusted collabora­ tor, whose resourcefulness is to be tapped into in order to secure compliance in an efficient and mutually satisfactory manner. It should be stressed that the principle of parsimony in punishment inform­ ing responsive regulation is very different from what is known in the European literature on criminalization as the ultima ratio principle, according to which the criminal law is to be used as a last resort.49 Following the latter principle, the deter­ minative moment is that in which the offense is statutorily classified: the conduct is either prohibited as a criminal offense, or made subject to a less intrusive mech­ anism of legal control—for example, by being designated an Ordnungswidrigkeit violation subject to an administrative sanctioning process. The assumption under­ lying responsive regulation is that, as a rule, all regulatory offenses are criminalized, and that it is left to the enforcement agencies to interact and engage directly with the regulated actor. The focal criterion for distinguishing between cases in which securing compliance is to be left to the regulatory authority (including, if necessary, through the imposition of a penalty) and cases in which the criminal sanctioning process is to be set in motion is the capacity and commitment of the actor to coope­ rate with the authorities, rather than the seriousness of the offense. It is important to situate responsive regulation within the broader republican conception of criminal justice advanced by Braithwaite and some of his co-writers. This conception is based on a consequentialist approach to criminalization and punishment, which takes it as axiomatic that the final end of the criminal justice system is the maximization of individual “dominion,” the republican ideal of free­ dom.50 Dominion is defined as non-domination, the assured and equal freedom of the individual, which is inter-subjectively secured by virtue of his recognized status as a citizen under the law. Although dominion rests on a negative conception of freedom as non-interference, it is impaired if one loses the assurance that one is not subject to the arbitrary will of another. Its protection and promotion thus provide grounds for a potentially wide-reaching criminal law, which encompasses prohibi­ tions against intentional or negligent interferences with liberty, remote forms of abstract endangerment, and acts which disrupt the proper functioning of govern­ mental operations that secure dominion. Nonetheless, a lawmaker seeking to maxi­ mize dominion over time will also seek to put in place constraints on the power of the state vis-à-vis (potential) offenders. For instance, even though fault requirements which apply as a rule with respect to traditional crimes may be relaxed or dispensed with in order to induce compliance with safety standards, permission should be   See e.g. Nils Jareborg, “Criminalization as Last Resort (Ultima Ratio),” (2004) 2 Ohio State Journal of Crim. Law 522. 50   See esp. John Braithwaite and Philip Pettit, Not Just Deserts (1990). See also John Braithwaite and Philip Pettit, “Republicanism and Restorative Justice:  An Explanatory and Normative Connection,” in John Braithwaite and Heather Strang (eds.), Restorative Justice: Philosophy to Practice (2000), 145. 49

regulatory offenses   1083 given to an actor charged with committing a regulatory breach to adduce evidence that the circumstances made it impossible for him to meet all of the requirements.51 Responsive regulation is instructive because it throws into relief the critical role that the interaction between the regulative authority and the regulated actor plays in fostering compliance. It underscores the fact that, although regulatory enforce­ ment is primarily forward-looking (i.e. it is aimed at securing compliance) it also bears a core backward-looking dimension, directed at the wrongfulness and repre­ hensibility of the breach performed by the actor. Indeed, the fact that the act com­ mitted is viewed as worthy of blame forms an integral part of the groundwork for building a relationship of trust with the actor concerned and cultivating his willing­ ness to follow the law. Braithwaite emphasizes the importance of the actor perceiving the enforcement process as a legitimate reprobation of his failure to meet his commitments, as this will make it more likely that he will accept responsibility and take the measures needed to rectify the wrong done and comply with regulatory requirements in the future.52 Building on the growing research concerning the significance of “proced­ ural justice” in encouraging compliance,53 Braithwaite also argues that it is crucial for regulatory authorities to abide by principles of fairness in enforcing the law, because regulated actors are more motivated to comply once they feel that they have been treated fairly and that their concerns have been duly taken into consideration. Significantly, regulatory norms are viewed as relatively malleable from this perspec­ tive, and it is considered legitimate for the regulated actor to raise objections about the requirements he is expected to meet.54 It follows that, to a significant extent, fulfillment of the ideals of dialogue and pro­ cedural and substantive justice are taken not as “side-constraints” on the promotion of dominion, but as an integral part of the regulatory enforcement process designed to foster a relationship based on goodwill and trust. In this light, the administrative sanctioning process sets itself apart from the criminal sanctioning process in that it does not signal a dramatic rupture in the cooperative relationship between the regulatory authority and the actor concerned. Indeed, it does not visibly pit the par­ ties directly against each other in a confrontational judicial setting; and it does not result in the actor receiving a criminal record or suffering sanctions which involve the loss of liberty or the removal of permits or licenses. Although monetary and   Braithwaite and Pettit, Not Just Deserts (n. 50) 99–100.   John Braithwaite, “The Essence of Responsive Regulation,” (2011) 44 University of British Columbia LR 475. 53   On procedural justice see generally Tom Tyler, “Legitimacy and Criminal Justice: The Benefits of Self-Regulation,” (2009) 7 Ohio State Journal of Crim. Law 307. 54   Of course, if the regulatory authority does not accept the actor’s viewpoint, this may provoke a response of resistance on his part, leading him to adopt a confrontational posture. cf. Judith Freeman, “Responsive Regulation, Risk and Rules: Applying the Theory to Tax Practice,” (2011) 44 University of British Columbia LR 634, 639. 51

52

1084   daniel ohana other “non-criminal” penalties may be visited on the actor, there is still an oppor­ tunity for him to make amends and take the steps required to fulfill his prospective responsibilities and restore working relations with the regulatory authority, rather than destroy them. The fact that responsive regulation puts emphasis on the principle of parsimony in punishment and the need to address regulated actors as partners in governance so that they not feel “dominated” by the regulatory authority, resonates powerfully with the ideals of dominion and equality which figure centrally in the republican conception of criminal justice.55 Still, there are features within responsive regulation which give rise to principled concerns. The first of these has to do with the vast discretion granted to officials within the various stages of the enforcement process. Officials have to determine which actors are to be singled out for an assessment of compliance and, subsequently, what the response will be in the event that a breach of a regulatory norm is discovered, which conditions will have to be met as a prerequis­ ite for not initiating sanctioning proceedings, when and how to follow up on the matter, and at which point to adopt a more confrontational posture or de-escalate the level of pressure on the actor to facilitate a return to a more conciliatory rela­ tionship. To be sure, wide discretion is required to afford flexibility in enforcing the law. However, it also holds potential for institutional abuses. Hence, there are grounds for the claim that certain aspects of responsive regulation do not com­ port with the formalist principles deemed inherent to the rule of law, which aim to ensure consistency and predictability in governmental responses to lawbreaking.56 Lastly, since responsive regulation is animated by a consequentialist outlook, whereby the ultimate good sought is the maximization of dominion for the greatest number in society, the pursuit of a respectful dialogue with the regulated actor is only valued instrumentally, as a strategy of enforcement. The need for the regulated actor to accept the legitimacy of the process of enforcement is thus only consid­ ered worthy of attention insofar as it is of utility in motivating him to cooperate with the authorities.57 Braithwaite states that “the job of responsive regulators is to treat offenders as worthy of trust, because the evidence is that when they do this, regulation more often achieves its objectives.”58 The values of trust, dialogue, and fairness carry little weight, however, once the process of dialogue and negotiation has run its course and the conclusion is reached that the actor lacks the capacity or commitment to fulfill his responsibilities; in such a case, measures may be taken against him to achieve deterrence and incapacitation, irrespective of whether these are in keeping with the principle of proportionality in punishment.59 Like many   Braithwaite (n. 52) 485.   Freeman (n. 54) 638; Jan Freigang, “Is Responsive Regulation Compatible with the Rule of Law?,” (2002) 8 European Public Law 463. 57   cf. R. A. Duff, “Penal Communications: Recent Work in the Philosophy of Punishment,” (1996) 58 20 Crime & Justice 1, 20–25.   Braithwaite (n. 52) 489. 59   cf. Andrew von Hirsch and Andrew Ashworth, Proportionate Sentencing (2005), 125. 55

56

regulatory offenses   1085 neoliberal strategies of governance, responsive regulation thus combines an open­ ness to cooperation with an authoritarian resolve and steadfastness, leaving it up to the individual actor to self-govern and work together with the regulatory author­ ities, while the state reserves to itself the right to subject him to coercion insofar as he exercises his freedom in a manner which poses a threat to the dominion of other members of society.60

vi. Conclusion In the aftermath of World War II, the need to comprehensively restructure the sanctioning system put in place by the Nazi regime led to the appointment of a commission of experts in the Bizone—the combination of the American and British occupation zones—to draft a framework statute governing the imposition of administrative and criminal penalties on economic offenders. In the memoir he wrote of his tenure as committee chairman, the illustrious professor of criminal law Eberhard Schmidt recalled the “terrible headaches” suffered by the commit­ tee members as for months on end, they belabored the question of how empow­ ering an administrative authority to impose a penalty could be made consistent with the Rechtsstaat principle of the separation of powers, which provides that the adjudication of penal offenses and the determination of penal sanctions constitute functions that should be within the authority of the judiciary.61 The draft Bill pro­ duced by the commission laid the groundwork for what would soon become the first Ordnungswidrigkeit statute governing the imposition of administrative sanc­ tions for regulatory offenses. Yet the debate about the nature of the relationship between the administrative and criminal sanctioning processes did not abate until the early 1970s, when German jurists finally despaired—much like their prede­ cessors a century earlier62—of their ability to rigorously delineate the boundaries between the two spheres of the penal law.63 Developments in legislative practice in other Western jurisdictions since the turn of the twenty-first century have only reinforced and entrenched this pattern, further deepening doubts about whether justificatory grounds for differentiating the law governing criminal offenses from 60   cf. Pat O’Malley, The Currency of Justice: Fines and Damages in Consumer Societies (2009), 83–83, 160. 61   Eberhard Schmidt, “Straftaten und Ordnungswidrigkeiten:  Erinnerungen an die Arbeiten der Wirtschaftsstrafrechtskommission (1947–1949),” in Festschrift für Adolf Arndt (1969), 415, 419. 62  As noted by the Hegelian philosopher Christian Reinhold Köstlin. See Christian Reinhold 63 Köstlin, Neue Revision der Grundbegriffe des Kriminalrechts (1845), 28.   Weigend (n. 19).

1086   daniel ohana the law governing regulatory offenses can be systematically articulated. Indeed, given the wide range of theoretical explanations of the structure and function of the criminal law, it would be unrealistic to believe in the possibility of offering a determinative account of the differences between the criminal law and the admin­ istrative penal law that would be immune to contestation. Instead, this chapter has sought to carefully examine the conceptual framework necessary to pursuing such a theoretical undertaking, while drawing attention to the various foundational questions at stake and emphasizing the need to situate the analysis within a broader historical, political, and economic context.

References Amelung, Knut, Rechtsgüterschutz und Schutz der Gesellschaft (1972) Ayres, Ian and Braithwaite, John, Responsive Regulation (1992) Bohnert, Joachim, “Einleitung,” in Lothar Senge (ed.), Karlsruher Kommentar zum Gesetz über Ordnungswidrigkeiten (3rd ed., 2006), 1 Brudner, Alan, Punishment and Freedom (2009) Dubber, Markus D., The Police Power (2005) Duff, R. A., “Perversions and Subversions of Criminal Law,” in R. A. Duff et al. (eds.), The Boundaries of the Criminal Law (2007), 88 Duff, R. A., Farmer, Lindsay, Marshall, Sandra, and Tadros, Victor, The Trial on Trial, Vol. 3: Towards a Normative Theory of the Criminal Trial (2007) Feuerbach, Paul Johann Anselm, Lehrbuch des gemeinen in Deutschland gültigen peinlichen Rechts (1812) Goldschmidt, James, Das Verwaltungsstrafrecht (1902) Hildebrandt, Mireille, “Justice and Police:  Regulatory Offenses and the Criminal Law,” (2009) 12 New Crim. LR 43 Kerrigan, Laura J. et al., “Project: The Decriminalization of Administrative Law Penalties; Civil Remedies, Alternatives, Policy and Constitutional Implications,” (1993) 45 Administrative Law Review 367 Mann, Kenneth, “Punitive Civil Sanctions: The Middleground Between Criminal and Civil Law,” (1992) 101 Yale LJ 1795 Mattes, Heinz, Untersuchungen zur Lehre von den Ordnungswidrigkeiten: Vol. I (1977) Vol. II (1982) Ohana, Daniel, “Administrative Penalties in the Rechtsstaat:  The Emergence of the Ordnungswidrigkeit Administrative Sanctioning System in Post-War Germany,” (2014) 64 University of Toronto LJ 243 Oswald, Jansen (ed.), Administrative Sanctions in the European Union (2013) Weigend, Thomas, “The Legal and Practical Problems Posed by the Difference between Criminal Law and Administrative Penal Law,” (1998) 59 Revue Internationale de Droit Pénal 57

SECTION B

BEYOND DOMESTIC CRIMINAL LAW

­c hapter 47

COMPARATIVE CRIMINAL LAW luis e. chiesa

i.  Introduction to Comparative Criminal Law Criminal law is a parochial discipline. Courts and scholars in the English-speaking world seldom take seriously the criminal statutes, cases, and scholarly writings pub­ lished in the non-English-speaking world. The same is true the other way around. This is unfortunate. Much can be learned from comparing the way in which the world’s leading legal systems approach important questions of criminal theory. This chapter introduces the reader to comparative criminal law with the aim of dem­ onstrating how comparative analysis can enrich both domestic and international understandings of criminal law. The chapter is comprised of four sections. Section II clarifies what it means to do comparative criminal law and distinguishes it from similar endeavors such as com­ piling criminal law. Section III explains why engaging in comparative analysis is useful to both strengthen domestic criminal law doctrines and to better understand international criminal law. Section IV discusses some of the obstacles that must be overcome in order to engage in meaningful comparative analysis. Finally, Section V engages in a comparative analysis of attempt liability and mens rea in order to illustrate how to do comparative criminal law and the benefits that might be reaped from doing so.

1090   luis e. chiesa

ii.  Comparing Criminal Law vs. Compiling Criminal Law Perhaps the most obvious way of doing comparative criminal law is by compiling the criminal law doctrines of different jurisdictions. This is what Markus Dubber and Kevin Heller attempted to do with the collection of essays that they edited in the Handbook of Comparative Criminal Law.1 Each chapter of this helpful tome sur­ veys the criminal law of a different country. The chapters are particularly useful because they are authored by leading scholars in their respective jurisdictions. This avoids the sort of mistake that an outsider is prone to make when she attempts to describe the law of a foreign country. The problem with the useful Handbook of Comparative Criminal Law is that there is little comparative about it. The chapter on Argentine criminal law, for example, illustrates the basic principles of criminal liability invoked by courts and schol­ ars in Argentina. The same can be said of the chapters on Spanish, U.S., Egyptian, and Chinese criminal law. What is missing, however, is an analysis of what are the important points of contact and divergence amongst the different systems of crim­ inal law discussed in the volume. How, for example, does the continental concept of dolus eventualis overlap with the Anglo-American concept of recklessness? Why is it that the mental element (mens rea) for attempt liability in many European and Latin American countries is recklessness, while in most Anglo-American countries it is purpose? Why is the analogical interpretation of criminal statutes prohibited in civil law countries but allowed in common law jurisdictions? Answers to these questions require going beyond pointing out how different countries solve these problems. They require comparing the different solutions. This is not to say that compiling the criminal laws of different jurisdictions is useless. The importance of amassing materials that illustrate how foreign countries approach criminal law doctrines lies in their use as sources for doing comparative criminal law. Just as this chapter cannot be completed without making use of paragraphs, sentences, and letters, there can be no comparative criminal law without employing source materials that illustrate how criminal law is approached in different jurisdic­ tions. Ideally, comparative criminal theorists would read the seminal works published by the leading scholars of different countries and the statutory materials and case law of different jurisdictions. Unfortunately, language barriers usually make this a difficult task. As a result, works that survey the criminal laws of foreign countries quite often facilitate the task of doing comparative criminal law. Nevertheless, it is important not to confuse compiling with comparing. Comparing criminal laws is, by definition, the

  Markus D. Dubber and Kevin Jon Heller (eds.), The Handbook of Comparative Criminal Law (2011).

1

comparative criminal law   1091 essence of comparative criminal law. Compiling criminal laws is useful to doing com­ parative criminal law, but is not synonymous with actually engaging in comparative analysis of substantive criminal law.

iii.  The Uses of Comparative Criminal Law 1.  Comparative criminal law as a tool for critically assessing domestic criminal law It has long been argued that one of the main functions of comparative crim­inal law— if not its chief function—is to assist in domestic criminal law reform.2 Comparative criminal law may be useful in this regard by providing a tool with which to critically assess the domestic criminal law of the jurisdiction that is seeking to reform its laws. More specifically, an inquiry into comparative criminal law helps local actors to identify instances in which their domestic criminal law may be in need of change. While this critical use of comparative criminal is most obviously relevant to legisla­ tive reform, it may also inform how the judiciary answers complex and important questions of domestic criminal law. With regard to using comparative criminal law to fuel legislative reform, it is sensible to look to what other countries are doing in an effort to find novel solutions to old problems. Take, for example, the problem of whether and when to impose corporate criminal liability. This is an issue that is acquiring increasing importance in several Latin American and European countries. The conventionally accepted view in these countries is that punishing corporations is contrary to fundamental principles of criminal law, because corporations are not entities that are capable of behaving culpably. Given that culpability is considered to be a prerequisite for the imposition of criminal liability, these countries have historically rejected impos­ ing criminal punishment on corporations. Nevertheless, as wrongdoing within the corporate world acquires increasing significance, these countries are starting to take seriously the idea of punishing corporations. It seems sensible that such countries consider the approaches to corporate criminal liability adopted in jurisdictions that—like the United States—have imposed such liability for over a hundred years.

  See e.g. Thomas Weigend, “Criminal Law and Criminal Procedure,” in Jan M. Smits (ed.), Elgar Encyclopedia of Comparative Law (2012). 2

1092   luis e. chiesa Comparative criminal law has also found its way into the judicial decision-making process. In the United States, this is most obviously the case in the Supreme Court’s death penalty jurisprudence. In Atkins v. Virginia, for exam­ ple, the Supreme Court pointed out that “within the world community, the impos­ ition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved.”3 This—coupled with the fact that the vast major­ ity of U.S. jurisdictions prohibit the execution of mentally retarded offenders— helped to support the Court’s conclusion that the practice amounts to “cruel and unusual” punishment that violates the Eighth Amendment. Subsequently, in Roper v. Simmons, the high court was asked to assess the constitutionality of imposing the death penalty on a defendant who was a minor when he commit­ ted the offense. A majority of the members of the Supreme Court concluded that executing someone as punishment for a crime that was committed while under the age of 18 runs afoul the Eighth Amendment. In justifying its conclusion, the Court pointed out “that only seven countries other than the United States have executed juvenile offenders since 1990.”4 While the Supreme Court conceded that the practices of other countries are not determinative of the meaning of the Constitution of the United States, it also acknowledged that the Court frequently “refe[rs] to the laws of other countries and to international authorities as instruc­ tive for its interpretation of the Eighth Amendment’s prohibition of ‘cruel and unusual punishments’.”5 Finally, comparative criminal law is also useful as a tool for enriching scholarly enterprises. It can be used in the classroom to help students better to understand the strengths and weaknesses of the domestic system of criminal law that they are learning about. Take, for example, the issue of whether criminal liability should be imposed for failing to rescue a stranger in need of help in circumstances in which doing so would not be costly or dangerous. As every American law student learns early in their basic substantive criminal law course, such omissions typic­ ally go unpunished in the United States. This might seem unremarkable to many American students, especially if they have already learned that such failures to rescue do not generally give rise to tort liability either. While perhaps some stu­ dents will notice the obvious disconnect between law and morality in this context, most will likely conclude that this is just the standard legal answer to this ques­ tion. Such passive acceptance of the American reticence to punish omissions to aid can be challenged by venturing into the realm of comparative criminal law. Students are often surprised when they learn that punishing failures to rescue is the norm in most European and Latin American countries. This, in turn, allows them to see that there need not be a disconnect between law and morality in this area and that the U.S. approach to punishing failures to aid is by no means the

  536 U.S. 304 (2002).

3

  543 U.S. 551 (2005).

4

  543 U.S. 551 (2005).

5

comparative criminal law   1093 universal way of thinking about this issue. The hope is that such comparative insights may help students to broaden their perspectives and call into question entrenched domestic criminal law doctrines.

2.  Comparative criminal law as a source of international criminal law International criminal law has gained increasing importance in recent years, espe­ cially after the adoption of the Rome Statute creating the International Criminal Court (ICC). Before the Rome Statute was adopted in 2002, general doctrines of international criminal law were not summarized in a single treaty and therefore slowly emerged as a result of customary law and the judgments of certain inter­ national courts, such as the Nuremberg Tribunal and the International Criminal Tribunals for Rwanda (ICTR) and the Former Yugoslavia (ICTY). As a result, the adoption of rules of international criminal law to govern issues such as complicity, mens rea, attempt liability, and general justification and excuse defenses was heavily influenced by the way in which these issues were addressed in domestic systems of criminal law. It should come as no surprise, then, that an inquest into comparative criminal law proved of great importance in ascertaining the content and scope of general doctrines of international criminal law. International tribunals continuously make reference to the domestic criminal laws of different jurisdictions in order to fill gaps in international criminal law doctrines in accordance with the “general principles of law recognized by civilized nations.”6 A particularly rich example of this is the ICTY’s judgment in Prosecutor v. Drazen Erdemović.7 The defendant in Erdemović claimed that his killing of dozens of inno­ cent civilians should be excused pursuant to the defense of duress. The novel legal issue presented by the case was whether duress could be invoked as a defense to a crime against humanity. A majority of the judges of the Court ruled that duress can­ not fully excuse crimes of such magnitude. An analysis of comparative approaches to this question proved determinative to the Court’s decision. The Court explained its reliance on comparative criminal law in this manner: In order to arrive at a general principle relating to duress, we have undertaken a limited sur­ vey of the treatment of duress in the world’s legal systems. This survey is necessarily modest in its undertaking and is not a thorough comparative analysis. Its purpose is to derive, to the extent possible, a “general principle of law” as a source of international law.8

6   This is one of the conventionally accepted sources of international law, as recognized in Art. 38(1)(c) 7 of the Statute of the International Court of Justice.   ICTY, judgment of 7 October 1997. 8   Para. 58.

1094   luis e. chiesa After surveying the law of 28 countries regarding this issue, the Court pointed out that most civil law jurisdictions seem to allow duress to be pleaded as a defense to the killing of innocent persons, whereas most common law jurisdictions do not. Nevertheless, it also asserted that the vast majority of common and civil law coun­ tries allow duress to be raised as a mitigating factor. Ultimately, the Court decided against allowing duress to fully excuse a crime against humanity. The ICTY partially justified this conclusion by pointing out that there was no international consen­ sus regarding whether duress should fully excuse killings of innocent people. The Court, however, concluded that in light of the overwhelming consensus in favor of allowing duress to be considered as a ground for reducing punishment, duress ought to be admissible at the sentencing stage to mitigate punishment. Regardless of the merits of the holding in Erdemović,9 the case highlights the special role that comparative criminal law plays in international criminal law adju­ dication. This role is even more obvious after the creation of the ICC, given that pursuant to the Rome Statute, the Court must apply “general principles of law derived . . . from national laws of legal systems of the world.”10

iv.  Challenges of Comparative Criminal Law 1.  The language barrier The most obvious challenge to engaging in comparative criminal law analysis is overcoming language barriers. While this is a problem that plagues comparative law in general, it is particularly acute in the case of comparative criminal law. The dearth of English translations of foreign criminal law cases, statutes, and scholarly writings is remarkable, especially when German, Italian, and Spanish criminal the­ ory have achieved a very high level of sophistication. Similarly, the lack of transla­ tions of textbooks, articles, statutory materials, and case law originally published in English hinders the propagation of Anglo-American criminal theory to jurisdic­ tions steeped in the continental European legal tradition. 9   Many scholars have found the analysis in Erdemović wanting. See e.g. Luis E. Chiesa, “Duress, Demanding Heroism and Proportionality:  The Erdemovic Case and Beyond,” (2008) 41 Vanderbilt Journal of Transnational Law 741. 10   This mandate applies in circumstances in which the governing principles of law cannot be sur­ mised from the Rome Statute itself or other international legal materials. See Art. 21(1)(c) of the Rome Statute.

comparative criminal law   1095 Perhaps because of this, it happens quite often that scholars on either side of the Atlantic believe that they have come up with a novel solution to a criminal law problem that—unbeknownst to them—has already been proposed by scholars hail­ ing from a different legal tradition. Two cases immediately come to mind. Several decades ago, American criminal theorists Paul Robinson and George Fletcher famously debated whether and how much an “unknowingly justified” actor should be punished. An actor is unknowingly justified when he is unaware that his con­ duct prevents a harm that is greater than the harm caused by his act. Suppose that a person kills another out of spite without knowing that the person he killed was about to use deadly force against him. Such a killing is objectively justified pursuant to self-defense. However, should the actor be able to successfully plead self-defense when he was unaware that the killing was necessary to avert an unlawful attack? Paul Robinson forcefully argued that justifications are objective and—therefore— harms caused by unknowingly justified actors ought to be justified even if they are acting for bad reasons.11 Nevertheless, Robinson argued that attempt liability could be imposed, for the unknowingly justified actor tried to cause a net social harm but failed.12 In contrast, George Fletcher argued that justifications must be earned by the actor. Consequently, Fletcher contended that unknowingly justified actors should be punished for a completed offense, since they lack subjective awareness of the justifying factors, which is essential to establish that their conduct is motivated by the right reasons.13 What is particularly interesting about this is that although Fletcher is widely con­ sidered in the United States to be heavily influenced by German criminal law the­ ory, Robinson’s position regarding the unknowingly justified actor was defended by many—if not most—German criminal theorists well before the famous Robinson– Fletcher debate. That is, most German scholars argue that unknowingly justified actors should be punished for an attempt rather than for a consummated crime.14 And they had done so many years prior to the famous Robinson–Fletcher exchange. As a result, in the big scheme of things, Robinson’s position was not as novel as many—including Fletcher—believed it to be. This debate would have surely bene­ fited from the reasoned analysis of civil law scholars who had for a long time argued that attempt liability ought to be imposed on unknowingly justified actors. Unfortunately, the lack of English translations of criminal law writings from contin­ ental European scholars made it nearly impossible for American scholars to note that this debate was not as original as it seemed.

 Paul H.  Robinson, “A Theory of Justification:  Societal Harm as a Prerequisite for Criminal 12 Liability,” (1975) 23 UCLA LR 266.   Robinson, (1975) 23 UCLA LR 266. 13   George P. Fletcher, “The Right Deed for the Wrong Reason: A Reply to Mr. Robinson,” (1975) 23 UCLA LR 293. 14   See e.g. Günther Jakobs, Derecho Penal: Parte General (transl. Cuello Contreras et al., 1995), 434. 11

1096   luis e. chiesa For similar reasons, civil law scholars have failed to appreciate that some of their contributions to criminal law theory may not be as groundbreaking as they believe. Take, for example, the theory of “objective imputation” that German scholars con­ cocted to deal with causation problems in borderline cases. According to the most modern version of the theory, an actor ought to be held accountable for resulting harm only if two conditions obtain. First, the actor’s conduct must create an unrea­ sonable risk of harm. Secondly, the resulting harm must be the consequence of the particular risk created by the actor’s conduct rather than the product of a different risk.15 The oft-cited facts of People v.  Acosta16 may be used to illustrate the theory of “objective imputation.” The police were alerted that the defendant had stolen a car. A car chase ensued, with two police helicopters dispatched to follow the movements of the defendant. Unfortunately, the helicopters crashed into one another and both pilots died. The issue was whether the defendant should be held accountable for the deaths of the pilots. According to the theory of “objective imputation,” the answer is straightforward. The defendant should not be held liable because the ex ante risk created by the defendant was possible harm to those using the roads, whether they be pedestrians or other drivers. However, his conduct did not create an ex ante risk of harm to those navigating the skies. Therefore, the resulting harm (death of the helicopter pilots) cannot be fairly attributed to the defendant. Surely this conclusion will strike many Anglo-American readers as normatively appealing. It will not strike them, however, as novel. The notion that fair attribution of harms should be the product of a comparison between the ex ante risks created by the defendant and the risk that actually ends up producing the harm is at least as old as the venerable Palsgraf v. Long Island Railroad case.17 It was there that Judge Cardozo famously stated that “the risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension.”18 In doing so, he captured the essence of the modern con­ tinental doctrine of objective imputation more than 40 years before the German scholar Claus Roxin was credited with doing so in civil law jurisdictions. In sum, the comparison of risks that is so essential to most modern version of the theory of objective imputation has been part of the Anglo-American discourse of causation in the law for the better part of one hundred years. Except that it was not—and still is not—called objective imputation. It is called proximate or legal causation. But it is essentially the same thing. Unfortunately, it is difficult to tell that this is the case. If an online search engine is used to look for the term “objective imputation,” no Anglo-American case or scholarly writing will show up. It might then be tempting to conclude that there is 15   See generally Diego-Manuel Luzón Peña, Lecciones de Derecho Penal:  Parte General (2nd ed., 16 2012), 211.   284 Cal. Rptr. 117 (1991). 17 18   Palsgraf v. Long Island Railroad, 248 N.Y. 339 (1928).   At 344.

comparative criminal law   1097 no analog to the continental theory of “objective imputation” in Anglo-American criminal law. This conclusion, however, would be wrong. This is a classic illustra­ tion of how the scholar interested in gaining comparative insight could easily get lost in translation. While no Anglo-American court or scholar will use the term “objective imputation,” many will reference legal or proximate causation. It would thus be quite useful for scholars to know that the Anglo-American proximate cau­ sation inquiry is very similar to the continental European “objective imputation” inquiry. Such knowledge would save them the time that would be invested looking in vain for objective imputation in Anglo-American cases and scholarly writings. It would also allow them to appreciate that the theory of objective imputation is not so groundbreaking after all, for a similar idea germinated in U.S. tort law almost half a century before the modern risk-based theory blossomed in Germany. The lesson to be learned from this is not that an inquest into comparative criminal law reveals that the Robinson–Fletcher debate is less valuable than many American scholars think it is or that the theory of objective imputation is less novel than many continental European scholars believe. What these comparative insights highlight, however, is that we should proceed with a dose of scholarly humility when tack­ ling issues of criminal law theory, for what we take to be a venture into uncharted theoretical territory may very well amount to traversing well-trodden ground if one could only look at the problem from a comparative perspective. The other lesson to be learned from this brief comparative foray into the prob­ lems of the unknowingly justified actor and the theory of objective imputation is that the scarcity of translations of seminal criminal law works makes it very dif­ ficult to engage in meaningful comparative analysis unless one is fortunate enough to be able to read the works without translation. Unfortunately, few people are able to do so. This highlights the importance of works like Dubber and Heller’s Handbook of Comparative Criminal Law. Although the contributions compiled in that Handbook do not truly engage in comparative analysis, each chapter usefully summarizes the law of a particular country. This is a wonderful source for engag­ ing in comparative analysis. Nevertheless, in order for comparative criminal law to take real flight, it will be necessary to remedy the awful lack of translated criminal law source materials. Until this happens, robust comparative inquiry is destined to remain the province of the few who are able to overcome the challenges posed by the language barrier.

2.  The legal barrier: common law vs. civil law approaches to legal reasoning Another challenge for those who are interested in doing comparative criminal law is understanding how the legal systems being compared differ from each other in ways

1098   luis e. chiesa that may influence how each respective legal tradition approaches law in general and the criminal law in particular. While there are many ways in which common law and civil law systems vary, one particularly important difference is the manner in which lawyers in each jurisdiction reason their way through a legal problem. In general, common law lawyers approach criminal law (and other areas of law) inductively. That is, they start with a case (or group of cases) that they are trying to resolve in a fair way. They decide the case in a way that seems appropriate. Similar cases are subsequently decided in similar ways. Eventually, a principle that explains why these cases are decided in similar fashion arises as a result of inductive rea­ soning. Common law lawyers thus move from specific cases to broad principles. But the principles come into being because they adequately account for the cor­ rect resolution of the individual cases. If cases arise in the future which cannot be resolved fairly by applying the principle, common law lawyers are quite amenable to revising or abandoning the principle if doing so is the only way of resolving a concrete case (or a group of cases) in an appropriate manner. Take, for example, the case of whether the torture of a suspect can ever be justified pursuant to the lesser evils (necessity) defense. For decades the position in the United States seemed to be that torture could never be justified. Nevertheless, the American experience with terrorism during and after the bombing of the World Trade Center has led to craft­ ing so-called ticking time bomb scenarios the proper resolution of which calls into question the long-standing principle that torture can never be justified. Faced with such ticking time bomb scenarios, some now argue that torturing a person may be allowed if it is the only way to acquire information that will help to prevent a catastrophe. This, in turn, has led a group of scholars and practitioners to call into question the long-standing principle that torture should never be justified. Others oppose this move. It remains to be seen whether this discussion—with its underly­ ing focus on ticking time bomb cases—will lead to a revision of the absolute prin­ ciple against torture. In contrast, civil law lawyers typically reason their way through a legal problem in deductive fashion. That is, they begin their analysis of a case with a seemingly applicable principle that is generally accepted as both sound and binding. They then apply the principle to the case at hand to arrive at a solution. Civil law lawyers therefore typically move from broad, generally accepted, principles to the specific resolution of concrete cases. As a result, unlike in common law jurisdictions, the principles are not justified because they provide intuitive outcomes in particular cases. Rather, the principles are justified because they are viewed as independently sound or binding regardless of whether they produce intuitive or counterintuitive solutions to particular cases. The principle is viewed as authoritative or sound if it can be derived from even broader legal, political, or moral commitments. The tor­ ture example is once again illustrative. The principle that torture may never be justi­ fied pursuant to lesser evils (or any other justification defense) is deeply engrained in civil law jurisdictions. It is accepted as both a sound and binding principle of

comparative criminal law   1099 law that derives its legitimacy from a host of even broader legal and political commit­ ments, including international conventions against torture. This principle compels the conclusion that torturing cannot be legally justified and the conclusion holds regard­ less of whether abiding by it produces unappealing or counterintuitive solutions in ticking time bomb scenarios. Principles are thus much more immune to revision and abandonment in civil law jurisdictions than they are in common law countries. This is primarily due to the fact that—in contrast with what occurs in common law juris­ dictions—principles in continental European jurisdictions are not derived inductively from the resolution of specific cases, but rather deductively from even broader political or moral commitments. Therefore, the fact that applying a given principle (torture is always wrong) may produce counterintuitive results in a given case (ticking time bomb scenarios) is not seen in civil law jurisdictions as a decisive or even a particularly strong reason for modifying the principle. In sum, the way in which lawyers reason their way through legal problems in com­ mon and civil law jurisdictions varies considerably. This influences how much weight each legal tradition affords to certain principles of criminal law. Failing to understand this may lead to misapprehending why Anglo-American and continental European jurisdictions are more or less prone to modifying long-held principles of criminal law when applications of such principles produces counterintuitive results in certain cases.

3.  The cultural/historical barrier Engaging in comparative criminal law analysis is further complicated by historical and cultural contingencies that significantly contribute to shaping the way in which crim­ inal laws have evolved in the world’s different legal systems. Many important features of Anglo-American criminal law, for example, cannot be fully grasped without first understanding the historical role of the judge in common law countries. By the same token, several significant features of civil law approaches to criminal law can only be fully explained by the horrifying events that the people of many European and Latin American states experienced while their countries were governed by cruel authoritar­ ian regimes. A failure to take into account how historical contingencies such as these shape the legal culture of different countries quite often leads to misapprehending the legal system of a particular jurisdiction. Take, for example, the divergent ways in which common law and civil law jurisdic­ tions approach the so-called “legality principle.” This principle is at least nominally fol­ lowed in both Anglo-American and continental European jurisdictions. Nevertheless, the content and scope of the legality principle in the world’s two leading legal systems varies considerably. In civil law countries, for example, the legality principle prohibits using analogy to interpret criminal statutes in a way that is prejudicial to the defendant.19   See e.g. Santiago Mir Puig, Derecho Penal: Parte General (7th ed., 2004), 125.

19

1100   luis e. chiesa There is no such prohibition in common law jurisdictions.20 What explains the differ­ ence? The explanation lies in the role that the judge has historically played in common law and civil law jurisdictions. As is well known, the lawmaking power of courts in common law countries was so far reaching that at one point most offenses were “common law crimes” of judicial creation. While most criminal law in Anglo-American jurisdictions is now statutory and common law crimes have by and large been abolished, judges in common law countries still retain much more power than their civil law counter­ parts. In contrast, judicially created crimes have historically been rejected in civil law jurisdictions, where all criminal law is statutory law. The role of the judge in these countries is therefore limited to interpreting already existing law rather than creating new law. This is why construing criminal statutes analogically is prohibited in continental European jurisdictions. A court that expands a statute beyond the conventionally accepted meaning of the terms to encompass cases that can—by a process of analogical reasoning—be likened to the cases that actually fall within the clear scope of the rule is tantamount to exercising lawmaking powers. Wielding such judicial power is viewed with suspicion, for in civil law countries lawmaking authority has historically been reserved for the legislative branch of government. This stands in stark contrast with the role typically afforded to the judiciary in com­ mon law countries. Given that Anglo-American courts have traditionally wielded lawmaking authority, it does not seem objectionable for the judiciary to broadly construe criminal statutes by engaging in a process of analogical reasoning. This remains the case even after the abolition of common law crimes, since the elimination of such offenses merely highlights that the branch of government that is primarily responsible for creating crimes is the legislature. In spite of the primacy now afforded to the legislative branch in criminal law matters, courts in common law countries continue to exercise residual lawmaking power in the interstices of criminal law. Thus, when criminal laws are drafted by the legislature in an exces­ sively vague manner, common law courts often exercise their residual lawmak­ ing powers to infuse the initially vague legal text with much needed precision.21 Exercising this kind of judicial power would be illegitimate in civil law jurisdictions, where the principle of legality requires that the legislature draft criminal statutes with sufficient precision from the outset. If the legislative branch fails to do so, the 20   In the United States, the “rule of lenity” is often invoked to resolve ambiguity in criminal stat­ utes in favor of defendants. The rule, however, is not constitutionally mandated. It is also rejected by § 1.02(3) of the Model Penal Code. In contrast, the prohibition of analogy in most civil law jurisdic­ tions is constitutionally based. The U.S. Constitution, on the other hand, does not bar the analogical interpretation of statutes. At most, it prohibits retroactively expanding the scope of criminal statutes in a way that is unforeseeable. See Bouie v. City of Columbia, 378 U.S. 347 (1964). However, Bouie and its progeny do not seem to bar unforeseeable judicial expansions of statutes if they are only applied prospectively. 21   This practice was approved by the U.S. Supreme Court in Rose v. Locke, 423 U.S. 48 (1975).

comparative criminal law   1101 judiciary is barred from saving the statute by infusing it with the required speci­ ficity.22 Allowing courts to do so would—once again—confer on them lawmaking authority that is incompatible with the historical role of the judiciary in civil law jurisdictions. This succinct comparative analysis of the principle of legality reveals several nuances that would easily be lost if one fails to take into account the historical idio­ syncrasies of common and civil law systems. For obvious reasons, the civil law tra­ dition is much more committed to the idea that the legislature is the sole source of legitimate lawmaking authority. In contrast, the common law tradition is much more amenable to sharing lawmaking authority between the judiciary and the leg­ islature (and even the executive). As a result of this important difference, the world’s two leading legal traditions approach the principle of legality in divergent ways. In continental jurisdictions, the principle of legality prohibits expanding the scope of criminal statutes by engaging in a process of analogical reasoning. No such bar exists in common law jurisdictions. Also, civil law countries prohibit courts from infusing vaguely drafted statutes with the precision that is needed to provide fair warning to citizens as to the conduct prohibited by the law. The principle of legality in common law countries does not prohibit doing so. These important differences between common law and civil law conceptions of the principle of legality remain largely undertheorized, probably due to the fact that it is incorrectly assumed that the principle of legality has the same scope in both Anglo-American and continental European jurisdictions. This assumption is easily debunked once attention is paid to the link between the principle of legality and the proper allocation of lawmaking power between the different branches of govern­ ment. If different legal traditions allocate lawmaking authority in different ways—as the civil law and common law traditions do—then it should come as no surprise that the principle of legality is construed differently in Anglo-American countries that are committed to an active judiciary than in continental European countries that are committed to a more passive judicial branch. An even more striking example of the importance of taking into account histor­ ical experiences when engaging in comparative analysis of criminal laws is the dif­ ferent ways in which common law and civil law jurisdictions approach the necessity (choice of evils) defense. The necessity defense justifies engaging in conduct that satisfies the elements of an offense when doing so averts an evil that is greater than the one that would otherwise be caused. The balancing of evils is usually straight­ forward. A person may, for example, justifiably break a window of a car in order to save a child who is suffocating inside the vehicle. Although such conduct satisfies the elements of the offense of criminal damages, the evil averted (death of the child) clearly outweighs the evil inflicted (damage to the vehicle’s window). In some cases,

  See e.g. Luzón Peña (n. 15), 59.

22

1102   luis e. chiesa however, the balance of evils is not clear-cut. This is especially the case when the harm inflicted is the death of an innocent person. It is unclear, for example, whether killing an innocent person should be justified as a lesser evil because it prevents the death of two innocent people. Interestingly, common law and civil law jurisdictions have taken different approaches to solving the balancing question in these cases, especially in the last several decades. During the second half of the twentieth century, the American approach to this question has shifted decidedly in favor of allowing—at least in principle—an actor to claim that the killing of an innocent human being is justi­ fiable because it was necessary to avert the deaths of even more people. While there are no recent U.S.  cases directly on point, the drafters of the influential Model Penal Code certainly believed this to be the correct interpretation of the Code’s choice of evils provision.23 Support in the scholarly literature in favor of the prop­ osition that taking an innocent life is justified if it saves more lives is also growing in Anglo-American scholarly literature.24 A similar principle also seems to underlie a relatively recent judgment of the Court of Appeal of England and Wales in which the court authorized separating conjoined twins in a way that would kill one of the twins in order to save the other.25 Scholars in civil law jurisdictions have, on the other hand, continuously rejected justifying conduct that sacrifices innocent human life even when doing so is neces­ sary to save more lives than the ones sacrificed. Their position is summed up by Andenaes, a famous Norwegian criminal theorist, in the following manner: “Even though many lives could be saved by the sacrifice of one, this would hardly be jus­ tifiable . . . [for it] would conflict with the general attitude toward the inviolability of human life to interfere in this way with the course of events.”26 This approach is so deeply ingrained in the legal culture of civil law countries, that it has been expressly incorporated into some domestic criminal codes. Thus, for example, the choice of evils defense as defined in the Puerto Rican Penal Code justifies conduct only when the “evil caused is considerably inferior to the one averted and it does not entail causing either death or grave and permanent harm to the physical integrity of a person.”27 This viewpoint was also at the core of the relatively recent decision of the German Federal Constitutional Court striking down a statute that authorized downing a commercial airplane headed toward a heavily populated area.28 The stat­ ute was struck down in spite of the German government’s argument that shooting down planes in those circumstances ought to be justified because it saves more lives   Model Penal Code § 3.02, cmt. 3, at 14–15 (Official Draft and Revised Comments 1980).   See e.g. Wayne R. LaFave, Substantive Criminal Law (2d ed., 2003), § 10.1 (d)(2). Joshua Dressler, Understanding Criminal Law (2012), § 22.04. 25   Re A (Children) (Conjoined twins: surgical separation) [2005] 4 All E.R. 961 (C.A.). 26   Johannes Andenaes, The General Part of the Criminal Law of Norway (transl. Thomas Ogle, 1965), 27 169.   Art. 26 of the Puerto Rico Penal Code of 2012 (emphasis added). 28   1 BvR 357/05 (2006). 23

24

comparative criminal law   1103 than the ones sacrificed. According to the German high court, the problem with this is that it is incompatible with the basic right to dignity and life recognized in the German Basic Law because it treats the lives of the plane’s passengers as mere objects or instruments that can be used to bring about good consequences. What explains the widely divergent civil law and common law views regarding the justifiability of sacrificing innocent life in order to maximize the number of lives saved? While there surely are several explanations for this, there is a historical reason that cannot be ignored when trying to make sense of this divergence. During the twentieth century, many citizens of European and Latin American countries suf­ fered through the harrowing experience of being governed by authoritarian leaders who committed unimaginable atrocities upon large swaths of the civilian popula­ tion. The atrocities were quite widespread in scope. In many countries—including Guatemala and Germany—members of certain groups were systematically killed. In other countries—like Argentina, Chile, and Spain—tens of thousands of citizens disappeared during the course of bloody military dictatorships. The historical contrast with most Anglo-American countries is stark. Although some of the leading common law countries fought bloody wars during the course of the twentieth century, few had to endure the commission of atrocities that are similar in scale to the ones experienced by citizens of many European and Latin American countries. Few had to face governmental abuses in which marginal­ ized sectors of the population were slaughtered or kidnapped in the name of the common good of the country. These disparate experiences account—at least in part—for the skepticism with which European and Latin American countries view the claim that it is sometimes worthwhile to sacrifice the lives of the few for the benefit of the many. While the theoretical plausibility of this position is evident, the harrowing history that citizens of many civil law countries had to bear makes the population of these jurisdictions shudder at the thought of allowing people to claim that killing innocents may sometimes be beneficial for the aggregate welfare of the community. It is not, of course, that citizens, scholars, and legal actors in civil law coun­ tries fail to grasp the cogent consequentialist arguments that militate in favor of justifying the killing of some innocent persons in order to save many more. It is that—notwithstanding how persuasive such arguments may seem when examined in the abstract—history has taught them that whatever benefit may be reaped by justifying actors who take innocent life in order to prevent even greater harm is simply outweighed by the potential for abuse inherent in author­ izing such awesome power. This is why consequentialist justifications of the sort that appeal to American scholars and the drafters of the Model Penal Code ring hollow to many scholars in Europe and Latin America. When what people are capable of doing in the name of the law and the common good when motiv­ ated by perverse ideals is personally witnessed, it is quite natural to think twice before expanding the scope of claims that might be invoked by the government

1104   luis e. chiesa (and others) to justify taking innocent life. Those who lack firsthand experience of how insufferable “man’s inhumanity to man” can be, simply cannot see this as clearly as those who do. It is very difficult to assess the relative merits of the divergent solutions offered to the problem of whether to justify some killings of innocent civilians without accounting for the important historical and cultural differences between common law and civil law countries mentioned here. Common law scholars approach the question of whether necessity ought to sometimes justify killings of innocent people from a mostly philosophical perspective. In contrast, civil law scholars tackle the question mostly by drawing lessons from their historical experiences, even if the lessons cannot be easily squared with consequentialist philosophy. It is easy to lose sight of these nuances if the issue is approached without giving proper weight to the historical and cultural factors that shape the content and scope of legal rules in the systems that are being compared.

v.  Doing Comparative Criminal Law: Two Examples This section actually engages in comparative analysis of certain criminal law doc­ trines. The purpose of doing so is to provide concrete examples that illustrate how to do comparative criminal law. An additional goal is to demonstrate how engaging in comparative analysis can lead to a better understanding of how and why domes­ tic criminal law takes its current shape. The section begins by comparing common law and civil law approaches to attempt liability. It then turns to exploring mens rea from a comparative perspective, with specific emphasis on the differences between the continental mental state of dolus eventualis and the Anglo-American mental state of recklessness.

1.  Criminal attempts Failed attempts to consummate an offense are punished in both civil and common law jurisdictions. Nevertheless, there are significant differences in how the world’s two leading legal systems approach both the objective (actus reus) and subjective elements (mens rea) of punishable attempts. Before discussing the specific differ­ ences between both systems in this context and the reasons that might explain such differences, it is useful to briefly outline the most important issues that must be

comparative criminal law   1105 addressed by any jurisdiction that is interested in developing a coherent theory for imposing attempt liability. Most of the specific offenses listed in the special part of criminal codes crimin­ alize successfully engaging in certain conduct or causing a particular result. Thus, the offense of rape prohibits engaging in nonconsensual sexual intercourse. The offense of homicide criminalizes causing the death of a human being. In both cases, the prohibited act is effectively engaging in either the prohibited conduct (engaging in nonconsensual sexual intercourse in the case of rape) or success­ fully bringing about the proscribed harm (death in the case of homicide). The special part of criminal codes usually prescribes punishment only for those who complete the conduct described in the definition of the offense. The consequence of this is that those who try but fail to engage in the conduct proscribed by the offense do not, strictly speaking, perform an act that is prohibited by the law defining the criminal offense. Nevertheless, there are powerful consequentialist and retributive reasons for punishing those who try to engage in criminal con­ duct but (fortunately) do not succeed. That is, we have good reasons to punish those who try but fail to kill and those who try but fail to rape. The doctrine of attempt liability was created to address this gap in the law. Pursuant to this general doctrine, criminal liability attaches whenever someone tries to commit an offense but fails to successfully consummate it. The world’s leading systems of criminal law are in general agreement up to this point. The similarities, however, end here. The first point of divergence has to do with determining the exact point in time during which conduct crosses the threshold from being a mere act of prepar­ ation that generally goes unpunished, to being an act of execution of the criminal offense that is typically punished as an attempt. This is the problem inherent in figuring out what the objective element (actus reus) of attempt offenses should be. It is a particularly thorny problem, given that often many events take place between the time during which the actor first contemplates the commission of the offense and the moment at which the offense is completed. Many things hap­ pen, for example, between the time that the actor thinks about poisoning the victim and the moment at which the actor actually poisons and kills the victim. When exactly did the actor’s conduct become a punishable attempt? When he contemplated killing the victim? When he called a friend to ask for help? When he browsed the web looking for a poison with which to kill the victim? When he bought the poison? When he drove to the victim’s home? When he entered the home? When he poisoned the coffee? Until the second half of the twentieth century, both common law and civil law jurisdictions distinguished unpunished acts of preparation from punish­ able acts of execution in very similar ways. There was generalized consensus in Anglo-American and continental European literature and case law that attempts to commit offenses should only be punished if they come dangerously close to

1106   luis e. chiesa completion. Anglo-American courts and commentators suggested that the act must be “dangerously proximate” to completion29 or that the actor must engage in the “last act” prior to consummation of the offense.30 Similarly, continental scholars argued that only acts “immediately prior to engaging in conduct that satisfies the elements of an offense”31 or that “place the victim in danger”32 should be punished as attempts. Regardless of the specific standard invoked, however, attempts were typi­ cally punished only when the actor came very close to consummating the offense. Applying these tests to the facts in the abovementioned example, the actor would probably not be punished for an attempt until at least when he enters the victim’s home. The acts of browsing the web to look for poison, buying the poison, and driv­ ing up to the victim’s home would very likely remain unpunished. This generalized consensus started eroding after the publication in the United States of the Model Penal Code in 1962. According to § 5.01 of the Code, an actor’s conduct is punished as an attempt if it amounts to a “substantial step” in furtherance of the eventual commission of the offense. The acts that count as a substantial step are quite broad and are often far removed both in time and space from the actual consummation of the crime. Examples of acts that count as substantial steps include buying a weapon for use in a murder, reconnoitering the place that will be robbed, and driving around town looking for the person who will be mugged. None of these acts would likely be punished as an attempt in civil law jurisdictions. They would also not seem to amount to criminal attempts in common law countries prior to the publication of the Model Penal Code. The substantial step test quite often leads to imposing attempt liability for con­ duct that is not close or proximate to the completion of the crime and that has in no way endangered the potential victim of the offense. Also, unlike the tests that draw the line between preparation and execution closer to consummation, the substan­ tial step test focuses more on the substantiality of the acts that were done by the actor rather than on the importance of the acts that remain to be done. The influ­ ence of the Model Penal Code’s substantial step test has been considerable. Over half of the U.S. states follow a version of this test, as well as close to two-thirds of the U.S. Circuit Courts of Appeals. The scope of attempt liability has not been broadened in similar fashion in contin­ental jurisdictions. This recent divergence in the punishment of attempts calls for an explanation. Why were the common law and civil law approaches to the actus reus of attempt liability so similar for so long and why have they now started to diverge?

  See e.g. People v. Rizzo, 246 N.Y. 334 (1927).   See e.g. R. v. Eagleton (1855) 6 Cox C.C. 559. 31   See e.g. Hans Welzel, Derecho Penal Alemán (transl. Bustos et al., 11th ed., 1997), 224. 32   See e.g. Mir Puig (n. 19) 347. 29

30

comparative criminal law   1107 A possible explanation for this is that, during the course of the twentieth century, common law countries began to focus more on the actor’s subjective culpability and less on harm causation as a proxy for when punishment is warranted. This was especially the case with the influential Model Penal Code, which was more concerned with identifying dangerous individuals than with redressing the harm caused by the offense.33 This trend was not as pronounced in civil law countries. The vast majority of continental scholars have advocated during the last several dec­ ades for a criminal law that is designed primarily to redress harm caused to legally protected interests.34 In words frequently echoed in continental scholarly literature, the criminal law should be concerned with acts rather than actors.35 As a result, the focus of attempt liability in civil law countries continues to be whether there has been an act that endangers a legally protected interest rather than whether the actor has revealed that he is dangerous and in need of correction. In contrast, the focus in many common law jurisdictions—especially the United States—shifted to assessing the subjective culpability and dangerousness of the actor. This has led to casting a wider net of attempt liability with the hope of identifying and neutralizing danger­ ous actors way before they come close to causing harm. There are also differences in the common law and civil law approaches to the subjective element (mens rea) of attempt liability. In the Anglo-American tradition, attempt liability is usually imposed only if the actor had the purpose of bringing about the harm prohibited by law. Liability for attempts thus presupposes that the actor’s conscious objective is causing the state of affairs that is proscribed by the statute. On the other hand, it is increasingly the case in continental jurisdictions that an actor may be held liable for an attempt as long as he acts recklessly with regard to the possibility of harm.36 Things were not always this way. Until late in the twentieth century, there was much debate in some continental jurisdictions regard­ ing whether the subjective element of attempts should be recklessness or purpose.37 In this context, the civil law approach generates broader attempt liability than the common law approach. While in continental jurisdictions attempt liability may be imposed when the defendant acts with purpose, knowledge, or recklessness, in Anglo-American jurisdictions liability may only be imposed when the defendant acts purposely. This is particularly interesting because the continental rules gov­ erning the actus reus of attempts are significantly restrictive when compared with the more permissive Anglo-American rules, especially the ones modeled on the substantial step test. The end result is that there has been an expansion in the scope 33   See generally Markus D. Dubber, “Penal Panopticon: The Idea of a Modern Model Penal Code,” (2000) 4 Buffalo Criminal LR 53 (arguing that the Model Penal Code was concerned mostly with iden­ tifying, deterring, and/or correcting dangerous offenders). 34 35   See e.g. Luzón Peña (n. 15) 25.   Luzón Peña (n. 15) 24. 36   See e.g. Jakobs (n. 14). 37   This issue was hotly debated in, e.g., Argentina. See e.g. Eugenio Raúl Zaffaroni, Alejandro Alagia, and Alejandro Slokar, Derecho Penal: Parte General (2002), 822–824.

1108   luis e. chiesa of attempt liability in both continental and common law countries. However, the expansion of attempt liability in common law jurisdictions is mostly the product of watering down the objective element of attempts, while the expansion in civil law jurisdictions is primarily the result of watering down the subjective element of attempts. But why have common and civil law jurisdictions expanded attempt liability by focusing on different elements? Once again, it seems dependent on whether attempt liability is viewed as a tool for identifying dangerous actors in need of correction or whether attempts are conceived as a way of punishing those who have endangered someone. As a mechanism for identifying dangerous individuals, attempt liability should focus mostly on the actor’s subjective culpability. Whether a person was actually endangered by the defendant’s conduct is only mildly relevant to assessing the defendant’s dangerousness. Ultimately what matters is whether the actor’s pur­ pose of engaging in criminal conduct was sufficiently firm to warrant an inference that he might consummate the offense if left to his own devices. This is the view that garnered much support in Anglo-American jurisdictions during the second half of the twentieth century. And it explains why common law courts have largely refused to water down the subjective culpability requirements while simultaneously broad­ ening the scope of the objective elements of attempts. In contrast, if attempt liability is viewed as a vehicle for punishing those who place people in danger, the focus shifts from subjective culpability to whether the actor’s conduct actually endangered the victim. According to this view, whether the actor was firmly set on completing a criminal offense is not the central feature of attempt liability. What is determinative is whether the conduct came sufficiently close to completion to create a real risk of harm. This explains why civil law courts and commentators are loath to water down the objective elements of attempts, while they are generally willing to punish attempts even when the actor’s purpose is not to commit an offense.

2.  Mens rea: Recklessness vs. Dolus eventualis In continental European jurisdictions, the most watered down form of intentional conduct is “dolus eventualis.” In order for a defendant to act with dolus eventualis he must be aware that his conduct creates an unjustifiable risk of harm. In addition to awareness, however, acting with dolus eventualis has traditionally required a cer­ tain kind of attitude with regard to the risk created. There is no consensus regard­ ing the kind of attitude that is relevant. For some, the actor must convince himself that he would act even if the consequence of the act is producing the proscribed harm.38 The actor thus “accepts” the causation of harm as a possible outcome and

  This is the theory of “acceptance” or “acquiescence” to the harm. See Luzón Peña (n. 15) 246.

38

comparative criminal law   1109 acts in spite of such awareness. For others, what matters is indifference rather than acceptance. According to this view, a defendant acts with dolus eventualis if he is aware that his conduct creates an unjustifiable risk of harm and he is indifferent as to whether the harm takes place.39 In contrast, a defendant who is aware that his conduct creates a risk of harm but is not indifferent to it, acts with what continental scholars call conscious negligence. In such cases the defendant actually believes that the harm will not transpire because he trusts that he will be able to prevent it by making use of special skills or know­ ledge.40 Therefore, the difference between a defendant who acts with dolus eventualis and one who acts with conscious negligence is not whether they are aware of the risks created by their conduct. The difference lies in the attitude that the defendant adopts toward the risk that he creates. In cases of dolus eventualis, the actor is not confident that he will be able to prevent the harm from taking place and he does not care whether it materializes or not. On the other hand, in cases of conscious negligence the defendant is confident that he will be able to prevent the harm that is risked by his conduct. Differentiating dolus eventualis from conscious negligence is essential to dis­ criminating between intentional and negligent conduct in civil law countries, for dolus eventualis is considered the most watered down form of intent, whereas con­ scious negligence is considered a type of negligence. Consequently, the difference between acting with dolus eventualis or conscious negligence is of significant prac­ tical import. This is because in continental jurisdictions negligent conduct usually remains unpunished. Furthermore, when negligent wrongdoing is criminalized, it is typically punished significantly less than intentional wrongdoing. Although the distinction between dolus eventualis and conscious negligence is central to the way in which civil law jurisdictions approach the mens rea of offenses, the distinction has never found its way into common law countries. The mental state known as recklessness is probably the closest Anglo-American analog. According to the Model Penal Code, a defendant acts recklessly if he is aware that his conduct creates a substantial and unjustifiable risk of harm.41 Recklessness is a central con­ cept in Anglo-American criminal law, for it defines the limits between advertent and inadvertent wrongdoing. The distinction is important, given that inadvertent wrongdoing is seldom punished in common law jurisdictions.42 Moreover, in the 40 41   Luzón Peña (n. 15) 250.   Luzón Peña (n. 15) 306.   Model Penal Code § 2.02.   In Anglo-American jurisdictions, inadvertent wrongdoing is synonymous with negligent wrong­ doing. The punishment of negligent (inadvertent) wrongdoing has always been the exception in com­ mon law jurisdictions. The phrase “inadvertent wrongdoing” is used instead of the more common “negligent wrongdoing” in order to avoid confusion with the continental European way of conceptual­ izing criminal negligence. In civil law jurisdictions, criminal negligence has traditionally encompassed both “conscious negligence” and “unconscious negligence.” Therefore, although the distinction between intentional and negligent wrongdoing is of central importance in both common and civil law countries, the distinction does not necessarily mean the same thing in both legal systems. In Anglo-American jurisdictions, the intent/negligence distinction tracks the difference between advertent (intent) and 39

42

1110   luis e. chiesa few instances in which inadvertent wrongdoing is punished, it is usually punished much less severely than advertent wrongdoing. The difference between recklessness and the continental mental states of dolus eventualis and conscious negligence is that a defendant acts recklessly as long as he is aware that his conduct creates an unjustifiable risk of harm, regardless of whether he is indifferent to the harm or trusts that he will be able to prevent it by employing special skills. In contrast, whether a defendant acts with dolus eventualis or conscious negligence ultimately hinges on whether he is indifferent to the harm or whether he trusts that he will be able to prevent it. As a result, the Anglo-American mental state of recklessness encompasses both dolus eventualis and conscious negligence. Table 47.1 illustrates the differences between the continental mental states of dolus eventualis and conscious negligence and the common law mental state of recklessness. In light of the differences between these mental states, certain cases may generate significantly different criminal liability depending on whether they are approached from the civil law or the common law perspective. Take, for example, the facts that gave rise to the Puerto Rican case of Pueblo v. Colón Soto.43 Two friends were having drinks at a local bar and, after a couple of cocktails, the defendant suggested that he could shoot his friend’s hat off with a single gunshot. The friend agreed to stand motionless and allow the defendant to do so. The defendant’s shot missed the hat and hit the friend’s head, killing him. The defendant was charged with intentional homicide. Defense counsel argued, however, that he should be convicted of negli­ gent homicide. The Puerto Rican Supreme Court concluded that the defendant could be held li­able for intentional homicide because attempting to shoot a baseball cap off some­ one’s head is an act that is rife with danger. From this, the fact-finder could reasonably Table 47.1  Dolus eventualis and recklessness compared

Mental state

Awareness of risk created

Indifference toward harm taking place

Trust in ability to prevent harm from materializing

Recklessness

Yes

Irrelevant

Irrelevant

Dolus eventualis

Yes

Yes

No

Conscious negligence

Yes

No

Yes

inadvertent (negligence) risk creation. On the other hand, in continental jurisdictions, the intent/neg­ ligence distinction does not track the difference between advertent and inadvertent risk creation, since advertent risk creation is an element of both a certain type of intent (dolus eventualis) and a certain type of negligence (conscious negligence).   Pueblo v. Colón Soto, 109 DPR 545 (1980).

43

comparative criminal law   1111 infer that the defendant was aware that his act created an unjustifiable risk of death. This is the way the case would usually be approached in Anglo-American jurisdic­ tions. The defendant acted recklessly because he was aware that his act unreason­ ably endangered another person’s life. Consequently, the defendant could be held liable for advertent wrongdoing, which is punished significantly more severely than inadvertent wrongdoing. The case might very well be decided differently in continental jurisdictions, given that awareness of the risk created by the conduct is not enough to trigger the more significant liability that attaches for acting with dolus eventualis. In addition, the actor must be indifferent as to whether harm ensues. Although it is unclear whether the defendant in Colón Soto was indifferent to his friend’s death, there are a couple of facts that suggest that he was not. First, the defendant seemed fairly confident in his ability to shoot his friend’s hat off without causing him physical harm. Secondly, people are generally not indifferent to whether they kill their friends. As a result, the evidence probably supports an inference that the defendant trusted that he would not kill his friend. This suggests that it could plausibly be argued that the defendant acted with conscious negligence rather than dolus eventualis. If so, the defendant could be convicted of negligent homicide, even if the court is convinced that he was aware that his conduct created an unjustifiable risk of death. Convicting a defendant in circumstances such as these of negligent homicide would be difficult to imagine in Anglo-American jurisdictions. At the very least, such conduct would be pun­ ished as reckless homicide, if not murder.44 Interestingly, it seems that in recent years the distinction between dolus eventual­is and conscious negligence is increasingly being called into question. The charge is led mostly by the continental courts and scholars who defend the so-called “prob­ ability theory” of dolus eventualis. According to this theory, a defendant acts with dolus eventualis when he accurately perceives the danger created by his conduct and acts in spite of having such awareness.45 In contrast, a defendant acts with con­ scious negligence when he fails to correctly assess the danger created by his con­ duct. In its most extreme version, the theory leads to a finding of intent whenever the actor is aware that his conduct creates an unreasonable risk of harm. Many scholars throughout the civil law realm have endorsed a version of this theory of dolus eventualis.46 Some courts are starting to follow suit.47 44  Reckless homicide is the most watered down kind of advertent homicide punished in Anglo-American jurisdictions. Reckless homicide requires that the actor be aware that his conduct creates an unjustifiable risk of death. In contrast, murder sometimes requires that the actor’s con­ duct reveal “gross indifference to the value of human life.” It is unclear whether the gross indifference requirement is a mental state in addition to awareness of the risk or if it is a way of objectively distin­ guishing between risks that are grossly blameworthy and risks that are less blameworthy. 45   See e.g. Mir Puig (n. 19) 267–268. 46   In Spain, see e.g. Mir Puig (n. 19). In Germany, see Jakobs (n. 14) 329–330. 47   Spanish courts, e.g., seem to be slowly moving in this direction. See Mir Puig (n. 19) 278 fn. 75.

1112   luis e. chiesa If this trend continues, the differences between the civil law mental state of dolus eventualis and the common law mental state of recklessness will become less mean­ ingful. This is perhaps one of the instances in which what has traditionally been considered a point of divergence between Anglo-American and continental crim­ inal law may ultimately end up being a point of convergence. Somewhat surpris­ ingly, if this were to happen it would mostly be the consequence of continental scholars and courts abandoning or rethinking their traditional approach to dolus eventualis rather than Anglo-American courts and scholars supplementing reck­ lessness with additional mental states such as “acceptance” or “indifference.” The reasons underlying this rethinking of dolus eventualis in continental juris­ dictions are fairly evident. First, it is unclear whether the actor who is aware that his conduct creates a risk of harm but is indifferent toward whether it takes place is significantly more worthy of blame than the actor who is similarly aware of the risk but trusts that he will be able to prevent it. Why should the law favor those who consciously engage in risky undertakings while foolishly believing that harm will not result? Secondly, it will often be very difficult to prove whether someone was aware of a risk but indifferent to it or whether he was aware but thought that he could prevent it. Requiring prosecutors to prove indifference/acceptance in addition to awareness imposes a probative burden in circumstances in which it is unclear whether the benefits of doing so outweigh the evidentiary costs that requir­ ing such proof creates. This problem is compounded in jurisdictions that have jury trials. If the distinction between dolus eventualis and conscious negligence has baf­ fled judges and scholars for decades, it is difficult to imagine how much added con­ fusion it would sow in the minds of juries. It is thus not surprising that support for the traditional way of distinguishing between dolus eventualis and conscious negligence is waning in continental juris­ dictions. What is surprising, however, is that this erosion of support has gone rela­ tively unnoticed in the Anglo-American context, especially given that the trend in civil law countries seems to be to move toward something more akin to the com­ mon law mental state of recklessness. In fact, the continental experience with dolus eventualis is sometimes cited in Anglo-American systems as proof that adding “acceptance” or a functionally equivalent mental element to recklessness is a sen­ sible and workable proposition.48 The history of dolus eventualis suggests otherwise. Civil law courts and scholars have struggled so mightily with dolus eventualis that many are now slowly redefining it in a way that eliminates reference to “acceptance” or similar mental states. It is thus problematic to propose that the Anglo-American world move in the direction of dolus eventualis when those who have embraced it for so many decades are beginning to move away from it.

  See e.g. Alan C. Michaels, “Acceptance: The Missing Mental State,” (1998) 71 Southern California LR 953. 48

comparative criminal law   1113

vi. Conclusion There is much use in approaching criminal law from a comparative perspective since the relevance of comparative criminal law to international criminal law is obvious. While less evident, engaging in comparative analysis may also be relevant in the domestic context. A lot can be learned from understanding how foreign legal systems have tackled important issues of criminal theory. Doing so may help local actors to identify criminal law doctrines that are in need of change and may also aid domestic courts in construing constitutional provi­ sions related to substantive criminal law. Although the benefits of engaging in such comparative analysis may be considerable, it is important to proceed cau­ tiously when comparing the criminal laws of different jurisdictions. Language barriers make access to foreign sources of criminal law difficult. Additionally, the content and scope of the criminal laws of a foreign jurisdiction cannot be fully comprehended without taking into account the historical and cultural contingencies that helped to shape such laws. Nevertheless, it is worthwhile expending the effort necessary to overcome these obstacles. As this chapter’s discussion of dolus eventualis and recklessness illustrates, comparative analysis allows rethinking of current approaches to criminal law in light of the experi­ ences that others have had dealing with similar problems. Furthermore, as this chapter’s brief comparative survey of attempt liability reveals, comparative criminal law offers an opportunity to better understand why domestic criminal law takes its current shape.

References Chiesa, Luis E., Substantive Criminal Law:  Cases, Comments and Comparative Materials (2014) Damaška, Mirjan R., The Faces of Justice and State Authority: A Comparative Approach to the Legal Process (1986) Dubber, Markus D., “Comparative Criminal Law,” in Mathias Reimann and Reinhard Zimmermann (eds.), The Oxford Handbook of Comparative Law (2006) Dubber, Markus D. and Heller, Kevin J. (eds.), Handbook of Comparative Criminal Law (2011) Dubber, Markus D. and Hörnle, Tatjana, Criminal Law: A Comparative Approach (2014) Eser, Albin, Fletcher, George P., and Cornils, Karin (eds.), Justification and Excuse: Comparative Perspectives (1987) Fletcher, George P., Rethinking Criminal Law (1978) Fletcher, George P., Basic Concepts of Criminal Law (1998) Gullco, Hernán and Hendler, Edmundo, Casos de Derecho Penal Comparado (2003)

1114   luis e. chiesa Reed, Alan and Bohlander, Michael (eds.), Loss of Control and Diminished Responsibility: Domestic, Comparative and International Perspectives (2013) Reed, Alan and Bohlander, Michael (eds.), Participation in Crime: Domestic and Comparative Perspectives (2013) Reed, Alan and Bohlander, Michael (eds.), General Defences:  Domestic and Comparative Perspectives (2014) Weigend, Thomas, “Criminal Law and Criminal Procedure,” in Jan M.  Smits (ed.), Elgar Encyclopedia of Comparative Law (2012) Whitman, James Q., Harsh Justice: Criminal Punishment and the Widening Divide Between America and Europe (2003)

­c hapter 48

EUROPEAN CRIMINAL LAW kimmo nuotio

i.  What Do We Mean by European Criminal Law? The editors of this Handbook have included a chapter on European criminal law under the heading “Beyond Domestic Criminal Law”: the other two chapters under this heading deal with comparative criminal law and international criminal law. Both of those chapters discuss areas of criminal law that have established them­ selves quite firmly; however, European criminal law is a more fluid entity. This chapter does not aim to do away with this fluidity, but rather tries to exploit it. As this topic currently attracts an enormous amount of practical and scholarly interest, I will seek to avoid simply repeating what is generally known to both scholars and practitioners active in the field. I will also try to open this magic world to those who have not so far worked in this area. European criminal law borrows from many areas, including both of its neigh­ bors. Although it goes beyond domestic law, European criminal law necessitates a comparative European approach. Since European criminal law works through the legal orders of the Member States of the European Union (EU) the domestic legal systems are a very significant part of that law and, at the same time, a good measure of domestic law is European law.

1116   kimmo nuotio Even though European criminal law extends beyond the single-state domestic law perspective, in its way it establishes the perspective of a European domestic criminal law and criminal justice and thus reproduces some of the single-state per­ spective, albeit on a higher level. As with domestic law, European criminal law cur­ rently deals increasingly with crimes of an international character, such as terrorism. International law also works through domestic law, and sometimes European regu­ lation stands between the two. Today the EU is a very important site of European criminal law. In the first phase, when the EU with its three-pillar structure was founded by the adoption of the Maastricht Treaty (1992/1993), this area was called Justice and Home Affairs (JHA) cooperation1 but, since this cooperation between the Member States was intergov­ ernmental in nature, the EU bodies had only a marginal role to play. The Member States negotiated two treaties in 1995, one on Europol and the other on fraud against the financial interests of the EU (the PIF Convention). Generally the development was regarded as slow, with the next institutional reform of the EU intended to improve the general ability of the EU to take action in this field. Development of the Schengen area during the 1980s, which abolished border controls between some of the European states, created the need to raise issues about complementary measures as free movement of persons might not only benefit eco­ nomic growth, but also increase the risk of organized criminality. The Schengen arrangement originally also grew outside the European Community (EC) law framework, but later became part of EU law. Since the Amsterdam Treaty (1997/1999) came into force, the EU has developed an extensive regulatory framework for dealing with crime control. The former JHA cooperation was now spoken of in more substantive terms such as building an Area of Freedom, Security and Justice. Asylum and visa matters, like private law cooper­ ation, were communitarized, becoming part of Community law (EC law), which opened the way for the use of the usual EC law legal instruments. However, the Member States were not yet ready to let this happen to either criminal law cooper­ ation or police cooperation. That said, the pressing need to move forward resulted in the creation of an equivalent to the EC Directive—a Framework Decision—for the purpose of approximating the legal rules of the Member States in these fields. As the Member States continued to be somewhat cautious as regards efforts to approxi­ mate their criminal laws, albeit on specific points regarding severe cross-border crimes, the idea was to limit approximation of substantive norms to those situations where it was necessary for the functioning of the principle of mutual recognition. To cut a long story short, it was this new type of instrument, the Framework Decision, which then let the EU erect a mass of binding framework rules on how crime definitions should look, how national rules should provide for sufficiently

  Steve Peers, EU Justice and Home Affairs (2011; 1st ed., 1999).

1

european criminal law   1117 long prison sentences (minimum rules for the longest sentences according to the penalty scale), and how national authorities should enforce judgments and deci­ sions that had been given by the courts and other authorities in other Member States. This method allowed the EU quickly to address all those criminal issues that had been listed as part of the EU competence, by introducing more than 30 Framework Decisions. The EU is like a moving target which continuously redefines itself and the Lisbon Treaty, which entered into force in 2009, once again reformulated the setting. Cooperation in the field of criminal law continues to be the shared competence of the EU and its Member States, with the subsidiarity principle restricting the exercise of Union competence. Almost all features marking the substantive differ­ ence between criminal law cooperation and police cooperation from other policy areas have now been abolished and Directives are applied instead of Framework Decisions. The role of the European Parliament and the European Court of Justice (ECJ) as well as the European Commission have been highlighted further, and the European Council has become a body of the EU. Procedural rights and, generally, fundamental rights received more open recognition in the Union setting and, in addition, the renewed Treaty framework also mentions the aspiration to move fur­ ther in qualitative terms. The EU could now, if the Member States give it sufficient support, establish a European Public Prosecutors’ Office for the purpose of pros­ ecuting certain financial crimes threatening the Union budget. In that field, as in the field of customs offences, the Union could also try to enact transnational criminal law proper. We will return later to some of these issues. This brief introduction only serves the purpose of informing the reader of certain general institutional develop­ ments in the structures of the EU which were necessary in order to make it a site capable of producing a fragmentary transnational criminal law of a specific kind. It was perhaps not a process which was completely planned beforehand or even foreseen, but rather was influenced by many incidental factors. In any event, if we look at the product only, the outcome was something that begins to deserve the name of European criminal law. International criminal law is institutional­ ized in that it has its courts and conventions, and it focuses on offenses that are particularly severe and threaten the common values of mankind, especially where so-called international core crimes are concerned. Comparative criminal law, however, is only institutionalized academically. Comparative criminal law goes beyond the domestic setting by the power of thought only. The transnation­ alization of law has changed the significance of comparative law scholarship and, in the European context, comparative criminal law almost finds an institutional setting already in place, since European criminal law is a testing ground for com­ parative knowledge as any effort to create a working European criminal justice capable of addressing offenses threatening the lives of European people must build on comparative insights into the commonalities and differences between

1118   kimmo nuotio the various domestic systems. European law could also be looked at from a com­ parative perspective as a new emergent form of law. In fact, in the early days if the concept of European criminal law was used, it simply referred to the comparative law of Europe in the criminal law domain. We recall many studies of European criminal law and European criminal justice which did not look at transnational issues at all. Typically, in the earlier literature, the talk was about criminal justice systems in the plural. Today we increasingly speak about it in the singular. I would say that for European criminal law to establish itself and to distinguish itself from both international criminal law and comparative crimi­ nal law, the second differentiation is the more demanding. Differentiation is not import­ant for its own sake either, and some differentiation may be helpful even if it is not complete. As an academic discipline, comparative law is a product of the early twentieth century. Since the beginning, indeed especially at the beginning, the academic com­ parative law community believed that such studies would also serve the interests of legal and social development; they even dreamed of a world law that could be cre­ ated through comparative studies.2 Interestingly, one of the pioneers in comparative criminal law was the renowned P. J. A. Feuerbach, working a century earlier.3 The term “European” may also cause confusion. As indicated previously, European law is most often simply used to refer to the laws of the European Member States. In a broader sense, it could refer to European legal tradition more generally, as is dem­ onstrated by many examples: “European law builds on Roman law.” “International law has European roots as it has grown out from the Peace of Westphalia.” In rethinking the roots of European criminal law, it is important to look at the actors as well. The Council of Europe was the body which started working with the European criminal justice systems in the 1950s, giving this policy work an institutional site, and building on the shared values of its state parties. It was not a site created so much for comparative law activity, but rather as a site for practical cooperation and common policymaking. The EU has taken the lead since 1990, and today we increasingly understand European criminal law as criminal law in the context of the EU. Academic theorizing about the common roots of the European criminal justice systems has perhaps not had a very obvious role in the workings of the Council of Europe. The shift toward the EU as the leading site in European criminal law results from the rapid development of the law itself. Gert Corstens and Jean Pradel (1999/2002) noted the difficulty in defining European criminal law precisely. They avoid using the term “European criminal law” in the definition they have elaborated, talking instead about “European crim­ inal justice.” The definition “consists of a collection of criminal standards (substantive,   Konrad Zweigert and Hein Kötz, An Introduction to Comparative Law (1998), 2–4.   Markus D. Dubber, “Comparative Criminal Law,” in Mathias Reimann and Reinhard Zimmermann (eds.), Oxford Handbook of Comparative Law (2006), 1292–1294. 2 3

european criminal law   1119 procedural, and penitentiary), common to various European States, with the aim of better combating criminal activity in general, and transnational organised crime in particular.”4 This definition is quite helpful in that it makes the central point about having European criminal law in the first place, and it is neutral as it suggests only vaguely why but not how and by whom. Nor does it link European criminal law to any site such as the Council of Europe or the EU. The word “collection” lacks any normativity, as if we could simply identify the common European features using the methods of comparative law. In its vagueness, however, it leaves room, if not for a European criminal policy, then for normative regulations that increase the efficiency of crime control. It also particularly mentions transnational organized crime, which in fact was also one of the reasons for creating European criminal law in the first place. Since 1999/2002, the world has changed and European criminal law has gained a much more normative backbone, with the common-value basis facilitating this process and giving it a nature of being more than just policymaking. Cooperation in practice is also a very good promoter of common policies. Nordic cooperation, coordinated since 1952 by the Nordic Council, has been marked by its informal nature compared to the workings of the European sites. In the EU setting, the adoption of the mutual recognition principle as the corner­ stone of criminal law cooperation has been an extremely influential move, creating a European system of enforcement of decisions and judgments. Replacing extradi­ tion procedures by a European Arrest Warrant (EAW) has been revolutionary, even though the Member States have not always implemented the European norms com­ pletely,5 and it has also triggered a lot of concern about the protection of the fun­ damental rights of those arrested and surrendered.6 Approximation of constitutive rules of crime definitions and punishment has further highlighted the European approach, resulting in hundreds of amendments to the national criminal codes. Much of what has happened concerns the globalization of law, with the develop­ ment of the European system of protecting human rights as well as developments in the law of the EU. Mireille Delmas-Marty, herself one of the masterminds behind building up a European capacity to address fraud against the budget of the EC/EU, has spoken about Europe as a laboratory of legal pluralism. She has noted precisely this search for a ius commune in Europe, commenting that both the progress in legal regulations as well as several academic studies and proposals give flesh and blood to such aspirations.7

  Geert Corstens and Jean Pradel, European Criminal Law (2002), 2–3 (emphasis in original).   Massimo Fichera, The Implementation of the European Arrest Warrant in the European Union: Law, Policy and Practice (2011). 6   Elspeth Guild (ed.), Constitutional Challenges to the European Arrest Warrant (2006); Elspeth Guild and Luisa Marin (eds.), Still not Resolved? Constitutional Issues of the European Arrest Warrant 7 (2009).   Mireille Delmas-Marty, Towards a Truly Common Law (2002), x–xii. 4 5

1120   kimmo nuotio We do not usually have to think about what criminal law is and what actually makes it what it is, but European criminal law is different in that it really forces us to rethink both criminal law and European law. European criminal law is a very help­ ful context for discussing what criminal law today is actually about; it is a unique example of how regional interstate cooperation may deepen into a multifaceted sys­ tem that deserves be called by a new name, in this case: European criminal law. The name captures a great many interrelations between seemingly unconnected norma­ tive frameworks. It also relativizes the idea that criminal law can be grasped as a separate and autonomous discipline. In every decent academic library you will find a section on criminal law, one often further divided into subsections on the general part and the special part. Under the general part, you will find books dealing by and large with the structures and prerequisites of criminal liability—this is the academic part, which law students need to master and which often builds on a long tradition of scholarship. In the special part, you will find studies dealing with particular offenses. The general part, that is, treatises on basic concepts and on basic legal principles of criminal liability, mark the core of the identity of criminal law as a subject. Even though criminal law is very much written and codified law, it is not the legal provisions and the crim­ inal codes which make criminal law, but rather the underlying concepts, principles, and theorizing about justified state punishment. Under the fast-moving surface we encounter the deeper layers of law, in which the comparatists are also so interested. The structure of this Handbook reproduces such an understanding. Should we then ask whether European criminal law really is criminal law and whether it comes close to presenting itself as criminal law proper, we face the cen­ tral problem that European criminal law, as it is today, would not pass the test. European criminal law is a patchwork which does not present itself in a systematic way in the same sense as criminal law does in a national setting. European law is not particularly about developing a European concept of crime and punishment. In fact, the EU—with only minor exceptions—lacks the authority to originate legisla­ tion on criminalization or the authority to carry out criminal proceedings. European criminal law contains fragments, but these fragments again are situated within a legal framework which is a legal order sui generis. European law speaks about terrorism and counterfeiting the euro and trafficking of human beings, but it does so in a very specific way; the way European law can do it. European criminal law is not independent in the sense that it could make sense without also incorpor­ ating the Member States’ criminal laws and other laws into the picture. Not only is the implementation of European criminal law measures necessary in the Member States, but the efficient enforcement of European law more generally is also the duty of the Member States. Sometimes the Member states enforce European law of a non-criminal nature by resorting to criminal measures at the national level. European law may also require the domestic criminal law of a Member State to step back and give it primacy.

european criminal law   1121 It should be clear by now that European criminal law cannot easily be pressed into one single package. As the Member States’ legal orders differ significantly in their criminal law, every Member State has to a certain extent its own problem­ atique concerning the Europeanization of its criminal law. In 2002, the first study on EU and criminal law in Sweden was published by Petter Asp. His observation was simply that EU law had started to have an influence on how Swedish criminal law should be applied, and he wanted to work out in detail the ways in which this impact was felt. He did not yet speak about European criminal law, his focus being on domestic criminal law in the context of the Europeanization of law.8 The terms “EU criminal law” or “European criminal law” have only recently fig­ ured in the titles of the leading textbooks, such as André Klip (European Criminal Law) and Valsamis Mitsilegas (EU Criminal Law), both from 2009, and the Europäisches Strafrecht by Bernd Hecker from 2007. Since then the literature has exploded and one or more studies are likely to be found in every Member State. There could be many European criminal laws if we start from the domestic crim­ inal law and reach beyond it and the notion of perspective is essential for the legal pluralist view. The point is that what route we take to the legal materials may make a difference as we have learned through the debates on sovereignty and constitutional authority in Europe. I  would say that European criminal law generally adopts a transnational perspective, in the same way as does European law. But it leaves room for national studies about European criminal law; studies which elaborate on the impacts of Europeanization in that individual legal system. The emergence of European criminal law is a product of debate and crisis. Its cre­ ation is a reaction to perceived security risks, rather than anything else—provision of security having been the driver in the creation of European criminal law.9 Kaarlo Tuori has talked about the security constitution as an anti-constitution, because the security orientation of EU activities has, in turn, risked the level of protection of the funda­ mental and human rights of the individual.10 This tension is palpable, and the meas­ ures adopted in the field of crime control have had precisely these repercussions. The broader issue of the constitutional dimension of European criminal law has been dealt with by Ester Herlin-Karnell, who discusses the problems stemming from the effective enforcement duties in particular.11 The European Council, the top-level meeting of the representatives of the Member States, has agreed on the Stockholm Programme, which seeks to restore the balance between the protection of rights of the individual and that of effect­ ive crime control. The Lisbon Treaty broadened the powers of the ECJ to review   Petter Asp, EU & straffrätten (2002).   Massimo Fichera and Jens Kremer (eds.), Law and Security in Europe: Reconsidering the Security Constitution (2013). 10   Kaarlo Tuori, “The Many Constitutions of Europe,” in Kaarlo Tuori and Suvi Sankari (eds.), The Many Constitutions of Europe (2010), 25–27. 11   Ester Herlin-Karnell, The Constitutional Dimension of European Criminal Law (2012). 8

9

1122   kimmo nuotio the legality of secondary legislation in these fields as well as to issue preliminary rulings concerning the correct application of these measures. The aim is to con­ solidate the situation, as the Charter of Fundamental Rights and Freedoms of the European Union has now also become formally binding. Interestingly, the Stockholm Programme emphasizes the need for better policy coherence. Insofar as it concerns the principles of criminalization, which have thus far been rather non-existent in EU criminal law, the ultima ratio principle seems to have gained some recognition.12 European criminal law has offered a scene for comprehensive discussions about how the rather practical needs of crime control within the European setting should best be dealt with. The discussions have dealt with a wide variety of topics stretch­ ing from the criminal law competence of the EU to issues such as the need for a European corpus iuris for combating some core European offences, to challenges to the EAW and problems with anti-terrorist measures. In 2011, the European Commission published an important communication on EU criminal policy, which is perhaps the first official EU document openly discussing EU criminal law from a policy perspective.13 It focuses especially on the use of criminal law measures to implement other EU policy goals. The view of the Commission is that there is general scope for obliging the Member States to resort to criminal law measures when implementing EU law nationally. This question concerns the use of the so-called ancillary competence, when the EU legislature adds provisions on the use of criminal law measures to Directives in other fields than those euro crimes for which the matter has been specific­ ally regulated in Art. 83(2) of the Treaty on the Functioning of the European Union (TFEU). The Commission also highlights that the aim cannot be to do away with national differences in the criminal law systems, because criminal law reflects the values of a particular society, and the societies of the Member States are different. On the other hand, the added value of EU criminal law measures depend on EU criminal law being coherent and consistent. This view, stressing the need for increased coherence in EU criminal law, appeared, for instance, in a “Manifesto on the EU Criminal Policy” of 2009, a document produced by a group of scholars.14 We could also formulate the matter otherwise, by asking whether criminal law as a field enjoys a special position in the EU context, or whether it is just one way among many of sanctioning human conduct. Advocate General Mazak highlighted the dis­ tinctive character of criminal law in his opinion in Commission v. Council (2007), a case concerning the Framework Decision on Ship-Source Pollution.15 In his view,   Stockholm Programme, Official Journal of the European Union, 4.5.2010, C115/15.   Towards an EU Criminal Policy: Ensuring the effective implementation of EU policies through 14 criminal law, COM(2011) 573 final.   See . 15   Case C-440/05 [2007] ECR I-9097. 12 13

european criminal law   1123 criminal law goes far beyond just a mere sanctioning mechanism and stands out from other areas of law. It “delineates the outer limits of acceptable behaviour and in that way protects the values held dearest by the community at large.” A similar struggle with the concept of criminal law in an EU setting can be observed in the domestic setting. In its Lisbon judgment,16 the German Federal Constitutional Court likewise emphasized the particular nature of criminal law, stating that the extent to which and the areas in which a polity uses the means of criminal law as an instrument of social control is a fundamental decision. According to the judges in Karlsruhe, the substance of criminal law does not serve as a technic­al instrument for effectuating international cooperation but stands for the particularly sensitive democratic decision on the minimum standard according to legal ethics. This, in turn, is explicitly recognized by the Treaty of Lisbon where it introduces an emergency brake in order to prevent Directives with relevance to criminal law invoking fundamental aspects of its criminal justice system. The German Federal Constitutional Court held that the EU criminal law competence must be interpreted narrowly and consistent with the constitutionally protected specificities of criminal law. If national law is regarded as the enforcement mechanism for EU law, an instru­ mental outlook on the national sanctioning law may follow. A similar problem fol­ lows from the fact that no mature doctrine on the principles of criminalization has been developed as part of EU criminal law. When the EU law perspective—with a certain teleological general approach—dominates, criminal law will be seen in instrumental terms rather than in moral and ethical terms. It is no wonder that Europeanization has often been feared for introducing a more instrumental and technical understanding of criminal law into national settings. Another aspect, which usually does not cause problems in the national setting, concerns the choice of legal basis in the foundational treaties. In the history of European criminal law this question has been particularly relevant. The EC Treaty did not expressly grant the EC any powers to approximate criminal legislation; on the other hand, the doctrine developed that the enforcement of EC law belonged to the Member States which had effectively to sanction breaches of EC law. It was an open question whether Community law could require this sanctioning to be car­ ried out by reference to criminal law measures, or whether such competence could only be exercised by resorting to the powers granted according to the third-pillar provisions. The ECJ had to tackle this issue in two cases. In Commission v. Council (2005),17 the European Commission requested annulment of Framework Decision 2003/80/ JHA of 27 January 2003 on the protection of the environment through criminal law. The Commission was of the opinion that sanctioning by means of criminal   BVerfG, 30.6.2009, 2 BvE 2/08.   Case C-176/03 [2005] ECR I-7879.

16 17

1124   kimmo nuotio legislation could be required by the ordinary means of approximation according to Community law, whereas the Council, which consists of representatives of the Member States, was of the view that the Community lacked such competence. Therefore, the correct way to proceed was, they thought, to adopt a Framework Decision. The ECJ decided to follow the line of argument put forward by the Commission. According to the Court, some of the provisions included in the Framework Decision could have been issued on the basis of ordinary Community competence. Therefore it annulled the Framework Decision, and the matter was later regulated by resort­ ing to a Directive. Certain provisions had to be given, in any event, by a Framework Decision, therefore the judgment did not completely transfer the matter to being an issue of Community law. The reasoning of the Court was based on the idea that the Maastricht Treaty had not in any way limited the powers of the Community that it had so far enjoyed. Another case followed—Commission v.  Council (2007) mentioned earlier18—in which the Commission similarly requested the annulment of a Framework Decision on enforcement of the law against ship-source pollution. Here the Court also fol­ lowed the view of the Commission that the Framework Decision in fact infringed the powers of the Community as some of the provisions included in the Framework Decision could have been issued by adopting a Directive. In this judgment, how­ ever, the Court concluded that the Community competence could only be exercised so that the Member States were required to sanction certain forms of behavior by resorting to criminal sanctions, but “the determination of the type and level of the criminal penalties to be applied” did not fall within the Community’s sphere of competence. These disputes were also significant because they paved the way for the post-Lisbon model, according to which the implementation of various Union policies may render it necessary to require Member States to sanction breaches by resorting to criminal sanctions. This so-called ancillary competence broadens the sphere of European criminal law significantly, since it is not only the specific lists of types of offense which demarcate the outer limits of criminal law at the European level, when seen from the point of view of transnational law. The development of European criminal law also has very strong links with the institutional structure and system of division of powers and competences between the various bodies which constitute the EU. This tells us that European criminal law is not yet a mature entity. Therefore, as Bernd Hecker has pointed out, the pol­ icy debate about what role criminal law should play in the EU setting may often domin­ate over the dogmatic analysis of existing legal materials. He also refers to the related debate about the democratic legitimacy of European criminal law as well as

  See n. 15.

18

european criminal law   1125 the question of how constitutional and other courts can review European criminal law and its actors.19 As a concept, European criminal law resembles that of European law, in the sense that we know roughly what we mean by it even if it may refer to somewhat varying contents. European law, of course, primarily refers to the law of the EU but, in addition to that, the law of another international organization, the Council of Europe, may be included. The Council of Europe has been the site for drafting many European conventions and recommendations in matters of criminal policy and interstate legal cooperation and European human rights law is also a product of activities within the remit of the Council of Europe. In the EU to come, European human rights law will increasingly converge with the law of the EU as the two regimes have ever more in common. It has been noted by André Klip that in approaching European criminal law we should use the definition of criminal law developed by the European Court of Human Rights (ECtHR) in Öztürk v. Germany, instead of following a national defin­ ition of the concept. The human rights law-based definition is broader than that of most national legal systems. This brings European competition law, for instance, into the realm of criminal law.20 According to Klip, there is also more generally much more criminal law content in European law than we would imagine if we look at it simply from a traditional national perspective. This relevance of hidden con­ nections is a sign of a systematic nature: the study of a criminal law principle may require studying the same principle, such as the mutual recognition principle, in a completely different legal context.21 European law has developed gradually from EC law into EU law, from economic law to a legal order covering most fields of law. European criminal law is a product of the same Europeanization of law as is European law generally, albeit with some special characteristics. European criminal law is a summarizing concept represent­ ing as a more or less coherent whole the ways in which European law effects and organizes criminal law as part of the Area of Freedom, Security and Justice, one of the aims of the EU. But as the law stemming from the Council of Europe may also be regarded as being part of European law, European criminal law may pick on the same source. Boundaries are no longer clear. Perhaps we should not worry too much about blurred boundaries and identities. Many questions are posed because at the European level we lack anything which looks like a criminal code comparable to those which exist at state level. European law works through the national legal order which renders it difficult or even non­ sensical to limit the sphere of European law only to the European level. With the

  Bernd Hecker, Europäisches Strafrecht (2012), 6–7.   André Klip, European Criminal Law. An Integrative Approach (2012), 2. 21   Klip (n. 20) 4. 19

20

1126   kimmo nuotio Lisbon Treaty, the path has been opened for transnational criminal law in EU fraud (Art. 325 TFEU) and customs offenses (Art. 33 TFEU). It would not be at all helpful to think of European criminal law as some kind of federal law. The European legal order, or an order of orders, is based on hierarchies, but not in the way that federal laws relate to state law. According to European law, the main legal instruments for organizing the European legal order are Regulations and (Framework Decisions and) Directives. Regulations may be relevant for crim­ inal justice, but as a rule Regulations have not been used where criminal law is concerned. The peculiarities of European law strongly dictate the role criminal law plays, since European law comes with its own history. During the earlier stages of that his­ tory, criminal law was almost non-existent as a substantive matter of European law. Sometimes the criminal cases in national courts dealt with matters that had been regulated at European level; the European connection then most often appeared to challenge the validity of some domestic criminal law rules. The European common market was created by imposing an economic constitu­ tion and a great amount of other European regulation on the Member States and sometimes the new rights and freedoms required national criminal laws to step back. Where the legislature had not acted accordingly and modified its local legal rules, such adjustments had to be made by the courts. At that stage, the points of contact between European law and national criminal law were to a certain extent accidental. However, European law grew in its ability to impose itself on the national legal order and, even though criminal law was not specifically meant to be part of the Europeanization process, it could not help being affected by the process. European criminal law can broadly be understood as the way in which the vari­ ous criminal justice systems in Europe cooperate and how they work jointly when they face cases with a European dimension, and judicial cooperation between the Member States in the field of criminal law is one important feature of that law. In one of its basic senses, European criminal law is about legislation aiming at approxi­ mating legal rules on offenses and criminal sanctions in Europe. The cases may concern this aspect, but equally European criminal law is about how European law affects the interpretation and application of national laws in a criminal case. European criminal law concerns the introduction of mechanisms for making the Member State criminal justice systems work in cross-border cases; thus, European criminal law contains many elements that are of a procedural nature rather than a substantive criminal law character. The EU was redefined in the Treaty of Amsterdam, and that reform was mean­ ingful for many aspects of criminal law. The new Area of Freedom, Security and Justice concept was launched to highlight the new aspirations, since cooperation in the field of justice and home affairs was no longer simply a complementary meas­ ure to address cross-border criminality and other problems originating from the establishment of the common market and the abolition of border controls in the

european criminal law   1127 Schengen area. It was simply one of the tasks of the EU to provide citizens with a Europe that was built on the values of freedom, security, and justice. Quite rightly, this renaming was meant to give special constitutional significance to this process. The EU and the Member States wanted to rename the new activities accordingly, in order for them to make the entire progress of what had been achieved more appar­ ent, and more importantly, for what was to follow.22 The new instrument, the Framework Decision, soon came to be needed. The first topic to be addressed was counterfeiting of the euro, the new currency that had been launched in 1999 but was not introduced as legal tender until the beginning of 2002. A Framework Decision was adopted in 2000 to ensure that introduction of the euro would go smoothly. The second topic was more spectacular, since immediately after the 9/11 terrorist attacks in the United States the EU wanted to address terrorist offenses by adopting a Framework Decision requiring the Member States to adjust their laws and intro­ duce provisions on that issue. The duty to criminalize terrorist offenses had been recently reconfirmed by the U.N. Security Council in its influential Security Council Resolution 1373, and the relevant international conventions also required action. In June 2002, the EU was ready to adopt the Framework Decision on Terrorist Offences. This was a milestone as the Framework Decision on the European Arrest Warrant was adopted on the same day. The need to replace classical extradition instruments which built on traditional diplomatic procedures by a directly enforce­ able arrest warrant was obvious, and the months after the 9/11 attack were the win­ dow of opportunity for such a leap. Here we see the logic that approximation of rules on substantive criminal law mainly served the aim of facilitating proceedings in a cross-border case. Thus, the idea was not so much to create a new European criminal law but to ensure a good level of security by means of enhanced cooper­ ation supported by the establishment of the necessary institutes and bodies at the European level to make this happen. Europol was soon followed by Eurojust, the European body which coordinates investigation and prosecution in cross-border cases. Interestingly, European criminal law is actually a byproduct of European inte­ gration. In a Europe which strives to establish a common market, the differences between the legal orders of the Member States may on occasion be seen as harm­ ful. Economic integration should be followed by legal integration, at least up to a point; and the concept of an Area of Freedom, Security and Justice also pointed in this direction. Because the nature of criminal law is to manifest the core powers of a sovereign state, the option for any part of criminal law to belong to the exclu­ sive competence of the EU was rejected. Since judicial cooperation is a compe­ tence shared between the Member States and the Union, they exercise those powers

  cf. Alun Gibbs, Constitutional Life and Europe’s Area of Freedom, Security and Justice (2011).

22

1128   kimmo nuotio together. This fact renders principles such as subsidiarity particularly relevant, since the Union should only take action when the Member States cannot deal with the matter by themselves. EU criminal law is a patchwork which contains more of the special part of crim­ inal law than the general part, but not all matters have been dealt with. It is, how­ ever, increasingly difficult to find areas of criminal law in a national setting that would not fall under any European setting. Since the Members States’ legal orders seldom entail separate provisions addressing cross-border criminality, approxima­ tion measures can easily have an impact well beyond their original scope.

ii.  European Criminal Law as a Form of Transnational Law European criminal law is a form of transnational law, going beyond the traditional boundaries of national legal orders in many senses. Much of it consists of “second order” rules organizing the way that the normative orders should look like in the individual Member States responsible for dealing with the subject matter. This is mainly carried out by the many Framework Decisions, Directives, and Conventions. It would make things simple if we could say, for instance, that European criminal law encompasses all the transnational regulation stemming from the EU and the Council of Europe, which normatively orders the domestic criminal law systems necessary for the handling of criminal cases. Unfortunately, the legal world is not that simple. Rather, we should say that European criminal law, besides the European level norms and principles, contains those parts of domestic legal orders that do the actual job, that is, most often, the legislation implementing the regulations that are of transnational origin. We also know this phenomenon from the context of gen­ eral European law, but in the field of European criminal law the lack of regulations proper—that is, legislative acts which are immediately enforceable throughout the Union—further stresses the role of Member States’ jurisdictions. Transnationally, European criminal law can be identified relatively easily. It expressly calls for actions and sets goals and purposes, thus guiding the acts of vari­ ous subjects, national and transnational, jointly forming the European system. What again makes things more complex is the fact that often other norms than those with a criminal law character also need to be taken into account in deciding a case in a domestic setting. For instance, in cases involving safety at work, whether the dangerous machine was approved by the relevant authorities in the country of origin may be relevant, because a specific Directive sets out the obligations of

european criminal law   1129 producers and dealers, and it is a duty of Member States not to place any additional burdens on importers to test machines that have lawfully been brought into the common market in another Member State. In addition, in many cases the rules of the internal market set limits on national authorities for prosecution and convic­ tion and local authorities also act in a dual role as they need to take into account the applicable European law, not only their domestic criminal law. The European dimension may crop up rather surprisingly in criminal cases. In Finnish case law, it is quite normal for such issues to be raised at a later stage of the proceedings, such as at the appeal court level or even in the Supreme Court. Criminal cases are more frequent where the European dimension is latent than those dealing with matters which are manifestly of a criminal law character in the European dimension. Thus, European criminal law both is and is not transnational. It is transnational in the sense that it has a transnational layer; but the transnational layer is not directly operational, since it could not do much without a Member State’s legal order. The transnational layer is, however, increasingly powerful in its ability to shape the national criminal laws in many ways and to an extent that would have been unthinkable just a couple of decades ago. We might consider measures concern­ ing sexual abuse of children, for instance. The Treaty of Amsterdam (1997/1999) specifically mentioned trafficking in persons and offences against children as fields of action in its Title VI, in which approximation of rules on criminal matters in the Member States could also be considered. Council Framework Decision 2004/68/JHA of 22 December 2003 on com­ bating the sexual exploitation of children and child pornography was one of the early instruments adopted. This was followed in 2007 by the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse23 which contains detailed articles requiring the state parties to criminalize the sexual abuse of children, offenses concerning child prostitution, child pornography, and grooming, among others. Some of these matters had already been addressed in the Council of Europe Convention on Cybercrime in 2001, which specifically looks at these matters from the point of view of pursuing a common criminal policy aimed at the protection of society against cybercrime. The comprehensive approach has recently matured in the adoption of Directive 2011/92/EU of 13 December 2011 on combating the sexual abuse and sexual exploit­ ation of children and child pornography, which will replace Council Framework Decision 2004/68/JHA. We see here a pattern of development in which U.N.-level action concerning the rights of the child meet new concerns, because the risks of Internet-related criminality—together with its connection with organized crime and the risk of

  CETS No. 201.

23

1130   kimmo nuotio pedophilia and trafficking of human beings—created a web of criminal policy activities that jointly set rather detailed requirements for how these matters should be treated nationally. International law and European law put together formulated the rights of the child and transformed them into the vocabulary of criminal law. The mandate of the EU to look at these issues was originally somewhat restricted, but the Council of Europe was able to compensate for that, because the nature of its character as an international organization meant that it could address issues in a comprehensive manner, as long as the state parties agreed. The EU is also developing a wider perspective because it seeks to raise the level of protection of the rights of the child across all policy fields. Such an effort will require that the criminal policy perspective is extended to cover the matters of the rights of the children generally. Hard law will be supplemented by soft law. In Art. 83 TFEU, the formulation of the Union mandate reads: The European Parliament and the Council may, by means of directives adopted in accord­ ance with the ordinary legislative procedure, establish minimum rules concerning the defin­ ition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a spe­ cial need to combat them on a common basis.

Article 24 of the Charter of Fundamental Rights of the European Union concerns the rights of the child. The Stockholm Programme also states that: The rights of the child, namely the principle of the best interest of the child being the child’s right to life, survival and development, non-discrimination and respect for the children’s right to express their opinion and be genuinely heard in all matters concerning them accord­ ing to their age and level of development as proclaimed in the Charter of Fundamental Rights of the European Union and the United Nations Convention on the Rights of the Child, concern all Union policies. They must be systematically and strategically taken into account with a view to ensuring an integrated approach.

The development of the web of transnational law in both its human rights dimen­ sion and its criminal policy dimension has had a remarkable net effect in national criminal laws reaching far beyond the letter of the law. We see this process trans­ forming the national criminal law systems in terms of values and principles, pro­ ducing new commonalities. Approximation may, under such circumstances, in its manifest forms be minimum harmonization, but as a long-term approximation practice it produces new convergences. International agendas concerning anti-terrorist measures as well as those against organized crime have had a massive influence on the formation and development of European criminal law in this setting. In Europe, the Framework Decision on terrorist offences of 2002 was basically the first substantive regional instrument defining terrorist offenses. The Council of Europe went ahead with its convention in 2005, but the EU Framework Decision was also amended accordingly in 2008.

european criminal law   1131 As regards international organized crime, the Palermo Convention, which was strongly supported by European governments, also became the model for the uni­ fied EU approach. It would be very hard to imagine post-Amsterdam legal develop­ ments without including the impact of these international policies and instruments. This is not to say that Europe has only served as a platform for international policy­ making; quite the contrary, Europe has also formulated its own priorities and devel­ oped a legal regulatory framework of its own. Because of this complex, dialogical, and process-oriented approach of the European actors to several pressing regulatory problems, European criminal law has the potential to grow a deeper legal culture than that foreseen in the first years of this process. We have already pointed out the role of the Council of Europe, but we should stress that experience from that cooperation has certainly been a major factor behind the success of the harmonization of certain parts of the criminal laws of the Member States in the EU setting. The various concurring and completing instruments form what we could call regimes that work in an integrative manner. An integrative approach should therefore also be promoted in scholarship. On the other hand, we should additionally remember that European law itself provides some safeguards against overly substantial approximation that would ruin the cen­ tral legal principles of the Member States. To cover such an event, the so-called emergency brake mechanism has been pro­ vided in Art. 83(3) TFEU, which is important as a guarantee that European criminal law does not go too far when seen from an individual Member State’s point of view. An individual Member State can only achieve a suspension of the process, which will then be referred to the European Council for further negotiations. Another precondition for its success has certainly been that the different European legal systems have over a long period of time had at least some basic views in com­ mon and that many of the legal systems have much more in common than those basic views. We could tentatively say that the term “European criminal law” could perhaps be used to cover this commonality that, should it exist, could then facilitate efforts to approximate the different laws by initially providing some commonalities. We should perhaps also speak about European criminal law in this broadest sense, if not as a very well-defined concept and category, then as a reminder of the com­ monalities that have their roots in tradition and in long-term exchange and cooper­ ation. At least if we look at law as academic scholarship, we should be aware that the ideas have travelled over the years and that not all legal tradition can be explained as only being domestic and national. In that sense, the idea that European criminal law is a product of the Europeanization of criminal law builds on the paradoxical premise that the law was not European from the start. We may let comparative lawyers debate whether the criminal law systems in Europe are too far removed from each other to deserve being incorporated in any meaningful sense into the term “European criminal law.” Should this make sense, the commonalities would be found most evidently as general legal principles and

1132   kimmo nuotio perhaps general legal concepts. Since common general legal principles can certainly be found in constitutional traditions, why then not in criminal law traditions? The principle of legality (nullum crimen sine lege), and the principle of culpability play a significant role in all European legal traditions, and much of this connects with European human rights law. In the development of European criminal law, the Member States have been hesi­ tant to allow EU law to intrude too far into their national legal orders. The compe­ tence to issue criminal law symbolizes sovereign state powers, which the Member States themselves wish to hold. The Member States have sought to keep control over the process of the Europeanization of criminal law by limiting the legal powers of the Union to adopt measures addressing the systemic qualities of the national legal orders. As stated by André Klip, national criminal law influences Union law rather than the reverse, because “Union law does not require Member States to alter the fundamental characteristics of their criminal law, when implementing Union law.” This follows from the fragmentary nature of the instruments the Union uses in approximation. This fragmentary nature is most clearly seen in the lack of a developed general part because a general part would have the effect of increasing coherence. Criminal liability for legal entities has been introduced in Union instruments, this being an exception to the rule of excluding a general part. It would, however, be naïve to think that the absence of a general part will be a permanent state of affairs, because the fragmentary instruments always contain elements of principle as well. Individual concepts may be interpreted by the national courts and also by the ECJ.

iii.  European Criminal Law: From Gesetz to Recht? Many of the previous observations have been quite closely tied to the presupposi­ tion that we take the rule-making legislative level to be the decisive entry level. It is at this level that the dualistic model operates in many constitutional settings, since the international obligations of state parties need to be converted into binding national laws. And it is this model of legislative mediation that even holds in the developed EU law setting as far as criminal law is concerned. The power of EU law to shape a national legal system becomes much more obvious when we take the full context of the application of law into account. We should first say a few words about a “complete” legal system, and a full con­ cept of law, because this is rather important for our analysis, being relevant both

european criminal law   1133 to our findings concerning supranational elements of law as well as to an under­ standing of the remaining differences between criminal law in the supranational European criminal law in a narrow sense, and as part of the national criminal law. Criminal law in the full sense consists of a set of normative structures. In the sur­ face structure, we have pieces of legislation and individual court decisions—the raw materials of the legal order, so to speak. By adding the context of doctrines specific to the general principles of criminal law and the conceptual structure underlying the various elements of an offense, we get a much fuller picture. The academically researched criminal law presents itself as organized to a much deeper level than just as a body of cases or a body of pieces of legislation. This richer view of law pertains to the law as “Recht,” not just as “Gesetz.” Even though there is certainly a continental emphasis here, as pointed out by George P. Fletcher, it would not make sense in the common law tradition to define criminal law only as statutes and cases either.24 We should thus emphasize the role of concepts and principles in contributing to the systemic nature of the object of our study. The systemic nature of criminal law as a system not only presupposes an elaboration of specific legal principles and legal concepts, but also requires doctrines concerning the use of legal sources and the principles governing the interpretation and application of law. In the national context, the systematic nature of criminal law as an object of knowledge is a product of scholarly work that has elaborated the tools necessary for this enterprise. Trained lawyers reproduce law as a systematic enterprise and contribute to the development of this system. International treaty law as a source of national criminal law does not challenge the traditional view on criminal law very much; it mainly contributes to crime pol­ icy orientation and may cause conceptual difficulties during the necessary national processes of amending domestic laws. International treaties may regulate a field quite thoroughly, but what is crucial is that international treaty law does not impose duties on the courts to interpret national laws in a profoundly new way. National judges may still continue to seek to construct their domestic system by resorting to their ordinary tools and largely neglecting the original source of the international obligation. This is also what makes international treaty law so easy to adopt, because it leaves national legal orders “national” in this deeper sense. The development of European criminal law has clearly left this phase behind. We find traces of concept-building and of commitments to foundational princi­ ples at the European level. We also find the evolution of doctrines that necessitates rethinking of legal sources and the doctrines of interpretation and application. EU law is starting to adumbrate its criminal law increasingly closely.

  George P.  Fletcher, The Grammar of Criminal Law:  American, Comparative, and International, Vol. 1: Foundations (2007), 73–74. 24

1134   kimmo nuotio The ECJ has for some decades elaborated on the principle of legality in criminal law, stating that it is a general principle of EU law, but European law has not been able to avoid the interpretation of relevant criminal law concepts fully, even though this has certainly not been a high priority. In relation to the principle of legality in the context of transnational law, Advocaten voor de Wereld VZW v. Leden van de Ministerraad25 is a highly interesting which concerned the Belgian national law implementing the EAW Framework Decision, which introduced the surrender procedures for a set of offenses which were listed but not properly defined. The ECJ took the stance that even though the principle of legality was binding and part of EU law, the responsibility for defining the offenses properly was on the Member States themselves. It follows from the logic of the EU law instrument that it can neither harm the legality of national criminal law nor guarantee it, since European law does not impose the principle of legality in criminal law on its own legal instruments. We might even consider the following: this principle of criminal law has validity as a principle of European law, but it does not apply to European criminal legislative instruments as these are not directly applicable. The shared competence leads to the Member States having responsibility for their part, and only by misunderstanding the role of the Framework Decisions could it be concluded otherwise. We do not have to work this out in detail: Framework Decisions are about frameworks, and frameworks are not applicable without substantial national legislation. The princi­ ple of legality is, so to speak, firmly rooted in international and transnational law, but it largely continues to address issues of full criminal law systems and thus the domestic setting. We should continue this line of thought by citing another example, the Pupino case.26 Pupino is about leaving inter-governmentalism behind and reaching beyond it. This was the case of a request for a preliminary ruling which concerned whether a group of small children who had been victims of ill-treatment should be allowed to give their testimony outside the courtroom, following special rules. The Italian legislature had not provided such a scheme for crimes of violence. The case basically came under the articles of the Framework Decision on the standing of victims in criminal proceedings.27 The crucial point was whether Framework Decisions should guide the interpre­ tation of national laws when applied in a case in which the national law fell under the articles of the Framework Decision. Had the solution been that Framework Decisions are part of intergovernmental cooperation, such an interpretative effect would most likely have been excluded.

  Case C-303/05 [2007] ECR I-3633.   Case C-105/03 Criminal proceedings against Maria Pupino [2005] ECR I-5285. 27   Pupino, para. 24. 25

26

european criminal law   1135 The Court referred to Art. 1 of the Amsterdam Treaty, which provides that the Treaty “marks a new stage in the process of creating an ever closer union.” It also held that it would be difficult for the Union to carry out its task effectively if the principle of loyal cooperation—requiring in particular that Member States take all appropriate measures, whether general or particular, to ensure fulfillment of their obligations under EU law—was not also binding in the area of police and judicial cooperation in criminal matters, which is moreover entirely based on cooperation between the Member States and the EU institutions. Accordingly, when applying national law, the national court must interpret it “as far as possible in the light of the wording and purpose of the framework decision in order to attain the result which it pursues and thus comply with Article 34(2)(b) EU.”28 The Pupino ruling is significant because it touches upon phenomena at a deeper cultural level. It reorganizes the legal sources, as it elaborates on the duty of national courts to take into account the provisions of a Framework Decision in actual cases. It does so in rather a moderate way, because of course it does not command the national court to apply the Directive directly. That is to say, the national law needs to deliver the decision, so to speak. The national court, however, receives instruc­ tions on how to strike the necessary balance, as consistent interpretation may not be contra legem either and may not risk the legal protection of the other party (in this case the accused, Ms. Pupino). The case concerned the interpretation of procedural rules, but as Framework Decisions also deal with substantial criminal law matters, the rule of consistent interpretation also applies as far as these are concerned. Thus the Pupino doctrine emphasizes the need for the principle of legality since, according to a well-established doctrine concerning the promotion of legal certainty, Framework Decisions and Directives, in the case of a failure in national implemen­ tation, should not lead to aggravated criminal liability. Therefore, the obligation on the national court to refer to the substance of a Framework Decision in interpreting the relevant rules of its national law “was limited by general principles of law.”29 The reason why this example was discussed concerns its further implications. As we may presume, these resultant obligations will be experienced differently by dif­ ferent actors from one jurisdiction to another. How radical the change is depends on the national doctrines that need to incorporate the new doctrine. This duty raises numerous new issues from the point of view of many national actors. Now that the articles need to be taken into account, how do you specify the content of the binding provisions, the exact form of the duty? National judges need to start think­ ing about the interpretation of articles of a Framework Decision, of the significance of the preambles stating the aims of the Framework Decision, etc. This is certainly fertile ground for new preliminary rulings.

  Pupino, paras. 41–43.

28

  Pupino, paras. 44–45.

29

1136   kimmo nuotio The European frame touches the level of Recht, not only that of Gesetz. We find that transnational EU law starts to shape the criminal law in a way which introduces substantial links and connections between the various layers and it is increasingly difficult to force it into the form of intergovernmental cooperation. Seen from the national angle, or from both, the monistic features actually gain more significance. The local judge becomes a truly European judge. We see that European criminal law escapes the paradigm of interstate cooper­ ation and gains a new identity. We might say that European criminal law departs from that specific paradigm of transnational criminal law which could be regarded mainly as a regime of enforcement and cooperation, and takes on features that mark its specificity. European criminal law is, however, in a bind. It simply does not have the means of proceeding toward fuller identity as a body of law, because it is so dependent on the national courts for its development. The case law of the ECJ and the ECtHR may proceed significantly toward interpreting the foundation of European criminal law, but the national elements in criminal cases will continue to dominate. A qualitative jump would require that a truly transnational embryo of criminal law is created, which could occur for either offenses against the financial interests of the EU or for customs offenses. Obstacles to progress toward full and comprehensive European criminal law are many. Approximation of criminal laws serves the interest of mutual recognition and is not a goal in itself. This stresses the enforcement paradigm. Respect for disparate legal traditions has been expressly granted at treaty level. The emergency brake pro­ cedure can be activated should the European legislature require excessively sharp turns. We should also be mindful of the Lisbon decision of the German Federal Constitutional Court with its notice that EU competence in this field should be interpreted strictly and that criminal law belongs to the core areas of legislation in which the national legislature must be given enough room to shape its content.30 If we read the distinction between European criminal law and transnational criminal law as outlined previously, one interesting implication is that international treaty law—the typical form of transnational criminal law—may be channeled regionally through European criminal law. Kadi would also be a case for European criminal law,31 manifesting the European foundations of European criminal law. Within this general framework we might even say that the Treaty law of the Council of Europe and the body of law of the EU may be regarded as belonging together in the sense that the particular touch of the Council of Europe colors its activities and renders them different from other actors operating with inter­national instruments. Most certainly, the supranational ECtHR further illustrates this   BVerfG, 30.6.2009, 2 BvE 2/08.   Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351. 30 31

european criminal law   1137 development of a European character. The human-rights-friendly interpretation of national laws represents a kind of parallel to the Pupino doctrine. A conclusion I wish to draw is that it makes a huge difference whether we theor­ ize about criminal law beyond the state by focusing on treaty-making and legisla­ tive activities only, or whether we extend our scrutiny to cover law in a thicker sense, as interpreted and applied law in a domestic setting. If we do this, we go beyond domestic criminal law by looking at the domestic law first. The latter option completes the picture and enables us to look at the systematic connections and legal cultural phenomena so important to a full analysis. It renders visible both the tendencies toward a European criminal law, be it artificial or natural, but it also demonstrates the reasons why European criminal law can hardly be expected to be able to solve the underlying tensions that have followed it since its very begin­ nings. Perhaps the first decade of the millennium in European criminal law, the Amsterdam decade, was simply so focused on putting in place secondary legislation that we almost forgot the matters of application and interpretation. With this shift in focus, we may address the true processes of the formation of European criminal law, a process which is still very much in the making. European criminal law will also have to struggle with certain structural deficits in the future. It will continue to be a system based on differences between laws around Europe. But the European framework has all the potential to develop further, grant­ ing the common laws a greater role in the totality of this pluralistic order.

References Asp, Petter, EU & straffrätten (2002) Asp, Petter, The Substantive Criminal Law Competence of the EU (2012) Corsten, Geert and Pradel, Jean, European Criminal Law (2002) Delmas-Marty, Mireille, Towards a Truly Common Law ([French original 1994] 2002) Dubber, Markus D., “Comparative Criminal Law,” in Mathias Reimann and Reinhard Zimmermann (eds.), Oxford Handbook of Comparative Law (2006) Fichera, Massimo, The Implementation of the European Arrest Warrant in the European Union: Law, Policy and Practice (2011) Fichera, Massimo and Kremer, Jens (eds.), Law and Security in Europe: Reconsidering the Security Constitution (2013) Fletcher, George P., The Grammar of Criminal Law: American, Comparative, and International, Vol. 1: Foundations (2007) Gibbs, Alun, Constitutional Life and Europe’s Area of Freedom, Security and Justice (2011) Guild, Elspeth (ed.), Constitutional Challenges to the European Arrest Warrant (2006) Guild, Elspeth and Marin, Luisa (eds.), Still not Resolved? Constitutional Issues of the European Arrest Warrant (2009) Hecker, Bernd, Europäisches Strafrecht (2012) Herlin-Karnell, Ester, The Constitutional Dimension of European Criminal Law (2012)

1138   kimmo nuotio Klip, André, European Criminal Law. An Integrative Approach (2012) Mitsilegas, Valsamis, EU Criminal Law (2009) Peers, Steve, EU Justice and Home Affairs Law (2011) Satzger, Helmut, Internationales und Europäisches Strafrecht (2011) Tuori, Kaarlo, “The Many Constitutions of Europe,” in Kaarlo Tuori and Suvi Sankari (eds.), The Many Constitutions of Europe (2010), 3–30 Zweigert, Konrad and Kötz, Hein, An Introduction to Comparative Law (1998)

­c hapter 49

INTERNATIONAL CRIMINAL LAW elies van sliedregt

i. Introduction The origins of international criminal law (ICL) can be traced back to the regulation of warfare.1 Enforcement of the laws and customs of war through punishment of individuals goes back to Grotius and Vattel; according to their natural law theo­ ries the individual may be vindicated when found to have violated the natur­al law.2 Twentieth-century war crimes trials, premised on this legacy, have been predomi­ nantly a victory over sovereignty concerns. The Nuremberg trials were a break­ through in that they did away with the immunity of government officials and heads of state and endorsed the principle of individual criminal responsibility for viola­ tions of international law that, until then, would have been attributed to states. Aside from international conventions, which developed after the creation of the International Committee of the Red Cross in 1863, there was no written legal framework on which the drafters of the Nuremberg Statute could rely in criminal­ izing conduct under international law. It was really after the Nuremberg trials that the codification process of modern ICL began. First, in 1948 with the Genocide   Geoffrey Best, War and Law Since 1945 (1994), 14.   Hugo Grotius, De Jure Belli Ac Pacis (1615), Book II, ch. XXI, para. II (transl. F. W. Kelsey c.s., 1964), 523. See generally Peter Pavel Remec and Quincy Wright, The Position of the Individual in International law according to Grotius and Vattel (1960). 1

2

1140   elies van sliedregt Convention, followed by the Geneva Conventions of 1949, and the Additional Protocols in 1977. This wave of codification was spurred on in the early 1990s with the adoption of the Statutes of the ad hoc tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) and hybrid (partly international) tribunals like the Special Court for Sierra Leone (SCSL) and the Extraordinary Chambers of the Courts of Cambodia (ECCC). The process culminated in the adoption of the Rome Statute in 1998, establishing the International Criminal Court (ICC).

1. Terminology ICL is the body of law that covers the four core crimes: genocide, crimes against humanity, war crimes, and aggression. The latter is the modern version of crimes against peace, a crime in Nuremberg with a somewhat contentious history.3 In 2010, 12 years after the adoption of the ICC Statute, the state parties agreed on a definition and rules for the exercise of jurisdiction over the crime of aggression.4 Its practical effect will be limited for the time being; jurisdiction over aggression can be exer­ cised at the earliest in 2017.5 ICL concerns the criminal aspects of international law (droit international pénal) and should be distinguished from transnational criminal law, which refers to the international or transnational aspects of a state’s domestic criminal law (droit pénal international).6

2.  Nature of ICL In ICL different legal disciplines meet. This is an uncomfortable merger; criminal law and public international law are inherently different branches of law. While criminal lawyers generally value strict and specific rules, public international law­ yers have no problem in relying on loosely defined rules of customary law. ICL con­ stitutes yet another uncomfortable merger; that of human rights law and criminal 3  See Mahmoud Cherif Bassiouni and Benjamin B.  Ferencz, “The Crime against Peace and Aggression: From Its Origins to the ICC,” in Mahmoud Cherif Bassiouni (ed.), International Criminal Law, Vol. I: Sources, Subjects, and Contents (3rd ed., 2008). 4   Resolution R.C./Res.6, Depositary Notification C.N.651.2010 Treaties-8, ICC, Assembly of State Parties, June, 11 2010, Annex I. 5   Resolution R.C./Res.6 (n. 4), amendment 3, Art. 15bis (3): “The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute.” 6   Robert Cryer, Hakan Friman, Darryl Robinson, and Elizabeth Wilmshurst, An Introduction to International Criminal Law and Procedure (2010), 4–5; Neil Boister, “Transnational Criminal Law?,” (2003) 14 European Journal of International Law 953 ff.

international criminal law   1141 law. According to Robinson this has caused an “identity crisis” of ICL.7 Drawing on sources of human rights law, humanitarian law, and criminal law, international criminal law has absorbed contradictory assumptions, which contravene ICL’s lib­ eral justice principles (e.g. personal culpability, nullum crimen sine lege, and the principle of strict construction). In ICL, prosecution and conviction are regarded as the fulfillment of the victim’s human rights to a remedy.8 ICL is further a merger of different legal cultures. In developing ICL, national crim­ inal law and doctrine serve as sources of inspiration, sometimes unconsciously. Lawyers from different legal cultures have encountered misunderstandings, and these have led to interesting but at times superfluous legal debates. In particular, the clash between Anglo-American pragmatism and German doctrine at the ICTY on the theory of co-perpetration, has not been helpful in developing the law on joint criminal enter­ prise.9 Where the legal debate did matter because it made the difference between a con­ viction and an acquittal, was in the Erdemović case at the ICTY.10 The Appeals Chamber, confronted with the question whether duress is a complete defense in the case of mass killing, was divided on the legal issues, and instead relied on policy considerations in not allowing duress to exonerate the defendant. This ruling reveals blindness to the distinc­ tion between justifications and excuses, a distinction that is at the basis of most civil law jurisdictions and not consequently drawn in the Anglo-American common law. Ideally, the different legal cultures that are at the basis of ICL merge into a supra­ national criminal law that transcends national roots. This is a result not readily achieved if only because, as Fletcher notes, international criminal law lacks its own supporting culture of ideas and principles.11 Thus, interpretation of the concepts codified in international statutes still requires us to go back to national law and national theories on criminal responsibility.

3.  Sources of ICL Since ICL is a branch of general international law, as a default rule international courts and tribunals apply the sources of general international law.12 These sources are listed in Art. 38 of the Statute of the International Court of Justice (ICJ): conventions,

  Darryl Robinson, “The Identity Crises of International Criminal Law,” (2008) 21 Leiden Journal 8 of International Law 925 ff.   Robinson (n. 7) 930. 9   See Elies van Sliedregt, “Joint Criminal Enterprise as a Pathway to Convicting Individuals for Genocide,” (2007) 5 Journal of International Crim. Justice 184 ff. 10   See Luis E.  Chiesa, “Duress, Demanding Heroism and Proportionality,” (2008) 21 Vanderbilt Journal of Transnational Law 741 ff; Judgment, Prosecutor v. Erdemović, Case No. IT-96-22-A (Appeals Chamber, ICTY, Oct. 7, 1997, “Erdemović Appeals Judgment”). 11   Which he calls Dogmatik. George P.  Fletcher, “New Court, Old Dogmatik,” (2011) 9 Journal of International Crim. Justice 179 ff. 12   Prosecutor v. Kupreškić et al., Case No. IT-95-16-T, para. 540 (Trial Chamber, ICTY, Jan. 14, 2000). 7

1142   elies van sliedregt customs, general principles, and as subsidiary means for determining the law, judicial decisions, and scholarly writings. Important sources enabling—at times progressive—lawmaking are customary international law and general principles. General principles of law are those that are found in national legal systems and that can be transposed into the international legal system.13 Drawing general principles from the judicial decisions of domestic courts, national law and doctrine is not uncontested.14 On the other hand, general principles are particularly useful as a source of law in areas of international criminal law that are underdeveloped, for example the “general part” of ICL. Less controversial is the appli­ cation of principles and rules of law derived from the case law of international judicial bodies. In seeking guidance to resolve legal issues, the ad hoc tribunals have frequently resorted to decisions of courts that were established in the aftermath of World War II. The ICC Statute presents a novelty in ICL in that it provides for its own provision on sources of law in Art. 21. Moreover, and unlike Art. 38 of the ICJ Statute, this provision creates a hierarchy of sources. The Statute, the Elements of Crime, and the Rules of Procedure and Evidence are the primary sources; applicable treaties and the principles and rules of international law come second; and general principles derived from national law come third. Customary international law is not specific­ ally mentioned in Art. 21 of the ICC Statute but it comes under the heading “rules of international law” in Art. 21(1)(b).15 The ICC Statute is somewhat ambiguous with regard to the jurisprudence of other international courts. Article 21(2) authorizes the ICC to apply principles and rules of law as interpreted in its previous decisions. While this text clearly applies to the case law of the Court it cannot be taken to mean that—a contrario—Art. 21(2) prohibits the importation of principles derived from the case law of other international courts. In fact, ICC case law is replete with references to the law of the ad hoc tribunals and the ICJ.16 Only when provisions of the ICC Statute differ from their counterparts in the law of the ad hoc tribunals, it is justified to ignore the precedents of these courts,17 as the ICC did, for instance, with regard to the contextual element of the crime of genocide.18 13   See Dapo Akande, “Sources,” in Antonio Cassese (ed.), The Oxford Companion to International Criminal Justice (2009), 51–52. 14   That is why in Kupreškić, the ICTY held that only when custom and treaty are of no avail, must international tribunals resort to a process of deriving general principles of criminal law from the domestic laws of states. Kupreškić et al. (n. 12) para. 540. 15   William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (2010), 16 391.   Schabas (n. 15) 396. 17   Volker Nehrlich, “The Status of ICTY and ICTR Precedent in Proceedings Before the ICC,” in Carsten Stahn and Göran K. Sluiter (eds.), The Emerging Practice of the International Criminal Court (2009), 305–325; Gilbert Bitti, “Article 21 of the Statute of the International Criminal Court and the Treatment of Sources of Law in the Jurisprudence of the ICC,” in Stahn and Sluiter, ibid., 295–304; Schabas (n. 15) 396–397. 18  Decision on the Prosecution’s Application for a Warrant of Arrest Against Omar Hassan Ahmend Al Bashir, Prosecutor v. Al Bashir, ICC-02/05-01/09-3, paras. 118–133 (Pre-Trial Chamber I, ICC, Mar. 4, 2009).

international criminal law   1143 The hierarchy of sources in Art. 21 of the ICC Statute reflects the desire of the drafters to ensure a high level of state control over the interpretative mandate granted to the Court.19 According to former ICTY Judge David Hunt, this provi­ sion displays a lack of trust in the judges of the Court.20 It also impacts negatively on ICL in general. The Statute’s provisions coupled with the detail of the Elements of Crime leave no room for the necessary judicial development. Cryer points out that the ICC approach to sources contributes to the fragmentation of ICL. Judicial practice since 2002 does, indeed, indicate that the Court regards the Rome Statute as a self-contained regime rather than as part of a system of international criminal justice.21

ii.  International Prosecutions 1.  Ad hoc courts and tribunals The International Military Tribunal (IMT) in Nuremberg and the International Military Tribunal for the Far East (IMTFE) in Tokyo have been accused of consti­ tuting “victor’s justice.” These courts were composed entirely of representatives of the victorious belligerents. Other critique concerned the procedure and the sub­ stantive law. Trials were geared toward conviction with no respect for basic fair trial rights and the applicable law was largely ex post facto.22 While these trials were certainly not perfect, over time the critique has softened, maybe because tribu­ nals set up after the Nuremberg and Tokyo tribunals have been faced with similar challenges. The IMT and IMTFE were important precedents for the ad hoc tribunals set up in the 1990s. In 1993, on the basis of a (binding) Security Council Resolution under Chapter VII of the U.N. Charter, the ICTY was established to deal with crimes committed in the former Yugoslavia.23 Setting up a judicial organ by the use of Chapter VII powers was

19   Robert Cryer, “Royalism and the King: Article 21 of the Rome Statute and the Politics of Sources,” (2009) 12 New Crim. LR 390 ff. 20  David Hunt, “The International Criminal Court:  High Hopes, ‘Creative Ambiguity’ and an Unfortunate Mistrust in International Judges,” (2004) 2 Journal of International Crim. Justice 56 ff., 61. 21   Cryer (n. 19) 394. See also Elies van Sliedregt, “Pluralism in International Criminal Law,” (2012) 25 Leiden Journal of International Law 847 ff. 22   Richard H. Minear, Victor’s Justice: the Tokyo War Crimes Trial (1971), 74–124; Otto Kranzbuhler, “Nuremberg Eighteen Years Afterwards,” (1964–65) 14 De Paul LR 333 ff. 23   S.C. Res. 827 (1993), May 25, 1993.

1144   elies van sliedregt a novelty and some commentators questioned the Security Council’s powers to do so.24 A year after the establishment of the ICTY, the Security Council established the ICTR, again on the basis of a binding resolution.25 The tribunal was to deal with perpetrators of the genocide committed in Rwanda in April 1994. Encouraged by the Security Council, which since 2003 had forced the tribunals to focus on high-level defendants26 and work toward completion, the ICTY and the ICTR have adopted a “completion strategy.”27 This involved hiring ad litem judges, judges ad hoc who sit for one case, and the transfer of indictments and cases to national courts.28 The ICTY has referred cases to the courts in Bosnia, Croatia, and Serbia. The ICTR, after some initial concern over the independence of courts and fair trial rights,29 referred cases to Rwandese courts. As part of their comple­ tion strategies, both tribunals have established the Mechanism for International Criminal Tribunals (MICT), which is tasked with the continuation of essential functions of both tribunals and the preservation of their legacy.30 Hybrid or internationalized tribunals were set up in the years after the establish­ ment of the ICTY and the ICTR, responding to the call for “justice closer to home” and as alternatives to the expensive ICTY and ICTR. The term “hybrid” or “inter­ nationalized” refers to the applicable law, a mix of domestic and international law, and to the judges who are local and “international,” that is, not local. Each of these mixed national-international institutions is different, in their political backgrounds and legal basis. The SCSL,31 the ECCC,32 and the Special Tribunal for Lebanon (STL)33 24   See Alfred P.  Rubin, “An International Criminal Tribunal for the Former Yugoslavia,” (1994) 6 Pace International LR 7 ff. See also Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Prosecutor v. Tadić, Case No. IT-94-1-A, paras. 29, 126 (Appeals Chamber, ICTY, Oct. 2, 25 1995).   S.C. Res. 955 (1994), Nov. 8, 1994. 26   For the ICTR: S.C. Res. 946 (2003). For the ICTY: S.C. Res. 1503 (2003) and S.C. Res. 1534 (2004). The latter requires the ICTY prosecutor to focus on “the most senior leaders suspected of being most responsible for crimes within the jurisdiction of the relevant Tribunal.” 27   On this completion strategy, see Dominic Raab, “Evaluating the ICTY and its Completion Strategy,” (2005) 3 Journal of International Crim. Justice 82 ff.; Michael Bohlander, “Referring an Indictment from the ICTY and ICTR to Another Court—Rule 11 bis and the Consequences for the Law of Extradition,” (2006) 55 ICLQ 219 ff.; Daryl A. Mundis, “The Judicial Effects of the ‘Completion Strategies’ on the ad hoc International Criminal Tribunals,” (2005) 99 American Journal of International Law 142 ff. 28   This is done on the basis of Rule 11bis of the Rules of Procedure and Evidence (RPE). A similar provision exists in the RPE of the ICTR. 29   Illustrative is the case of Vincent Brown a.k.a. Vincent Bajinja et al. v. Government of Rwanda and the Secretary of State for the Home Department, Apr. 8, 2009. 30   See for more information: . 31   The SCSL was set up on the basis of a treaty between Sierra Leone and the U.N.: “Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone,” Jan. 16, 2002. See . 32   The ECCC was set up on the basis of an agreement between Cambodia and the U.N., attached to a resolution by the General Assembly: G.A. Res. 57/228B, May 13, 2003. 33   The STL’s legal basis is somewhat hybrid. A draft agreement was accepted by the Security Council and signed by the Lebanese government. On request by the Lebanese prime minister it was enforced, however, through a binding S.C. Res. (1757, May 30, 2007).

international criminal law   1145 are treaty-based. The Special Panels in Kosovo and East Timor were established by the U.N. as part of a larger operation: UNMIK34 and INTAET.35

2.  The ICC After almost a century of anticipation, a statute for a permanent international criminal court was adopted in 1998. The ICC began its work in 2002. New in the ICC system, something that sets it apart from Nuremberg and modern-day ad hoc Tribunals and Courts, is the principle of complementarity.36 The ICC is comple­ mentary to national jurisdictions; a case is only admissible when states that have jurisdiction are unable or unwilling to investigate or prosecute core crimes (Arts. 1 and 17 Statute). Unlike the Statutes of the ICTY and the ICTR that have a rudimen­ tary structure with no detailed definitions of crimes and modes of liability, the ICC Statute provides a long list of crime definitions and separate provisions on modes of liability and defenses. Moreover, it comes with an elaboration of the statutory provisions in the “Elements of Crimes”; a document that is to be used as an inter­ pretative tool. The ICC Statute was meant to codify existing customary international law, as it stood in 1998. The distinction between war crimes committed during international and non-international armed conflicts was not abolished, to the disappointment of those who wanted a more progressive development of the law on war crimes.37 On the other hand, the ICC Statute contains provisions that go beyond a mere codifica­ tion of customary law.38 Two of the most difficult issues to negotiate when drafting the ICC Statute, were the position of the Prosecutor and the exercise of jurisdiction. With regard to the first, there was concern that the Prosecutor would not be answerable to any outside agency or authority as is the case with national prosecutors. Some states wanted the Prosecutor to be mandated by the U.N. Security Council, subordinating the ICC to the Security Council; whereas other states argued in favor of a completely inde­ pendent Prosecutor. A compromise was struck with the possibility of deferral of an investigation or prosecution on the basis of a binding Security Council Resolution (Art. 16 Statute). The other issue concerned Art. 12 of the Statute that confers juris­ diction to the ICC over nationals of a state not a party to the Statute (namely, when 35   S.C. Res. 1244 (1999), June 10, 1999.   S.C. Res. 1272 (1999), Oct. 25, 1999.   See for an elaborate account, Jann K. Kleffner, Complementarity in the Rome Statute and National Criminal Jurisdiction (2008). 37   Antonio Cassese, “The Statute of the International Criminal Court: Some Preliminary Reflections,” (1999) 10 European Journal of International Law 149 ff., 150 who called this distinction “retrograde.” 38   e.g. the recruitment of child soldiers, according to Van Hebel and Robinson: Herman Van Hebel and Darryl Robinson, “Crimes within the Jurisdiction of the Court,” in Roy Lee (ed.), The International Criminal Court: The Making of the Rome Statute (1999), 117–118. 34 36

1146   elies van sliedregt crimes are committed on the territory of a state party). This led the United States to negotiate bilateral agreements with states, some of them parties to the ICC, not to surrender U.S. nationals, military personnel stationed in those states, to the ICC.39 Many regarded this as a practice undermining the ICC. On March 14, 2012, in the year of its 10th anniversary, the ICC issued its first judgment in the case against Thomas Lubanga Dyilo. Lubanga was found guilty of the war crimes of enlisting and conscripting children under the age of 15 and using them to participate actively in hostilities in the Democratic Republic of Congo.40 In a separate sentencing decision he was convicted to 14 years’ imprisonment.41 Two years later, on March 7, 2014, the ICC rendered its second conviction.42 Germain Katanga was convicted of war crimes and crimes against humanity relating to the attack on a village in the Democratic Republic of Congo. His former co-defendant Ngudjolo Chui had been acquitted of the same charges in December 2012.43 The fact that it took ten years for the ICC to render its first judgment, followed by an acquit­ tal only nine months later, has left victims and supporters of the ICC disappointed over the Court’s performance. One of the ICC’s major weaknesses is that it lacks the backing of powerful states, most notably the United States. A full appraisal of the ICC’s work is premature; the Court is still in its infancy and it faces enormous chal­ lenges with regard to cooperation by states in arresting and handing over accused persons.

iii.  Judicial Lawmaking The sources of Art. 38 of the ICJ Statute reflect the special character of inter­ national law as “a consensual regulation of relations between co-equal sovereign states.”44 This contrasts with the nature of criminal law, which is concerned with vertical relationships between individuals and judicial authorities and consists of coercive rules. Because of criminal law’s far-reaching impact on individual lives, a   The United States referred to Art. 98(2) of the ICC Statute as the basis of these agreements.  Judgment, Prosecutor v.  Lubanga, ICC-01/04-01/06, para. 1358 (Trial Chamber, ICC, Mar. 14, 2012). 41   Decision on Sentence pursuant to Article 76 of the Statute, Prosecutor v. Lubanga, ICC-01/04-01/06 (Trial Chamber I, ICC, July 10, 2012). 42   Judgment pursuant to Art. 74 of the Statute, Katanga, ICC-01/04-01/07-3436, TC II, ICC, Mar. 7, 2014. 43   Judgment pursuant to Art. 74 of the Statute, Ngudjolo, ICC-01/04-02/12-3, TC II, ICC, Dec. 18, 2012. 44   Mahmoud Cherif Bassiouni, International Criminal Law, Vol. I: Crimes (2nd ed., 1999), 11. 39

40

international criminal law   1147 democratic lawmaking process is generally regarded as a condition for its creation. Indeed, the democratic aspect of the nullum crimen sine lege principle requires that criminal offenses are promulgated by an (elected) executive. Primacy rests with the legislature, not a judge, to decide what is criminal conduct and what is not.45 On the other hand, in interpreting and applying the law the judge has room to develop and further clarify the law. The view of the judge as the mere “bouche de la loi” is too limited. In ICL, judges have played an important role in developing the law. Through judi­ cial interpretation international humanitarian law has been “updated” to modernday armed conflict and a “general part” of ICL has been developed. Certainly in the early stages, it was necessary for international criminal justice to be a creative interpretational enterprise.46 From a democratic perspective, by applying the analogy of lawmaking at the national level to states’ legislative activity at the international level, a strict adher­ ence to codified law seems preferable to judicial lawmaking. Yet, this would be too simplistic a view: the horizontal lawmaking process at the international level does not lend itself to a comparison with the checks-and-balances system of domestic lawmaking. In international law, “power politics” has not been sufficiently filtered out. Moreover, and more importantly, the consensual nature of international law is likely to generate provisions that, being the result of a political compromise and the outcome of a diplomatic process, are contrived and unworkable.47 Under such circumstances, judicial lawmaking is essential and compensates for a flawed process of lawmaking.48

1. Flexibility There is a shadow-side to judicial lawmaking in ICL; it does not set clear bound­ aries. What stands out when studying ICL and comparing it to domestic crim­ inal law, is the flexibility of legal concepts. This is particularly clear in the realm of criminal responsibility. Joint criminal enterprise (JCE) the preferred liability the­ ory of ICTY prosecutors, turned out to be a catch-all concept; it has been applied to a wide range of different factual situations, making it a fluid concept with very unclear outer limits.49 This becomes apparent when we analyze how the concept   See also Ilias Bantekas, “Reflections on Some Sources and Methods of International Criminal and Humanitarian Law,” (2006) 6 International Crim. LR 121 ff., 125. 46   Joseph Powderly, “Judicial Interpretation at the Ad Hoc Tribunals:  Method from Chaos?,” in Shane Darcy and Joseph Powderly (eds.), Judicial Creativity at the International Criminal Tribunals 47 (2010), 44.   A good example is Art. 31(1)(c) of the ICC Statute on self-defense. 48   Hunt (n. 20) 58. 49   See Mohamed E. Badar, “Just Convict Everyone—Joint Perpetration: From Tadic to Stakic and Back Again,” (2006) 6 International Crim. LR 293 ff. 45

1148   elies van sliedregt of JCE has transformed since its conception in the Tadić case.50 With the ICTY’s increased focus on high-level defendants, JCE has changed from a mob violence concept to a conspiracy-like concept. While it is inherent in the dynamic process of “law-finding” that legal concepts transform under the influence of the facts of a case, this is legitimate as long as the change “fits” the gravamen of the legal concept and is explained in light of the facts of the case. And it is here that judicial lawmak­ ing in ICL is flawed. It fails to identify clearly and positively a concept’s meaning (JCE was developed as a gap-filler for aiding and abetting51) and it views legal con­ cepts too much in isolation from their factual context. Jonsen and Toulmin in their book The Abuse of Casuistry52 argue that there is good and bad casuistry:  it is bad when different situations are treated the same without a clear motivation or explanation or when similar situations are treated differently without justification for the differential treatment. Good casuistry is the opposite; it recognizes the inevitability of facts changing legal concepts and justifies and makes explicit the reasons for such change. Bad casuistry violates the prin­ ciple of legal certainty; good casuistry does not. Treating JCE liability in the case of Brđanin,53 a senior official in the Republika Srpska (a “remote principal”) as if it were the same as in the Tadić case is not good casuistry and does not comport with the principle of legality. Providing for legal certainty and comporting with nullum crimen sine lege (fore­ seeability) is not self-evident in ICL. Unpredictability of the law is often raised as a complaint against ICL, ever since its conception at Nuremberg. According to Dubber, this is inherent in ICL because of its “alegal” nature; it is an ethos rather than a body of law.54 Also, the heavy reliance on customary law does not do much to secure legal certainty.

2. A sui generis legality principle? With its flexible sources—customary law and general principles—and the fact that the international criminal justice system does not come with a rule of stare decisis,55 one would expect international courts to be sensitive to crimen sine lege critique. In practice, however, legality concerns have not rendered a judgment invalid or 50   Elies van Sliedregt, “The Curious Case of International Criminal Liability,” (2012) 10 Journal of International Crim. Justice 1171 ff., 1179–1182. 51   Elies van Sliedregt, Criminal Responsibility in International Law (2012), 33. 52   Albert R. Jonsen and Stephen E. Toulmin, The Abuse of Casuistry. A History of Moral Reasoning 53 (1989).  Judgment, Prosecutor v. Brđanin, Case No. IT-99-36-A, Apr. 3, 2007. 54   Markus D. Dubber, “Common Civility: The Culture of Alegality in International Criminal Law,” (2011) 24 Leiden Journal of International Law 923 ff. 55   See Alphons M. M. Orie, “Stare Decisis in the ICTY Appeal System? Successor Responsibility in the Hadžihasanović Case,” (2012) 10 Journal of International Crim. Justice 635 ff.

international criminal law   1149 led to an acquittal. Maybe this can be explained by the fact that the stakes are high in international cases, higher than in domestic criminal law.56 ICL confronts situ­ ations of large-scale violence.57 Moreover, positing new law (e.g. a treaty) is much more cumbersome than in a domestic jurisdiction.58 Kelsen even argued that the prohibition of retroactive law, part of the nullum crimen sine lege principle, does not apply in ICL.59 There is, indeed, truth in the argument that the domestic meaning of nullum crime sine lege cannot be transplanted to the international level.60 This goes back to what was said earlier on the consensual nature of the international legal system. The legality principle, at least its lex scripta/democratic meaning, has a dif­ ferent role in ICL, a system that operates without a legislature. Two examples can be seen to illustrate this point. In a recent judgment, the Court of Justice of the Economic Community of West African States (ECOWAS) held that Senegalese courts have no jurisdiction over tor­ ture and crimes against humanity allegedly committed by Hissène Habré between 1982 and 1990.61 Senegalese legislation adopted in 2007, incorporating international crimes into its Penal Code and providing for extraterritorial jurisdiction, would violate the principle of non-retroactivity if applied to the crimes in the Habré case. Instead, the Court held that an international ad hoc tribunal should try Habré on the basis of general principles of law, implying that nullum crimen sine lege is not an obstacle for international adjudication. The ruling in the Bouterse case, before the Dutch Supreme Court, also emphasizes the obstacle nullum crimen sine lege poses to domestic adjudication of international crimes. This principle, laid down in the Dutch Constitution, requires criminalizing international crimes under domestic law; crimes under customary international law have no domestic legal effect with­ out legislative action.62

56   Darryl Robinson, “International Criminal Law as Justice,” (2013) 11 Journal of International Crim. Justice 699 ff., 707–708. For a study on the legality principle in ICL see, Kenneth Gallant, The Principle of Legality in International and Comparative Criminal Law (2009). See also Beth Van Schaack, “Crimen Sine Lege: Judicial Lawmaking at the Intersection of Law and Morals,” (2008) 97 Georgetown LR 119 ff. 57   Van Schaack, (2008) 97 Georgetown LR 119 ff. 58   Van Schaack, (2008) 97 Georgetown LR 119 ff. 59   Hans Kelsen, “Will the Judgment in the Nuremberg Trial Constitute a Precedent in International Law,” (1947) 1 International Law Quarterly 153 ff. 60   See Darryl Robinson, “International Criminal Law as Justice,” (2013) 11 Journal of International Crim. Justice 699 ff., 706–707. For a study on the legality principle in ICL see, Gallant (n. 56). For the sui generis argument, see Van Schaack (n. 56). 61   Habré v.  République de Sénégal (ECW/CCJ/JUD/06/10) (“ECOWAS Judgment”), Judgment of Nov. 18, 2010. See Valentina Spiga, “Non-Retroactivity of Criminal Law. A New Chapter in the Hissène Habrè Saga,” (2011) 9 Journal of International Crim. Justice 5 ff. 62   Dutch Supreme Court, Sept. 18, 2001, Nederlandse Jurisprudentie 2002, nr. 559. For an English translation, see (2001) 4 Yearbook of International Humanitarian Law 710; and case note by Nico Keijzer in (2001) 4 Yearbook of International Humanitarian Law 595.

1150   elies van sliedregt These rulings, whilst not uncontroversial,63 suggest that nullum crimen sine lege in ICL has a less pronounced lex scripta meaning. In ICL we accept fluidity of the rules, leaving much discretion to judges to develop the law,64 but there are limits. ICL should comport to the foreseeability requirement of the legality principle, if only to secure the legitimacy (and thus acceptance) of international judgments and decisions.

iv.  Special Part: Crimes The core crimes are codified and defined in the statutes of international courts and tribunals. Genocide and war crimes have a pedigree in treaty law; the Genocide Convention of 1948 and the Geneva Conventions of 1949 and its two Additional Protocols of 1977. Aggression and crimes against humanity, on the other hand, are crimes under customary international law. What all four crimes have in common, and what distinguishes them from “ordinary” or domestic crimes, is that, by defin­ ition, they connote organized, collective wrongdoing. International criminality has been aptly referred to as “system criminality.”65

1. Genocide Genocide has similarities to crimes against humanity. The defendants at Nuremberg were charged with war crimes and crimes against humanity for what would now constitute genocide. The legal concept of genocide is narrowly defined. Article II of the Genocide Convention—a provision that is reproduced verbatim in the Statutes of the ad hoc tribunals and the ICC—stipulates that genocide is “committed with the intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such.”   See Spiga (n. 61). Ferdinandusse, Kleffner, and Nollkaemper have been critical of the Bouterse ruling and argue that Dutch courts can rely directly on customary international law without violating nullum crimen sine lege. Ward N. Ferdinandusse, Jann K. Kleffner, and André Nollkaemper, “Origineel of reproductie? Internationale strafbaarstellingen in de Nederlandse rechtsorde,” (2002) Nederlands Juristenblad 341 ff. 64   See Robinson (n. 60) 707. For a contrary view, see George P. Fletcher, The Grammar of Criminal Law: American, Comparative, and International, Vol. 1: Foundations (2007), 164. 65  Bernard V.  A. Röling, “Aspects of the Criminal Responsibility for Violations of the Laws of War,” in Antonio Cassese (ed.), The New Humanitarian Law of Armed Conflict (1979), 138, 203; André Nollkaemper and Harmen G. van der Wilt (eds.), System Criminality (2009). 63

international criminal law   1151 The genocidal intent is the marker of the definition; it sets it apart from the other core crimes.66 Another important requirement is that the (genocidal) acts must be committed against a specific group. The Genocide Convention lists only four groups (national, ethnical, racial, or religious). Attempts to broaden the definition and include political and social groups failed when drafting the Convention.67 According to the ICTY, the Bosnian Muslims constituted a protected group and the Bosnian Muslims of Srebrenica are a part of that group.68 Killing a “substantial” part of that protected group—the men—was genocide since the men, as a group, were “emblematic” of the whole group.69 Hence, killing the Bosnian Muslim men of Srebrenica was genocide. This ruling has been criticized for setting too low a threshold for genocide.70 Can a single, isolated killing be genocide? While an ICTY Trial Chamber “did not discount the possibility of a lone individual seeking to destroy a group as such” this position is not supported in practice and scholarly writings.71 At the ICC, the Elements of Crime add a contextual element for all five genocidal acts (killing, causing serious bodily or mental harm, deliberately inflicting conditions, prevent­ ing births, forcibly transferring children). Thus, isolated acts cannot be genocide because “the conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.”72

2.  Crimes against humanity Crimes against humanity (CAH) have never been codified in a convention or a treaty.73 Their raison d’être is that of solving a jurisdictional problem; they provide for jurisdiction in the absence of an armed conflict and address discriminatory 66   The crime of persecution, a crime against humanity, comes close by requiring a discriminatory intent but differs in that it does not involve elimination. 67   UN GAOR, 3rd session, 6th committee, at 64. See William A. Schabas, Genocide in International Law (2nd ed., 2009), 153–171. See for a plea to broaden, Beth Van Schaack, “The Crime of Political Genocide: Repairing the Genocide Convention’s Blind Spot,” (1997) 106 Yale LJ 2259 ff. 68  Judgment, Prosecutor v. Krštić, Case No. IT-98-33-T, para. 560 (Trial Chamber II, ICTY, Aug. 2, 2001). 69  Judgment, Prosecutor v. Krštić, Case No. IT-98-33-A, para. 12 (Appeals Chamber, ICTY, Apr. 19, 2004). 70   William A. Schabas, “Was Genocide Committed in Bosnia and Herzegovina? First Judgments of the International Criminal Tribunal for the Former Yugoslavia,” (2002) 25 Fordham International LJ 23 ff. 71  See e.g. Hans Vest, “A Structure-Based Concept of Genocidal Intent,” (2007) 5 Journal of International Crim. Justice 781 ff., 785. 72   Arts. 6(a)(4), 6(b)(4), 6(c)(5), 6(d)(5), and 6(e)(7) Elements of Crime. 73   See for an initiative to draft a CAH treaty, Leila N. Sadat (ed.), Forging a Convention for Crimes Against Humanity (2011).

1152   elies van sliedregt campaigns that do not qualify as genocide. Over the years, CAH have gained import­ ance as an independent category of crimes and according to Sadat “have emerged from the shadow of Nuremberg.”74 CAH prosecutions capture key social harms and particular patterns of victimization, such as ethnic cleansing and sexual slavery. Committing CAH entails the commission of an inhumane act. The list of prohib­ ited acts has changed over the time:75 with the most elaborate list in Art. 7 of the ICC Statute, which includes apartheid, forced pregnancy, and “other sexual violence.” The act must be committed in a certain context: a widespread or systematic attack directed against a civilian population76 but this need not be an armed attack. The ICTY is the only modern-day tribunal that still requires proof of a nexus to an armed conflict. This can be understood by the fact that the ICTY took Nuremberg as its most imme­ diate predecessor and thus copied that requirement into Art. 5 of its Statute. “Widespread” refers to the large-scale nature of the attack and “systematic” implies that the attack is organized. To ensure that isolated and random violence does not qualify as CAH, the element of “attack” must imply a degree of organiza­ tion.77 At the ICC, this is made explicit in the Elements of Crime that require that the attack is “pursuant to or in furtherance of a State or organizational policy.”78 There has been debate about the meaning of this clause; also referred to as the “pol­ icy element.”79 In the Decision by the Pre-Trial Chamber approving an investiga­ tion into the post-election violence in Kenya,80 Judge Kaul appended a dissenting opinion adopting a strict interpretation of “attack.”81 He opined that, to make a clear distinction between CAH and crimes under national law and to make sure that CAH capture violence that is highly organized and therefore serious, only attacks by states or quasi-state-like organizations constitute CAH. Scholarly opinion has been divided on the matter.82 74   Leila N. Sadat, “Crimes Against Humanity in the Modern Age,” (2013) 107 American Journal of International Law 334 ff., 336. 75   For a good analysis and overview, see Machteld Boot, Genocide, Crimes Against Humanity, War Crimes:  Nullum Crimen Sine Lege and the Subject-Matter Jurisdiction of the International Criminal 76 Court (2002).   Definition from Cryer et al. (n. 6) 234. 77   Otherwise widespread but random attacks would constitute a CAH (because of the disjunctive test: widespread or systematic attack). See Cryer et al. (n. 6) 237. 78   Art. 7(3) Element of Crime. 79   At the ICTY, the Appeals Chamber explicitly rejected the policy element: Prosecutor v. Kunarac et  al., Case Nos. IT-96-23 and IT 96-23/1-A (Appeals Chamber, ICTY, June 12, 2002). See Guénaël Mettraux, “Crimes Against Humanity in the Jurisprudence of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda,” (2002) 43 Harvard International LJ 237 ff., 314–315. 80   Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Kenya, Situation in the Republic of Kenya, ICC-01/09-19-Corr (Pre-Trial Chamber II, ICC, Mar. 31, 2010). 81   Situation in the Republic of Kenya (n. 80) Dissenting Opinion of Judge Kaul, Mar. 31, 2010. 82  Those who agree with Kaul are:  Claus Kress, “On the Outer Limits of Crimes Against Humanity:  The Concept of Organization Within the Policy Requirement:  Some Reflections on the March 2010 ICC Kenya Decision,” (2010) 23 Leiden Journal of International Law 855 ff.; William A.  Schabas, “Prosecuting Dr.  Strangelove, Goldfinger, and the Joker at the International Criminal

international criminal law   1153 Whatever way we look at the policy element, it is widely accepted that the very essence of CAH is that it is collective and organized violence, not isolated, random action. The requirement that the attack is “against any civilian population” does not exclude military persons (persons hors de combat such as prisoners of war (PoW)) as long as the overall nature of the group is civilian.83 Large-scale extermination of PoWs, on the other hand, cannot constitute CAH.84

3.  War crimes War crimes are serious violations of the laws and customs of war that apply in time of armed conflict. The laws of war—also referred to as international humanitarian law (IHL)—have been codified along separate tracks: rules applying to international armed conflicts (the four 1949 Geneva Conventions and Additional Protocol I (1977)) and rules applying to non-international armed conflicts (Art. 3 common to all four 1949 Geneva Conventions and Additional Protocol II (1977)). In war crimes law this dichotomy subsists. According to treaty law, only violations of rules that apply to international armed conflicts—through the so-called “grave breaches” system85—give rise to individual criminal responsibility. No such system exists in the (codified) law that applies to non-international armed conflicts. It was in the Tadić case, on the basis of customary international law, that the ICTY found that violations of the rules applicable in non-international armed con­ flicts generate criminal liability. This way the ICTY updated treaty law. The decision was groundbreaking at the time and has been endorsed in subsequent statutes. The ICC Statute contains in Art. 8(2)(c) and (e) an elaborate list of war crimes com­ mitted in non-international armed conflicts. The Statute also makes clear, as does Additional Protocol II to the Geneva Conventions,86 that war crimes committed in non-international armed conflicts should be distinguished from internal distur­ bances or riots.87 Acts constitute war crimes in an interstate, international armed conflict, when there is resort to force involving military forces.88 Court: Closing the Loopholes,” (2010) 23 Leiden Journal of International Law 847 ff. But see Darryl Robinson, “Essence of Crimes Against Humanity Raised by Challenges at ICC,” EJIL:  TALK!, Sept. 27, 2011, at: ; Sadat (n. 74) 368–374.  Judgment, Prosecutor v.  Martic, Case No. IT-95-11-A, paras. 301–314 (Appeals Chamber, ICTY, Oct. 8, 2008). 84   According to Cryer et al. this creates an impunity gap. Cryer et al. (n. 6) 241–242. 85   This is a list of prohibited acts, to be found in all four 1949 Geneva Conventions, that imposes upon state parties to the Geneva Conventions the obligation to aut dedere aut judicare (extradite or 86 adjudicate).   Art. (1)(2) Additional Protocol II. 87   In ICTY jurisprudence it was further determined that violence in internal armed conflicts must be “protracted.” Decision on Defence Motion for Interlocutory Appeal on Jurisdiction, Prosecutor v. Tadić, Case No. IT-94-1, Oct. 2, 1995 (Tadić Decision on Jurisdiction), para. 70. 88   Pictet Commentary to I Geneva Convention, 20, cited in Cryer et al. (n. 6) 279. 83

1154   elies van sliedregt There must be a nexus between the conduct and an armed conflict. The ICC Elements of Crime require that the conduct “took place in the context of and was associated with an . . . armed conflict.”89 In ICTY jurisprudence, “context” has been interpreted as requiring a state of armed conflict throughout the territory, beyond the time and place of hostilities. It is sufficient that the alleged crimes were closely related to the hostilities occurring in other parts of the territories controlled by the parties to the conflict90 Awareness of factual circumstances of a state of armed con­ flict is required for a conviction for war crimes.91 Unlike other tribunals and courts, the ICC employs a jurisdictional threshold for war crimes. In Art. 8(1) the Statute stipulates that the ICC, “shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.” This clause ensures that the ICC directs its forces toward the most serious situations; it is not a (contextual) element of the crime. Unlike CAH, an isolated act can constitute a war crime.92

4. Aggression The crime of aggression is the odd one out. Of the four core crimes it is the only crime that concerns violations of ius ad bellum, the rules that regulate recourse to armed force.93 Aggression is a “leadership crime”; by definition, it implies the participation of a state’s leaders and policymakers. The ICC Elements of Crime require that a person be “in a position effectively to exercise control over or to direct the political or military action of the State which committed the act of aggression.”94 The crime of aggression is defined by the ICC Statute as the planning, prepar­ ation, initiation, or execution of an act of aggression by a person who “was in a posi­ tion effectively to exercise control over or to direct the political or military action of a State, of an act of aggression, which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.”95 An “act of aggression” is defined as “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner incon­ sistent with the Charter of the United Nations.” It further includes, among other

  See e.g. 8(2)(a)(ii)-1 (5) Element of Crime.   Tadić Decision on Jurisdiction (n. 87) para. 70. 91  Judgment, Prosecutor v. Kordić and Čerkez, Case No. IT-95-14/2-A, Dec. 17, 2004. 92   See Cryer et al. (n. 6) 288–289. 93   Genocide, CAH, and war crimes, are premised on, at least in their pedigree, ius in bello, the rules that regulate the conduct of hostilities (once there is an armed conflict). 94   Art. 8bis(1) ICC Statute and Art. 8bis, element (2) Elements of Crime. 95   Art. 8bis(1) ICC Statute. 89

90

international criminal law   1155 things, invasion, military occupation, and annexation by the use of force, blockade of the ports or coasts, if it is considered being, by its character, gravity, and scale, a manifest violation of the U.N. Charter. Due to its inherent political nature, the adoption of the crime of aggression has been controversial. It was only in 2010 that state parties agreed on a definition, which was adopted through an amendment to the Statute. Unlike the other core crimes, where ratifying the ICC Statute means accepting the ICC’s jurisdiction, an opt-out mechanism was created for aggression. Article 15bis(4) provides that states may lodge a declaration with the Registrar that they do not accept the ICC’s juris­ diction for aggression.

v.  General Part 1.  Modes of liability In ICL we can distinguish between “traditional” forms of liability—commission, instigation, and aiding and abetting—that are derived from common crim­inal law statutes of national jurisdictions, and “crime-specific” modes of liability that have been developed in ICL and that are attuned to leadership liability, for example inchoate modes of liability (conspiracy and incitement), indirect perpetration, participation in a criminal enterprise, and superior or command responsibility. The Statutes of the ICTY and ICTR contain identical provisions on criminal responsibility. Article 6 of the ICTR Statute and Article 7 of the ICTY Statute list a number of modes of liability (planning, instigating, ordering, committing, and aiding and abetting) and a clause on command responsibility. In excluding the defense of superior orders, the provision repeats verbatim the Nuremberg provi­ sion. It further excludes immunity for heads of state or government leaders. In Tadić, the Appeals Chamber applied the concept of JCE (then referred to as par­ ticipating in a common purpose), not provided for in the Statute but considered to be part of customary law. The tribunal subsumed JCE under “committing” in Art. 7(1) of the ICTY Statute and justified its inclusion by pointing to the object and purpose of the Statute and the inherent characteristics of crimes committed in warlike situations.96

 Judgment, Prosecutor v. Tadić, Case No. IT-94-1-A (Tadić Appeal Judgment), July 15, 1999, paras. 185–233. 96

1156   elies van sliedregt JCE has been criticized for its weak legal basis and its expansive scope.97 Its third var­ iant98 (also referred to as JCE III) comes with a dolus eventualis/foreseeability test, and is especially controversial. JCE III enables the imputation of special intent crimes like genocide to participants in a JCE who only acted with foresight. Despite the critique, JCE has gained ground outside the ICTY and has been applied in the ICTR, albeit less extensively than in the ICTY, and the SCSL.99 JCE was also considered part of the courts’ law at the ECCC and the STL; both of which, however, have rejected JCE III. At the ECCC, JCE III was rejected for legality reasons; at the relevant time, the 1970s, JCE III was considered not to be part of customary international law,100 whereas at the STL, JCE III was found inapplicable to special intent crimes such as terrorism.101 The ICC Statute contains an elaborate provision on modes of liability. Article 25 provides for a German law-inspired clause that encapsulates three concepts of per­ petration: direct perpetration, indirect perpetration (perpetration through another (non-culpable and culpable) person), and co-perpetration. The latter two are not recognized as such at the ICTY, although co-perpetration is very close to the first variant of JCE102 and indirect perpetration has traits of the leadership-type JCE that was applied in the Brđanin case.103 The other clauses in Art. 25 contain concepts that  Jenny S.  Martinez and Alison M.  Danner, “Guilty Associations:  Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law,” (2005) 93 California LR 75 ff.; Steven Powles, “Joint Criminal Enterprise:  Criminal Liability by Prosecutorial Ingenuity and Judicial Creativity?,” (2004) 2 Journal of International Crim. Justice 606 ff.; Jens D. Ohlin, “Three Conceptual Problems with the Doctrine of Joint Criminal Enterprise,” (2007) 5 Journal of International Crim. Justice 69 ff.; Mark J. Osiel, “The Banality of Good: Aligning Incentives Against Mass Atrocity,” (2005) 105 Columbia LR 1751 ff.; Harmen G. van der Wilt, “Joint Criminal Enterprise: Possibilities and Limitations,” (2007) 5 Journal of International Crim. Justice 91 ff. 98  In Tadić the Appeals Chamber found there were three categories of common purpose/JCE liabil­ ity. In practice, only the first and third categories are applied. Tadić Appeal Judgment (n. 96) para. 204: 97

(i)  The first category relates to cases where all co-defendants possessing the same intent pursue a common criminal design, for instance, the killing of a certain person. . . . (iii)  The third category concerns cases where “one of the perpetrators commits an act which, while outside the common design, was nevertheless a natural and foreseeable consequence of the effecting of that common purpose.” 99   For an overview, see: Alexander Zahar and Göran K. Sluiter, International Criminal Law: A Critical Introduction (2007), 221–222; Van Sliedregt (n. 51)  143–145; Kai Ambos, Treatise on International Criminal Law. Vol. I: Foundations and General Part (2013), 139–140. 100   Decision on the Applicability of Joint Criminal Enterprise, Prosecutor v.  Chea, Sary, Thirith and Samphan, Case File No. 002/19-09-2007-ECCC/TC (Trial Chamber, ECCC, Sept. 12, 2011). For an analysis, see Katrina Gustafson, “ECCC Tackles JCE: An Appraisal of Recent Decisions,” (2010) 8 Journal of International Crim. Justice 1323 ff. 101  Interlocutory Decision on the applicable law:  terrorism, conspiracy, homicide, perpetration, cumulative charging, Prosecutor v.  Ayyash, Baddreddine, Oneissi, and Sabra, Case No. STL-11-01/I, paras. 248–249 (Appeals Chamber, STL, Feb. 16, 2011). 102   See e.g. Kai Ambos, “Amicus Curiae Brief in the Matter of the Co-Prosecutor’s Appeal of the Closing Order against Kaing Guec Eav ‘Duch’ dated 8 August 2008,” (2009) 20 Crim. Law Forum 353 ff. 103  Judgment, Prosecutor v. Brađnin, Case No IT-99-36-A, paras. 404–413 (Appeals Chamber, ICTY, Apr. 3, 2007). See for an analysis of this judgment, Cliff Farhang, “Point of No Return: Joint Criminal Enterprise in Brđanin,” (2010) 23 Leiden Journal of International Law 137 ff. See also Stefano Manacorda

international criminal law   1157 feature in other international statutes and case law: ordering, aiding and abetting, and participating in a common purpose (the precursor of JCE at the ICTY). Since the ICC does not provide for dolus eventualis104—Art. 30 of the Statute on the men­ tal element requires that one foresees that a consequence will occur—JCE III cannot be subsumed under the common purpose clause in Art. 25(3)(d). The aiding and abetting clause in the ICC Statute requires a “purpose of facili­ tating.” This “purpose test” has been criticized for setting too high a threshold and for deviating from customary international law, which embraces a lower “know­ ledge test.”105 Recent ICTY jurisprudence on aiding and abetting has emphasized the limits of this mode of liability. In Perišić,106 the Appeals Chamber held that remote assistance (weapon deliveries and training by the Yugoslav army to Serb forces) does not qualify as criminal aiding and abetting unless the assistance was “specifically directed” to the commission of crimes.107 In Sainovic et al., however, the Appeals Chamber retracted from its earlier position (note: the appellate bench was composed of different judges) and rejected the qualification that the actus reus of aiding and abetting requires proof of assistance being “specifically directed.”108 These two opposite rulings on aiding and abetting leave a fragmented and unclear picture of ICTY law on aiding and abetting-liability. The distinction between perpetrators and participants, between principals and accomplices is recognized in ICL.109 There are, however, different ways in which this distinction is drawn. At the ICC, this is done in a normative way: the person who “controls” the commission of a crime, who has decisive influence, is a principal. This “control theory,” developed in the context of interpreting co-perpetration and indirect perpetration in Art. 25(3)(a),110 regards principals as those who are “most responsible.” This contrasts to what can be termed the naturalistic or empirical and Chantal Meloni, “Indirect Perpetration versus Joint Criminal Enterprise: Concurring Approaches in the Practice of International Criminal Law?,” (2011) 9 Journal of International Crim. Justice 159 ff. 104   See Mohamend E. Badar, “Dolus Eventualis and the Rome Statute Without It?,” (2009) 12 New Crim. LR 433 ff. 105  See the amicus brief that was submitted to the U.S. Supreme Court in Presbyterian Church of Sudan et  al. v.  Talisman Energy Inc., 582 F.3d 244, 259 (2d Cir. 2009), available at:  . 106  Judgment, Prosecutor v. Perisić, Case No. IT-04-81-A, A.Ch., Feb. 28, 2013. 107   This is a controversial ruling that has been criticized for deviating from previous ICTY jurispru­ dence. . 108   Prosecutor v. Sainovic et al., Judgment, Case No. IT-05-87-A, Jan. 23, 2014. 109   Recently a persuasive plea in favor of a unitary approach to criminal participation, abolishing the distinction between principals and secondary parties/accomplices, was held by James G. Stewart, “The End of ‘Modes of Liability’ for International Crimes,” (2012) 25 Leiden Journal of International Law 165 ff. 110   Prosecutor v.  Thomas Lubanga Dyilo, Decision on the Confirmation of Charges, Pre-Trial Chamber, ICC-01/04-01/06, Jan. 29, 2007, para. 341 Katanga and Ngudjolo Chui, Decision on the Confirmation of Charges, Pre-Trial Chamer, ICC-01/04-01/07, Sept. 30, 2008, para. 525.

1158   elies van sliedregt approach to criminal participation that was initially dominant at the ICTY and that takes as its starting point the natural world and the reality of cause and effect.111 In “empirical terms,” the perpetrator is the one who performs the material elements of the offense and thus directly commits the crime. The accessory or accomplice is the one who contributes to causing the actus reus. Anglo-American complicity law, based on a physical concept of “commission,” is the classic example of the empirical approach to criminal participation. The empirical approach lingered at the ICTY because of its reliance on an AngloAmerican liability concept such as aiding and abetting. The normative aspect, the difference in role variance, was to be dealt with at the sentencing stage not in the attri­ bution stage. Yet, with the acceptance of JCE, a concept that was considered a more serious form of liability than aiding and abetting, a categorization of modes of liabil­ ity along normative lines seeped through.112 Not clearly embracing one approach or the other has caused misunderstandings at the ICTY with regard to the nature of JCE (is it a form of (co-)perpetration where those participating in JCE are “principals” or is JCE a form of complicity liability where participation in a JCE is not necessarily more serious than aiding and abetting?). Eventually it was affirmed that “joint crim­ inal enterprise is to be regarded, not as a form of accomplice liability, but as a form of commission.”113 Since then determination, JCE liability came to be regarded as a more serious contribution to crimes than aiding and abetting. The principal–accomplice distinction at the ICC is strictly adhered to and is taken to structure the whole of Art. 25(3).114 This has led to jurisprudence that creates a hierarchy of liability within Art. 25(3) where ordering, soliciting, and inducing in subpara. (b) are considered less blameworthy than indirect and joint perpetration in subpara. (a).115 In Katanga, an ICC Trial Chamber rejected the idea of a hierarchy of blameworthiness. Instead, it regards Art. 25(a) as containing a number of over­ lapping modes of liability.116 111   On normative and naturalistic approaches to criminal participation in international law, see Joachim Vogel, “How to Determine Individual Criminal Responsibility in Systematic Contexts: Twelve 112 Models,” (2002) Cahiers de Défense Sociale 151 ff.   See Van Sliedregt (n. 50) 1176–1177. 113  Decision on Dragoljub Ojdanić Motion Challenging Jurisdiction:  Indirect Co-Perpetration, Prosecutor v.  Milutinović et  al., Case No. IT-05-87-PT, para. 20 (Trial Chamber III, ICTY, Mar. 22, 2006). 114   Charging defendants as remote principals under Art. 25(3)(a) means that they had “control of the crime.” This is contrasted to liability under subparas. 25(3)(b)–(d) where control plays no role and acces­ sories are regarded as less responsible and less blameworthy. See Decision on Confirmation of Charges, Prosecutor v. Lubanga, ICC-01-/04-01/06-803, paras. 330–335 (Pre-Trial Chamber I, ICC, Jan. 29. 2007); Decision on the Confirmation of Charges, Prosecutor v. Katanga and Ngudjolo, ICC-01/04-01/07-717, paras. 506–508 (Pre-Trial Chamber I, ICC, Sept. 30, 2008). 115  For a critique see, Jens Ohlin, Elies van Sliedregt, and Thomas Weigend, “Assessing the Control-Theory,” (2013) 26 Leiden Journal of International Law 725 ff. 116   “En effet, l’article 25 du Statut ne fait qu‘identifier différents comportements illégaux et, en ce sens, la distinction proposée entre la responsabilité de l’auteur du crime et celle du complice ne constitue en aucun cas une ‘hiérarchie de culpabilité’ (hierarchy of blameworthiness) pas plus qu’elle n’édicte, même

international criminal law   1159

2.  Superior responsibility Superior, or command responsibility as it was originally referred to, is a liabil­ ity concept that traditionally imposed military-disciplinary responsibility.117 International adjudication in the twentieth century, in particular after World War II, has developed command responsibility into a concept of criminal responsibil­ ity that applies to both military and non-military superiors. The ICC, in Art. 28 of the Statute, even provides for two concepts of superior responsibility, with a lower mens rea standard for non-military superiors. The concept is premised on three constitutive elements: (a) a functional aspect—a superior’s position must entail a duty to act; (ii) a cognitive element—a superior must have known or should have known of crimes committed by subordinates; and (iii) an operational element—a superior must have failed to act.118 On the basis of superior responsibility inactivity is punished. A superior is held responsible for a failure to act. This failure can consist of two scenarios, a pre-crime and a post-crime scenario. One knew, or has reason to know, that crimes were about to be committed and failed to prevent such crimes (pre-crime), or one did not know of crimes being committed but once informed failed to punish and/or report such crimes to the proper authorities (post-crime). The ICTY Appeals Chamber in the Hadžihasanović and Kubura case determined that the post-crime scenario only gen­ erates superior responsibility when it can be established that there was a superior– subordinate relationship governed by effective control at the time of the offense.119 This ruling comports with the provision on superior responsibility in Art. 28 of the ICC Statute that stipulates that crimes of subordinates are “a result of ” the superior’s failure to exercise proper control. implicitement, une échelle des peines. Aussi ne peut-on exclure que, après avoir statué sur la culpa­ bilité, le juge décide de prononcer des peines atténuées contre les complices sans que, pour autant, cela constitue pour lui une règle impérative. Il demeure que ni le Statut ni le Règlement de procédure et de preuve ne prévoient un principe d’atténuation de la peine pour les formes de responsabilité autre qu’une commission et, pour la Chambre, il n’existe pas de corrélation automatique entre le mode de responsa­ bilité et la peine. Ceci démontre bien que l’auteur d’un crime n’est pas toujours considéré comme étant moralement plus répréhensible que le complice.’ Katanga trial judgment (n. 42) para. 1386.   Some trace it to what they refer to as “the oldest military treatise in the world,” written in 500 B.C. by Sun Tzu: Sun Tzu, The Art of War (1963), 125. 118  Judgment, Prosecutor v. Delalić et al., Case No. IT-96-21-T, Nov. 16, 1998 (Čelebići Trial Judgment); Judgment, Prosecutor v. Delalić et al., Case No. IT-96-21-A, Feb. 20, 2001 (Čelebići Appeal Judgment). For an elaborate work on command responsibility, see Guénaël Mettraux, The Law of Command Responsibility (2009). 119   Thus, Commander Kubura, who had taken up the position of commander on Apr. 1, 1992, was not criminally liable for crimes committed by his subordinates in Jan. 1992 because he had no effective con­ trol over his subordinates at the time, i.e. he could not have prevented the crimes. Kubura could not be held liable for past crimes even though he did not punish subordinates once he learnt of these crimes. Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, Prosecutor v. Hadžihasanović, Alagić and Kubura, Case No. IT-01-47-AR72 (Appeals Chamber, ICTY, July 16, 2003). 117

1160   elies van sliedregt “Effective control” is a key element in the doctrine of superior responsibility. Only when a superior exercises effective control, can the—de facto or de jure— commander/superior be held liable for crimes committed by the subordinate. “Knowledge” (of subordinate crimes) is another key requirement. The standard of knowledge varies, in both national and international criminal law: “actual knowledge,” which corresponds to intention, is at one end of the spectrum while “should have known,” which essentially constitutes negligence, is at the other end of the spectrum. At the ICTY, “should have known” was not accepted as the requisite mental element for superior responsibility; it was thought not to reflect customary international law at the relevant time.120 Proof is required that there was “information . . . available . . . which would have put him on notice of offences committed by subordinates.”121 The “should have known” standard, does feature in Art. 28(i)(a) of the ICC Statute as the cognitive standard for military superiors. Superior responsibility is a complex liability theory that consists of multiple layers and that has a hybrid nature. It is a separate crime of negligence but also a form of criminal participation (in crimes committed by subordinates).122 It consists of a pre-crime and post-crime actus reus and it recognizes differ­ ent degrees of mens rea. It is in domestic legislation, implementing the ICC Statute, that this layered structure becomes clear. The German Code of Crimes against International Law123 contains three provisions on superior responsibil­ ity. A superior who intentionally omits to prevent the commission of a crime deserves the same punishment as the subordinate (Art. 1 § 4(1)) and is quali­ fied as an accomplice, whereas the failure to properly supervise the subordinate (Art. 1 § 13) and/or report crimes (Art. 1 § 14) are separate crimes of omission and as such punished more leniently. The Dutch International Crimes Act124 provides for this splitting solution as well. Section 9(1) criminalizes a superior who (a) intentionally permits the commission of an offence by a subordinate; or (b) intentionally fails to take measures. The cognitive test is actual knowledge for (a) and constructive knowledge (“must have known”) for (b). Section 9(2) provides for superior responsibility as a negligent dereliction of duty. This is a separate offense that carries a lower sentence than the underlying (subordin­ ate’s) offense.

  Čelebići Appeal Judgment (n. 118) para. 241.   Čelebići Appeal Judgment (n. 118) para. 241. 122   See Thomas Weigend, “Superior Responsibility: Complicity, Omission or Over-Extension of the Criminal Law,” in Christoph Burchard, Otto Triffterer, and Joachim Vogel (eds.), The Review Conference and the Future of the International Criminal Court (2010), 67–80; Elies van Sliedregt, “Article 28 of the ICC Statute: Mode of Liability and/or Separate Offense?,” (2009) 20 New Crim. LR 420 ff., 425–427. 123   Gesetz zur Einführung des Völkerstrafgesetzbuches, 26 June 2002, Bundesgesetzblatt Jahrgang 2002, 124 Teil II, Nr. 42, 2254.   Wet internationale misdrijven, Act of 19 June 2003, Stb. 2003, 270. 120 121

international criminal law   1161

3. Defenses The discussion on defenses in ICL was for many years solely concerned with the defense of superior orders and the question whether it should be a full defense or merely a mitigation of punishment. Since the ICTY ruling in the case of Erdemović,125 the debate moved on to discuss the defense of duress.126 Despite debates in literature and academia, in practice there was reluctance on the part of international courts and tribunals to allow a defense to exonerate from liability. Also international treaties and statutes, for a long time, did not provide for defenses. As Schabas points out, codi­ fiers in international criminal law have focused on eliminating defenses rather than on defining them.127 This reluctance was shared by some of the founding fathers of the ICC Statute. Nevertheless, the Rome Statute contains a catalog of defenses in Arts. 31 to 33 albeit narrowly defined. The fact that the ICC Statute allows for superior orders and duress as a full defense constitutes a break with ICTY law and the Nuremberg legacy. The defenses listed in the Statute are: mental incapacity, intoxication, self-defense, duress, mistake of fact and law, and superior orders.128 The ICC Statute in Art. 31(3) leaves room for reliance on defenses under customary international law. Here one can think of defenses such as tu quoque, military necessity, and coercion.129 It has been argued that the ICC should be sensitive to the distinction between justifica­ tions and excuses.130 Not clearly marking the difference between unlawfulness of the act and blameworthiness of the actor,131 something the statutory language fails to do, may result in unjust punishment.132

vi.  Concluding Observations After World War II, an international criminal justice system emerged. Concomitantly a legal discipline emerged, international criminal law. This body of law expanded rapidly after the establishment of international criminal tribunals and courts in the   Erdemović Appeals Judgment (n. 10).  See Sander Janssen, “Mental Condition Defences in Supranational Criminal Law,” (2004) 4 127 International Crim. LR 88 ff.; Chiesa (n. 10) 741.   Schabas (n. 15) 481. 128  For an overview, see Ambos (n. 99)  301–393; Cryer et  al. (n. 6)  402–423; Van Sliedregt 129 (n. 51) 213–306.   See Cryer et al. (n. 6) 420–423. 130   Albin Eser, “Article 31, margin Nos. 1–48.” in Otto Triffterer (ed.), Commentary on the Rome Statute (1999), 539–554; Ambos (n. 99) 304–307. 131  See Albin Eser, “Justification and Excuse,” in Albin Eser and George P.  Fletcher (eds.), Rechtfertigung und Entschuldigung, Rechtsvergleichende Perspektiven/Justification and Excuse, 132 Comparative Perspectives, Vol. I (1987), 20–21.   See Chiesa on the Erdemović case (n. 10). 125

126

1162   elies van sliedregt 1990s. ICL is traditionally regarded a branch of international law. Increasingly, how­ ever, it has become the realm of criminal lawyers. This is appropriate; ICL is about trying and punishing people. International criminal proceedings and attribution mechanisms should comport with criminal law principles. Yet, one cannot deny that ICL differs markedly from municipal criminal law. Its different nature is most visible when we look at its sources and the process of lawmaking. Nullum crimen sine lege does not come with a ban on applying the law retroactively nor does it entail a requirement of lex scripta. This has everything to do with the consensual nature of the international justice system. This “legality without a legislature” to use Robinson’s words,133 is counterbalanced by the moral weight of the international criminal justice project. What binds those working in this field and studying it, is not a common legal culture but the will to end impunity for crimes of a particular heinous nature. Whilst differing from domestic criminal justice in a number of ways, ICL can be considered a body of criminal law. This becomes clear when discussing the special and general parts of ICL. Indeed, substantive ICL has undergone a steady and early develop­ ment. Recently, a separate branch of international criminal procedure has emerged.134 The progress that ICL has undergone in the twentieth century, starting in Nuremberg and culminating in the establishment of the ICC, has slowed down in the twenty-first century. Powerful states have tired of international criminal justice and the pace of international criminal justice has disappointed victims and those who support the ICC. As scholars have pointed out, ICL has increasingly come under pressure.135 Maybe the expectations, in particular with regard to the ICC, were too high and impossible to meet. In any event, we need to think about ICL differ­ ently: not so much as justice at the international level. The ICC’s complementarity principle and the completion strategy of the ad hoc tribunals have re-emphasized the importance of national jurisdictions as agents of international criminal justice. The future of ICL lies with national criminal justice.

References Ambos, Kai, Treatise on International Criminal Law. Vol. I: Foundations and General Part (2013) Bassiouni, Mahmoud Cherif, Crimes Against Humanity (2011)

  Robinson (n. 60) 699 ff., 706.   See e.g. Göran Sluiter, Håkan Friman, Suzannah Linton, Sergey Vasiliev, and Salvatore Zappalà (eds.), International Criminal Procedure. Principles and Rules (2013); Christoph Safferling, International Criminal Procedure (2012). 135   Florian Jessberger and Julia Geneuss, “Down the Drain or Down to Earth? International Criminal Justice Under Pressure,” (2013) 11 Journal of International Crim. Justice 1101 ff., 1101. 133

134

international criminal law   1163 Bassiouni, Mahmoud Cherif and Ferencz, Benjamin B., “The Crime against Peace,” in M. Cherif Bassiouni (ed.), International Criminal Law (2nd edn, 2008), Vol I, ch. 3.1 Cassese, Antonio et al. (eds.), The Oxford Companion to International Criminal Justice (2009) Cryer, Robert et al., An Introduction to International Criminal Law and Procedure (2010) Darcy, Shane and Powderly, Joseph, Judicial Creativity at the International Criminal Tribunals (2010) Gaeta, Paula (ed.), The UN Genocide Convention. A Commentary (2009) Heller, Kevin Jon, The Nuremberg Military Tribunals and the Origins of International Criminal Law (2011) Lee, Roy S. (ed.), The International Criminal Court. The Making of the Rome Statute—Issues, Negotiations, Results (1999) Schabas, William A., The International Criminal Court: A Commentary on the Rome Statute (2010) Sivakumaran, Sandesh, The Law of Non-International Armed Conflict (2012) Sliedregt, Elies van, Criminal Responsibility in International Law (2012) Stahn, Carsten and Sluiter, Göran K. (eds.), The Emerging Practice of the International Criminal Court (2009) Swart, Albert et al. (eds.), The Legacy of the International Criminal Tribunal for the Former Yugoslavia (2011) Triffterer, Otto (ed.), Commentary on the Rome Statute of the International Criminal Court. Observers’ Notes, Article by Article (2008)

Index

A

Abelard, Peter 205–6 abortion  278–9, 291, 323, 435 accomplices see complicity accusatorial process see adversarial and inquisitorial processes action theory  131–7, 457 actus reus 447–67 action, theory of  132, 137, 457 attempts  523–5, 1104–8 automatism  447, 451–5, 458, 461–2, 464–5 burden of proof  448–50, 452, 454–5 causation 470 conspiracy 456 culpability 101 defenses  447, 451–4 definition 448–51 discretion 920 duties to act  456 institutional competence, as matter of 465–6 intermediate conceptions  459–65 intoxication  447, 451–5, 458, 465 maximal/minimal conception  448, 451–8, 459, 462, 465–6 mens rea  127, 132, 448–9, 451–2, 454, 463–4, 491, 513 negligence  451, 457, 459–60, 462–4 omissions  450, 457, 459–60, 462, 466 practical reasoning  459–61 proof  447–55, 459 psychological states  450–1, 460 punishment  141, 460 rape and sexual offenses  751 regulatory offenses  456, 460–1, 463 Soviet criminal law  309–10 strict liability  449, 463–5, 864, 876–80 terrorism 828–9

volition  137, 448–9, 455–8 voluntariness  450–2, 454–5, 458–9, 462–3 white collar crime  844 ad hoc tribunals  336–8, 345, 1140–5, 1161–2 see also particular tribunals (e.g. International Criminal Tribunal for the former Yugoslavia (ICTY)) administrative penalties  1065–78, 1082–3, 1085 adversarial and inquisitorial processes  887–912 alternative approaches  901–6 canon law  204, 211–13, 217–18, 222–3 capitalism 897 civil law systems  890, 895, 899, 901–7 comparative criminal procedure  887–912 confessions  891, 896, 898–9 descriptive ideal-types  888, 893, 896–7, 902 due process  897–8, 904 evidence  891, 893–4, 896–8, 900–1, 910 fair hearing, right to a  900, 905 functions of criminal process  888, 898, 902, 904–5 historical background  889–92, 894 historical or sociological systems present in criminal procedures  888, 893–4, 902–3 individual rights and liberties  892, 896–8, 900, 905 military justice  335 mixed systems  892, 894 normative models  888, 889–90, 902 opposing interests or values  888, 897, 902 prosecutorial discretion  903, 909–11 terminology 890–1 theoretical conceptions  892–901 aesthetics  115, 124–8

1166   index African Court on Human and Peoples’ Rights (ACtHPR) 993–4 aggravating and mitigating factors comparative criminal law  1094 homicide  705–6, 713, 715–18, 720–2, 723 immigration detention  980–1, 983, 985 modernity, transition to  99–100, 103, 105–6 punishment  312–13, 972 aggression, crime of  1140, 1150, 1154–5 aiding and abetting see complicity American Convention on Human Rights (ACHR) 993–4 analogy, reasoning from  207, 308–9, 385, 561–3, 576, 1099–100 Anglo-American tradition see United Kingdom; United States anomie (strain) theory 11–12 antitrust violations 850 apostasy  209, 253, 255, 258 Aristotle  115–16, 130, 475, 704, 973 arson  517, 530, 769–73, 779, 781–3 artificial intelligence  187–9, 191, 196 Ashworth, Andrew  556–7, 619–20, 731–2, 786–7, 873, 968 assault 728–35 aggravated assault  729, 732, 735 arrest, resisting  732, 733 battery  629, 642, 644–8, 728–9 bodily harm, definition of  729–30 character/status of victim  733–4 consent  629, 642, 644–8, 729, 736–9 disease, transmission of  732, 733–4, 735, 739 fear  728–9, 730–1 harassment  730–1, 739–40 hierarchy of offenses  731–5 imminence  728–9, 730–1 intention  729, 738–40 mens rea  729, 732–3, 738–9 negligence 739 psychiatric injury  730, 739–49 punishment  732, 733–4, 735 race and religion  735 recklessness  729, 738–9 sexual assault  733

single offense  729, 731–2 threats 730–1 attempts  513–14, 520–32 action, theory of  131, 133–4 actus reus  523–5, 1104–8 comparative criminal law  1095, 1104–8 completed attempts  133–4, 514, 519, 525 culpability  520–3, 530, 1107 impossibility 521–3 intention 520–1 mens rea  520–3, 1104, 1107–8 mistakes 520–3 preparatory acts  131, 133, 523–5, 1105–6 proximity tests  523–4 punishment  133–4, 522–3 recklessness 1107 retribution  523, 1105 substantial step test  524, 526, 1106 Austin, John  136, 457–8, 460, 709 Australia death penalty  946–7 drug offenses  799 n.52 imprisonment  950, 953, 1009 indigenous people  236, 946–7, 953, 957–8 military justice  336, 338, 340 prostitution 757 punishment  950, 953, 966–8, 973, 1009 strict liability  865 terrorism  826–7, 831 automatism  162, 447, 451–5, 458, 461–5, 661–2, 671 autonomic computing 189 autonomy definition 166–7 discretion 936 dual penal state  1018, 1028, 1034–5 public and private law  1040–1, 1044–62 regulatory offenses  1076–82 sexual autonomy  165–8, 171–2, 747–67 sociology  153, 172

B

banishment and removal  303, 309, 313, 315, 317–18, 948–50, 960–2 Beccaria, Cesare  10–11, 13, 16, 17, 40, 42, 43–4, 84, 104–7, 157, 385, 429, 990 Becker, Gary  40, 45–7, 50–1, 54, 56–7

index   1167 Bentham, Jeremy  40, 42, 44–5, 84, 87, 89, 107, 157, 385–7, 390–1, 394–5, 588, 708–10 Big Data analytics  174, 182, 187–8, 195 Blackstone, William  101, 127–8, 450–1, 456, 614, 627, 640, 705–8, 711, 864, 1020, 1051 blameworthiness see culpability blasphemy  210, 219–20, 222, 278 Braithwaite, John  957–8, 1081–4 breach of the peace  648, 745 n.130 Brudner, Alan  1055, 1078–80 burglary  65, 285, 719, 768–9, 772, 775, 778, 781–3

C

Canada actus reus  448–9, 451–4, 456, 464–5 assault  731, 739 Charter of Rights and Freedoms  424, 429–30, 434–40, 453, 464, 866, 999 child neglect  742 constitutional principles  424, 426, 427, 431–42 corporate criminal law  570 drug offenses  800 extradition  819 n.22 feminism  61, 64 imprisonment  950, 954, 981, 999 indigenous legal traditions  225–47, 426, 957–8 insanity 671 kidnapping 743 military justice  336 political sovereignty  395–6 punishment  944, 950, 954, 966, 968, 975, 981, 999 rape and sexual offenses  167, 631, 637 stalking 745 strict liability  865–6 territoriality principle  404 terrorism  816, 818 n.20, 819, 821–2, 824–5, 828, 831–2 canon law see medieval canon law castration  104, 960 casuistry  221, 258, 269, 1148

Catherine II, Queen of Russia (Catherine the Great)  84, 86, 87, 104–6 causation 468–88 attribution  469–70, 472, 481, 485, 487–8 but for test  474–5, 477, 481, 548 cause, definition of  472–5 complicity  538–40, 546–50 conceptual ambiguity  471–2 counterfactual dependency  474, 477, 479–80, 488 criminal responsibility  469–71 culpability 486–7 double prevention situation  480 factual causation  472–83, 485, 487 foreseeability 484–8 harm within the risk  484–5 homicide  703, 709, 714, 716–17, 719, 724–5 imputation  470–2, 478, 482–3, 487–8 INUS account (Mackie)  474–5 intention 505–7 interpersonal transactions  481–2 intervening causes  481–2, 485–6, 488, 506, 547 legal causation  471, 486–7, 1096–7 legally relevant/legally irrelevant causes  471 limiting principles  483–8 mens rea 470 minimalism  472–3, 486–7 mistake 487 negligence 484–6 NESS account (Wright)  475, 478–81 normative criteria, need for  482–3 omissions  479–81, 725 ordinary hazards  485–6 overdetermination  477–8, 481, 548 philosophy  472–7, 481–2 pre-emption  479, 481 probability 484 proximity  483–4, 486–7 redundant  477–8, 481 responsibility for a crime, meaning of  369 result crimes  469–71, 479 risk-creating activity/materialized risk 487–8 scientific causation  472 scope of criminal liability  482–9

1168   index sine qua non formula 474, 477–9, 482, 485 technology, conceptualization of  178 tort law  471, 475–7, 484–5 trivial or de minimis causes  478, 549–50 voluntariness 485–6 Charter of Fundamental Rights of the EU  1122, 1130 children age of consent  633 age of criminal responsibility  138–9, 265–6, 311 neglect 742 pornography and sexual exploitation of children  749, 1129–30 choice theory of rights 1045–6 citizen and enemy law  1018, 1037–8 class  158–9, 299, 301–4, 838 codification 379–97 accessibility  388–90, 397 authority  384, 392–3 common law  379–81, 383, 385–8 completeness  384–8, 397 exclusivity 384–7 function of a penal code  393–6 general provisions  391–2 homicide 709–12 idea of codification  380–1 illustrations, use of  390 international criminal law  1139–40, 1145, 1147 Islamic criminal law  250, 260, 263–5 Jewish law  271, 289–90 modernity  380, 383, 384–93 non-fatal offenses against the person  727–8 revision  382–3, 395 simplicity  384, 388–90, 397 standards  382, 391–2 collateral sanctions  945, 961–3 colonialism  226, 230–3, 239–42, 246–7, 394, 958, 991 comity  415–16, 819 communism  296–307, 315–17, 321, 920 communitarianism  150, 554, 897, 1080 community service  859, 942, 957, 976 comparative criminal law 1089–114

adversarial and inquisitorial processes  887–912 attempts 1104–8 common law versus civil law approaches to legal reasoning  1097–9 cultural/historical barriers  1099–104, 1113 death penalty  1092 European law  1116–19, 1131–2 examples 1104–12 international criminal law, as source of  1093–4, 1113 language barrier  1094–7, 1113 legal barriers  1097–9 mens rea  1104, 1107–12 necessity/duress 1093–4 omissions 1092–3 punishment 977 recklessness versus  dolus eventualis 1108–12, 1113 reform, as tool for  1091–2 strict liability  865–7 uses of comparative criminal law  1091–4 complementarity, principle of  1145, 1162 complicity 534–59 causation  538–40, 546–50 culpability  538, 543, 551, 553–4 deontology 534 derivative liability, nature and extent of 543–6 dolus eventualis  551, 556–8 facilitation offenses  538, 547 fault 555 homicide  720–1, 725 inchoate offenses  537–9, 544–5 intention  553, 557 International Criminal Court  550, 1156–8 International Criminal Tribunal for the former Yugoslavia  1141, 1157–8 justifications 540–1 knowledge  541, 554–6 mens rea/mental element  541, 550–4, 556–8 mode of participation  537–9, 547–8, 1141, 1157–8 moral encouragement  542–3, 555 necessity/duress  541, 558 objectivity  536–7, 541–50

index   1169 omissions  542–3, 558 perpetration 536–9 practical assistance  542–3 punishment  534–5, 539–40, 550, 554 recklessness  551, 554–9 separate crimes  537–8 Soviet law  311 structural issues  536–41 subjectivity  536–7, 550–8 unitary and differentiated models  539–40, 545–5, 550–2, 554, 558 computer crime see technology and law consent 629–53 acquiescence 630–1 affirmative defense  629, 632, 650–1 assault and battery  629, 642, 644–8, 729, 736–9 attitudinal consent  631 boxing  629, 643, 645, 648 breach of the peace  648 cannibalism  630, 649, 652 civil law and common law systems  643 consent-plus standards  764 deception  632–3, 635–6 definition 630–2 dignity, violation of  649, 652 duration of consent  636–9 duress  632, 633 experimental medical treatment  630 expressive consent  630–1 fraud  632–3, 635–6 good faith  651 HIV, transmission of  645–6, 738, 759–63, 766 homicide  630, 639–43, 647, 649–50, 652 informed consent  632, 633–6 intoxication  632–3, 750–1, 765 justification and excuses  651–2 law and social order, disrespect for  647, 648–9 legal competence  632–3 living wills  636–7 medical treatment  595–6, 630–1, 637, 642–4, 737 mental capacity  632–3, 643–4, 750 mercy killings and assisted suicide  630, 634–5, 641, 652

necessity/duress 651 objectivity 631 past and present of defense  642–5 performative consent  630, 631–2 physical harm, rationale for disallowing defense in respect of  647–53 public charge, injured person becoming a  647, 648 public policy  632, 639–42 punishment  631–2, 642 rape and sexual offenses  32, 34, 69, 629–39, 647, 650–2, 751–4, 764–6, 842 rationality  632, 634–5, 640, 644 religious flagellation  644–5 remote consent, validity of  636 revocability of consent  636–9 sado-masochism  630, 634, 644–7, 652, 737 self-defense 650–1 serious harm  646–7 sexual autonomy  750, 759–67 social morals  632 socially acceptable activities  737–8 sport  629, 643, 645–6, 648, 737–8, 760 subjectivity 631 submission 752 trafficking 73 use of force  633–4 utilitarianism 648 valid consent, requirement for  632–41 voluntary consent  632, 634–5, 642 vulnerable persons  640, 765–6 conservatism  20, 65–6, 74, 76, 80, 431 conspiracy  47, 456, 526, 528–32, 814–15, 825, 850–1 constitutional principles 422–44 anthropology of the legal subject  427–8 common law  422, 435, 437–9 court decisions  681–3 criminalization  680–5, 700–1 critical themes  424–31 defenses 438–41 democracy  176–7, 184–5, 187 discretion  423, 430–1, 437, 442–3 equality  427–9, 433–5, 440 fault 435–8 harm principle  432–5 homicide 710

1170   index constitutional principles (Cont.) individual liberties and rights  681–4 involuntariness 439–40 legality, principle of  423 limits of criminal law  432–5 mens rea 435–8 mercy  430–1, 442–3 necessity/duress 438–9 norms  680–1, 684 proportionality  428–30, 434, 437, 441, 443, 682–3 public law and private law  1019 punishment  425, 441–3, 680–2 religion, freedom of  427–8 self-defense 626–7 state sovereignty  425–6, 441, 444 state violence  425–6, 441 strict liability  436 substantive law  424–5, 428, 431–43 corporate criminal liability (CCL) 560–82 adaptation by other countries  564–5 arguments for and against  566–70 changes in criminal law  577–9 civil law countries  564, 576–7 collectives  560, 563, 566–74, 576–8, 580–2 comparative criminal law  1091 conceptions of corporations  573–5 conceptions of criminal law  575–7 conditions for criminal liability  570–2 consequentialism  568, 575–6 critical perspective  579–80 culpability 1091 deterrence 566–7 emergence and expansion  561–6 fairness 566–70 fault 579–80 fines  566, 568–9, 573 holistic liability model  563 identification model  563 intention  562, 567, 574 international law  564–5 legal models  570–3 literature and law  115 mens rea/mental state  571 omissions  563, 571 organizational failure  571 power structures  579–80

prevention 578–80 public interest  563 punishment  562, 566–70, 572–8, 581 regulatory offenses  563, 565, 570 retribution 576 strict liability  576 United Nations, soft law initiatives by  564 vicarious liability  562–3, 569, 571–2 white collar crime  839, 846–8, 857, 859–60 corrective justice theory 1055–6 corruption and bribery  415, 839, 841, 842–4, 853–4, 856 Council of Europe (CoE)  1118–19, 1125, 1128–31, 1136–7 counterrevolutionary crimes and crimes against Soviet way of life  316–19, 323 courts-martial  336–8, 342 crime, definition of a  365–8, 685 crimes against humanity  69, 71, 414, 1093–4, 1140, 1146, 1150–3 criminal damage  771, 779, 782 see also arson criminalization collective interests, protection of  694–5 constitutional aspects  680–5, 700–1 crime, definition of  685 critical race theory  28–9 democracy as substitute for criminalization theory  684 drug offenses  790–3, 797, 801–10 economic analysis of criminal law  41 fragmentary penal law  696 harm principle  186, 680, 682, 687–91, 700 indigenous legal traditions  231 individuals, protection of  680, 682, 687–92 kinds of conduct which should be prohibited 695–9 legal goods, doctrine of (Rechtsgüterlehre)  680, 682, 685, 686–7, 692, 700 mediating principles  695–9 moral values, protection of  688, 692–4 overcriminalization  694, 1066 philosophy  679–80, 684, 687–8 property offenses  770 proportionality  696, 698 punishment theory  685–6

index   1171 rights of others  691–2 sexual abuse in authority relations  167–8 subsidiarity 696–8 theories 679–701 ultima ratio 695–8 victimless crimes  51 n.34 criminology 3–24 empirical studies of criminal law/ justice  5, 10–16, 23 miserology, history of  16–21, 23 psy knowledges, rise of  6–11, 17, 23 punishment  10–11, 13–15 research traditions  3–24 social construction of deviance/social interactionism  20–2, 23 social phenomenon, crime as a  11 social science research  6, 10, 16–18, 22 sociological research traditions  5–6, 9–13, 17, 19–21 topic, not a discipline, as  4 Critical Legal Studies (CLS)  33, 61, 156, 1047–50, 1053, 1057–8 critical race theory 25–36 crimes, defining  28–30 death penalty  27–8, 31–2, 34, 36 definition 25–6 discretion  28–30, 32 future 35–6 hierarchy and subordination  25–6, 35–6 implicit bias  26, 28–31, 34 interest convergence  26, 35 jury nullification  33 legal storytelling  26 mass incarceration  33–5 prison population  27–8 punishment  28, 32, 34 rape and sexual offenses  31–3, 34 self-defense, use of force in  30–1 white-collar crime  29 cruelty cruel and unusual punishment  429, 442, 721, 950, 953, 992–6 Islamic law  257 modernity, transition to  84–90, 104–5 culpability action, theory of  132 actus reus 101

attempts  514, 520–3, 530, 1107 causation 486–7 Christianity and church  86, 99–103 conspiracy  529, 530 corporate crime  1091 duty of care  140 free will  660 inchoate offenses  513–18, 520–3, 526, 530, 1107 infancy 655–6 insanity  654–60, 663, 673–4 intention 139–41 intoxication 654 mens rea  101, 138–41 modernity, transition to  86–8, 99–103, 105–7, 109–10 regulatory offenses  1071–2 responsibility for a crime, meaning of  368–70 secular law, influence on  100 n.40 strict liability  862–7, 871, 874–5, 879–83 subjective elements of criminal liability  491–3 volitional theory of action  137 culture comparative criminal law  1099–104, 1113 cultural defense  159, 161, 165 diversity as to what forms a crime  191 drug offenses  791, 801 indigenous legal traditions  226, 235, 236–7, 239, 242 international criminal law  1140–1 self-defense 607 custodial sentences see imprisonment/ prison law customary international law 1139–41, 1148–50, 1160–1 comparative criminal law  1093 feminism 72 International Criminal Court  1142, 1145, 1161 international humanitarian law  1139, 1153 joint criminal enterprise  1155–7 jurisdiction 401 military justice  343 war crimes  1153 cybercrime  190–1, 196, 411, 415, 1129–30

1172   index

D

data-driven society, criminal law in a  174–5, 184–96 death penalty abolition  14, 270, 274, 280, 306, 315–16, 680, 722, 943, 947, 1000 canon law  215 comparative criminal law  1092 criminology  10, 13–15 cruel and unusual punishment  442, 721, 1092 deterrence  13–14, 943 discretion 720–2 European law  1000 extradition  441–2, 819, 947 homicide  703–4, 720–5 human rights  316, 946–7 indigenous legal traditions  231–2 Islamic criminal law  252, 253, 257, 262, 265, 267 Jewish law  270, 273–5, 280–1, 286–7 juveniles  952–3, 1092 life imprisonment without parole  947 mental disabilities, persons with  1092 methods 946 miscarriages of justice  947–8 modernity, transition to  87, 91–2, 95, 97, 99, 104, 107, 110 public executions  257, 943, 946 racial disparities  15, 23, 27–8, 31–2, 34, 36, 720–2, 947, 975 self-defense 704 Soviet law  303–4, 306, 313–14, 315–20, 323–4 decretists  206–9, 212–14, 220–1, 222 deductive/inductive reasoning 561–3, 1098–9 defenses see also particular defenses (e.g. consent) actus reus  447, 451–4 constitutional principles  438–41 international criminal law  1141, 1151, 1161 Jewish law  272, 282–93 military justice  333–4 strict liability  880–1 terrorism  815, 829–31, 833–4

democracy  147–8, 176–7, 184–5, 187, 684 deontology  143–5, 562, 575, 576–7 deportation  949–50, 962 detective stories  113–14, 123, 129 detention see also imprisonment/prison law administrative detention  816, 817–18, 820, 830, 833 Guantánamo Bay  343, 426, 813, 816, 834, 1010 immigration detention  817–18, 830, 950 military justice  330, 334–6, 816–17, 819–20, 833 preventive sanctions  960 psychiatric detention  656, 658–9, 665, 675, 950 security detention  960 Soviet law  313–15, 318–20 terrorism  816–18, 819–20, 830, 833 deterrence corporate criminal liability  566–7 death penalty  13–14, 943 discretion 936 drug offenses  796, 798, 803, 808–9 economic analysis of criminal law  41–5, 48–9, 51–8 homicide  708–9, 721–2 instrumentalism 186 Islamic criminal law  257 Jewish law  276, 417 modernity, transition to  87, 108 punishment  371, 375, 942–3, 944, 965–6, 968–9 Soviet law  301, 304–5, 307 strict liability  872 technology and the law  176 terrorism 830 tort law and criminal law, boundaries between 1052 white collar crime  851–2 deviance  20–2, 23 Devlin, Patrick  149–50, 432, 665, 679–80 Dicey, AV  620, 1020, 1031 diminished responsibility  67, 153–4, 160–72, 674, 724 discretion 913–38 see also prosecutorial discretion

index   1173 abuse of power and tyranny  913 actus reus 920 arbitrariness 923 autonomy 936 auxiliary element  928 canon law  208–10 constitutional principles  423, 430–1, 437, 442–3 construction of offenses  920–1 critical race theory  28–30, 32 death penalty  720–2 definition 922–4 deterrence 936 drug offenses  796, 798–9, 802 European law  936 functions 927–9 gap-filling 928–9 holders of discretionary authority  914–22 human rights  928, 936 individualized justice  920–1, 927, 931, 933, 935 international criminal justice  918–19, 921 interpretation  920, 923–4, 927–9 Islamic criminal law  260, 263 Jewish law  275, 279–83, 290f judiciary/courts  308–9, 919–24, 927–31, 935, 969 justice 930–2 justifications  928–30, 937 law-determining function  928 legality, principle of  927, 932–3, 934 legislative decisions  922, 924, 969 legitimacy 914 limits and control  930–6, 937 managerial flexibility  928 manifestations and types  914–22 Marxist law  301 mediation between jurisdictions  928 minority rights  928 pardons and mercy  922 plea bargaining  915 police  914–15, 926–7 prisons 922 probation and parole  922 procedural law  913, 919 punishment  208, 311–12, 919–20, 931–2, 936, 944–5, 950, 969–72, 980–1

regulatory agencies  915 rule of law  913–14, 933–6 separation of powers  929, 934–5 substantive law  913, 915, 919–20, 929–31, 935, 937 terrorism  820, 825, 831–2 treaty law  936 types of discretion  925–7 victims  915, 970 white collar crimes  847, 850–3 disease, transmission of  22, 23, 645–6, 732–5, 738–9, 740 n.97, 759–63, 766 distributive justice  185–6, 190–1, 193, 196, 1045, 1050–2, 1062 diversion  13, 312, 926, 942, 977, 979 dolus eventualis  498–502, 509, 551, 556–8, 1108–13, 1156–7 domestic violence abuse excuse  616–17 banishment 960–1 Battered Woman Syndrome  60, 66–8, 79, 118–19, 153–4, 159–72, 440 conservative criminology  65–6 de facto divorce, state-imposed  65–6 diminished responsibility  67, 153–4, 160–72 feminism  14, 60, 65–8, 78–9, 621–3, 626 gender stereotypes  614, 623 imminence  608, 611, 613–15, 623 literature and law  118–19 objectivity 616–17 protection orders  65–6 provocation 164–5 reasonable man test  618–19, 622 reform  60, 65–8, 118–19 retreat  614, 623, 626 self-defense  68, 118–19, 440, 607–8, 611–19, 622–6 sexual infidelity exclusion  67–8 shelters 622 subjectivity  616–17, 618, 623 doom scenarios 178 double jeopardy  215, 222–3, 1032 n.31 drug offenses 789–811 administrative to criminal control, shift from 796–8 black market-related crimes  809–10

1174   index drug offenses (Cont.) cannabis  791, 793, 798, 800–1, 806 classification and lists of substances  791, 798–9 controlled substances  791, 798–9, 801, 805 courts, special  954–5 criminalization  790–3, 797, 801–10 culture  791, 801 decriminalization  793, 804, 807, 809–10 demand-side countries  791, 795 designer drugs (new psychoactive substances) 799 deterrence  796, 798, 803, 808–9 discretion  796, 798–9, 802 drug-related crime  792, 795, 809 drug treatment orders  15 ethnographies of drug-dealing and drug-using urban communities  19 extradition 797 harm principle  149 harm reduction  791, 793, 794–5 international law  791–2, 796–803 intoxication 809 legality, principle of  799–800 legalization  789–91, 793–4 liberalism 149 liberalization  791, 793–5 medical use of drugs  790 negligence 801 paternalism 806 policies 791–5 possession for personal use  793, 800, 802–4 preliminary acts, criminalization of  801–2, 804 protection of drug users  804, 805–7 protection of non-users  804, 807–10 punishment  27–8, 789, 792–3, 797–8, 801–3, 809 race 27–8 recreational use  790–1, 794, 797–8, 800, 803–10 regulation  796–803, 810 religion  791, 801 restricted purposes for authorized use  800–1

social construction of deviance/social interactionism 22 strict prohibition  791, 792–3 supply-side countries  791, 795 traditional and ritual drug use  800 UN treaties  796–803 voluntariness 805 war on drugs  792–5 dual penal state and penal dualisms 1018, 1028, 1033–9 dual state (Fraenkel)  1033, 1036 due process adversarial and inquisitorial processes  897–8, 904 constitutional principles  443 human rights  327–8 military justice  326–7, 341, 346 penal law  1018, 1037 self-defense 626–7 Duff, Antony  419–20, 459–63, 552, 692–3, 770, 814, 824 duress see necessity/duress Dworkin, Ronald  149–50, 270, 747, 924, 969

E

economic analysis of criminal law 38–58 additional sanctions  55 behavioral economic analysis  48–9, 50 bypassing the market  47–8 certainty  44, 47 core insights  50–7 cost-benefit analysis  45–6, 51–2 crime prevention  41 criminalization 41 criminology 16 damages 39 deterrence  41–5, 48–9, 51–8 efficiency  39–40, 45, 47, 50–1, 54, 56–7 imprisonment  52–3, 56–7 incentives 38–9 instrumentalism  39, 42 intangible costs  39 intellectual foundations  41–9 law and economics movement  40 low-probability, maximal-penalty model  56–7

index   1175 marginal deterrence, concept of  57 missing market  51 multiplier principle  41, 54–5 negative externality, crime as a  50–1 normative approach  39–40 opportunity costs  40 Pigouvian tax  51–2, 54 positive theory  39–40 probability-severity tradeoff  55–7 proportionality  44, 55–6 psychology 48–9 punishment  40–7, 52–7 rational choice theory  48, 57 rational maximization assumption  39–43, 46–9, 57 retributivism  41–2, 57–8 social contract theory  42–3 social science  38–9 tort-crime distinction  41, 47, 51–3 utilitarianism  40–1, 44–5, 50–1 white collar crime  845 economic crimes  278–80, 317, 321–2 electronic supervision in community 954 embezzlement  774–5, 839–41, 848 emergency, states of  326, 328, 347–8 empirical studies of criminal law/justice 5, 10–16, 23 employment or holding office, restrictions on  959, 962–3 endangerment  515, 518–19, 694–5, 741, 782, 1082 enemy criminal law  299, 301–4, 306, 313–14, 814 Engels, Friedrich  18–20, 295–8, 300, 304 English law see United Kingdom entrapment  815, 829–30, 831, 833–4 equality  427–9, 433–5, 440, 903, 933–4, 973–5 equality of arms 193 ethics and philosophy 142–6 European Convention on Human Rights (ECHR) criminal law, definition of  1125 death penalty  316, 947 n.5 emergency, states of  348 European law  1136–7 fair hearing, right to a  900, 1075 n.28

imprisonment  953, 993–6, 1001–2, 1005–7 liberty and security, right to  327 military justice  335 presumption of innocence  492 prison law  994–6, 1001–2, 1005 private and family life, right to respect for 737 terrorism 817 voting rights  962 European criminal law 1115–38 approximation of laws  1116, 1119, 1123–4, 1126–32, 1136 area of freedom, security and justice  1116, 1125–7 child pornography and sexual exploitation of children  1129–30 comparative criminal law  1116–19, 1131–2 competences  1117, 1122–5, 1136 Council of Europe  1118–19, 1125, 1128–31, 1136–7 cybercrime 1129–30 death penalty, abolition of  1000 definition 1116–17 directives  1116–17, 1122–4, 1126, 1128–30, 1135 discretion 936 emergency brake mechanism  1131, 1136 enforcement  1117, 1119–21, 1123, 1127–8, 1136 Eurojust 1127 European Arrest Warrant  1119, 1122, 1134 European Commission communication on policy  1122 Europeanization  1121, 1123, 1125–6, 1131–2 Europol 1127 federal law, as  1126 Framework Decisions  821, 1116–17, 1121–4, 1126–30, 1134–5 fraud against the budget  1116, 1119 general principles of law  1133–5 Gesetz to Recht, from  1132–7 globalization 1119

1176   index European criminal law (Cont.) human rights  1119, 1122, 1125, 1130, 1132, 1136–7 insider dealing  564 interpretation  1123, 1126, 1132–7 legality, principle of  1132, 1134–5 mutual recognition principle  1119, 1136 national laws  1116–29, 1132–6 organized crime  1116, 1129–31 Pupino doctrine  1134–5, 1137 regulation  1116, 1122, 1124, 1128, 1131, 1133 regulations  1119, 1126, 1128 Schengen area  1116 single-state perspective  1116 Stockholm Programme  1121, 1130 subsidiarity 1128 terrorism  821, 1116, 1120, 1122, 1127, 1130–1 transnational criminal law  1116–17, 1121, 1126–36 treaties, legal basis of foundational  1123–4 treaty law  1133, 1137 victims’ rights  936 extortion  742, 774, 839, 841, 843, 856 extradition death penalty  441–2, 819, 947 discretion 936 drug offenses  797 European Arrest Warrant  1119 jurisdiction  407–8, 411–12 non-extradition, rule on  407–8 terrorism  818–19, 833–4 torture 736 Extraordinary Chambers of the Courts of Cambodia (ECCC)  1140, 1144–5, 1156 extraterritoriality  191, 332–3, 339, 399–420, 815, 822–3

F

fair hearing, right to a  70, 185–6, 190 ad hoc tribunals  1143–4 adversarial and inquisitorial process  900, 905 European Convention on Human Rights  900, 1075 n.28

military justice  327, 346 terrorism  824, 829 n.62 false imprisonment 743–4 fault actus reus 451 complicity 555 constitutional principles  435–8 corporate criminal liability  579–80 regulatory offenses  1065 strict liability  862–4, 880–3 subjective elements of criminal liability 491–2 terrorism  814–15, 825, 827–9, 831, 833 Feinberg, Joel  135, 641, 688, 690, 805–6 felony murder rule  706–8, 709–13, 715, 719–21, 723, 725 feminist approaches 59–82 Battered Woman Syndrome (BWS)  60, 66–8, 79 carceral feminism  77 coercion  65, 69–70, 74, 76–8 conservatism  65–6, 74, 76, 80 critical gender theory  158 Critical Legal Studies  61, 1053 domestic violence  14, 60, 65–8, 78–9, 621–3, 626 family as protecting and reinforcing gender hierarchy  1054 feminist project  59–62 future 80–2 governance feminism  76–80 human rights  68, 69, 73–4 international criminal law  59, 62, 68, 69–72, 76, 81 legal realism  79–80 Marxism  1047, 1053–4 pornography  80, 1054 public-private divide  61, 1043, 1053–5, 1057 radical feminism  61, 65, 70–1, 73, 76–8, 158, 169 rape and sexual offenses  59, 63–4, 68, 69, 78, 158 reform of criminal law  59–68, 79, 81, 158 repeat patterns  77–9 self-defense  621–4, 626 sex work and prostitution  73–5, 77–9

index   1177 sexual autonomy  169, 748–9, 766 trafficking  73–5, 77–8, 80 transnational criminal law  59, 62, 68, 72–5, 76, 81 transnational diffusion of feminist ideas 68 violence  60, 65–8, 76, 78–9, 81 will to power  76–80 Feuerbach, Paul Johann Anselm von 84, 207, 385, 537, 680, 691, 1029–30, 1066–8, 1118 financial sanctions ability to pay  956–7 corporate criminal liability  566, 568–9, 573 economic analysis of criminal law  56 homicide 704 strict liability  863, 867, 872 tort law and criminal law, boundaries between 1051–2 Fletcher, George  424, 544, 616, 650, 773–4, 1095, 1097, 1133, 1141 force majeure 491 forced labor  75, 299, 313–14, 321, 322, 324, 1006 forced marriage 744 foreseeability causation 484–8 homicide  716, 719–20, 723–5 intention 506–7 joint criminal enterprise  1156–7 knowledge 498 negligence 510 responsibility for a crime, meaning of  368–70 strict liability  881 subjective elements of criminal liability  496 surveillance societies  193 forfeiture  608–9, 611–12, 627, 703, 943, 957 Foucault, Michel  6–7, 22, 85, 88–91, 94–5, 103–5, 156–8, 425, 1035, 1054 fraud accounting fraud  842, 847 consent  632–3, 635–6 counterparty fraud  848 employees 848 European law  1116, 1119

fraude á la loi  411, 412–14, 420 government, fraud against  839, 850–5, 856–7 investment fraud  847 kidnapping 743 punishment 859–60 tax fraud  850–1 theft  774, 776–7 white collar crime  839–40, 842–4, 846–53, 856, 857–60 free will  11, 193–4, 206, 254–5, 259, 481, 657, 660, 923, 966 freedom of expression  532, 681

G

gender  158, 267, 614, 623 see also feminist approaches Geneva Conventions and Additional Protocols  341–5, 347, 1010, 1140, 1153 genocide  70, 414, 1139–40, 1142, 1144, 1150–1, 1156 Germany assault 739 automatism 662 canon law  218 causation  477, 482, 487 complicity  535, 536–7, 539–40, 547, 556 consent  639, 643 Constitution  680, 682–3, 685, 697–8 corporate criminal liability  565–6, 574–6 criminalization 696–7 culpability  656, 660 discretion  917, 931, 935 drug offenses  789 n.2, 799 n.49, 800, 803 European law  1123 imprisonment  950, 952, 988, 992, 997–8, 1003–4, 1006–7 insanity  656, 659, 660–3, 674 intention  504, 506 international criminal law  1141, 1160 intoxication  657, 666, 671 language barriers  1095–7 legal good (Rechtsgut)  680, 682, 685, 686–7, 692, 700, 1029–30, 1069–71 necessity/duress  584, 589–90, 595, 596, 601, 603, 1102–3

1178   index Germany (Cont.) Nuremberg Military Tribunal  1139–40, 1143, 1148, 1150, 1152 police and law  1031–2 public and private law  1019–20, 1026–7 punishment  944–5, 950, 952, 957, 966–8, 988, 992, 997–8, 1003–7 regulatory offenses  1066–73, 1085 rule of law  934 strict liability  866–7, 877 Goldschmidt, James  1068–73, 1077, 1079 governance  1018, 1023–8, 1030–6 government, fraud against  839, 850–5, 856–7 grace  86, 99–107, 109 Guantánamo Bay  343, 426, 813, 816, 834, 1010

H

Hague Regulations  341, 344 harm principle constitutional principles  432–5 criminalization  186, 680, 682, 687–91, 700 punishment 148–9 sexual autonomy  747 wrongfulness 366–7 white collar crime  840 harassment  730–1, 739–40 Hart-Devlin debate  149–50, 432, 679–80 Hart, HLA  133, 142–4, 149–50, 228, 232, 238, 432, 459, 464–5, 474, 546, 679–80, 923–4, 1037, 1045 healing  237–9, 244, 958 Hegel, GWF  373, 487, 1029, 1044, 1055–7, 1079 heresy  209–10, 213, 220–2 heteronomy  1018, 1028, 1034, 1036 Hobbes, Thomas  42–3, 627 homicide  702–26, 727 accomplices  720–1, 725 act element  712, 714–17 agency rule in felony murder cases  719 aggravating factors  715, 720–2 burden of proof  714, 715–16, 724 causation  703, 709, 714, 716–17, 719, 724–5

clergy, benefit of  704–5 codification 709–12 cognition, crime of  703 consent  630, 639–43, 647, 649–50, 652 constitutional law  710 corporate criminal liability  562 death penalty  703–4, 720–5 deterrence  708–9, 721–2 diminished responsibility  724 felony murder rule  706–8, 709–13, 715, 719–21, 723, 725 fines 704 foreseeability  716, 719–20, 723–5 forfeiture of property  703 grades of homicide  711–13, 715, 717–21, 723 insanity 674–5 intention  704–13, 715–18, 723, 725 Islamic law  971 Jewish law  281–7, 290–3 joint ventures  723, 725 malice  705–8, 709–11, 715 manslaughter  705–8, 709, 712–19, 723–5 mental element  704–18, 723, 725 mitigation  705–6, 713, 715–18, 721, 723 monopoly on legitimate force, state’s  703, 709 necessity 290–3 negligence  707–8, 709, 713–14, 718–20, 724–5 presumption of innocence  716 production of suspects  704 provocation  704–8, 710, 716–17, 723–4 punishment  702–4, 708–9, 720–5 recklessness  707, 709–10, 713–15, 718, 720–1, 723, 1110–11 retribution 721 risk-taking, homicide by  718–19 royal courts  704 self-defense  285–7, 704, 707–10, 714 Soviet law  323 special verdicts  704 status contests  702 strict liability  720 threats to kill  731 utilitarianism  703, 708–10, 712–15, 725 weapons  708, 716, 725

index   1179 homosexuality  61, 149–50, 319, 649, 748, 761, 763 Honoré, Tony  474, 546, 769 human rights see also European Convention on Human Rights (ECHR); particular rights (e.g. fair hearing, right to a) banishment and removal  948 Charter of Fundamental Rights of the EU  1122, 1130 civil and political rights  327, 347, 993–4 constitutional aspects  187, 681–4 criminalization  680, 682, 687–92 death penalty  946–7 discretion  928, 936 economic, social and cultural rights  993 European law  1119, 1122, 1125, 1130, 1132, 1136–7 feminism  68, 69, 73–4 imprisonment 989–1009 international law  68, 69, 1140–1 military justice  327–8, 335, 346–9 neutrality under rule of law  184 public authorities  836 punishment  936, 943, 946 reservations and derogations  328 self-defense 620 transitional justice  145 transnational human rights  73, 74 treaties  327–8, 335, 346–9, 943, 945, 948 Hume, David  468, 473–5 Husak, Douglas  459, 462–5, 517, 639

I

ideal theory 356–64 ideal type  358, 888, 893, 896–97, 902, 909, 916, 1034–6 immigration detention and sanctions  817–18, 830, 832–3, 950 impossibility 521–3 imprisonment/prison law  944–5, 949–54, 988–1011 see also detention aggravating factors  980–1, 983, 985 banishment and removal  949 birth of prison  88–9 common law  988, 1009 conditions  990–1, 993–4, 996, 998, 1000–1

criminalization 696 determinate sentences  920, 951–2, 956, 964, 980–6 discipline  991, 995 discretion  922, 950, 980–1 drug offenses  27–8, 789 n.2 economic analysis of criminal law  52–3, 56–7 emergence of prison law  989–1002 European Court of Human Rights  953, 994–6, 1001–2, 1005 European law  1000 European Prison Rules  995–6, 1001, 1010 external and internal elements  1002–3, 1007 family life  1006–7 guidelines  951, 953–4, 980–1, 983, 985 human rights  989–1009 indeterminate sentencing  817, 830, 919–20, 951, 978, 980–4 indigenous people  234–6 intermittent custody  951–2 international imprisonment  1009–10 international law  993–7 judiciary 980–1 labor in prison  1005–6 leave from prison  952 length of sentences  947, 951–2 life sentences  947, 952–3, 982–3, 1007–8 mass incarceration  33–5 mitigation  980–1, 983, 985 modernity, transition to  84–90, 98, 103, 110 national law  994, 997–1000 overcrowding 1008–9 panopticon  89, 90, 395 parole  922, 947, 950–1, 953, 982–3 population  27–8, 952–4, 977 prisoners’ rights  999–1003 privatization  950, 1009, 1060 procedural criminal law  1002–3 property offenses  786–7 proportionality  950, 953, 990, 1003–4 public administration  989, 990–2, 1003, 1008 punitiveness  949–50, 952, 954, 977–9, 1004–5

1180   index imprisonment/prison law (Cont.) racial disparities  27–8, 33–5, 953 reform 157–8 rehabilitation  981–3, 1004–7 release  950–1, 953, 982–3, 1008 remand prisoners  1001 retribution  34, 983–4, 1003 risk assessments  950 shock incarceration  951–2 slopping out  1001–2 social control  24–5, 1001–2 socioeconomic backgrounds of offenders 158–9 theories 1002–8 torture  993–4, 996–7, 1001 UN Standard Minimum Rules  994–5 whole life sentences (without parole)  27, 305, 816, 947, 952–3, 958, 989, 1007–8 incapacitation  942, 945, 949, 950, 965–6 inchoate offenses 512–33 see also attempts; complicity; preparatory acts/ preliminary conduct apprehension-based view  513–14 conspiracy  456, 528–32 culpability  513–18, 526 drug offenses  801–2, 804 intention  515–17, 527 intervention-based view  513–14, 518–20 mens rea and actus reus 513 multiple actors  528–32 objectivity  513, 516 penumbral offenses  514–15, 519, 525–7, 530, 533 possession 525–8 proxy conduct  515, 518, 526–8, 532–3 punishment  514–16, 527 renunciation defense  519–20 risk-based view  513, 517–18 solicitation 531–2 Soviet law  311 subjectivity 513 temporal perspective  513–14 terrorism  814–15, 824–8 independent and impartial tribunal 327, 336–7, 343, 345, 348–9 Indian Penal Code (IPC)  379, 390, 394, 965

indigenous legal traditions  225–47, 957–8 aboriginal justice initiatives  235–7, 242 AJR (Accessing Justice and Reconciliation) Project 244 analogy 229–30 colonialism  226, 230–3, 239–42, 246–7 court processes  236–7 Cree and Anishinabek societies  226, 229–31, 243–5 culture  226, 235, 236–7, 239, 242 customs  226, 237 diversity  226, 227, 229–30 failure of state criminal justice systems 234–5 Family Group Conferencing  236 healing  237–9, 244, 958 idealized values as state critiques  239 imprisonment, rates of  234–6 intellectual shifts  242–3 legal education  240–1 minimal content  228 peacemakers 237 principles  241, 243–6 punishment  231–7, 239, 975–6 recovery and revitalization  234–40 rehabilitation 239 renaissance  226, 240–6 repression  230–3, 234, 246 research 243–6 resilience and perseverance  233–5, 246 restorative justice  237, 238 roots of traditions  226–30 Sentencing Circles  236 separation  231, 233, 237, 245 shaming 957–8 spirituality/religion  229, 232, 244 state, impact of  231–3 state sovereignty  426 structured circle processes  237 use of force  231, 237–8 violence and vulnerability  225–33, 238–47 wetiko (windigo) example  226–33, 238, 242–5 individual criminal responsibility 153, 203–4, 216–17, 333, 1139, 1153 individualized justice  617–19, 920–1, 927, 931, 933, 935, 972–6

index   1181 infamia procedure  212, 222 infancy  655–6, 662 information society to a data-driven society, from 187–90 inhuman or degrading treatment 993–4, 996, 999, 1001–2, 1005–8 inquisitorial processes see adversarial and inquisitorial processes insanity  440–1, 654–76 addiction type disorders  657, 668, 675–6 affect  671, 675 alcohol or drug treatment  675–6 automatism  452, 661–2, 671 burden of proof  660, 673–4 civil law systems  656, 660–3 classification systems  663, 667 common law systems  656, 658–65, 672, 676 conform conduct to requirements of law, ability to  673 culpability  654–60, 663, 673–4 determinism 657 detention in psychiatric institutions  656, 658–9, 665, 675 diminished responsibility  674 fitness to plead/stand trial  655, 658 heat of the moment, acting in the  671 historic development  659–61 hypoglycemia/hyperglycemia 667–8 infancy  655–6, 662 International Criminal Court, Rome Statute for the  664 intoxication  667–8, 670–1, 674–5 Jewish law  283–4, 287 legal consequences  673–6 loss of control  661, 672 medical experts  655, 656, 658, 660, 665, 673–4 mens rea 655 mental diseases  667–70 mistake of law  662–3, 672 M’Naghten Rules  659–61, 663, 664–5, 667–8, 671–2, 674 murder 674–5 normative aspects (cognitive and volitional capacity)  663, 664, 672–3 personality disorders  668–70, 675 perversion-type disorders  668

procedural issue, as  658 psychiatric aspects (mental defects)  663–72, 675 psychiatric treatment  675 punishment  656, 658–9, 673–5 relation to other grounds for exclusion of liability 661–3 somnambulism 671 structure 663–4 systematic framework  658–9 temporal disabilities  670–2 theoretical foundation  655–8 time of defect  666–7 total or partial excuse  674–5 wrongfulness of conduct, appreciation of 672–3 insider dealing  564, 840, 848–50, 860 intangible and semi-tangible property 772, 779–81, 785–6 intellectual property  780–1, 785–6 intention 491–508 actus reus 503 assault  729, 738–40 attempts 520–1 belief principle  503 canon law  203–4 causation 505–7 complicity  553, 557 conspiracy 530 corporate criminal liability  562, 567, 574 culpability 139–41 distinction between intentional and non-intentional offending  492–6 dolus eventualis  498–9, 500–2, 509 factual and normative circumstances  503–5 foreseeability 506–7 genocide 1150–1 homicide  704–13, 715–18, 723, 725 ignorance of the law is no defense  507 inchoate offenses  515–17, 527 intervening acts  506 Islamic criminal law  254–5, 259, 261–2 Jewish law  284–5 knowledge  494–8, 503, 507–8 legal norm, knowledge of the  507–8 literature and law  123–4, 127–30

1182   index intention (Cont.) mens rea 493 mistake  503–5, 507–8 modes 496–502 motives 498 negligence  493, 500–1, 503 object of intention  503–8 possession 527 pre-emption of inferred intent  174 proof 491 punishment 492–4 recklessness  498–500, 1109–11 remoteness 506 result 505–7 Soviet law  309, 310 territoriality, principle of  404–5 terrorism  814, 822–3, 827–8, 833–6 timing 502–3 transferred intent  506 volitional element  136–7, 494–7, 500–2 International Court of Justice (ICJ) 399, 1141–2, 1146 International Covenant on Civil and Political Rights (ICCPR)  327, 347, 993–5 International Criminal Court (ICC) and Rome Statute  1140, 1142–6 aggression, crime of  1154–5 codification 1145 comparative criminal law  1093–4 complementarity, principle of  1145, 1162 complicity  550, 1156–8 corporate criminal liability  564 crimes against humanity  1151–3 customary international law  1142, 1145, 1161 delay 1146 dolus eventualis  500 n.47, 1157 Elements of Crime  1142–3, 1145, 1151–2, 1154 general principles of law  1142 genocide 1151 hierarchy of sources  1142–3 imprisonment 1010 insanity 664 international humanitarian law  71–2 intoxication 666–7

jurisdiction  821, 1145–6, 1155 knowledge 497–8 military justice  334 mistake 504 modes of liability  1156–60 necessity/duress 1161 non-parties, jurisdiction over nationals of 1145–6 precedent 1142–3 prosecutorial discretion  918–19 Prosecutor, position of  1145 rape and sexual offenses  71–2 superior orders defense  334, 1161 superior responsibility  1159–60 tribunals, decisions of other  1142–3 war crimes  1145 weaknesses 1146 international criminal law (ICL) 1139–63 see also customary international law; International Criminal Court (ICC) and Rome Statute; International Criminal Tribunal for Rwanda (ICTR); International Criminal Tribunal for the former Yugoslavia (ICTY); international humanitarian law (IHL) ad hoc tribunals  1140–5, 1161–2 aggression, crime of  1140, 1150, 1154–5 codification  1139–40, 1147 comity  415–16, 819 comparative criminal law  1093–4, 1112 core crimes  1140, 1150–5 corporate criminal liability  565 crimes against humanity  69, 71, 414, 1093–4, 1140, 1146, 1150–3 crimes against peace  1140 customary international law  72, 1140, 1142, 1148–50, 1156–7, 1161 defenses  1141, 1151, 1155, 1161 discretion  918–19, 921 drug offenses  791–2, 796–803 feminism  59, 62, 68, 69–72, 76, 81 flexibility 1147–8 general principles of law  921, 1142, 1149 genocide  1139–40, 1142, 1144, 1150–1, 1156 human rights law  68, 69, 1140–1

index   1183 hybrid or internationalized tribunals 1144–5 imprisonment 993–7 joint criminal enterprise  1147–8, 1155–7 judicial law-making  1146–50 jurisdiction  400, 402–3, 408, 414–16, 420 leadership liability  1154 legality, principle of  1147–50, 1162 merger of disciplines and cultures  1140–1 modes of liability  1155–61 nature of ICL  1140–1 prosecutions 1142–6 public international law  1140–1, 1162 rape and sexual violence  69–72 remedy, right to a  1141 sources of ICL  1141–3 superior orders defense  1155, 1161 superior responsibility  1159–60 terminology 1140 Tokyo Tribunal  341, 1143 transnational criminal law  72, 1140 International Criminal Tribunal for Rwanda (ICTR) comparative criminal law  1093 completion strategy  1144, 1162 imprisonment 1010 joint enterprise liability  1156 modes of liability  1155–6 prosecutorial discretion  918–19 rape and sexual offenses  69–71 Statute  1140, 1145 International Criminal Tribunal for the former Yugoslavia (ICTY) 1093, 1143–5 accomplices 1158 aiding and abetting  1157–8 armed conflict nexus  1152 completion strategy  1144, 1162 co-perpetration 1141 feminism  69, 71 genocide 1151 immunity for heads of state or leaders  1155 imprisonment 1010 international and non-international armed conflict, distinction between  1153 modes of liability  1147–8, 1155–8 necessity/duress  1141, 1161

prosecutorial discretion  918–19 Statute  1140, 1145, 1155 superior orders defense  1155, 1161 superior responsibility  1159 war crimes  1153–4 international humanitarian law (IHL)  1139–41, 1147, 1153 customary international law  1139, 1153 Geneva Conventions and Additional  Protocols  341–5, 347, 1010, 1140, 1153 Hague Regulations  341, 344 International Criminal Court, Rome Statute of  71–2 military justice law  328, 332–3, 342, 344–7 Nuremberg Military Tribunal  1139–40, 1143, 1148, 1150, 1152 terrorism 821 war crimes  333, 341–2, 414, 817, 823, 1139–40, 1145, 1149–50, 1153–4 intervening acts  481–2, 485–6, 488, 506, 547 intoxication actus reus  447, 451–5, 458, 465 addiction-type disorders  668 alcohol or drug treatment  675–6 canon law  206 consent  632–3, 750–1, 765 culpability 654 diminished responsibility  674 drug offenses  809 extreme intoxication  447, 451–3, 458, 465 insanity  667–8, 670–1, 674–5 involuntary intoxication  670 mens rea 670 mental capacity  138 personality disorders  668, 670 punishment 657–8 sexual offenses  63, 632–3 Soviet law  310–11 theoretical foundation  657–8 voluntary intoxication  454–5, 666–7, 670 Islamic criminal law 248–68 age of criminal responsibility  265–6 alcohol 252 apostasy 253 blood money  258, 260–1, 267 codification  250, 260, 263–5

1184   index Islamic criminal law (Cont.) confessions  255–6, 260 death penalty  252, 253, 257, 262, 265, 267 deterrence 257 discretion  260, 263 exemption from punishment  255 false accusations of illegal sexual intercourse 252–3 gender inequality  267 homicide 971 intention  254–5, 259, 261–2 legality, principle of  263–5 life and bodily integrity, crimes against  251, 258–62 necessity/duress  255, 259 procedural law  260 proofs, system of  255–6, 260, 943 public punishments  257 punishment  250–67, 943, 946, 970–1 Quran  248, 251–4, 257–9, 262–3, 265–7, 971 retaliation  258, 260–1 retribution 257 schools of law  249–50, 252–3, 259–61, 264–5, 267 self-defense 259 sexual offenses  252–3, 255–6 Shariʿa law  248 Shi’ites  248–9, 252–3, 255–6, 261–2, 265 sources of law  248–9 structure of criminal law  250–62 substantive law, characteristic features of  254–5, 258–9 Sunnis  248–9, 251–3, 255–6, 261–2, 265 victims 970–1 weapons 259 Western law  249–50 witnesses  255–6, 260

J

Jakobs, Günther  301, 693, 814, 824, 1018, 1035, 1037–8 Jewish law 269–94 abortion  278–9, 291 atonement  282, 284 codification  271, 289–90 death penalty  270, 273–5, 280–1, 286–7

defenses  272, 282–93 deterrence  276, 417 discretion  275, 279–83, 290 disobedience to God’s law  272, 275–6, 284 dual aspect  271–3 economic crimes  278–80 eye for an eye  276–7 flesh torn from a living animal  278–9 homicide  281–7, 290–3 idolatry and blasphemy  278, 288 ignorance and mistake of fact and law  284–5, 287 insanity  283–4, 287 intention 284–5 internal criminal law  273–6 Israel  270, 277–8, 292 King’s law  277–8, 279–83 lex talionis 276–7 mens rea  275–6, 284 Mishna Torah  274, 286–7, 290 necessity/duress  272, 283, 287–90 Noahide laws  271, 273, 278–81 precedent 269–70 prior warning, general rule of  274–6, 281 punishment  273–81, 285–90 rabbinic judges/scholars  269–71, 274–87, 291–3 rape and sexual offenses  278 redemption 276 refuge, exile to cities of  281–2, 284 religious offenses  278 retaliation 276 secularization 271 self-defense  285–7, 292 sources of law  269–72, 274, 276, 279–84, 290–1 Talmud  270–1, 274, 276, 280, 282–4, 290–1 theft 278–9 Torah  270–2, 276, 279–87 witnesses  273, 279, 286–7 joint ventures/enterprise  723, 725, 1147–8, 1155–8 judges comparative criminal law  1099–101 discretion  308–9, 919–24, 925, 927–31, 969 imprisonment 980–1

index   1185 interpretation  920, 923–4, 927, 1099–100 law-making 1146–50 military justice  336–8 prosecutorial discretion  926, 929, 934 punishment  919–20, 973–5 strict liability  868–73 white collar crime  844, 856–60 writing 121–3 judgments, recognition and enforcement of foreign  564, 1117, 1119 jurisdiction 399–421 armed forces abroad  411 basic framework  403–10 canon law  218–19, 222 circumvention jurisdiction  411, 412–14, 420 conflict of laws  928 Corruption Convention  415 criminal jurisdiction, definition of  402 customary international law  401 cybercrime  411, 415 extraterritoriality  399–415, 419–20 fraude á la loi  411, 412–14, 420 International Court of Justice  399 International Criminal Court  821, 1145–6, 1155 international law  400, 402–3, 408, 414–16, 420 Lotus case  399–402, 408 military justice  339–40, 344, 348 nationality, principle of  401, 403, 404, 405–9, 413, 418, 420 organized crime  401, 411, 414 passive personality principle  401, 403, 408–9, 413, 418, 420 protection, principle of  401, 403, 409–10, 418, 420 punish, right to  402, 417–18 relational structure of criminal responsibility 419–20 scope of criminal law, general accounts of 415–20 technology and law  190–2 territoriality, principle of  401–5, 419–20 terrorism  400, 404, 411, 813, 819, 822–3, 834 theoretical approaches  401–3 Trafficking Convention  415

transnational crime  400–1, 404, 411, 414–15 treaty law  400 universal jurisdiction  401, 403, 409, 412, 414, 736, 813, 819, 822–3, 834, 910 venue, issues of  403 vicarious/representational jurisdiction  401, 411–12, 420 jury nullification 33 justification of crime and punishment 365–78 Justinian  221, 1022, 1025, 1028, 1031

K

Kant, Immanuel  41, 84, 87, 104, 107, 108, 150–1, 373–4, 468, 590, 660, 1029, 1044, 1055–7 kidnapping  743–5, 771 King’s Peace  10, 702–3, 704, 1020, 1025–26, 1033 knowledge canon law  206 complicity  541, 554–6 culpability 139 intention  494–8, 503, 507–8 knowledge discovery in databases (KDD)  187 n.31, 188–9 legal norm, of  507–8 penal reform  157–9 strict liability  868–70, 873, 876, 880 subjective elements of criminal liability  491, 494–6 superior responsibility  1160

L

Lacey, Nicola  60, 80–1, 87, 779 Langbein, John  85, 88, 91–4, 213, 917 language barrier  1094–7, 1113 objective imputation theory  1096–7 unknowingly justified actors  1095–6, 1097 law and economics movement  20, 40, 1050–3 law in books and law in action, disparity between 155 legal good (Rechtsgut)  680, 682, 685, 686–7, 692, 700, 1029–30, 1069–71

1186   index Legal Realism  155, 1043–4, 1048 legality, principle of attempts 523 codification 385 comparative criminal law  1099–101 complicity 540 constitutional principles  423 discretion  927, 932–3, 934 drug offenses  799–800 European law  1132, 1134–5 international criminal law  1147–50, 1162 Islamic criminal law  263–5 military justice  346 prosecutorial discretion  917–18, 932 regulatory offenses  1077 Soviet law  308–9 white collar crime  842 legislature, role of  969, 1100–1 Lenin, Vladimir Ilyich  297, 299, 302, 304, 314–16, 318 Liber extra  202–3, 206–7, 209–10, 214–15, 216, 222 liberty and security, right to 327 literature and law 111–30 actus reus and mens rea, distinction between 127 aesthetics  115, 124–8 autobiographies of criminals  111–12, 114 cognitive literary studies  128 confessions  111–12, 117 corporate criminal liability  115 counsel in felony cases, allowing defendants  112, 125 courtroom novels  113–14, 125 detective stories  113–14, 123, 129 domestic violence  118–19 explanation and inquiry, subjects of 124–5 future 128–30 intention  123–4, 127–30 judicial writing  121–3 law in literature, literature in law  116–24, 125–6 legal education, use in  117–22, 128 literatures of criminal law  111–17 narrative  115–18, 122–4, 126, 128–30

Newgate Novels  112, 113, 117 psychology 112–13 punishment 111–12 reform  112, 115, 118–19, 125 research  115–17, 122 n.33, 126, 129 true crime  111–12, 114–15, 117 Locke, John  17, 627, 1044–5 loss of control defense  67, 160, 163–4, 661, 672, 723

M

Macaulay, Thomas  390, 393–4, 709–10, 713 machine learning 188–9 MacKinnon, Catharine A  70, 76, 80, 749, 1053–4 Maimonides  271, 275, 279, 283, 286, 288–90 manslaughter  705–8, 709, 712–19, 723–5 Marx, Karl  295–300, 304, 324, 1046–7 Marxism  19, 155–6, 295–307, 310–13, 321, 324, 1043, 1048, 1053–4 mediation  916, 958, 970 medical treatment, consent to 595–6, 630–1, 637, 642–4, 737 medieval canon law 201–24 12th century reform  201–4 adversarial/inquisitorial procedure  204, 211–13, 217–18, 222–3 benefit of clergy  208–9, 218–19 blasphemy  210, 219–20, 222 church courts (external forum)  204–5 concept of crime in law and philosophy  204–8, 220–2 confession  204, 214 criminal procedure, development of  203–4, 211–16, 222–3 custom 218–19 death penalty  215 decretists  202–3, 206–9, 212–15, 220–2 discretion 208–10 double jeopardy  215, 222–3 ecclesiastical crimes and punishments  208–11, 222 excommunication  207, 209, 211, 220–1 Gregorian Reform  201–2, 209 guilt  206, 217 heresy  209–10, 220–2

index   1187 individual responsibility  203–4, 216–17 infamia procedure  212, 222 jurisdiction  218–19, 222 mens rea 206 necessity/duress  206–7, 222 oaths and ordeals  204, 213–14, 222 papacy and Catholic Church  201–3, 207, 209–12, 219–21 presumption of innocence  215–16, 223 proof, law of  204–5, 214, 222 punishment  203–4, 208–11, 215, 219, 222 reform 219–20 Roman law  201–3, 207–8, 210, 212, 214–15 secular courts  208–10, 215 secular law, impact of canon law on  204, 216–19 self-defense  206–7, 222 sexual offenses  211, 222 simony  209, 212, 219 sin  204, 208, 221–2 torture  214–15, 223 venality and immorality  219 mens rea/mental element  490–3, 508 see also intention; recklessness actus reus  127, 132, 448–9, 451–2, 454, 462–4, 491–2, 513 assault  729, 732–3, 738–9 attempts  520–3, 1104, 1107–8 canon law  206 causation 470 comparative criminal law  1104, 1107–12 complicity  541, 550–4, 556–8 constitutional principles  435–8 corporate criminal liability  571 culpability  101, 138–40 dolus eventualis 1111 homicide  704–18, 723, 725 inchoate offenses  513 insanity 655 intention 493 intoxication 670 Jewish law  275–6, 284 literature and law  113, 127 negligence 509 socioeconomic backgrounds of offenders  158–9 Soviet law  310–12

strict liability  862–75, 882 superior responsibility  1159–60 terrorism  827–9, 835 white collar crime  844, 851, 855 mental capacity/disabilities see also insanity accountability 138–9 age of criminal responsibility  138–9 consent  750, 632–3, 643–4 death penalty  1092 intoxication 138 mind, philosophy of  138–9 moral agents  138 rape and sexual offenses  752, 753–4 self-defense 616 Soviet law  310–11 tax fraud  850–1 terrorism 830 mercy killings and assisted suicide  435, 630, 634–5, 641, 652 military justice 326–49 ad hoc military tribunals  336–8, 345 adversarial procedure  335 ambit of the law  332–3 appeals  336–8, 341, 347 armed conflicts  328, 333–4, 340–7 assimilation, principle of  341–3 civil law systems  339 civilian courts  336, 337–40, 342, 348 civilians  327, 332, 344–8 commander, role of the  334–7, 346 common law systems  339 courts-martial  336–8, 342 criminal offenses  329–30, 339–41 customary international law  343 defenses 333–4 detention  330, 334–6, 816–17, 819–20, 833 discipline 328–40 due process  326–7, 341, 346 emergency, states of  326, 328, 347–8 enemy belligerents  326, 340–3 extraterritoriality  332–3, 339 fair hearing, right to a  327, 346 Geneva Conventions and Additional Protocols  341–5, 347, 1010, 1140, 1153 Guantánamo Bay  343, 426, 1010 human rights treaties  327–8, 335, 346–9 immunities 332

1188   index military justice (Cont.) independent and impartial tribunal  327, 336–7, 343, 345, 348–9 inquisitorial procedure  335 international humanitarian law  328, 332–3, 342, 344–7 judicial proceedings  336–8 juries  336, 338 jurisdiction  339–40, 344, 348 legality, principle of  346 liberty and security, right to  327 military courts/tribunals  336–49 military offenses  330–4 occupation, trial of civilians in territories under  326, 344–7 permanent military courts  336–8 prisoners of war  340–3 procedure 334–41 prosecutorial discretion  334 punishment  326, 330, 335, 341, 343 separate military justice system, rationale for 338–9 service connection test  339–40 service status test  339–40 specialized civilian courts  336, 337–9 substantive law  330–4 superior orders defense  333–4 territorial application  332–3, 339 war crimes  333, 341–2, 817 Mill, John Stuart  147–9, 432, 434, 473–5, 480, 687–8, 747 Milsom, Toby  422–4, 443 mind, philosophy of 137–41 miscarriages of justice/wrongful convictions  812–13, 896, 947–8 miserology, history of  16–21, 23 mistake attempts 520–3 causation 487 ignorance and mistake of fact and law  284–5, 287 insanity  662–3, 672 intention  503–5, 507–8 Jewish law  284–5, 287 rape and sexual offenses  635 mitigation see aggravating and mitigating factors

M’Naghten Rules  659–61, 663, 664–5, 667–8, 671–2, 674 modernity, transition to 84–110 Christianity and church  86, 89–92, 98–103, 107–10 codification  380, 383, 384–93 criminal procedure  87, 108–9 cruelty  84–90, 104 culpability  86–8, 99–103, 105–7, 109–10 death penalty  87, 91–2, 95, 97, 99, 104, 107, 110 deterrence  87, 108 dilemmas 108–9 Enlightenment  85–8, 90–1, 94–5, 103–9 imprisonment  84–90, 98, 103, 110 legal reasoning, styles of  87–8 literature and law  114 monarchical state  85–6, 95–7, 100, 107 monopolization of violence  95–103, 108, 110 mutilation  84–5, 87, 91–2, 95, 99, 104, 107, 110 nobles  90, 96–8, 103, 106, 110 pardons  85–6, 92, 99–107 princely justice  85–6, 90, 97–9, 101 n.47, 103–10 proof, system of  91–4 punishment  84–95, 98–100, 103–10 reform  84, 103–8 reluctance to punish  90, 92 retributivism  87, 107–8 rise of modern criminal law  84–6 secularization  85–6, 89, 92, 99–100, 103, 107, 109–10 torture  84–6, 88, 91, 93–5 violence, decline in taste for  90 monarchical state  85–6, 95–7, 100, 107 Moore, Michael S  136, 455, 457–8, 543, 547, 692 mutilation  84–5, 87, 91–2, 95, 99, 104, 107, 110

N

narrative  115–18, 122–4, 126, 128–30 nationality, principle of  401, 403, 404, 405–9, 413, 418, 420 natural law  207, 216, 221, 392, 575, 691, 1139

index   1189 necessity/duress 583–606 balancing  598–600, 605 blame for predicament  593–4, 600, 605–6 canon law  206–7, 222 circumstances, duress of  584, 604 coercive necessity  596–7, 604 collective interests  594–5 comparative criminal law  1093–4, 1101–4 complicity  541, 558 conflicting interests  586, 595–6, 605 consent  632, 633, 651 constellations  594–6, 600–4 constitutional principles  438–9 contractual reasons  590–1 currency of the danger  596–7 defensive necessity  586–7, 603, 605 differentiation theory  587 egotistic and altruistic rescue  585 failure to give assistance  589–90 group of persons  605 homicide 290–3 individual questions  584–606 intensity of threatened violations  599 interests involved  585–6, 594–5 International Criminal Court  1161 International Criminal Tribunal for the former Yugoslavia  1141, 1161 Islamic criminal law  255, 259 Jewish law  272, 283, 287–90 justification and excuses  584–606 legally protected interests  595, 599, 604–5 life against life  600–1 loyalty principle  591–2 medical treatment, consent to  595–6 mitigation 1094 most sparing means  597–8 natural causes  584 necessity of the necessity action  597–8, 604 objectivity 597 personal legal interests  604–5 phenomenology of necessity situations 584–6 prerequisites 604–6 probability of interference  600 proportionality 605 reasons 587–94

rescue operations  603, 605 same person, conflicting interests of  595–6 self-defense  586–7, 603, 605, 608, 610–13, 620 simple or significant preponderance  598 social need, exclusion of  596 solidarity principle  589–91, 594–5, 601 sources of the danger  596 subjectivity  597, 603 terrorism 830 threats  584–5, 590, 592–3, 595–7, 599–605 negligence actus reus  451, 457, 459–60, 462–4 assault 739 causation 484–6 conscious negligence  509, 1109–12 dolus eventualis  500, 509 drug offenses  801 duty of care, breach of  510 foreseeability 510 gross negligence  510–11 homicide  707–8, 709, 713–14, 718–20, 724 inadvertent negligence  509–10 intention  493, 500–1, 503 mens rea 509 omissions 725 prerequisites for criminal negligence  510–11 reasonableness 724 Soviet law  310 strict liability  867, 881, 882–3 subjective elements of criminal liability  491–3, 509–11 superior responsibility  1160 neo-Kantian formalism/neo-Hegelian theory 1055–7 neoliberalism  13, 20, 64, 76–7, 941, 1081, 1085 neuroscience 193–4 neutrality under rule of law  174, 179–84, 814, 821, 827, 835 nicolaitism 212 nobility  90, 96–8, 103, 106, 110 non-fatal offenses against the person 251, 258–62, 323–4, 727–46 see also assault

1190   index nulla poena sine lege principle see legality, principle of Nuremberg Military Tribunal (NMT) 1093, 1139–40, 1143, 1148, 1152

O

oaths and ordeals  204, 213–14, 222 obstruction of justice  839–40, 842–4, 851–3, 856–7 occupation, trial of civilians in territories under  326, 344–7 offenses against the person  251, 258–62, 323–4, 727–46 see also assault omissions action, theory of  131, 133, 134–7 actus reus  450, 457, 459–60, 462, 466 causation  479–81, 725 child neglect  742 comparative criminal law  1092–3 complicity  542–3, 558 corporate criminal liability  563, 571 negligence 725 possession  525, 527 punishment  135, 137 responsibility for a crime, meaning of  369 superior responsibility  1159 volitional theory of action  136 opportunity, principle of 971 organized crime  401, 411, 414, 1116, 1129–31

P

Packer, Herbert  904, 1018, 1036–8 panopticon  89, 90, 395 papacy and Catholic Church  201–3, 207, 209–12, 219–21 parasitism 318–19 pardons and mercy  85–6, 92, 99–107, 430–1, 442–3, 922, 943 parole  922, 947, 950–1, 953, 982–3 Pashukanis, Yevgeniy  299–300, 304 passive personality principle  401, 403, 408–9, 413, 418, 420 paternalism  149–50, 688–90, 700 patriarchy  59, 63, 69–70, 76, 78, 95–6, 102, 110, 164, 748, 1027–8, 1032–5 penal law, paradigms of 1017–39

citizen and enemy law  1018, 1037–8 critical analysis  1017–18, 1038–9 dual penal state and penal dualisms  1018, 1033–9 governance  1018, 1023–8, 1030–6 police  1018, 1028–33 public law and private law  1017–28 state action  1018, 1023, 1028, 1034–6, 1038 state power  1017–18, 1021–5, 1027–30, 1032–4, 1037 penance  203, 210–11 philosophy 131–51 action theory  131–7 canon law  204–8, 222 causation  472–7, 481–2 criminalization  679–80, 684, 687–8 ethics 142–6 harm principle  687–8 mind, philosophy of  137–41 political philosophy  147–51 punishment  132–8, 141–8 physical punishments 946–8 see also death penalty blood punishments  84–6, 88–95, 98–9, 103–4, 107, 110 cruelty 84–90 Islamic law  943, 946 modernity, transition to  84–95, 98–100, 103–10 mutilation  84–5, 87, 91–2, 95, 99, 104, 107, 110 preventive sanctions  104, 960 public, in  87–8, 90, 203, 702, 709, 943 plea bargaining  94, 109, 915–17, 926, 943, 970 police assault on police officer in execution of duty 734 discretion  914–15, 926–7, 971 dual penal state  1033–6 law state (Rechtsstaat)  1028, 1034–5 legal good (Rechtsgut) 1029–30 legitimacy 1028–31 nullification 915 penal law, paradigms of  1018, 1028–33 police and law, distinction between  1029–32

index   1191 police state (Polizeistaat) 1027–35 public and private law  1028–32 punishment 942 regulatory offenses  927, 1066–8 rule of law  1030 state power  1028–32 political constructivist theory 361–5 political philosophy 147–51 Ponzi schemes  787, 838, 842, 847, 856 pornography  80, 1054, 1129–30 Posner, Richard 47–8 possession  135–6, 525–8, 771, 793, 800, 802–4, 826–7 predictive analytics  187–9, 193–4 preparatory acts/preliminary conduct  513–18, 801–2 actus reus 456 attempts  131, 133, 523–5, 1105–6 burglary 778 conspiracy 528 drug offenses  804, 805–7 grooming 749 possession 526–8 preliminary conduct  514–18, 526–8 terrorism  812, 825, 827, 829 presumption of innocence canon law  215–16, 223 design, by  192–6 due process  1037 homicide 716 procedure, development of criminal  215–16, 223 strict liability  866 subjectivity 492 technology  174–5, 181, 183–8, 192–6 terrorism  824, 826–7, 833 preventive sanctions  104, 685–6, 959–63 princely justice  85–6, 90, 97–9, 101 n.47, 103–10 printing press  179–83, 196, 220–1 prison see detention; imprisonment/ prison law prisoners of war 340–3 privacy  112, 183, 193–5, 433, 737, 748, 761 private and public law see public law and private law privatization  950, 1009, 1041, 1058–60, 1062

profiling  8–9, 23, 28, 184, 188, 193–5, 830 proof, theory of  204, 214, 222 property offenses 768–88 see also particular offenses (e.g. theft) civil law systems  772–3 civil law wrongs  769–70, 777 classification as property offenses  768–71, 781 compound offenses  781–3 distinguishing among the offenses  771–2 hybrid offenses  772, 781–3 imprisonment 786–7 intangible and semi-tangible property  772, 779–81, 785–6 ownership 769 personal injuries  781–2 punishment 786–7 pure offenses  772 rape and sexual offenses  32–3, 771 social injustice and property law defiance  783–6 Soviet law  317, 320–1, 324 proportionality of punishment 966–8 constitutional principles  429, 441, 443 discretion  919–20, 936 economic analysis of criminal law  44, 55–6 imprisonment  950, 953, 990, 1003–4 liberalism 150–1 modernity, transition to  99, 103, 104–7, 110 regulatory offenses  1084 retribution 966–8 strict liability  874–5 terrorism  813–15, 817, 826, 830–5 prosecutorial discretion  909–11, 915–19, 925–31, 970 administration of judicial and regulatory systems 851–2 adversarial and inquisitorial processes  903, 909–11 charging  916–17, 925, 971 civil law systems  916, 925, 931 equality 903 extradition 936 implementation function  926 judicial deference  934 judicial function  926, 929 legality, principle of  917–18, 932

1192   index prosecutorial discretion (Cont.) managerial discretion  925 military justice  334 plea bargaining  916–17, 926 separation of powers  929, 935 terrorism  820, 825 white collar crimes  847, 851–3 prostitution brothels, running  756 constitutional principles  435 decriminalization 755 feminism  73–7, 77–9 licensing  755, 758 regulation/abolition dichotomy  756–8 sexual autonomy  748, 754–9, 763, 765–6 street toleration zones  756 strict liability  756 trafficking  73–5, 756, 759 protection, principle of  401, 403, 409–10, 418, 420 provocation  66–7, 159, 163–5, 438, 704–8, 710, 716–17, 723–4 proximity  483–4, 486–7, 525 psychiatric detention  656, 658–9, 665, 675, 950 psychiatric injury  730, 739–49 psychiatry/psychology  6–11, 17, 23, 48–9, 112–13, 160–5, 168–71 public administration  322, 989, 990–2, 1003, 1008 public law and private law  1017–28, 1040–63 Athens  1023–7, 1035 autonomy of private law  1040–1, 1044–58, 1062 autonomy of public law  1041, 1058–61 classification of entities  1043 constitutional law  1019 critical theory  1043–4 definitions 1041–4 descriptive dimension  1043 feminism  61, 1043, 1053–5, 1057 household governance in Athens  1023–6 indeterminacy argument  1049–50 instrumentalization of private law  1040–1 law and economics movement  1050–3 legal realism  1043–4

libertarians/liberals  1040, 1044–6, 1055, 1057 neo-Kantian formalism/neo-Hegelian theory 1055–7 normative dimension  1043 patriarchal conception of state power  1027–8 penal law  1017–28 police and law, distinction between  1028–32 political values and ideology  1043–4 privatization of public services  1041 public good  1042–3 public wrong, crime as a  1020–1 Roman law  1022–3, 1025–7 rule of law  1020 sectarian argument  1049, 1050 state sovereignty  1022 public nature of crimes 366–8 public welfare/strict liability offenses 862–83 actus reus  449, 463–5, 864, 876–80 burden of proof  865–6, 868–70, 873, 880–2 central state administrative capacity, limits on 878–9 change of normative position  874–5 civil law systems  866 comparative status  865–7 constitutional principles  436 corporate criminal liability  576 culpability  862–7, 871, 874–5, 879–83 defenses 880–1 definition  863–5, 867 deterrence 872 due diligence  865, 866–7, 880 explanations for strict criminal liability 874–9 fault  862–4, 880–3 fines  863, 867, 872 foreseeability 881 history 868–73 homicide 720 industrialization and urbanization  868, 876–9 judiciary 868–73 knowledge  868–70, 873, 876, 880 mens rea  862–75, 882

index   1193 mind, philosophy of  141 minor offenses  871–3 negligence  867, 881, 882–3 notice from regulated nature of activity  882 presumption of innocence  866 proportionality 874–5 prostitution 756 public health, public safety, public morals or public order  863, 868–9 punishment  862–3, 865, 867, 870–5, 883 pure strict liability  865 reasonable care  865 recklessness 867 serious crimes  871–3 social duties in modern societies  876–8 Soviet law  310 subjective elements of criminal liability  491–2 vicarious liability  869, 880, 882 punishment/sentencing 964–87 see also particular punishments (e.g. death penalty); physical punishments; proportionality of punishment abolitionists 143 action, theory of  132–7 actus reus  141, 460 administrative penalties  1065–78, 1082–3, 1085 agents providing public goods  1060–1 aggravating circumstances  312–13 assault  732, 733–4, 735 attempts  133–4, 522–3 canon law  203–4, 208–11, 215, 219, 222 causation 470 civil law systems  945, 968–9, 972 class 311–12 clemency 105–6 collateral sanctions  945, 961–3 common law systems  969, 971–2 comparative sentencing analysis  977 complicity  534–5, 539–40, 550, 554 consent  631–2, 642 consequentialism  142–6, 932, 964, 965, 967 conspiracy 528–9

constitutional principles  425, 441–3, 680–2 corporate criminal liability  562, 566–70, 572–8, 581 criminalization 685–6 criminology  10–11, 13–15 democracies 147–8 deterrence  942–3, 944, 965–6, 968–9 discretion  208, 311–12, 919–20, 931, 932, 936, 944–5, 969–72 disparities 972–6 diversion  13, 312, 926, 942, 977, 979 drug offenses  789, 792–3, 797–8, 801–3, 809 economic analysis of criminal law  40–7, 52–7 equality 973–5 ethics 142–6 Europe  965, 977–9 eye for an eye  276–7, 943 families, impact on  943, 945 federal and sub-national jurisdictions  974 fraud 859–60 guidelines  969–70, 980–1 harm principle  148–9 homicide 708–9 human rights  936, 943, 945 humane punishments  106–7 incapacitation  942, 945, 965–6 inchoate offenses  514–16, 527 indigenous people  231–7, 239, 975–6 individualization 972–6 insanity  656, 658–9, 673–5 integrative and disintegrative sanctions  957–9 intention 492–4 intoxication 657–8 Islamic criminal law  250–67, 943, 946, 970–1 Jewish law  273–81, 285–90 judiciary  919–20, 973–5 jurisdiction  402, 417–18 legality, principle of  137, 932 liberalism 149–51 literature and law  111–12 mental capacity  138

1194   index punishment/sentencing (Cont.) military justice  326, 330, 335, 341, 343 mind, philosophy of  137–8, 141 mitigation  99–100, 103, 105–6, 312–13, 972 mixed approaches  966–7 morality, defense of  686 necessity/duress  585, 593 non-legal rules or orders  142 offenders, punishment of persons who are not or not supposed to be  142–3 omissions  135, 137 over-punishment  147–8, 150 pardons and mercy  85–6, 92, 99–107, 430–1, 442–3, 922, 943 parsimony in punishment, principle of  1081–2 philosophy  132–8, 141–8 plea bargaining  94, 109, 915–17, 926, 943, 970 police action  942 political and economic structure  941 political philosophy  147–51 possession  135–6, 527 pre-crime punishment  174, 194 preventive sanctions  104, 685–6, 959–61 probability-severity tradeoff  55–7 property offenses  786–7 punitiveness  941, 963, 975–9 race  28, 32, 34, 148 rape and sexual offenses  32, 34, 172 redemption 943 regulatory offenses  1065–85 rehabilitation  942, 944, 957–9, 965–6 religion  250–67, 273–81, 285–90, 943, 946, 970–1 reluctance to punish  90, 92 restorative justice  944, 970 retribution  41–2, 143–6, 685–6, 372–4, 377, 942, 944, 966–8 revenge, replacement of  702, 709 risk assessment  944, 945, 959–61 sociology 155 Soviet law  300–4, 306, 308–24 standard and sub-standard cases  142–3 state power  147–8 strict liability  862–3, 865, 867, 870–5, 883

subjective elements of criminal liability 492–4 supervision in the community  954–6 technology  186, 943–5 terrorism  142, 813–18, 824, 826, 830–6 theories  371–8, 942–6, 965–9 torture 942–3 transitional justice  145 types 941–63 vicarious or collective punishments  142 victims/victimization  944, 945, 970–1 warnings 942 white collar crime  845, 859–61 punitiveness  941, 949–50, 952, 954, 963, 975–9, 1004–5

R

race and ethnicity assault 735 critical race theory  25–36 death penalty  15, 23, 27–8, 31–2, 34, 36, 720–2, 947, 975 diminished responsibility  161 imprisonment  27–8, 33–5, 953 profiling  9, 23, 28, 188 rape and sexual offenses  71 voting rights  961 Radbruch, Gustav  174, 185, 1026–8 rape and sexual offenses actus reus 751 age of consent  633 anal penetration  751 armed conflict situations  69–71 authority relations  166–72 banishment 960–1 canon law  211, 222 child pornography and sexual exploitation of children  749, 1129–30 consent  32, 34, 69, 629–39, 647, 650–2, 751–4, 764–6, 842 criminology 15 critical gender theory  158 critical race theory  31–3, 34 deception 635–6 definition  69–70, 631 diminished responsibility of victims  154, 165–71

index   1195 ethnic differences, essentialism of  71 false allegations  753 feminism  59, 63–4, 68, 69, 78, 81–2, 158 free will  752, 753–4 gender neutrality  63 genocide 70 inducements 635–6 international law  69–72 intoxication and consent  64, 632–3, 750–1 Islamic criminal law  252–3, 255–6 Jewish law  278 juries 64 male rape  751, 753 marital rape  63, 748, 751, 753 mental capacity  752, 753–4 mistake 635 myths  63–4, 81 neoliberalism 64 non-fatal offenses against the person  727–8 non-penile forms of penetration  751 preventive sanctions  959–61 primal urge argument  638 property offenses  32–3, 771 punishment  32, 34, 172 reasonableness of belief  752, 754 reform  59, 63–4 registration of sex offenders  960, 962 revocability of consent  636–9 sexual autonomy  165–8, 748, 750–4, 756–7, 763–6 sociology  159, 166–72 Soviet law  323 stereotyping 750 stranger rape  63–4 treatment programs  15 use of force  633–4, 751, 753, 766 victims in authority relationships  165–72 rational choice theory  48, 57 Rawls, John  146, 590, 628, 1037 recklessness 1108–12 assault  729, 738–9 attempts 1107 canon law  206 civil law systems  1108–12 common law systems  1108–12 complicity  551, 554–9 conscious negligence  509, 1109–12

dolus eventualis  1108–12, 1113 endangerment 741 homicide  707, 709–10, 713–15, 718, 720–1, 723, 1110–11 inadvertent wrongdoing  1109–11 intention  498–500, 1109–11 probability theory of dolus eventualis  1111 strict liability  867 rectification, principle of 1045 reductionism 154–6 regulatory offenses 1064–86 see also public welfare/strict liability offenses actus reus  456, 460–1, 463 administrative penalties  1065–78, 1082–3, 1085 agency  1069–70, 1076–80 authoritarian welfare state  1069–74 autonomy 1076–82 classical liberal state  1066–9 commercial or professional activities  1064–5 corporate criminal liability  563, 565, 570 culpability 1071–2 egalitarian liberal welfare state  1074–81 enforcement  1064–6, 1076–7, 1079, 1081–4 fault 1065 legal goods (Rechtsgüter) 1069–71 legality, principle of  1077 new regulatory state  1081–5 overcriminalization 1066 parsimony in punishment, principle of  1081–2 police  927, 1066–9 procedural justice  1066, 1083 responsive regulation  1081–5 retribution  1076–7, 1080 sanctions/punishment 1065–85 separation of powers  1066, 1085 state power  1068 substantive justice  1066, 1083 traditional crimes, distinction from  1064 rehabilitation community service  957 healing 958 imprisonment  981–3, 1004–7

1196   index rehabilitation (Cont.) indigenous legal traditions  239 mediation 958 punishment  371, 375–6, 942, 944, 957–9, 965–6 supervision in the community  955–6 terrorism  830, 832 treatment programs  14, 15, 675–6, 944, 958, 966 relational conception of criminal law 174, 185–7 religion see also Islamic criminal law; Jewish law; medieval canon law assault 735 diminished responsibility  162 drug offenses  791, 801 flagellation and consent  644–5 freedom of religion  427–8 indigenous legal traditions  229, 232, 244 modernity, transition to  86, 89–92, 98–103, 107–10 punishment  250–67, 273–81, 285–90, 943, 946, 970–1 secularization  85–6, 89, 92, 99–100, 103, 107, 109–10, 220 responsibility for a crime, meaning of 368–71 restitution or compensation orders 956 restorative justice  14, 237, 238, 944, 970, 1081 retaliation  258, 260–1, 276 retribution  143–6, 1037 attempts  523, 1105 complicity 553 corporate criminal liability  576 economic analysis of criminal law  41–2, 57–8 free will  966 homicide 721 imprisonment  34, 983–4, 1003 Islamic criminal law  257 Jewish law  417–18 liberalism 150–1 modernity, transition to  87, 107–8 preventive sanctions  961 proportionality 966–8 punishment  41–2, 143–6, 685–6, 372–4, 377, 942, 944, 966–8 regulatory offenses  1076–7, 1080

sex offenders, registration of  962 Soviet law  310 terrorism 813 robbery  768–9, 772–6, 781–3 Robinson, Paul H  389, 782, 1095 Roman law  201–3, 207, 212, 214–15, 642, 773, 1022–7, 1030–1 rule of law  174, 177–85, 187, 299, 304–6, 913–14, 933–6, 1020, 1030

S

sado-masochism  630, 634, 644–7, 652, 737, 749, 759–63, 765 Sayre, Francis  868, 871–3, 876–9 secularization  85–6, 89, 92, 99–100, 103, 107, 109–10, 220 self-defense, use of force in 607–28 affrays  609, 611, 614, 622–4 aggressor exception  611–12 alternatives, existence of  613 appearances rule  610 arms, right to bear  607–8, 626 burglars 285 canon law  206–7, 222 ‘castle doctrine’  615 characteristics 617–19 common law  614–15 consent 646–7 constitutional right to self-defense  626–7 contemporary controversies  621–8 culture 607 death penalty  704 doctrine 610–15 domestic violence  68, 118–19, 440, 607–8, 611–19, 622–6 due process clause  626–7 felonies, prevention of  609, 614 feminism  621–4, 626 forfeiture doctrine  608–9, 611–12, 627 gender stereotypes  614, 623 habitation, doctrine of  615 history 608–10 homicide  285–7, 704, 707–10, 714 honest belief  611, 617 human rights approach  620 imminence  603, 608, 611, 612–14, 623, 627

index   1197 individualization 617–19 Islamic criminal law  259 Jewish law  285–7, 292 justifications and excuses  608, 615–16 libertarianism  619–20, 627 mental illness  616 necessity/duress  586–7, 603, 605, 608, 610–13, 620 objectivity  608, 616–17, 623 pacifism  613, 619–20 property, defense of  605, 615, 620 proportionality  608, 611–12, 621, 627 public and private violence, line between 609–10 pursuers  286–7, 292 reasonableness  30–1, 611, 617–19, 622–3 responsibility for a crime, meaning of  371 retreat  609, 612, 614–15, 621, 623, 626 shoot in the foot first rule  620 stand your ground laws  608, 614, 615, 620, 625–8 subjectivity  608, 616–18, 623 theoretical controversies  615–28 threats of death or serious injury  610–12, 627 true man rule  614–15 self-incrimination  216, 305, 899 sentencing see punishment/sentencing separation of powers  929, 934–5, 1066, 1085 sexual autonomy 747–67 agency  748–9, 764 authority relationships, abuse in  165–8, 171–2 bondage, discipline, sadism and masochism (BDSM)  749, 759–63, 765 consent  750, 759–67 feminism  748–9, 766 HIV, transmission of  759–60, 761–3, 766 homosexuality  748, 761, 763 liberalism  747–8, 755, 766 marital rape  748 mental capacity  750 prostitution  748, 754–9, 763, 765–6 rape and sexual offenses  748, 750–4, 756–7, 763–6 risky sex  748–9, 759–63, 766 sociology  165, 166–8

women 747–9 sexual offenses see rape and sexual offenses shaming 957–8 simony  209, 212, 219 situated theory  358–61, 363–4 slavery  71–2, 102, 108, 148, 870, 1006, 1033, 1152 social construction of deviance/social interactionism  20–2, 23 social contract theory  10, 42–3 social dangerousness  309–11, 324, 920–1 social norms  49, 59, 155, 159–65, 169–72, 618–23, 748, 895, 929 socialism  18, 295, 297–8, 302, 304–5, 324 sociology 152–73 autonomy  153, 172 diminished responsibility  153–4, 160–72 gap studies  155 individual responsibility  153 reductionism 154–6 research  5–6, 9–13, 17, 19–21 sexual abuse in authority relations  166–72 sociology of criminal law to sociology in criminal law, from  153–4, 156–60 tensions and possibilities  154–60 solidarity principle  589–91, 594–5, 601 sorcery and witchcraft  210, 219–20 Soviet criminal law 298–325 actus reus 309–10 anti-Soviet agitation  317–18, 323 banishment, exile, restrictions on residence  303, 309, 313, 315, 317–18 children and juveniles  311 civil law systems  306 class enemy, criminal law as a weapon against the  299, 301–4 common law systems  306 Communist Party of SU (CPSU)  298–305, 321 concentration camps  314–15 counterrevolutionary crimes and crimes against Soviet way of life  316–19, 323 courts  298, 302–9 death penalty  303–4, 306, 313–14, 315–20, 323–4 definition of crime, judicial discretion in  308–9

1198   index Soviet criminal law (Cont.) deprivation of liberty  313–15, 318–20 deterrence  301, 304–5, 307 development  298–306 disappearance of Soviet socialist state  324 economic crimes  317, 321–2 enemy criminal law  299, 301–4, 306, 313–14 entrepreneurial activity, criminalization of 321 forced labor  299, 313–14, 321, 322, 324 former Soviet republics, laws of  324 general principles  299, 306–16 general theory of law  299–300 goals of the criminal law  307–8 homicide and sexual offenses  323 hooliganism 319 inchoate crimes and accomplice liability 311 intention  309, 310 intoxication 310–11 judicial-corrective character, measures of 313 labor infractions, criminalization of common 321–2 legal education  304–5 legality, principle of  308–9 legislation 306–7 Marxism  298–304, 306–7, 310, 312–13, 321, 324 mens rea 310–12 mental illness and diminished capacity 310–11 officialdom, crimes against  317 parasitism 318–19 person, crimes against the  323–4 property, crimes against  317, 320–1, 324 public administration, crimes against  322 punishment  300–4, 306, 308–24 retribution 310 revolutionary conscience  301, 303, 305, 307–9, 312 rule of law, establishment of Socialist  299, 304–6 show trials  304–5 social dangerousness  309–11, 324, 920–1 socialism 298

special part of Soviet law  299, 316–23 strict liability  310 theft 320–1 treason 317 Special Court for Sierra Leone (SCSL)  1010, 1140, 1144–5, 1156 Special Panels in Kosovo and East Timor 1145 Special Tribunal for Lebanon (STL) 1144–5, 1156 Stalin, Joseph V  299, 303–7, 309, 313, 316–18, 320–3 stalking  66, 744–5 stand your ground laws  608, 614, 615, 620, 625–8 state power  5, 10, 147–8, 161–2, 1017–18, 1021–5, 1027–34, 1037, 1068 state sovereignty  90, 405, 409, 425–6, 441, 444, 607–8, 1022, 1032, 1139 Stephen, James Fitzjames  379, 703, 709–10, 713 Stevenson, Robert Louis  113, 126–8 strict liability see public welfare/strict liability offenses subjective elements of criminal liability  490–511 see also intention; mens rea/ mental element; recklessness burden of proof  492, 508 cognitive element  494 complicity  536–7, 550–8 consent 631 culpability 491–3 due diligence  490–1 fault 491–2 force majeure 491 foreseeability 496 inchoate offenses  513 knowledge  491, 494–6 necessity/duress  597, 603 negligence  491–3, 509–11 presumption of innocence  492 proof  492, 508 punishment 492–4 self-defense  608, 616–18, 623 strict liability  491–2 territoriality, principle of  404 theft 773–4

index   1199 tort 492 superior order defense  333–4, 1155, 1161 supervision in the community 954–6 surveillance 192–5

T

targeted killings  813, 819, 820 tax fraud 850–1 technology and law 174–97 antinomies of a criminal law in a data-driven society  190–2 artificial intelligence  187–9, 191, 196 Big Data analytics  174, 182, 187–8, 195 conceptualization, methods of  175–9 constitutional democracy  176–7, 184–5, 187 cost-benefit analysis  176 cybercrime  190–1, 196 data-driven society, criminal law in a  174–5, 184–96 deterrence 176 distributive justice  185–6, 196 information society to a data-driven society, from  187–90 instrumentalism  185–6, 195 neutrality under rule of law  174, 179–84 presumption of innocence  174–5, 181, 183–8, 192–6 printing press  179–83, 196 privacy by design  183 proportional justice  196 punishment  186, 943–5 purposiveness (public benefit)  192, 195 reading brain  182–3 relational conception of criminal law  174, 185–7 rule of law  182, 185, 187 Technological Solutionism  179 techno-pessimists 178–9 teleology  143–5, 1123 territoriality, principle of  401–5, 419–20 terrorism 812–36 actus reus 828–9 administrative detention  816, 817–18, 820, 830, 833 administrative listing processes into criminal law, integration of  823–4

broad definitions  813–15, 821–2, 826–7, 831–5 burden of proof  816–17, 824, 827 citizenship consequences  832–3 confidence in criminal law, lack of  816–20 defenses  815, 829–31, 833–4 definition  813, 820–2, 834 detention  816–18, 819–20, 830, 833 deterrence 831–2 diminished responsibility  830 discretion  820, 825, 831–2 duress 830 enemy criminal law  814 entrapment  815, 829–30, 831, 833–4 European law  821, 1116, 1120, 1122, 1127, 1130–1 expanding prohibited act beyond inchoate liability 824–7 extra-legal renditions  818–19 extradition  818–19, 833–4 extraterritoriality  815, 822–3 fair hearing, right to a  824, 829 n.62 fault  814–15, 825, 827–9, 831, 833 financing  816, 820–1, 823 freedom fighters  813, 820, 822–3, 834 immigration detention  817–18, 830 immigration sanctions  832–3 inchoate offenses  814–15, 824–8 intention  814, 822–3, 827–8, 833–6 international humanitarian law  821 joint criminal enterprise  1156 jurisdiction  400, 404, 411, 813, 819, 822–3, 834 less restrained alternatives, use of  816–20, 835 lists of groups  814–15, 821, 823–4, 827–8, 833–4 mens rea  827–9, 835 mental disabilities  830 military detention  816–17, 819–20, 833 miscarriages of justice  812–13 neutrality of criminal law  814, 821, 827, 835 passive personality principle  408 possession-based terrorism  826–7 preparatory acts  812, 825, 827, 829 presumption of innocence  824, 826–7, 833

1200   index terrorism (Cont.) proportionality  813–15, 817, 826, 830–5 punishment  142, 813–18, 824, 826, 830–6 rehabilitation  830, 832 retribution 813 Security Council Resolution 1373  813, 820–1, 823, 1127 September 11, 2001 terrorist attacks 813–18, 820–1, 823, 825, 828–9, 833–6, 1127 state terrorism  820–1 targeted killings  813, 819, 820 torture  817–19, 946 universal jurisdiction  813, 819, 822–3, 834 war crimes  817, 823 war model of criminal law  824 war on terror  142, 816 theft  768–77, 783–4 common law  773, 775 consolidation of theft law  775, 776 definition 773 embezzlement 774–5 extortion 774 finding and failing to return  774 fraud  774, 776–7 history of theft law  773–5 intangible and semi-tangible property  780–1 Jewish law  278–9 larceny 773–5 possession, interference with  771 proliferation of theft and fraud offenses  776–7 property rights, undermining system of  770 receiving stolen property  772, 775 robbery 773–4 Soviet law  320–1 subjective intent  773–4 trespass to land  773 use, right of  772 theories of crime 355–71 crime, definition of a  365–8 criminalization 679–701 ideal theory  356–64 justification of crime and punishment  365–78

political constructivist theory  361–5 punishment  371–8, 942–6, 965–9 responsibility for a crime, meaning of  368–71 situated theory  358–61, 363–4 types of theory  356–65 thought crimes  205, 217 threats  584–5, 590, 592–3, 595–7, 599–605, 610–12, 627 Tokyo Tribunal (IMTFE)  341, 1143 tort see also negligence boundaries with criminal law  1051–2 causation  471, 475–7, 484–5 economic analysis of criminal law  41, 47, 51–3 neo-Kantian formalism/neo-Hegelian theory 1055–6 property offenses  769–70, 777 rectification, principle of  1045 subjective elements of criminal liability  492 torture and other offenses of international concern adversarial and inquisitorial processes  899 canon law  214–15, 223 definition 996 European Committee for the Prevention of Torture  996 evidence obtained by torture  255–6, 819 extradition 736 imprisonment  993–4, 996–7 inhuman or degrading treatment  996 modernity, transition to  84–6, 88, 91, 93–5 National Preventive Mechanisms  996–7 punishment  942–3, 946 terrorism  817–19, 946 ticking time bomb scenarios  1098–9 Torture Convention  736, 936, 996–7 torture, definition of  735 UN Convention, Optional Protocol to  996–7 universal jurisdiction  736 visits/inspections 996–7 trafficking  71–5, 77–8, 80, 415, 756, 759 transitional justice 145 transnational criminal law criminalization 691

index   1201 European law  1116–17, 1121, 1126–36 feminism  59, 62, 68, 72–5, 76, 81 genocide 414 human rights  63, 64 international law  72, 1140 jurisdiction  400–1, 404, 411, 414–15 trafficking 73–5 universal jurisdiction  414 war crimes  414 treason  112, 317, 695, 943, 1026 treatment programs  14, 15, 675–6, 944, 958, 966 trespass  770–3, 777–8, 781–5

U

ultima ratio principle  313, 682, 695–8, 1082, 1122 United Kingdom adversarial and inquisitorial approach  890, 895, 898–907 assault  728–32, 739–40 codification  379–81, 387–8, 391–5 complicity  535–7, 546, 551, 554 criminalization  680, 682, 687–81 discretion  916, 925–6, 935 domestic violence  66–8 drug offenses  796–7 feminism  61, 66–8 homicide 702–8 Human Rights Act 1998  1003 imprisonment  981, 990–2, 999–1004, 1009 insanity  656, 658–61, 665, 671 international criminal law  1141 intoxication 666 language barrier  1094–7 literature and law  111–14, 117–18, 126–8 police and law  1031–2 prostitution 758 public law and private law  1019–22, 1025 self-defense  609, 614 sociology 155 strict liability  863–83 subjectivity 491 terrorism  813, 816–17, 820–7, 829–30, 834 white collar crime  845–6, 853

United States actus reus  448, 450, 453–6 adversarial and inquisitorial approach  890, 895, 898–907 assault  729, 733, 739 attempts  521, 523–4, 1106–7 causation  477, 484–7 codification  380, 387, 391 comparative criminal law  1091–3, 1102 complicity  535–7, 546, 549, 550–2, 554, 556 consent  630, 633–5, 639, 641, 646 constitutional principles  424, 433 corporate criminal liability  561–3, 570–1, 1091 criminalization 680–3 criminology  11–15, 23 death penalty  13–15, 23, 27–8, 31–2, 34, 720–2, 946–8, 974, 1092 deterrence 965–6 discretion  916–17, 920, 925–9, 931, 934–5, 972 drug offenses  789 n.2, 792, 794–7, 800–1 endangerment 741 feminism  61, 63, 65–6, 68, 70, 74–5 Guantánamo Bay  343, 426, 813, 816, 834, 1010 homicide  703, 710–23, 725 imprisonment  27–8, 33–5, 789 n.2, 947–53, 977–89, 992, 998–1000, 1003–10, 1021 indigenous people  236, 957–8 insanity  656, 659–65, 671, 673, 675 International Criminal Court  1146 international criminal law  1141 jurisdiction  404, 410 language barrier  1094–7 literature and law  114, 118–24 military justice  336, 342, 345–6, 816–17 modernity, transition to  109 necessity/duress  584, 587, 593–4, 596–7, 601, 603–6 non-fatal offenses against the person  727 philosophy 136 plea bargaining  94, 916–17, 926, 931 police and law  1032–3 property offenses  768, 775–8, 780, 785

1202   index United States (Cont.) public and private law  1021–2 punishment  148, 236, 944, 949–50, 954, 964–87 collateral sanctions  961–2 discretion  920, 972 fines 957 imprisonment  27–8, 33–5, 947–53, 977–89, 992, 998–1000, 1003–10, 1021 preventive sanctions  960–1 punitiveness  952, 954, 966, 976–9, 1005 race  26–36, 720–2, 947, 974 rape and sexual offenses  167, 531–2, 751 recklessness 1109 self-defense 607–28 sociology 155 strict liability  863–83 subjectivity 491 technology 192–3 terrorism  813–18, 820–1, 823–30, 833–6, 1127 white collar crime  837–61 Universal Declaration of Human Rights (UDHR) 993 universal jurisdiction  401, 403, 409, 412, 414, 736, 813, 819, 822–3, 834, 910 use of force see also self-defense, use of force in consent 633–4 indigenous legal traditions  231, 237–8 kidnapping 743 rape and sexual offenses  751, 753, 766 state monopoly  95–103, 108, 110, 703, 709 usury, money-lending, and interest 210–11, 222 utilitarianism attempts 523 codification 387 complicity 553 consent 648 consequentialism 375–8 drug offenses  807–8 economic analysis of criminal law  40–1, 44–5, 50–1 homicide  703, 708–10, 712–15, 725 imprisonment 984

necessity/duress  587–8, 591, 593–5, 598–601 public law and private law  1050–3 punishment  44, 145, 375–8, 965–8 retribution 1037 Soviet law  307 strict liability  862, 875–6 utopianism  298–301, 304, 306–7

V

vicarious liability  562–3, 569, 571–3, 869, 880, 882 vicarious/representational jurisdiction 401, 411–12, 420 victims  154, 165–71, 211–12, 840–1, 915, 944, 945, 970–1 victor’s justice 1143 volenti non fit injuria 642 volition  136–7, 162, 448–9, 455–8, 494–7, 500–2 voluntariness action theory  131, 133, 136–7 actus reus  450–2, 454–5, 458–9, 472–3 causation 485–6 consent  632, 634–5 constitutional principles  439–40 drug offenses  805 intoxication  454–5, 666–7, 670 manslaughter  707, 712, 715, 723–5 voting rights 961–2

W

war crimes  333, 341–2, 414, 817, 823, 1139–40, 1145, 1149–50, 1153–4 war, law of see international humanitarian law (IHL) Weber, Max  85, 95–6, 108, 170–1, 425, 893, 1035–6 Wechsler, Herbert  703, 713–15, 717 white collar crime 837–61 accounting fraud  842, 847 actus reus 844 administration of judicial and regulatory systems  851–3, 856–7 antitrust violations  850 boundary problems  837–8 corporate crime  839, 846–8, 857, 859–60

index   1203 corruption and bribery  839, 841, 842–4, 853–4, 856 counterparty fraud  848 critical race theory  29 definition 837–46 demography 838 deterrence 851–2 discretion  847, 850–3 economic activity  839 economic theory  845 embeddedness  841–3, 850–1, 848, 856 embezzlement  839–41, 848 employees, fraud by  848 enforcement 845–59 equilibrium, absence of  860–1 extortion  839, 841, 843, 856 fraud  839–40, 842–4, 846–53, 856, 857–60 government, fraud against  839, 850–5, 856–7 insider trading  840, 848–50, 860 investment fraud  847

judiciary  844, 856–60 lawyers, involvement of  839, 842–3, 846, 849, 852–3, 856, 858–9 legal specification, problem of  841–5, 856–9 legality, principle of  842 looting and tunneling  848 mens rea  844, 851, 855 obstruction of justice  839–40, 842–4, 851–3, 856–7 offenses, list of  841 Ponzi schemes  787, 838, 842, 847, 856 prosecution  851–2, 857–8 public attitudes  838–9, 842, 850–1, 857, 859–61 punishment  845, 859–61 regulation  846–7, 850, 855 social class  838 victimization 840–1 wrongfulness  366–7, 565, 580–1, 673–4, 805, 864–5