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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).   LeBl