Foundational Issues in the Philosophy of Criminal Law

In this paper we analyze the so-called inchoate crimes in terms of the culpability of the actor. We argue that the actor’s culpability is based upon her imposing a risk of harm on others that is not justified by her reasons for so acting. We argue that it follows that merely intending to harm another at some future time – no matter how near or distant that future time – is not itself a culpable act. Incomplete (substantial step) attempts – which consist of an intention to impose a risk in the future plus taking steps toward that end – in contrast to completed (“last act necessary”) attempts, are therefore not culpable, except insofar as they impose a risk that others will become fearful. Conspiracy, solicitation, and aiding are culpable acts, but not, as under current doctrine, by virtue of the actor’s intentions. Rather, they are culpable for recklessly risking inducing others to commit crimes. Reconceptualizing inchoate crimes along these lines has not only theoretical advantages but also advantages for solving doctrinal difficulties that the orthodox conceptualization presents.

Against 'Prohibitions'

The topic of this paper is the distinction between ‘conduct norms’ and ‘sanction norms’, which is widely assumed to be an essential tool for any correct understanding of criminal responsibility. Conduct norms (often also called ‘primary’) are referred to with the language of ‘prohibitions’, and it is normally accepted that a crime is by definition a ‘prohibited’ human behaviour, in the sense that it is always an infraction of a ‘conduct norm’. I mean to discuss and criticize this rather consensual assumption.

Modern criminal codes don’t usually incorporate a catalogue of prohibitions: the ‘special part’ of most criminal codes is a collection of formulations according to which whoever does x shall be punished with sanction s. But this is considered to be of no consequence when it comes to discuss whether the law prohibits those behaviours whose performance may lead to the application of a criminal sanction: there is no question that sanction norms may be properly read out of the special parts of our criminal codes, and from a sanction norm it is always possible to infer the correspondent prohibition. Or so the current understanding goes.

I shall first try to make some sense of this common idea, which I call the inference thesis. I will then proceed to show why it is wrong. The inference thesis is necessarily committed to an understanding of conduct norms as prescriptive norms addressed to citizens, and the relevant notion of a prescriptive norm has to be characterized in some detail. Having done so, I will argue that such a prescriptive understanding of ‘conduct norms’ is incompatible with several aspects common to most modern systems of criminal law and unquestionably essential to the concept of a crime. The most telling of those aspects is the general irrelevance (as a full exemption) of the so‑called error juris, or ‘mistake of law’; but some other common features, such as the incrimination of unconsciously negligent behaviour, or the conceptual admissibility of retroactive punitive norms, would bring us to the same conclusion. The conclusion seems to be this: in our criminal law systems, criminal codes and statutes do not lend themselves to interpretation or reconstruction as a set of primary ‘prohibitions’, addressed to citizens, whose violation or infringement is a necessary condition for the application of a criminal sanction. In the relevant sense, there are no such primary prohibitions.

In what regards many common analyses and theoretical discussions of the concept of a crime, moreover, the disseminated acceptance of the contrary idea seems to have been the cause of several false problems, and this final claim will be illustrated with reference to the familiar distinction of justifications (usually presented as ‘exceptions’ to ‘conduct norms’) and excuses (often portrayed as ‘exceptions’ to ‘sanction norms’).

Recent literature in England has called for the expansion of a necessity defence at common law either in particular contexts (euthanasia: Ost, 2005; direct action: Gardner, 2005), or more generally (Clarkson, 2004; Bohlander, 2006).

The traditional hostility of the common law to necessity as a defence, as classically expressed in the famous case of Dudley and Stephens (1884), has been substantially modified over the last twenty years. The English courts have recognised one form of necessity under the label of ‘duress of circumstances’, founded on a close analogy with the established common law defence of duress by threats. A second form of necessity has been recognised in the medical context, founded broadly on the duties owed by doctors to patients. It remains unclear whether there is any broader doctrine of necessity in English law.

The scope and limits of the new forms of necessity are still in the process of being worked out, with some of the historical concern about an overbroad principle of necessity still present (Quayle, 2005).

The paper will assess the significance of these developments. It will be argued that some of the courts’ difficulties with the specification of these forms of necessity result from a persistent confusion between theories of justification and excuse in the construction of defences. At the same time, analysis of the issues raised by recent cases and in the recent literature demonstrates the limitations of those theories in accounting for an undifferentiated defence of ‘necessity’.

It is unfortunate that there has been little serious critical scholarship relating to the doctrine of complicity in the United States. Even more unfortunate (but, perhaps, relatedly) is the general state of complicity law in the U.S. In a nation in which the favored mode of punishment of convicted wrongdoers is imposition of extremely long terms of imprisonment, it is troubling that, in grading offenses and often in the actual imposition of punishment, accomplices and perpetrators are treated alike, even when the accomplice’s moral culpability is less than the perpetrator’s (and even less than is required in the definition of the offense), and even when the accomplice’s assistance is minor, even trivial.

It is time to rethink complicity law. Although I will briefly consider certain unfortunate aspects of the “mens rea” portion of complicity law, my predominant focus will be elsewhere. I will argue that, contrary to current law, but as a matter of moral principle, S, the secondary party, should not be held responsible for an offense committed by P, the primary party, unless it is shown that (with the requisite intent) S’s aid (whether in the form of physical assistance, delivery of a criminal instrumentality, or encouragement) caused commission of the offense. The criminal law should treat a person whose assistance does not satisfy this causal element differently, and punish her less severely, than a causal agent or the perpetrator. Arguably, the law should view non-causal aid as a form of inchoate criminality, graded as a less serious offense than a completed offense.

The theoretical (and, I submit, philosophically appropriate) causal/non-causal distinction may be a difficult one to implement in practice in particular cases. It is certainly true that implementation would add to a prosecutor’s workload and add fact-finding complexity, but the value of this distinction—calibrating guilt and punishment more closely to personal responsibility—justifies the additional complexity. As a fall-back position, lawmakers should draw some less pristine, more nebulous, line (e.g., one that has been urged by G.R. Sullivan in the context of first-degree murder, such as “causal or material impact”), to distinguish between the more, and less, culpable forms of complicity.

When discussing foundational issues in the philosophy of criminal law one may be tempted to move into the core business of what is called substantive criminal law: the  structure of crime, the concept of intention, complicity and participation, attempt and preparation; acts and omissions; or causation. However, it appears to be the case that most punitive sanctions – especially fines – concern regulatory offences or mala prohibita that are structured to a much lesser extent by such moral notions as culpability and wrongfulness, while the applicable burden of proof does not even come close to the presumption of innocence in the case of criminal offences or mala in se. In this contribution I want to explore the continental history of the integration of such mala prohibita with the mala in se after the French Revolution, arguing that the proliferation of regulatory offence in the welfare state and the security state lies at the root of an erosion of the moral foundations of the criminal law.

The informed consent of a competent victim generally precludes the criminal liability of the defendant. Criminal codes create various exceptions to this generalization. According to the Model Penal Code, the consent of the victim is ineffective if “it is given by a person whose improvident consent is sought to be prevented by the law defining the offense.” This provision, I think, precludes consent in cases of paternalism—cases in which the offense in question is designed to protect persons from the consequences of their own decisions.

I will discuss some of the many complications that arise in attempts to decide whether and under what circumstances the consent of the victim is ineffective as a matter of law because the offense in question is paternalistic. In particular, empirical studies confirm that given laws designed to protect some persons do so while increasing risks to others. The supposition that consent should generally fail as a defense for a violation of law, with no regard for the way that law applies to people of different circumstances, threatens to produce injustice.

I argue that there is a place for retributivist considerations and character-based moral blameworthiness in a liberal polity’s criminal justice system. Making the case for this involves showing that there is a moral point to punishment, grounded in the way in which a liberal society’s law and its sanctions are ways of addressing voluntary, rational agents. That is a key element of the case for retributivism (though, it is not ‘pure’ retributivism). Character is important because states of character shape what is practically possible, impossible, and necessary for agents; it has a key role in an agent’s conception of reasons for acting (or refraining). Constraints set by character are not comparable to constraints grounded in defect, disease, or incapacity. I argue that constraints grounded in character (generally) do not diminish an agent’s responsibility or culpability. The discussion also explores some of the main difficulties for this conception of the relation between character and mens rea, particularly in a liberal political order that seeks to be austere in the extent to which criminal justice enforces morality. Fully separating moral blameworthiness from legal culpability is neither possible nor desirable, even in a liberal polity. In any case, some important moral matters are (appropriately) built into distinctions in, and principles of, criminal law. The main difficulty is resolving the issue of the extent to which that should be so.

The discussion explores the views of Hyman Gross, H.L.A. Hart, Jeffrie Murphy, Nigel Walker, and others.

Criminal legality, often expressed in useful phrase nullum crimen nulla poena sine lege poenali ateriori, is seen as a starting point in deliberations on criminal responsibility and its limits. Amongst many, the principle of retroactivity and principle of law open to citizens are understood as a main justification why criminal legality puts important burdens on the need for punishment as a response to wrongful conduct.

But it would be mistake to say that criminal legality plays the same role in civil and common law culture. Transitional perspective in European legal thinking implies both civil and common law elements: it implies on the one hand the demand for open, clear, stable, coherent, prospective and rational legal rules established by empowered authority, human rights discourse, both public and judicial, and on the other crucial role of courts and its case-law and many quite independent centres of the rule-making. Many current interferences between common and civil law cultures may importantly affect the idea of criminal legality: they may open new possibilities in difficult cases of legality, but in the same time they may destroy core formal elements which empower criminal legality with its guaranteeing provisions.

There are two typical situations in which that correlation between two paradigms of criminal legality is the most promising figure:

1. growing number of legal provisions and lack of textual clarity of continental legal system which requires more creative interpretation of the law and actually leads to retroactive interpretation of the law;

2. dynamic character of international criminal law which serves for calling to responsibility those who acted in the field of formal legality (with lack of clear content of being in force international criminal law provisions at the time of action).

In both of them offender acts with the lack of formal confirmation that her action is (or is not) part of criminal blameworthiness, as it is provided by criminal law. It might be described that she acts in the shadow of possible illegality while her conduct may be – but not must be – part of criminal prohibition.
Traditional criminal doctrine understands situations like these as examples of mistake of law. Every temptation for retroactive application of basics for responsibility will have to meet subjective defense based on the concept of mistake of law. The main issue is whether it can be evaluated as reasonable (justified) or not, and what diminishing consequences for criminal liability such concept may have. On the other hand, to what extend we may justly accept the temptation for objective liability in dealing with lack of textual clarity and international criminal law issues.

*The paper is based on research done for two projects: one on limits of criminal law (with Erick Claes from KU Lueven), and second on philosophical foundations of international criminal law, supported by Ministry for Science in Poland.

Starting from the position that exculpation based on exceptional incapacity is properly considered a component of the ‘general part’ of the criminal law, this paper offers some thoughts on what non-responsibility reveals about criminal responsibility. This paper assesses the importance of the historical role of incapacity as a basis for exculpation, and argues that there the radical disjuncture between ascriptions of non-responsibility and responsibility that persists in the criminal law has not been captured by existing material on doctrines of excuse. This paper makes two main arguments. Firstly, it argues that a conceptualisation of criminal responsibility must take the form of ascriptions of responsibility and non-responsibility seriously: as a binary (responsibility v non-responsibility), such ascriptions entail reconstructing differences of degree as differences of kind. Secondly, following this, this paper makes the case for a negative conceptualisation of criminal responsibility (viz., the absence of conditions of excuse).

The one right answer-thesis is not to be taken ontologically but in pragmatic terms. It requires a functional, pragmatic-institutional context to be fruitful. Even Dworkin who originally understood it ontologically, retreated from this rigid point of view. In German criminal law, the thesis was discredited by the ontological thesis that to determine the just sanction in criminal law is to find the point of the just sanction (“Punktstrafentheorie”). However, nobody would deny that crime can be followed by ten or twelve years of prison i.e. that a judge may take ten or twelve or diplomatically eleven years of punishment. He has, in other words, to be guided by the claim to find the one right decision. Therefore, the one right answer is to be taken as regulative idea for coming to a just verdict.

Moreover, the reliance on to the institutional context shows that, although the judge is directed in his decision by the claim of the one right answer his decision is discretionary insofar as he may commit a nullification of law. Long before a verdict, in the course of a criminal investigation, we find further example for the importance of the one right answer-thesis. As far as rights of an individual are concerned, any step in an investigation mostly attaches these rights. Therefore, every step principally is an example. In a leading case, the German constitutional court approved of that with respect to the concept of imminent danger (“Gefahr im Verzug”). The thesis of this paper is that even assuming the suspicion against a suspect touches individual rights and, therefore, is an example of the one right answer-thesis. Of course, this implies a rejection of the labelling approach-thesis that a criminal investigation contingently puts the label of deviance on an individual. A further example could be the issue of using given evidence. The normative impossibility to use evidence that was gained illegally demonstrates that an investigation is not only guided by the claim of truth.

Finally, the EU-arrest law does not deny the one right answer-thesis. Nonetheless, the standard of suspicion is not homogeneous. This creates a basic conflict of European law that will, like in the civil case of Caroline from Monaco, lead into a different standard of suspicion according to the national standards of each member-country.

The paper examines how the political value of equality might function as a `filter’ to rule out unacceptable practices of criminalization. As the example of Canada shows, the effect of equality as a constitutional law is typically narrow, although in some social contexts it can nonetheless be powerful. Equality construed as social inclusion provides a solid basis for a broader critique of practices of criminalization. Exclusionary social policies threaten the legitimacy of the criminal law. Insofar as crime problems are structural, responses to crime must embody equality and social inclusion.

In all developed systems of criminal law liability for crimes is not confined to the perpetrator of the conduct element of the offence. There are long established doctrines of complicity which, typically, place the accomplice in the same legal category as the perpetrator in terms of liability and the potential range of punishment. In Anglophone criminal law, the law relating to complicity is prolix and complex, leading to frequent appeals on points of law. In terms of fair labelling and desert, the law of complicity is frequently too inclusive and overly punitive. Current proposals for the reform of the English and Welsh law of complicity seem unlikely to improve this situation for that jurisdiction. A proposal for dispensing with complicity will be presented. It will be argued that the territory of doing and sharing criminal wrongs is better mapped without resort to complicity.

Most modern systems of criminal law tell us what we may not do (by way of prohibitions) and then tell us (by way of justification defences) that we may engage in some of that prohibited activity under certain conditions. The two-part structure in the articulation of what is and is not permitted, all things considered, has attracted a great deal of scholarly attention over the years. In the heyday of utilitarianism in criminal law, justifications were often presented as act-utilitarian refinements on rule-utilitarian prohibitions. More recently, as the influence of utilitarianism over criminal law theory has waned, a different account of the role of justifications has emerged, focused on the law’s claim of authority and its ability to track our practical reasoning. According to this model, prohibitions tell us what conduct individuals always have good reason not to do. Justification defences then carve out those situations where there are sufficiently strong countervailing reasons in favour of permitting it.

These two accounts of justifications are both based on a hierarchical understanding of the role of the criminal law. Both of them assume quite a strict distinction between rulers and ruled: it is the role of the criminal law for the law-making authorities to tell legal subjects what they may or may not do, based on the reasons (utilitarian or otherwise) that apply to them. In one case, the authorities try to guide us away from utility-decreasing conduct; in the other case, the authorities try to guide us away from doing whatever it is that we have good reason not to do (whatever the nature of those reasons might be).

In this article, I reject these accounts of justification defences and the hierarchical view of the criminal law upon which they are based. I begin my account with the observation that most justification defences (such as lawful arrest, search and seizure, the prevention of crime or punishment) are claims made by state officials in the execution of their duties. This should remind us that the role of the criminal law is to regulate not only the conduct of ordinary citizens and to guide them away from wrongdoing, but also to regulate the conduct of state officials and to ensure that they are permitted to do what is necessary to enforce the law. That is, the criminal law is an instrument of self-government: everyone is subject to its rules, so its rules must be capable of regulating everyone’s conduct.

Working out this notion of criminal law as self-government, I argue that the distinction between prohibitions and justification defences plays quite an important role that has so far gone largely unnoticed. It marks the distinction between conduct that we are entitled to do in our capacity as private citizens and that conduct that we are entitled to do only insofar as we are authorized to act in the name of the legal order. It is for this reason, I argue, that prior authorisation plays such an important role in the law of arrest, search and seizure, punishment (and even in the justification of necessity in the Commonwealth).
 

There are many crimes that list among their elements the purpose to cause some effect. These crimes can only be committed if the agent acts with a specific intent.  Consider, for example, attempted murder, conspiracy to murder, burglary, theft, assisting suicide, and attacking civilians (a war crime defined in the Military Commissions Act of 2006).  I argue that only the first three, which are all inchoate crimes, clearly have to be defined with reference to a specific intent.  Assisting suicide could arguably be defined with a specific intent, but only to prevent a kind of abuse of discretion.  Theft and attacking civilians should not be defined with a specific intent element at all.

The argument here turns on rejecting the recourse some make to the Doctrine of Double Effect (DDE).  The DDE would undergird requiring specific intent in all 6 crimes, but it is an unsound moral doctrine.  Moreover, it is not implied by the propriety of using specific intent in those cases where it should be used.  The inchoate crimes are best understood as reflecting not the DDE but a different thought, namely that one may not direct oneself by an intention to do what can independently be determined to be impermissible.  I have elsewhere described this as the Doctrine of Illicit Intentions.  The other crimes, unless there is an abuse of discretion issue to handle, should be defined in terms of knowledge that the effect one would cause cannot be justified, rather than specific intent.  It is only the unsound appeal to the intuitions behind the DDE that has caused people to think otherwise.