Abstract
In whose voice does the criminal law speak, and why does it matter? Miriam Gur-Arye argues that the answer to the first question depends on the kind of duty violated by the crime at issue. In some cases (say, election fraud or tax evasion), the criminal law speaks in the voice of the polity—but in other cases (say, murder or rape), it speaks in the voice of human beings. Or so argues Gur-Ayre. Not surprisingly, perhaps, a lot depends on what one means by the voice of the criminal law. In this paper, I defend two related arguments. First, the criminal law typically claims to speak in the voice of the polity, even if, in practice, it often fails to do so. Second, where the criminal law does speak in the voice of the polity, its doing so can contribute to its own justification.
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Notes
Sometimes the criminal law gets it wrong by its own lights, by targeting someone who has not even committed a prohibited act (“getting the wrong guy”).
For the purpose of my arguments here, nothing turns on the distinction between wrongdoing and culpability.
Under the heading of “other terrible things,” I mean to include the burdens of the criminal process, such as humiliating “perp walks,” abusive interrogations, pretrial detention, etc.—as well as conditions accompanying punishment that are not themselves properly considered criminal punishment, such as everything from the exorbitant fees charged for prison phone calls to the failure to protect imprisoned people from abuse by fellow inmates. For the classic study of the burdens of the criminal process, see Malcom Feeley, The Process is Punishment (Russell Sage Foundation, 1979). On collateral consequences, Zachery Hoskins, Beyond Punishment?: A Normative Account of the Collateral Legal Consequences of Convictions (OUP, 2019).
See, e.g., Miriam Gur-Arye, Public Wrongs That Violate Human Rights—Following Duff, the Realm of Criminal Law, 18 Jrlsm. Rev. Legal Stud. 1 (2018) [hereinafter, Gur-Arye, Following Duff]. Miriam Gur-Arye, On John Gardner’s Justifications and Excuse, 4 Jrlsm. Rev. Legal Stud. 82, 90 (2012) [hereinafter, Gur-Arye, On Gardner].
R.A. Duff, The Realm of Criminal Law, 103 (OUP, 2018) [hereinafter, Duff, Realm] “The citizens of a polity are the primary addressees of its criminal law: our criminal law speaks, paradigmatically, to us as citizens of the polity whose law it is (and speaks in our collective voice)…” We will revisit the full quote below in section three.
Gur-Arye, Following Duff at 5 (emphasis in original).
John Gardner, How Law Claims, What Law Claims, in Law as a Leap of Faith, 125–148 (OUP, 2012) [hereinafter, Gardner, Claims].
Gardner, Claims at 131.
Prosecutors, police officers, legislators, and judges are obvious examples of such legal officials. In the normal course, “speak[ing] about issues of criminal law” will include creating, interpreting, and enforcing criminal laws. Admittedly, what counts as “issues of criminal law” is far from obvious. Regrettably, it is also beyond the scope of this paper.
Duff, Realm at 109.
Ibid.
Ibid.
Of course, law and legal systems are not necessarily creatures of states. To the extent that I have suggested otherwise in the past, I was wrong and should have framed the point simply in terms of legal officials acting on behalf of legal systems, not states. DEMPSEY, PROSECUTING DOMESTIC VIOLENCE at 49.
By “polity,” I mean to include members of the political community, whether they are citizens or not.
Duff, Realm at 109–110 (emphasis added).
Considerations of authorization and accountability draw from the criteria of formalistic political representation as articulated in Hanna F. Pitkin, The Concept of Representation (University of California Press, 1967). These first two considerations, of course, echo much of political philosophy regarding political legitimacy. Considerations regarding legal officials’ attitude draw from R.A. Duff, Lindsay Farmer, Sandra Marshall, & Victor Tadros, The Trial on Trial, vol 3: Towards a Normative Theory of the Criminal Law (Hart Publishing, 2007) at 138.
Gur-Arye, Following Duff at 6, 8, 9, 13, 15.
We can break the question down further, to distinguish between intended and actual beneficiaries. For now, we will ignore this wrinkle.
Gur-Arye, Following Duff at 13. The rights and duties to which Gur-Arye refers are, of course, particular to states that provide national health care and require military service.
R.A. Duff, Criminal Law and Criminalization: A Response to Critics, 18 Jrlsm. Rev. Legal Stud. 62, 79 (2018) [hereinafter, Duff, Response].
During discussion of this paper at Hebrew University in May 2022, Duff agreed that this interpretation of Gur-Arye’s point resolves his concern.
The point on which Duff, Gur-Arye, and I converge is a normative point: it is a matter of what ought to be, not what is. Insofar as a political community lacks sufficient legitimate representative governance to make it the case that its criminal law speaks on behalf of the polity, it is deficient in that respect and the degree of deficit constitutes an impairment in the criminal law’s ability to speak in the polity’s voice. (It is a frog in the criminal law’s throat, disabling it from speaking in the voice of the polity in a full-throated manner.).
See the claims set out in 3(a) and 3(b) of the analysis of Gur-Arye’s passage above.
Duff, Realm at 122.
Duff, Realm at 123; see discussion at Gur-Arye, Following Duff at 14.
Duff, Response at 78–79 (emphasis added). Both Duff and Gur-Arye characterize this point in terms of the “location of the wrong.” For simplicity, I will follow suit here, by referring to the “location” of a wrong interchangeably with whether the wrong is committed “within a given political community.” That said, I do worry that formulating the issue in terms of “location” is too grounded in a bordered-state territorial conception of political communities. Such a conception risks obscuring other ways in which the character of a wrong might be informed by its connection to a polity, beyond being committed within the state’s territorial location (e.g., if the perpetrators and/or victims are members of the same polity, irrespective of the territorial location where the wrong is committed).
In Duff’s response to Gur-Arye, he seems to think she endorsed a form of moral relativism, according to which the question of whether certain conduct (e.g., euthanasia) is a moral wrong depends on where it is committed. Duff, Response at 79–81. That interpretation is fair enough, given Gur-Arye’s claim that, “within jurisdictions that do not criminalize euthanasia, euthanasia is not wrong.” Gur-Arye, Following Duff at 12. As Duff correctly responds:
As a descriptive remark about different polities’ criminal laws, we can of course say that euthanasia is a criminal wrong in polity A but not in polity B, which is to say that A treats it as a criminalizable public wrong, while B does not… But this does not commit us to speaking in relativist terms when we speak in our own normative voice, nor does it show that the voice in which the law speaks must itself be a relativist voice.
Duff, Response at 80. If Gur-Arye meant to endorse moral relativism, then I agree with Duff’s critique on this point. However, I hope the explanation in the text accompanying notes 28–32 provides a more plausible interpretation of Gur-Arye’s point.
Gur-Arye, Following Duff at 11.
Ibid.
Ibid. Gur-Arye frames what I call “important moral considerations” in terms of “human rights.”
Gur-Arye, Following Duff at 12.
Ibid. at 8–9; 12–13.
Ibid. at 8–9.
Duff, Response at 75.
Dempsey, Prosecuting Domestic Violence at 115.
Ibid.
Ibid. On patriarchy and what it means to sustain and perpetuate patriarchy, see 129–154.
Ibid.
Ibid. at 218.
Ibid. at 180. That, in any event, is the basic thesis of the book. For a bite-size version, see Michelle Madden Dempsey, Toward a Feminist State: What Does ‘Effective’ Prosecution of Domestic Violence Mean? 70(6) Modern L. Rev. 908 (2007). For a popular-media version of the argument, listen to, Hi-Phi Nation, hosted by Barry Lam, Gender Justice: Feminist prosecutors and their feminist detractors, Slate.com (May 23, 2020), https://slate.com/podcasts/hi-phi-nation/2020/05/feminist-prosecution-of-sexual-assault-and-domestic-violence.
That stipulation is not free from controversy, of course. On whether the concept of race could exist in a post-racist world, see Chike Jeffers, “Cultural Constructivism” in Joshua Glasgow, Sally Haslanger, Chike Jeffers, and Quayshawn Spencer, What is Race: Four Philosophical Views (OUP, 2019).
Mary Anne Franks, The Cult of the Constitution (Stanford University Press, 2020).
Gur-Arye, Following Duff at 13.
At least two qualifications are needed. First, I am not claiming that Germany’s criminalizing Holocaust denial expunges, cancels, or makes up for its past atrocities. Rather, the point here is merely that criminalizing Holocaust denial can be understood as part of a larger project of repudiating its past, and that Germany has special reasons to engage in such a project, given its history. Second, I am not claiming that Germany is solely responsible for the atrocities of the Holocaust; indeed, all political communities that either actively collaborated or were complicit through silence/inaction (including the United States) have their own histories to repudiate in this regard.
See text accompanying notes 14–16 above.
It is crucially important, then, that the criminal law, speaking in the voice of the polity, acknowledge its own culpable past and its own vicious character traits in prohibiting and condemning wrongdoing, rather than individualizing blame. For exploration of what this acknowledgement might look like in practice and why it matters, see Marie Manikis, Recognizing State Blame at Sentencing: A Communicative and Relational Framework, 81 Cambridge L. J. 294 (2022).
Thanks to Mark Dsouza for pushing me to clarify these points, some of which are further developed in the next section.
Prior wrongs (breaches of duty) leave rationale remainders (a.k.a. moral residue) which ground further duties—typically duties to apologize, make amends, repudiate prior wrongs, etc. The shape and content of the further duties will vary, as will the conditions of their satisfaction and/or justified breach. When one has a duty to repudiate past wrongs (as, I will assume, is the case here), failure to conform to these further duties constitutes a further wrong, while fulfillment of the duty (here, repudiating past atrocities) can realize a distinct value. My point here draws on John Gardner’s continuity thesis, which he makes use of primarily in the context of tort law—but the point holds in morality generally, and thus informs the values that can be realized in criminal law as well. On the continuity thesis, see John Gardner, What is Tort Law For? Part 1: The Place of Corrective Justice, 30 L. & Phil. 1, 33 (2011).
To translate this point into the analysis set out in the previous section, the German criminal law speaks as the legitimate agent of the German polity (in the sense set out in 1(a) of the analysis); it binds itself as the addressee of the prohibitory norm (in the sense set out in 2(a) of the analysis); and in so doing, benefits itself (in the sense set out in 3(a) of the analysis), by making itself into a better polity: one that acknowledges and repudiates its past wrongs. I take all of this to be consistent with Gur-Arye’s account. As noted above, I take her account to be correct, but incomplete.
John Gardner, Crime in Proportion and Perspective, in Offences and Defences, 214–215 (OUP, 2007).
On criminal law’s expressive function, see Joel Feinberg, The Expressive Function of Punishment, 49 The Monist 397 (1965); on criminal punishment as communicating deserved censure and persuading wrongdoers to repent, see R.A. Duff, Punishment, Communication, and Community (OUP, 2001). On moral education through the criminal law, see Jean Hampton, The Moral Education Theory of Punishment, 13 Phil. & Pub. Aff. 208 (1984); on criminal law improving social morality, see Leslie Green, Should Law Improve Morality? 7 Crim. L. & Phil. 743 (2013).
By “wrongs committed by the political community of which it is a part” I mean to include unjustified complicity in wrongdoing by political leaders. On complicity generally, see Christopher Kutz, Complicity (Cambridge University Press, 2000). For discussion of complicity and justification, see John Gardner, Complicity and Causality, in Offences and Defences, 57–76 (OUP, 2007).
From here on out, for simplicity, we will refer to the criminal law speaking as the polity to reflect the conclusion that the test for legitimacy is satisfied.
Duff, Realm at 103.
By “standards” I mean to include all norms. John Gardner, Nearly Natural Law in Law as a Leap of Faith, 149–176, 164 (OUP, 2012).
Joseph Raz, Practical Reason and Norms, 65–73 (OUP, 2nd ed. 1990, 1999) [Hereinafter, Raz, Practical Reason and Norms].
Ibid. at 191.
Ibid. at 69–70.
See note 54.
In order to reconstitute the character of the community, the action must be habituated. Dempsey, Prosecuting Domestic Violence at 57.
See text to notes 56–58 above.
Raz, Practical Reason and Norms at 73.
For discussion of jurisdictional principles of criminal law, see Duff, Realm at 103–109.
Pace Gur-Arye, Following Duff at 13: “The addressees of these crimes are human beings who are both bound and protected by these crimes.”
Oxford English Dictionary Online, repudiate, v. https://www.oed.com/view/Entry/163175.
See text accompanying note 63 above.
While it is beyond the scope of this paper, my view of justified criminalization draws on both instrumental (consequential) values, and non-instrumental (intrinsic) values. In this paper, I have emphasized what I have previously called expressive and constitutive values, both of which are non-instrumental (intrinsic). See, Dempsey, Prosecutorial Action and Value, in Prosecuting Domestic Violence at 59–80. Compare, Duff, Realm at 106–109 (suggesting that my account of criminalization “rests on an essentially instrumental conception of criminal law”).
Acknowledgements
This paper, a contribution to a festschrift celebrating the work of Miriam Gur-Arye, was presented at Hebrew University in May 2022. My thanks to Re’em Segev and Alon Harel for organizing the workshop, to the participants for the challenging comments and discussion, to Mark Dsouza for helpful comments on an earlier draft, and to Dsouza, Harel, and Segev for guest editing the collection of papers for Criminal Law and Philosophy. Special thanks to Miri Gur-Arye, for her inspiring example of scholarly excellence and collegiality.
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Dempsey, M.M. The Voice of the Criminal Law. Criminal Law, Philosophy (2023). https://doi.org/10.1007/s11572-023-09692-6
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DOI: https://doi.org/10.1007/s11572-023-09692-6