Abstract
The article provides an outline of the basic principles and conditions of criminalisation of interferences with others’ property rights in the context of a specific context: a liberal, social democratic state, the legitimacy of which depends primarily on its impartiality between moral doctrines and the fair distribution of liberties and resources. I begin by giving a brief outline of the conditions of political legitimacy, the place of property and the conditions of criminalisation in such a state. With that framework in place, I argue that interferences with others’ property rights should be viewed as violations of political duties stemming from institutions of distribution. I then discuss three implications of this view: the bearing of social injustice on the criminal law treatment of acts of distributive injustice; the expansion of criminalisation over the violation of distribution-related duties, which are considered criminally irrelevant under moral conceptions of criminalisation; and, finally, the normative significance of the modus operandi.
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Notes
It is not uncontroversial that freedom and equality are neutral, generally acceptable and therefore capable of providing a basis for the construction of a theory of state legitimacy and justice. For this objection and its extensions specifically in relation to crime and punishment see Matravers 2000.
Rawls rather misleadingly refers to such duties as “natural” (Rawls 1971:314).
For an account of the structure of the legal institution of property independently of distributive schemes see Penner 2000.
All this is not to say that justice extends further than a state’s institutional structure. There is a clear-cut divide between the public and the private and citizens are not under public duties, such as the duties of justice, in their private spheres. For instance, one may be obliged to pay taxes, which will then be redirected to welfare policies but one is not under a duty of philanthropy. It should be emphasised that redressing inequalities of the type that philanthropy tries to tackle is a central political task of the state. The argument that for a society to be just, duties of justice ought to reach further than the basic structure is, of course, forcefully advanced by Gerry Cohen. For its most comprehensive formulation see Cohen 2008.
This is not uncontested amongst republican thinkers. For instance, in his prolegomena to a general theory of criminal law, Antony Duff seeks prima facie strong moral reasons to differentiate between criminalisable and non-criminalisable public wrongs (Duff 2010b).
By ‘criminalisation’ I simply mean a distinct way of dealing with a public wrong. This may be by punishing the wrongdoer, in the standard and current understanding of what punishment entails, but not necessarily so.
In L. Farmer (2010). The metamorphosis of theft: property and criminalization. Unpublished paper presented at Queen’s University Criminalization conference 2010.
This is of course not the only way of explaining the doctrinal transformation of theft. As I said, I only want tentatively to highlight the explanatory potential of the account of property offences offered here for current law.
[1971] 1 WLR 901.
In English law one commits fraud among other ways by dishonestly and knowingly misrepresenting the truth intending to make a gain or cause a loss.
To say that the criminal regulation of property relations seems to be focusing on circulation and distribution of property is not to say that the terms of distribution are determined by principles of fairness and social justice. If anything, one could plausibly argue that what the criminal law further entrenches and protects is the capitalist, and far from social democratic, mode of distribution. This is sadly corroborated by practices in the criminal justice system.
For a similar argument and responses to objections see Gargarella 2011.
All this is not to say that there will be no juridical state of sorts and that social coexistence will regress into the state of nature. But this will not be a legitimate state capable of being just to everyone and of being accepted by everyone.
For an account of such a connection see Delgado 1985.
For ways in which social injustice and blameworthiness can be linked see Green 2011.
Note that, as I have already argued, Duff’s point holds in cases of extreme injustice.
Antony Duff (2009) draws a sharper distinction between accountability and liability. I am not relying on this here, not least because I’m not sure that it reflects a substantive distinction and not simply a procedural distinction between two steps in the process of holding another accountable.
As I have argued, no such reason is admissible in the state and criminal law model, which frames my discussion here.
This is again fact-sensitive and subject to the condition of appropriateness. For example, isolated and rare cases of petty theft will not necessitate any such measures.
I have not explained how criminal offences may be hierarchized, because I do so elsewhere. The basic idea is that the seriousness of a crime as well as the severity of the response is determined not by the act’s inherent moral demerit but by its consequences for citizens’ assurance and the stability of social cooperation as well as the deterrent effect of the response. See Melissaris 2012.
Whether the criminal justice system appropriately serves general principles is another matter. What I am interested in here is the possibility of conceptualising as criminal acts which currently cannot be so conceptualised.
It is not entirely clear what it is that accounts for the truth value of moral statements according to Green but this does not matter a great deal here. What is important is that he considers certain moral statements as holding true despite one’s beliefs about them.
To illustrate with an example: in the 1986 football World Cup, Diego Maradona, as brilliant a football player as he is a controversial character, handled the ball into the England net and, none of the referees having seen the handball and despite the protestations of the English players, the goal was allowed to stand. At first Maradona defiantly and notoriously called this the “Hand of God”. Many years later he said that he did not regard the incident as cheating, because in the slums of Buenos Aires, where he first played his football, it was generally accepted that one would try to score a goal in any way possible as long as it went unnoticed. Green would see this as an uncontroversial case of cheating, because he considers cheating to be, as a matter of moral truth, the violation of “a fair and fairly enforced rule” “with the intent to obtain an advantage over a party with whom [one] is in a cooperative, rule-bound relationship”. But if Maradona is truthful and right, and it is not unimaginable that he is, about how football is played in the neighbourhoods of Buenos Aires, we already have a different idea of cheating, according to which departure from the rules of the game is not met with criticism.
Quite clearly not what FIFA does.
Note that which such acts exactly constitute wrongs cannot be determined in abstracto but only with regard to actual institutional arrangements.
References
Clarkson, C. M. V. (1993). Theft and fair labelling. Modern Law Review, 56(4), 554.
Cohen, G. A. (2008). Rescuing justice and equality. Cambridge, MA: Harvard University Press.
Delgado, R. (1985). Rotten social background: should the criminal law recognize a defense of severe environmental deprivation? Law and Inequality, 3, 9–90.
Duff, R. A. (2009). Strict responsibility, moral and criminal. The Journal of Value Inquiry, 43(3), 295–313.
Duff, R. A. (2010a). Blame, moral standing and the legitimacy of the criminal trial. Ratio, 23(2), 123–140.
Duff R. A. (2010b), Towards a theory of criminal law. In Proceedings of the Aristotelian Society Supplementary. LXXXIV, 1–28.
Fletcher, G. P. (1978). Rethinking criminal law. Boston: Little, Brown.
Fletcher, G. P. (1980). Manifest criminality, criminal intent, and the metamorphosis of Lloyd Weinreb. The Yale Law Journal, 90(2), 319–348.
Gardner, S. (1990). Is theft a rip-off? Oxford Journal of Legal Studies, 10(3), 441.
Gargarella, R. (2011). Penal coercion in contexts of social injustice. Criminal Law and Philosophy, 5(1), 21–38.
Green, S. (2006). Lying, Cheating, and Stealing: A Moral theory of White Collar Crime. Oxford; New York: Oxford University Press.
Green, S. (2011). Just deserts in unjust societies: A case specific study. In S. Green & A. Duff (Eds.), Philosophical foundations of criminal law. Oxford; New York: Oxford University Press.
Lacey, N., Wells, C., & Quick, O. (2010). Reconstructing criminal law: text and materials (4th ed.). Cambridge: Cambridge University Press.
Matravers, M. (2000). Justice and punishment: the rationale of coercion. Oxford: Oxford University Press.
Melissaris E. (2011). The conditions of normativity of liberal criminal law’ in Jerzy Stelmach, Bartosz Brożek (Eds) Studies in the philosophy of law 6: The normativity of law. Copernicus Centre Press.
Melissaris, E. (2012). Toward a political theory of criminal law: A critical rawlsian account. New criminal law review 15/2 Winter 2012, pp. 122–155.
Penner, J. E. (2000). The idea of property in law. Oxford: Oxford University Press.
Rawls, J. (1971). A theory of justice. Oxford: Oxford University Press.
Rawls, J. (1993). Political liberalism. New York: Columbia University Press.
Shute, S., & Horder, J. (1993). Thieving and deceiving: What is the difference? Modern Law Review, 56, 548.
Tadros, V. (2009). Poverty and criminal responsibility. The Journal of Value Inquiry, 43(3), 391–413.
Weinreb, L. L. (1980). Manifest criminality, criminal intent, and the “Metamorphosis of Larceny”. The Yale Law Journal, 90(2), 294–318.
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A first draft of this paper was presented at the Criminalization conference in Stirling, September 2011. I am indebted to the conference participants for their valuable comments and stimulating discussion. I am particularly grateful to Douglas Husak, Lindsay Farmer, Victor Tadros and Susan Dimock. I am solely responsible for any remaining errors of fact or judgment.
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Melissaris, E. Property Offences as Crimes of Injustice. Criminal Law, Philosophy 6, 149–166 (2012). https://doi.org/10.1007/s11572-012-9146-0
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DOI: https://doi.org/10.1007/s11572-012-9146-0