Abstract
Imagine a citizen (call her Ellen) engages in conduct the state says is a crime, for example, money laundering. Imagine too that the state of which Ellen is a citizen has decided to make money laundering a crime. Does the state wrong Ellen when it punishes her for money laundering? It depends on what you think about the authority of the criminal law. Most criminal law scholars would probably say that the criminal law as such has no authority. Whatever authority is has depends on how well it adheres to the demands of morality inasmuch as morality is the only authority we have. Thus if morality says that money laundering should not be a crime then the state wrongs Ellen when it punishes her. But if the criminal law as such does have authority, and if in the exercise of its authority the state has decided to make money laundering a crime, then the state does Ellen no wrong when it punishes her.
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Notes
A more complete statement of the facts can be found in United States v. Campbell (1991) and United States v. Campbell (1992).
18 U.S.C. § 1957(a). Federal law contains two money laundering offenses: § 1957, which is usually described as a trafficking offense, and § 1956, which is usually described as a transaction offense. The details are not important for present purposes.
A “monetary transaction” means among other things the “transfer, or exchange, in or affecting interstate … commerce, of funds … by, through, or to a financial institution,” 18 U.S.C. § 1957(f)(1), and a “financial institution” means among other things “persons involved in real estate closings and settlements.” 31 U.S.C. § 5312(a)(2)(U).
I use money laundering as my example of a crime that in some cases constitutes no wrong, but if you can’t help but think that money laundering is a wrong then substitute your favorite non-wrongful crime. For some examples consult Luna (2004).
To be more specific: the actor’s conduct is not wrong independent of the law, nor does it become wrongful after the state has declared it to be a crime.
On what it might mean to say that a particular jurisdiction suffers the ill of “overcriminalization,” and why no jurisdiction should suffer it, see generally Husak (2008), Ashworth (2008b). The overcriminalization story in the United States includes an “overfederalization” subplot, i.e., some federal crimes should be state crimes only. See, e.g., Beale (2005).
See Kadish (1968).
See Stuntz (2001).
I assume here and throughout that Ellen was “culpable” in the commission of her crime, but I will not take the time to explain what I take such “culpability” to entail.
I should be more precise here. I believe that an actor who culpably commits a criminal wrong renders himself liable to punishment. But punishment is usually understood to have two pieces: censure and hardship. An actor who culpably commits a criminal wrong gives the state permission to censure him and to impose on him the hardship associated with punishment. A state is obligated to exercise that permission with respect to the censure piece. It is permitted to exercise that permission with respect to the hardship piece provided it can come forward with some good reason to do so.
The moral model is of course “political” in the sense that it deals with the limits morality imposes on state action, but it cannot be characterized as “political” in the sense that it aims to provide an account of the nature and limits of the state’s authority: it denies that the state has authority.
Here are the words of one prominent moral modeler (Michael Moore): “Citizens have no moral obligation to obey a law just because it is a law.” Moore (1997, p. 72). “[L]aw as such does not obligate citizen obedience, not even prima facie. This means that the legislative enactment of a legal prohibition cannot make (morally) wrong an act not morally wrong before.” Moore (2011, p. 13). Antony Duff claims that the criminal law lacks authority: “The criminal law does not (cannot) turn conduct that was not already wrongful into a moral wrong.” Duff (2011a, p. 127). “[T]he criminal law’s authority does not consist in a power to make wrongful conduct that was not already wrong: it lies primarily in its procedural dimension, as a power to call alleged wrongdoers to public account, to judge their conduct, to condemn and punish their criminal wrongdoing.” Duff (2012, p. 3). He does not claim, however, that the state lacks the power to create moral obligations for its citizens across all domains of law.
For an extended analysis of the “relationship between moral wrongfulness and the appropriate content of the criminal law,” see Tadros (2012, p. 157).
Inchoate offenses might be thought to present a challenge to the moral model’s insistence that a wrong must be ascribed to an actor before punishment can be in the offing. Take an actor who shoots at a post believing the post to be a person and intending to kill the person he imagines the post to be. Where is the wrong in that? A moral modeler has two replies available. First, he could insist that an attempt (or other inchoate offense) should not be a crime unless it constitutes a wrong in which case he will need to explain when an attempt (or other inchoate offense) can be a wrong, or else urge the end of such offenses. See, e.g., Alexander et al. (2009, pp. 197–225) (urging the end of incomplete attempts, conspiracy, and solicitation); Husak (2008, p. 39) (suggesting that attempts and other inchoate offenses can sometimes constitute the wrong of unreasonable risk-imposition). Second, he could make an exception in which case attempts (or other inchoate offenses) would be examples of non-wrongful crimes. See, e.g., Moore (1997, p. 193) (“Culpability is necessary to desert, but wrongdoing is not.”); Hurd (1999, pp. 1558–1559) (“[M]oral culpability may be a sufficient condition of blame and punishment.”). It might be worth emphasizing here Moore’s observation that “[c]ulpability could … be said to be wrongdoing in a sense, namely it is wrongdoing in the possible worlds created by our representational states.” Moore (1997, p. 405).
I might add that moral modelers also disagree over when and why consent can transform a wrong into a non-wrong. One line of thought has it that consent can transform a wrong into a non-wrong unless doing so would somehow jeopardize the dignity or humanity of the one giving consent. Consent has transformative power, but it cannot magically transform a degrading or dehumanizing wrong into a non-wrong. See, e.g., Duff ( 2007, p. 132), Bergelson (2007, p. 216), Dan-Cohen (2000, pp. 773–777). What makes a wrong degrading or dehumanizing is bound (at least at the margins) to be a matter of disagreement. If A gives his masochistic consent to B’s sadistic violence has B wronged A?
See, e.g., Alexander (2002).
See, e.g., Moore (1993, p. 59) (Omission liability is permissible “for those omissions that violate our duties sufficiently that the injustice of not punishing such wrongs outweighs the diminution of liberty such punishment entails.”). Other moral modelers believe that morality requires more. Perhaps any culpable failure to act as would a good Samaritan should render one liable to punishment? See, e.g., Dressler (2000), von Hirsch (2011), Smith (2003).
See Duff ( 2007, pp. 99–121).
See Husak (2010a, p. 49).
For an account of the case on which this example is based, see Robinson (1999, pp. 123–128) (describing the facts surrounding the case of Motti Ashkenazi).
See, e.g., Greenawalt (1984).
See, e.g., Robinson (1996).
See, e.g., Alexander et al. (2009, pp. 171–196).
See, e.g., Moore (2009a, pp. 20–33). Nor should we forget the even those who agree among themselves that causation matters disagree about the nature of causation itself.
See, e.g., Husak (2008, p. 103) (Malum prohibitum offenses constitute a “huge class of criminal prohibitions.”).
Compare Moore (1997, pp. 9–10) (“[T]he most interesting theory of criminal law … is descriptive of what is known as criminal law’s ‘general part’ and normative about what is known as criminal law’s ‘special part.’”), with Dimock (2011, p. 1) (“Any theory [of criminalization] that must dismiss as an aberration what is in fact the vast bulk of modern criminal codes is descriptively inadequate.”).
Or maybe a three-part answer. In addition to the two parts described in the text, a moral modeler might also say that malum prohibitum offenses or crimes are not real or true crimes. That honor is reserved for malum in se. Because malum prohibitum offenses are not real crimes, those who culpably commit them should suffer some hardship for what they have done in order to secure whatever good the prohibition seeks to achieve, but they should receive no censure or condemnation. Insofar as malum prohibitum offenses are treated as crimes without punishments, they are really nothing more than crimes manqué or wannabe crimes.
See, e.g., Duff (2007, pp. 172–174) (discussing so-called “coordination” offenses); Husak (2008, pp. 112–113) (same). Husak suggests that both conditions must be met. See Husak (2008, p. 114) (“[P]unishments may be justified when the solution to a coordination problem specifies the content of a malum in se, … [but] few hybrids are coordination offenses.”).
See Husak (2011c, p. 105) (“[M]oney laundering… [is] my favorite example of a malum prohibitum offense.”).
Mill (1859/1956, p. 13).
This description of the harm principle should suffice for present purposes. A much more careful and nuanced treatment of the harm principle can be found in Tadros (2011). Joel Feinberg provides the classic contemporary defense of a Mill-inspired position in Feinberg (1984). Feinberg goes beyond Mill when he argues that preventing serious offense, as well as harm, can provide a legitimate reason to criminalize conduct. See Feinberg (1985). How far the state should be permitted to go in punishing offensive conduct (if at all) is, as you might have guessed, a matter of disagreement. See generally von Hirsch and Simester (2006).
The debate over the moral limits of the criminal law has traditionally been in terms the principle or set of principles—harm, offense, paternalism, legal moralism—to which the state should adhere. But perhaps we should eschew altogether the search for any such “master principle” or “set of definitive criteria?” Duff (2007, p. 147). I would also note that any theory of crime that depends on the idea of harm must provide an account of that in which harm consists, and any such account is bound to be yet another source of disagreement. The idea of harm has of course been criticized as empty and thus capable of providing no limit on the state’s power to make this or that a crime. See, e.g., Harcourt (1999).
We can also identify some wrongful harms that the law should but generally does not criminalize. Think of so-called sextortion: the use of a threat to obtain intercourse where such a threat would constitute extortion if used to obtain property. Or maybe sexual harassment.
See Husak (2011b) (suggesting not).
Moore (1997, p. 661) (“[T]he achievement of retributive justice gives a legislature good reason to criminalize all immoral behavior, for this is the only way the good of retributive justice can be achieved.”); Moore (2009b, p. 31) (“[P]rima facie, all moral wrongs culpably done should be criminalized.”).
See Moore (1997, p. 186).
Moore (2009b, p. 32). Antony Duff has made to me the point that Devlin is properly understood as an adherent of the harm principle, not a legal moralist, inasmuch as he believed that the state had good reason to criminalize conduct that the man on the Clapham omnibus believed was wrong in order to prevent a future harm; namely, social disintegration. Point taken.
A full accounting of those goods can be found in Moore (2011, pp. 6-9).
Moore (1997, p. 773), Moore (2011, pp. 30–36). Moore also says that a lawmaker who pursues a legal moralist agenda should make sure that he criminalizes this or that wrong because it is wrong (and not for some other reason) and that he should be appropriately humble: if he has any doubt that this or that is a moral wrong, he should leave well enough alone and refrain from bringing the criminal law to bear. See Moore (2009b, p. 32).
Husak’s theory is set forth in detail in Husak (2008).
The burden of proof as to whether these six principles permit this or that to be criminalized rests with the proponent of criminalization.
See Husak (2008, pp. 55–119). Husak relies on Duff and Marshall in his effort to draw the line between public wrongs and private ones. See Marshall and Duff (1998). Moore argues that the public–private distinction is really nothing more than a distinction between serious (public) and minor (private) wrongs: a distinction in degree, not in kind. See Moore (2011, pp. 22–23).
See Husak (2008, pp. 120–177).
See Moore (1997, p. 152).
Duff (2007, p. 141).
Duff (2007, pp. 141–142).
See, e.g., Moore (1997, p. 548) (“[T]he excuses are the royal road to theories of responsibility generally.”). Some writers distinguish between excuses and exemptions. See, e.g., Duff (2007, pp. 284–291). Exemptions are status excuses, like infancy and (according to some) insanity. I ignore that distinction for now.
The fact that a defendant deserves to be punished is not yet enough to justify the state’s decision to punish him. The state still needs to come forward with good reasons to give him what he deserves. A theory of punishment identifies the reasons that count as good.
The idea here bears some resemblance (maybe a great deal) to those accounts (usually described as theories of punishment) according to which the actor’s choice to commit a crime results somehow (usually through forfeiture or consent) in the loss of his right not to be punished such that punishment constitutes no infringement of that right. See Goldman (1982), Morris (1991), Nino (1983), Wellman (2009), Scanlon (2003). See also Berman (2008, p. 274) (developing what he calls a “right articulation” theory intended to “show that core cases of punishment need not infringe rights—but without the forfeiture mechanism”).
Sorting the disputants into two camps and two camps alone obviously oversimplifies the debate and thus the extent of the disagreement: some participants find truth in both theories.
See, e.g., Moore (1997, pp. 549–562).
See, e.g., Lacey (2011, p. 153) (“[C]riminal conviction … is coming more frequently to imply a judgment of criminal character.”).
Choice theorists naturally dispute the claim. See Moore (1997, p. 590).
The Model Penal Code takes something like this position. The Code provides that an actor must be at least reckless with respect to every material element of an offense unless a “legislative purpose to impose absolute [strict] liability … plainly appears.” Mode Penal Code § 2.05(1)(b). In other words an actor is not liable unless he at least suspects each material element of the offense with which he is charged exists unless the legislature clearly intended to impose strict liability.
For arguments to the effect that the law should excuse ignorance of itself more often than it does, see, for example, Husak (2010b), Cass (1976, p. 695) (concluding that the “doctrine [of ignorantia legis] is both inefficacious and unjust”); Garvey (2009, pp. 362–364). Peter Westen has recently argued that certain doctrines associated with the principle of legality do in fact excuse mistakes of law if and when “conscientious members of the political community that enacted the statute, knowing everything (if anything) that the actor knew about the law, would likely deny that such conduct so infringes upon the interests of others as officially to warrant punishment.” Westen (2007, p. 263). He also argues that the widely assumed discrepancy between the exculpatory scope of mistakes of fact and mistakes of law is “largely illusory.” Id.
See, e.g., Dressler (2011).
See, e.g., Slobogin (2009). Disagreement also exists over whether some defenses commonly called excuses really deserve to be so called. Is provocation a partial excuse, partial justification, or something else? What should it be? Much the same goes for duress. Is it an excuse, justification, or something else? Maybe it makes no difference? Indeed, are the traditional categories of justification and excuse (and maybe exemption) the only ones the criminal law (or at least criminal-law theorists) should be using? See, e.g., Husak (2011d).
For a recent review of the debate, see Dolinko (2011).
A very big supposition and yet another source of disagreement. Indeed, if retribitivism has any Achilles heel it lies here. As Heidi Hurd puts it: Retributivism’s “greatest [puzzle] is the question of whether it can defend, in any principled way, claims about the proportionality of particular punishments to the particular harms culpably caused by particular offenders.” Hurd (2005a, p. 415). Can some such principled defense be offered? Compare Roebuck and Wood (2011) (no), with Robinson (2008) (yes). Here is yet another question: When trying to figure out if this or that punishment is proportional to this or that crime, should we care about how a particular offender experiences a particular punishment? Compare Kolber (2009) (yes), with Gray (2010) (no).
See, e.g., Frase (2004).
Philosophical anarchists believe that no state can or does possess authority in the sense of having the power to impose on its subjects a general obligation to do as the state says. Most citizens of liberal democracies nonetheless believe that they do indeed labor under such an obligation. See, e.g., Klosko (2005, pp. 183–222), Tyler (2006, pp. 45–46 tbls.4.3 & 4.4).
A wrong does not become a crime just because the state calls it a crime. Talk is cheap. It becomes a crime when the state can respond to its culpable breach with punishment. Likewise, a wrong does not fail to be a crime just because the state fails to call it a crime. If the state can respond to a wrong with punishment then a crime it is no matter what the state says or fails to say.
We can be more precise about the ways in which the state can change the normative status of its subjects with respect to the criminal law. The state has the power to impose moral obligations on subjects the culpable breach of which will render the actor liable to censure; to impose obligations the culpable breach of which will render the actor liable to censure in the form of hard treatment; to grant moral permission to officials (prosecutors) to call those believed to be guilty of criminal wrongdoing to account; to impose moral obligations on officials (judges and juries) to acquit those called to account whose breach was non-culpable (excused) or all-things-considered non-wrongful (justified); to impose moral obligations on officials to censure those whose breach was culpable and to order for good reasons the imposition on them of hard treatment; and to impose moral obligations on officials to impose hard treatment on those who have been ordered to suffer such treatment. It may be that all the power to cause all these changes can be reduced to the power to impose moral obligations. See Marmor (2011a, p. 132 n. 19) (citing Raz (2009, pp. 134–135 n. 13)).
See, e.g., Edmundson (1998b), Greenawalt (1987), Buchanan (2002), Copp (1999), Edmundson (1998a), Landeson (1980), Sartorius (1981), Wellman (2001).
Some writers would describe a state permitted to use coercion to enforce compliance with its demands as “legitimate,” but not necessarily possessed of “authority.” They use the term “authority” to describe a state that has the power to change the normative position of its subjects. They use the term “legitimate” to describe a state permitted to exercise coercion to enforce compliance with its directives. See, e.g., Morris (1998), Murphy (1999, p. 77) (“[T]he state’s moral legitimacy concerns its right to coerce citizens to comply with its dictates, that is, its laws.”).
For reasons why one might regard the first account as better, see, for example, Raz (1986, p. 27) (concluding that the second account is not an “analysis of the concept of authority which is part of our cultural tradition” nor one with “much use in our world”); Dagger (2000, pp. 402–406) (arguing that the second account will not “overcome the objections of the most thorough-going of the philosophical anarchists,” such as Robert Paul Wolff).
See Hurd (1996, p. 121) (Consent has “magical power[].”).
See Hampton (2007).
See, e.g., Wolff (1970).
Raz (1986, p. 80).
See Hershovitz (2012, p. 70) (“The right that is constitutive of authority is a right to have subjects do as one says, not a right to have them do as one says for the reason that one said so.”). Hershovitz claims that the “standard view identifies obedience [to an authority] with compliance,” id. at p. 67, but he persuades me that the better view is that obedience is fairly understood to require conformity only. Id. at p. 68.
See id. at pp. 69–70.
Little may in the end turn on the supposed difference. See Kramer (2005, p. 188) (“[B]ecause the supporters of the first approach regard obligations as especially weighty reasons, and because the supporters of the second approach accept that the exclusionary sway of just about any exclusionary reason is restricted in scope, the two perspectives are by no means as clearly divergent as they might first seem to be.”).
See Edmundson (2010, p. 181) (“[A] content-independent reason for action does not derive entirely from the value of the action itself.”).
See Dworkin (2002, p. 1672) (“We do not treat even those laws that we regard as perfectly valid and legitimate as excluding and replacing the background reasons the framers of that law rightly considered in adopting it. We rather regard those laws as creating rights and duties that normally trump other decisions. The reasons remain, and we sometimes need to consult them to decide whether, in particular circumstances, they are so extraordinarily powerful or important that the law’s trump should not prevail.”); Hurd (2005b, p. 76) (“[T]he rationality of following any given rule resides in one’s confidence that one is acting on the balance of reasons—including the good reasons for following the rule—and not at all on the fact that there is a rule.”); Moore (1988, p. 858) (“[L]egitimate authorities cannot be construed to give us exclusionary reasons for action… without making us too obeisant to such authorities.”); Shapiro (2002, pp. 411–412) (describing alternatives to the pre-emption model).
I take it that what I say here is consistent with Rawls’ widely accepted account of civil disobedience. See Rawls (1971, pp. 363–368, 371–377).
This chestnut comes from Smith (1973, p. 971).
See Applbaum (2010, pp. 231–232).
Here’s another way to think about it. If you believe, and rightly so, that you have no obligation to wait for the green light and so run the red, you engage in what might very loosely be understood as civil disobedience. I say “very loosely” because civil disobedience is standardly understood to require a public act (i.e., an act the doing of which one makes known to the authorities) committed in order to change the law. Your run through the red light, a furtive act done to get going sooner rather than later, is neither. Still, you and the civil disobedient share the belief, assumed to be true, that you are morally permitted to do as you do. Indeed, the civil disobedient may well believe that he is obligated to do as he does. Nonetheless, insofar as the civil disobedient’s act is permitted only if he is willing to accept the legal consequences of his conduct, I’m suggesting the same goes for you when you justifiably run the red light. Of course, the foregoing is only as persuasive as the account of justifiable civil disobedience on which it rests.
For more on the distinction between that which justifies an authority and that which renders it legitimate, see Simmons (2001). Joseph Raz’s influential theory of authority answers the justification question (an authority is justified insofar as it provides the good of helping me do as I ought to do anyway), but has been fairly criticized for providing no answer to the legitimation question. See, e.g., Darwall (2009, p. 146) (“Meeting the conditions of the normal justification thesis is not … sufficient to establish practical authority.”); Hershovitz (2011, pp. 6–10), Perry (2012, p. 52).
The legitimation question corresponds to what has come to be known as the “particularity problem”: What binds this person to this state? An answer to this question is an answer to the legitimation question.
I have to acknowledge that including some crimes the wrongfulness of which does not depend on the law within the category of malum prohibitum crimes will strike some as odd. It strikes me as odd too. All I can say is that I am using the distinction in what is perhaps an unconventional way. Perhaps casting the distinction in terms of core and non-core crimes, or something along those lines, would be less odd.
I’m reminded here of H.L.A. Hart’s “minimum content of natural law” and Herbert Morris’s description of “primary rules” as a “group of rules guiding the behavior of individuals in the community which establish spheres of interest immune from interference by others.” See Hart (1994, pp. 193–200), Morris (1976, p. 36).
See, e.g., Brudner (2009, pp. 28–37), Dan-Cohen (2002b), Ripstein (2009, pp. 42–50), Ripstein (2006). The shared idea here seems to be that the criminal law exists to protect our capacity to choose and that malum in se offenses consist in wrongs that interfere with that capacity. If we call this basic idea the sovereignty principle, and if that principle is understood as setting the limits of the criminal law, such that it would be wrong for a state to criminalize anything outside the scope of that principle, then “those who lack a sovereign will,” such as “very young infants, those who have severe cognitive defects, and, most obviously, nonhuman animals,” will not have the criminal law around to protect them from harm. Tadros (2011, p. 62). But as I see it, the sovereignty principle sets no such limit. I invoke it here only insofar as it identifies a class of wrongs with which I associated a particular account of the justification and legitimation of state authority.
See, e.g., Hershovitz (2012, p. 72).
This account might explain why the state has standing (all else being equal) to punish one who wrongs it, but still needed is an explanation for why the individual victim (where one exists) lacks such standing.
A. John Simmons has long argued that only actual consent can legitimate authority and that no state gets the actual consent of all its subjects. See Simmons (1979). Consent theories provide a good answer to the legitimation question but have nothing in particular to say in response to the justification question. An actor presumably would not consent to be bound to a particular authority unless he believed that doing so provided some good to him.
Officials and naturalized citizens come to mind as among those who do.
Much the same can probably be said for so-called fair play theories of political obligation insofar as such theories ultimately rely on the voluntary acceptance (and not mere receipt) of goods or benefits in order to generate a duty to obey. Fair play theories of punishment might be understood as applications of fair play theories of obligation according to which the answer to the justification question is the good of social order, peace, security and so forth (i.e.,. goods to be achieved when most everyone refrains from committing malum in se) and the answer to the legitimation question is that I am obligated to obey in fairness to everyone else who has obeyed. Insofar as the goods achieved when most everyone refrains from committing malum in se are not ones we can be said to be in a position to accept or reject—they are like the air we breathe—the claim that fairness theories can generate an obligation to obey when and only when the goods to be achieved thereby are voluntarily accepted would seem to carry less conviction when the scope of the theory is limited to the goods achieved when most everyone refrains from malum in se. See Hoskins (2011, p. 68). The fair play theory of punishment so understood is meant to explain our obligation to obey the law prohibiting malum in se whereas the fair play theory of political obligation is meant to explain our obligation to obey the law writ large. The former appears more plausible than the latter. Indeed, the fair play theory of punishment seems to have folks ready, willing, and able to come to its defense, see, e.g., Dagger (2008); Hoskins, supra, whereas the fair play theory of political obligation seems more or less to have been left to defend itself. The main proponent of the fair play theory of political obligation has of late recognized the need to supplement the fair-play principle with other principles in order to account for obligations to obey laws “support[ing] the entire range of state functions.” Klosko (2005, p. 95).
Christiano (2008, p. 237) (“[E]stablish[ing] justice” is the “main purpose of the state.”).
Hart and Sacks (1994, p. 4).
I intend to hide for the moment behind the phrase “well-functioning.” Fill it in with whatever content you believe necessary to bestow authority.
See, e.g., Christiano (2008, p. 236) (“[L]egitimate political authority must be grounded in part in the fact of disagreement among equals and must respect the judgments of each as an equal.”); id. at 250 (“Those who refuse to pay taxes or who refuse to respect property laws on the grounds that these are unjust are simply affirming a superior right to that of others in determining how the shared aspects of social life are to be arranged. Thus, they act unjustly and violate the duty to treat others publicly as equals.”); id. at 254 (“[A] conscientious person can see that her duty is to treat others publicly as equal and that failing to obey the democratic decision is a violation of that duty.”); Christiano (2004, p. 277) (“[F]ailing to obey the decision of a democratic assembly amounts to treating one’s fellows as inferiors.”); id. (“[O]ne is in effect expressing the superiority of one’s interests over others.”); Shapiro (2002, p. 435) (“By disobeying, subjects are unilaterally, and hence unreasonably, setting the terms and direction of social cooperation.”). See also Hershovitz (2003, p. 214) (“We also value democratic procedures because we believe they show proper respect for the dignity of people as rational agents. It is harder to pick out experts in moral and political matters than it is in medical or musical matters.”).
I don’t expect that any of this talk about respect for one’s fellow citizens will persuade one wit those who believe that consent and consent alone can bind me to the state. See Simmons (2008, pp. 116–117).
See Waldron (1999, pp. 212–213) (“[T]he existence of disagreement and the need, despite disagreement, to set up a common framework … apply at least as much to issues of right as they apply to what is usually regarded as the more modest agenda of legislative politics.”).
Christiano (2008, pp. 261–264). Christiano argues that the limits on democratic authority are internal to democracy itself. See id. at 264–277.
In the criminal law I imagine that those rights would be something along the following lines. With respect to criminalization, a democratic authority cannot criminalize conduct within the scope of long-standing liberal rights (speech, assembly, press, religion, and so forth). With respect to culpability, a democratic authority cannot punish an actor unless and until he has chosen to do something that he realizes the criminal law prohibits. With respect to punishment, a democratic authority cannot impose a punishment grossly disproportionate to the crime.
If Campbell did not realize she was committing some crime, she should be excused: she did not in my view make a culpable choice. Thus her right not to be punished remains intact. If she is punished nonetheless then she has been wronged.
The state always has at least one good reason to punish within the political model: to uphold or vindicate its authority. Cf. Brudner (2009, p. 48) (“[P]unishment … vindicat[es] the authority of Law rather than … giv[es] evil its just deserts.”); Ripstein (2009, pp. 323–324) (“[P]unishment is nothing more than the supremacy of the rule of law.”). Why should the state care about vindicating its own authority? I suppose it should care because and insofar as it should care about providing and securing the goods the exercise of such authority enables it to provide and secure.
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Cases
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United States v. Campbell, 977 F.2d 854 (4th Cir. 1992).
Acknowledgments
Thanks to Eduardo Bruera for help thinking through the issues, and to Antony Duff and Victor Tadros for generous comments. Thanks also to participants at the conference on Criminalization, University of Sterling, Scotland, at which I presented an earlier draft.
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Garvey, S.P. Was Ellen Wronged?. Criminal Law, Philosophy 7, 185–216 (2013). https://doi.org/10.1007/s11572-012-9182-9
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DOI: https://doi.org/10.1007/s11572-012-9182-9