Abstract
This paper is about how best to understand the notion of ‘public wrongs’ in the longstanding idea that crimes are public wrongs. By contrasting criminal law with the civil laws of torts and contracts, it argues that ‘public wrongs’ should not be understood merely as wrongs that properly concern the public, but more specifically as those which the state, as the public, ought to punish. It then briefly considers the implications that this has on criminalization.
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Notes
William Blackstone, Commentaries on the Laws of England, Book 4 (Oxford: Clarendon Press, 1765–1769), p. 5.
See for example, Antony Duff and Sandra Marshall, “Criminalization and Sharing Wrongs”, Canadian Journal of Law and Jurisprudence 11(1) (1998): pp. 7–22; and more recently, “Public and Private Wrongs”, in James Chalmers et al. (eds.), Essays in Criminal Law in Honour of Sir Gerald Gordon (Edinburgh: Edinburgh University Press, 2010), pp. 70–85.
See, for example, Ibid, “Public and Private Wrongs”, pp. 71; and also Antony Duff, Answering for Crime (Oregon, Oxford: Hart Publishing, 2007), p. 140–146.
Cf. Grant Lamond, “What is a Crime?”, Oxford Journal of Legal Studies 27(4) (2007): pp. 609–632 at p. 621. But see also Note 53.
George Fletcher, “Domination in Wrongdoing”, Boston University Law Review 76 (1996): pp. 347–360 at p. 347.
Blackstone: Op.Cit. Note 1.
For the wrongs in unjust enrichments and how they differ from those in torts, trusts and contracts, see John Gardner, “Torts and Other Wrongs”, Florida State University Law Review 39 (2011): pp. 43–64 at p. 46. For the role of civil wrongs in these areas of civil law, see Peter Birks, “The Concept of a Civil Wrong”, in David Owen (ed.), Philosophical Foundations of Tort Law (Oxford: Clarendon Press, 1995), pp. 29–51.
By distinguishing criminal law and civil law in this way (and later in the paper, in terms of the legal processes they respectively exemplify), I am not denying that there are other ways to fruitfully approach the distinction between criminal law and civil law. It is just that I have chosen to put them aside for the purposes of this paper. Nevertheless, for example, for an analysis of the distinction in terms of procedures, see Carol Steiker, “Punishment and Procedure: Punishment Theory and the Criminal-Civil Procedural Divide”, Georgetown Law Journal 85(4) (1997): pp. 775–819; for one that is in terms of responsibility, see Peter Cane, Responsibility in Law and Morality (Oxford, Oregon: Hart Publishing, 2002) pp. 50–51. As for a general discussion on the distinction between criminal law and torts, see Kenneth Simons, “The Crime/Tort Distinction: Legal Doctrine and Normative Perspectives”, Widener Law Journal 17 (2008): pp. 719–732.
Duff: Op.Cit. Note 3, p. 141.
Ibid.
Ibid., pp. 50–51 and 142.
Indeed, it is precisely in not identifying them in this way that makes Duff’s conception of ‘public wrongs’ immune from his own objections against conceiving ‘public wrongs’ as wrongs that also affect the public at large. See text at Note 9.
Duff and Marshall: Op.Cit. Note 2, “Criminalization and Sharing Wrongs”, pp. 18–22 and “Public and Private Wrongs”, pp. 70–72; Duff: Op.Cit. Note 3, pp. 141–143; Antony Duff, “Responsibility, Citizenship, and Criminal Law”, in Antony Duff and Stuart Green (eds.), Philosophical Foundations of Criminal Law (New York: Oxford University Press, 2010), pp. 125-148 at pp. 137-140.
Indeed, there is the issue of what exactly constitutes the shared values in question. As one of the reviewers points out, if they include ‘the reasonableness of actions that may hurt others’, then arguably some of the wrongs in tort law would also be violating the shared values in question, and therefore are ‘public wrongs’ in the relevant sense. This is true; but even without going into a discussion of shared values, we can already argue that the distinction between criminal law and tort law cannot be found in the distinction between wrongs that properly concern the public and those that don’t.
Op.Cit. Note 2, “Public and Private Wrongs”, pp. 75–79.
For example, Michael Moore, Placing Blame: A Theory of the Criminal Law (New York: Oxford University Press, 1997), pp. 763–777; Joel Feinberg, Harm to Self (New York: Oxford University Press, 1986), pp. 27–71 and Duff: Op. Cit. Note 3, pp. 49–51.
John Stuart Mill, for example, did not seem to think that the ‘private’ sphere, understood in terms of individuality, should only be protected against criminal sanctions. Rather, more expansive than that, it should be protected from the power that society (including the government) exercises over individuals. See On Liberty (London: Penguin Books Ltd., 1974), pp. 59–73.
Op.Cit. Note 2, “Public and Private Wrongs”, pp. 82–83.
Ibid. p. 83.
Of course, as a matter of fact, it is the victim who is de facto in charge of the legal process, for example by not reporting the crime or refusing to be a witness. However, the claim here is that formally, in principle, it should be the state, rather than the victim, that is principally in charge of the legal process in criminal law; while the reverse holds when it comes to civil laws. Now, whether or not victims are right in not reporting a crime or refusing to be a witness is, I take it, a different question. See Note 22 for more of this.
Op.Cit. Note 2, “Criminalization and Sharing Wrongs”, p. 15.
Given the purposes of this paper, I am afraid that a detailed defence of this is not possible here. But see Antony Duff, “Restoration and Retribution”, in Andrew von Hirsch et al. (eds.), Restorative Justice and Criminal Justice (Oregon: Hart Publishing, 2003), pp. 43–59; Op.Cit. Note 2, “Public and Private Wrongs”, pp. 81–82; and Sandra Marshall, “Victims of Crime: Their Station and its Duties”, Critical Review of International Social and Political Philosophy 7(2) (2004): pp. 104–117.
Op.Cit. Note 2, “Criminalization and Sharing Wrongs”, p. 15. See also John Goldberg and Benjamin Zipursky, “Torts as Wrongs”, Texas Law Review 88(5) (2010): pp. 917–986 on torts as a civil recourse. Note also that all this is compatible with the claim that even under the ‘civil’ process, the state may permissibly, and indeed does, take measures to incentivise plaintiffs to bring claims forward.
Maybe the same can also be held for other areas of civil laws: trusts and unjust enrichments, which are respectively concerned with equitable wrongs and wrongs of not disgorging unjust enrichments.
Lamond: Op.Cit. Note 4, p. 630.
Of course, the same wrong can be described differently in criminal law and civil law, because of their respective differences in, say, legal liability. But that does not detract from the fact that their differing descriptions are referring to the same wrong, i.e. the conduct in question.
I take it that legal punishment, if it is to be justified at all, must involve the communication of censure or condemnation. But I remain open as to whether any additional element of deterrence can be justified or not. Thus I shall address both the elements of censure and deterrence when I talk about legal punishment in this paper. The issue also partly turns on whether the ‘hard treatment’ aspect of legal punishment, if it can be justified at all, can only be justified in terms of deterrence, or can nevertheless be justified as part of the communicative process of censure. For a view of the former, see Andrew von Hirsch and Andrew Ashworth, Proportionate Sentencing: Exploring the Principles (New York: Oxford University Press, 2005), pp. 17–27 and 92–109; while for a view of the latter, see Antony Duff, Punishment, Communication, and Community (New York: Oxford University Press, 2001), pp. 79–88 and 106–112.
See also Gardner: Op.Cit. Note 7, pp. 47–57.
Lucia Zedner, “Reparation and Retribution: Are They Reconcilable?”, The Modern Law Review 57 (1994): pp. 228–250 at pp. 239–240.
Ralph Cunningham, “Should Punitive Damages be Part of the Judicial Arsenal in Contract Cases?”, Legal Studies 26(3) (2006): pp. 369–363 at p. 381.
See, for example, Duff: Op.Cit. Note 27, p. 161. See also Zedner: Op.Cit. Note 29, pp. 239–240.
Here I have in mind, for example, minor offences of property damage.
For a good critical discussion of the arguments against punitive damages, see Cunningham: Op.Cit. Note 30, pp. 380–384.
For example, Markel defends punitive damages as intermediate sanctions (between compensatory damages and criminal fines) that advance the public’s interest in retributive justice because of the practical limitations of the criminal law. As intermediate sanctions, they do not need procedures as robust as those in the criminal law, though admittedly they should be more stringent than those afforded in the civil law. See Dan Markel, “Retributive Damages: A Theory of Punitive Damages as Intermediate Damages”, Cornell Law Review 94 (2009): 239–340.
Thus, for example, compensation orders can be imposed in addition to punishment, to spare the victim from claiming compensatory damages from the defendant through a separate civil case, which in turn reduces institutional costs. As for punitive damages, it can be awarded, for example, to advance the public’s interest in retributive justice, when the criminal law fails to do so because of its practical limitations. See above note for the latter.
Op.Cit. Note 13.
Duff: Op.Cit. Note 3, p. 143.
See, for example, Duff and Marshall: Op.Cit. Note 2, “Public and Private Wrongs”, p. 83; and Douglas Husak, Overcriminalization: The Limits of the Criminal Law (New York: Oxford University Press, 2008), pp. 137–145.
Not just monetary related ones, but most importantly and significantly, moral costs and risks. See, for example, Andrew Ashworth and Lucia Zedner, “Prevention and Criminalization: Justifications and Limits”, New Criminal Law Review 15(4) (2012): pp. 542–571 at pp. 551–552.
Whether they should be subject to other forms of legal regulation is another question.
Of course, there are other kinds of compensation. For example, as a welfare provider, the state might owe compensation for the loss that victims of crime suffer, even when the state played no role whatsoever in these crimes; or it might also owe compensation for the loss that its citizens incur merely as a result of bad luck etc.… However, these are not the kinds of compensation that we are talking about in tort law.
John Gardner, “What is Tort Law for? Part 1: The Place for Corrective Justice”, Law and Philosophy 30(1) (2011): pp. 1–50 at pp. 28–37.
Note that even if there are positive primary obligations in torts, this does not undermine the argument or the conclusion. See the subsequent discussion on contract law.
Ibid., p. 40.
Ibid., pp. 44–45. For example, it would be easier and less oppressive to exact monetary compensation from unwilling and uncooperative defendants than to enforce specific performance. Indeed, in such cases, enforcing specific performance might be detrimental to the plaintiff, e.g. when it leads to a sub-standard performance, which can be bypassed with monetary compensation. Of course, if the defendant was willing and cooperative to start with, then most probably it would have been settled out of court.
However, as I understand it, courts are much more reluctant in awarding punitive damages for breaches of contract than they are for torts.
See, for example, John Locke, “The Second Treatise of Government: An Essay Concerning the True Original, Extent, and End of Civil Government”, in Peter Laslett (ed. and intro.), Two Treatises of Government (Cambridge, New York, Melbourne: Cambridge University Press, 1988), §8–13; but see also §128–130.
See Note 13.
As Lamond rightly argues against, see Op.Cit. Note 4, pp. 616–620.
Duff and Marshall: Op.Cit. Note 2, “Criminalization and Sharing Wrongs”, pp. 18–22 and “Public and Private Wrongs”, pp. 84–85. See also text at Note 37.
The same applies to contract law, but I shall not expand on this for the sake of brevity.
Or to put all this more generally: there are two issues here; (1) whether the state’s response to such wrongs is punitive or compensatory, and (2) whether the state is responding to them directly or indirectly. The argument here is that there is a relationship between the two, given the nature of the wrongs and the responses in question. If the state’s response is punitive, then it should take the form of a direct response; while if the state’s response is compensatory, then it should take the form of an indirect response. For the general distinction between direct and indirect responses to wrongs; see, for example, Michelle Dempsey, Prosecuting Domestic Violence: A Philosophical Analysis (New York: Oxford University Press 2009), pp. 95–98 and 185–192.
Lamond: Op.Cit. Note 4, p. 627. Nevertheless, I am not convinced with his criticism of Duff and Marshall, which is grounded in seeing them as arguing that ‘public wrongs’ should be understood as wrongs to the public. Granted, if that was the case, Lamond’s criticisms are spot on (see also text at Note 49). But it is hard to see how that is what Duff and Marshall meant, in light of what was discussed earlier in this paper (text at Note 9). That said, Lamond’s criticisms were based on their 1998 paper (Op.Cit. Note 2), and their position has changed a lot since then. This paper is therefore an attempt to defend a similar conclusion, but in light of a more up-to-date version of Duff’s and Marshall’s position.
See also, for example, Antony Duff, “Towards Modest Legal Moralism”, Criminal Law and Philosophy (forthcoming) doi:10.1007/s11572-012-9191-8.
For example, whether the conduct in question is also harmful to others in the relevant sense. See, for example, Andreas von Hirsch, “Harm and Wrongdoing in Criminalization Theory”, Criminal Law and Philosophy (forthcoming) doi:10.1007/s11572-012-9192-7.
Cf. Duff: Op.Cit. Note 3, p. 142; “But the ‘public’ character of crime is therefore an implication, rather than a ground, of its criminalisable character: the reasons that justify its criminalisation are the very reasons why it is ‘public’. An appeal to the ‘public character of crime thus cannot directly help us determine the legitimate grounds for criminalisation: but it can point us in the right direction by focusing attention on the idea of the ‘public’”.
Acknowledgments
This paper is part of a larger attempt to explore the theoretical foundations of criminalization, which in turn forms part of the AHRC-funded Preventive Justice Project (ID: AH/H015655/1). I am most grateful to the AHRC for funding this project, and to Andrew Ashworth, Lucia Zedner, Gemma Yim, Sarah Henderson, Alice Irving, Patrick Tomlin, Massimo Renzo, Matt Matravers, Antony Duff, Sandra Marshall, participants of the Criminal Law Discussion Group at University of Oxford and the Morrell Political Theory Workshop at University of York, for all their valuable comments on the various drafts of this paper. I would also like to thank the editor of Criminal Law and Philosophy, Michelle Dempsey, and the two anonymous reviewers for all their help and comments. Special thanks in particular to Andrew Dyson, for correcting my doctrinal understanding of civil law. Any remaining mistakes, of course, are mine alone.
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Lee, A.Y.K. Public Wrongs and the Criminal Law. Criminal Law, Philosophy 9, 155–170 (2015). https://doi.org/10.1007/s11572-013-9231-z
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DOI: https://doi.org/10.1007/s11572-013-9231-z