A Morality of Crime and Punishment
I. MORALIZING CRIMINAL LAW
In this chapter I draw some implications from the morality of dignity just discussed for a theory of criminal law, focusing on the two central questions such a theory addresses: what to punish and why punish. A conception of criminal law that hinges on a morality of dignity runs counter to a trend that has characterized the evolution of liberal criminal law under the guidance of the harm principle. The trend has been to demoralize criminal law (the pun is intended), both in regard to the idea of crime and to the idea of punishment.1 In light of the outrages perpetrated over the centuries in the name of this or that purported morality, an aspiration toward a morally neutral conception of criminal law is altogether understandable. Even so, such a conception is not viable. A morally neutral conception of crime separates a criminal offense from its corresponding moral prohibition; for example, the legal prohibition against murder is one thing; the moral prohibition, another. The separation is strained, especially in light of the role that blameworthiness plays in criminal law: if not from morality, from where does blameworthiness come? The obvious alternative to the immorality of the offense itself is supposedly the wrongfulness of breaking the law. But this alternative runs into two difficulties. One is the doubt whether a duty to obey the law exists. Whatever the correct answer to this doubt, it is hard to believe that the blameworthiness of a murderer would depend on it. In any case, the pretense of the harm principle to moral neutrality is specious. Historically, the principle is the outgrowth of a utilitarian moral theory, and the substantive connection between the principle and its utilitarian origins is hard to sever. It is not surprising, then, that the harm principle inherits and displays some of the problems associated with its supporting moral theory. A critique of the harm principle can therefore draw in part on a broader critique of utilitarianism as well.
Whether we consider harm to be morally neutral or view it as part of a utilitarian morality, a theory that considers criminal law to be an engine for harm prevention is unsatisfactory in yet another way. One of the main objectives of a theory in this area is to reveal a certain unity in criminal law and help distinguish it from neighboring phenomena. But a harm-based theory fails to circumscribe the criminal law and set it apart from other types of governmental use of power. The boundaries of criminal liability that the harm principle is designed to draw turn out to be vague, elastic, and porous. Generally speaking, boundaries can be seen as performing a dual function. First, they delimit what they enclose and keep it from spreading and blending into the vicinity; they are thus designed to prevent what we may call spillover. Second, they hold back the surroundings and keep them from infiltrating what is enclosed, thereby securing the integrity of the enclosure against its colonization by the outside. Now, in defining the scope of criminal law through the harm principle, the dominant concern has traditionally been spillover: keeping criminal liability from expanding too far. And as others have remarked, given the vagueness of harm and its ubiquity, the harm principle offers at best a weak bulwark against the expansion of criminality.2 At the same time it may bear some of the responsibility for the widely discussed phenomenon of overcriminalization:3 the tendency of criminal liability to spread into increasingly large areas of our lives, to wherever a whiff of harm can be detected. Here the harm principle may have had a paradoxical effect: introduced as a limitation on the reach of criminal law, it has turned into an engine that propels its ever-increasing expansion. To be sure, harm is seldom considered as a sufficient condition of criminality, only a necessary one. Even so, once the idea takes hold that harm is the gist of criminality, every infliction of harm becomes a candidate for criminalization.
Awareness of boundaries’ dual role alerts us also to the opposite worry, that of safeguarding the integrity of criminal law and certain values that are embodied in it from being colonized by external practices and attitudes. One such worry is about the effects that the wide expansion of criminal liability may have on our attitudes to the core offenses. The equation we create between a tax evasion or a building code violation on the one hand and murder or rape on the other can be read in both directions. By flattening the normative landscape, the message is conveyed that the same attitude is in principle appropriate to all of the state’s injunctions, irrespective of whether they track morality’s demands. If the difference between a parking violation and assault is just a matter of degree, measured in the metric of harmfulness, the decision whether to engage in either ought to follow the same logic.4 What logic is that? Here, a revealing locution is paying the price. When crime draws its meaning from its location in the felicific matrix and as part of the totalizing economy of pain and pleasure, it is subsumed, like all else, under a regime of “incentives” and carries a price tag. Whether the price set is low or high, it presents individuals with a single consideration: is it worth paying?
Though the issues regarding the borders of criminality I have so far discussed are pending and troubling, they are age-old and familiar. But criminal law in this country and elsewhere faces a newer challenge as well. The struggle against terror confounds established categories and blurs the distinction between crime and war. Extending traditional criminal law to coping with acts of terror domestically or abroad is often driven by the desire to extend the restrictions imposed on the use of state power within the criminal law, and so reduce carnage. But as the rhetoric of the war on drugs, and, more broadly, the war on crime, ominously reminds us, the equation between war and crime can also be reversed. The vision of the criminal law as just one outpost among many in the defense of society’s interests may encourage a militant attitude that is impatient with what it takes to be lawyers’ excessive fussiness in the face of harsh realities and the imperatives of effectively combating them.
The juxtaposition of the two common locutions I have quoted, “paying the price” and “the war on crime,” is not adventitious. Markets and wars are two pervasive and powerful regimes, each valorizing a different set of values and attitudes: the relentless pursuit of material self-interest guided by a selfish maximizing rationality in the one case, and the use of collective brutality to advance social ends in the other. Both are antagonistic to the criminal law and threaten to colonize it from different directions. A conception of criminal law that accentuates its distinctive moral mission, thus clearly marking and fortifying its boundary, would accordingly serve a double purpose: to prevent the undue expansion of criminal law and its incursions into neighboring territories, and to protect the criminal law itself from being colonized by the logic of a morally neutral harm- prevention agenda in the dimension of crime, and by the logic of military force in the dimension of punishment. Does criminal law serve a valuable purpose that sets it apart?
In seeking an answer, it is natural to turn to Kant and to the morality of dignity discussed in the previous chapter. This can be done in a resolute spirit, of rejecting utilitarianism in favor of a Kantian morality seen as providing the exclusive basis for assessing legal institutions; or in a more compromising spirit, echoing an accommodation between the utilitarian and the Kantian views that has become prominent in recent years. The latter, composite view allows for utilitarian considerations to drive public policy and set its goals, subject to deontological side-constraints that override attainable gains in aggregate welfare. These constraints can be best understood in terms of a Kantian morality, which gives primacy to certain principles that guide and restrict the permissible treatment of individual human beings by government as well as by each other.5 Seen in either way, resolute or compromising, my suggestion, elaborated in the next section, is that criminal law’s core prohibitions are not primarily designed to further a utilitarian agenda but rather to uphold dignity-based moral principles. In the following section I extend the dignity-based approach to account for punishment.
The upshot can be briefly summarized. The distinguishing characteristic of criminal offenses is not the harmful end result, but the fact that the result is brought about through intentional human agency, since only such agency can convey a proper, respectful, or improper, disrespectful, attitude to people and is therefore the appropriate object of moral concerns. When it comes to human life, for example, criminal law’s primary purpose is very different from that of, say, hospitals and fire departments, since criminal law is not designed to save lives but to prevent homicides. Correspondingly, punishment is centrally concerned with upholding the victim’s dignity as well as affirming the wrongdoer’s. Since on this interpretation of criminal law, crime is radically discontinuous with other sources of harm and punishment is radically discontinuous with other uses of state power, we get a criminal law that is both more secure and less threatening within more narrowly and more visibly drawn boundaries.