Aspects of Criminal Law
We can usefully begin by identifying some of the salient features of the systems of criminal law with which we are familiar (contemporary systems of municipal criminal law): features by which we can distinguish the criminal law both from non-legal phenomena and from other types of law. It would be unproductive to ask whether all these are strictly necessary features of criminal law, or whether we might still count a practice that lacked one or more of them as a system of criminal law; the most we can sensibly claim is that these are defining features of the paradigm of criminal law as we understand and experience it.
The criminal law deals with crimes: but what is a crime—and how does the criminal law deal with it?
Crimes, we might initially say, are kinds of conduct that are defined by the law as wrong. However, even this crude initial approximation must be qualified. First, we can say that crime always involves ‘conduct’ only if we stretch the meaning of that term so far as to empty it of substantial content (see Husak 1987: ch. 4): we can (whether justly or not) be held criminally liable not merely for what we do, or fail to do, but for what we are, perhaps even for what we think—for what we intend, for instance. But for the moment we can talk of ‘conduct’, since it captures the most familiar kinds of crime. Second, we must not, or must not yet, read ‘wrong’ here as ‘morally wrong’: it will be a further question whether the criminal law either must of its very nature, or should as a matter of normative theory, portray the conduct it criminalises as morally wrong; all we should say so far is that it portrays it as being in some way wrong or defective, something that those bound by the law should not do (this point is often expressed by saying that the criminal law ‘prohibits’ the conduct that it defines as criminal, but we will see in section 5 that this is misleading). That is, for instance, the defining difference between a law that defines a certain kind of conduct as a crime which is punishable by a fine, and one that subjects that conduct to a tax: both laws might be intended to reduce the incidence of the conduct, but the former, unlike the latter, does by defining and punishing it as wrong.
Crimes differ from extra-legal wrongs in that they are defined as wrongs by the law: they are not, or not just, wrongs in terms of some extra-legal social standard of morality, prudence, or etiquette, but wrongs that are defined and recognised as such by the law. (This leaves open the question of whether the criminal law can create wrongs, or whether it rather gives formal recognition to wrongs whose wrongfulness is initially determined by extra-legal standards.) But not all legally defined wrongs are criminal wrongs.
First, some legal systems distinguish between ‘crimes’ properly speaking and other kinds of penalised conduct. So German law distinguishes ‘Strafrecht’ and ‘Straftaten’ (criminal law and crimes) from ‘Ordnungswidrigkeitenrecht’ and ‘Ordnungswidrigkeiten’ (regulations and violations; Weigend 1988); and the American Law Institute's Model Penal Code distinguishes ‘crimes’ from ‘violations’ (s. 1.04). Violations might include conduct that other legal systems count as criminal, although even in systems in which it counts formally as criminal, it is often seen as not ‘really’ criminal (thus German Ordnungswidrigkeitenrecht includes many traffic violations that English law defines as crimes, although many drivers would deny that they are ‘real’ crimes). They are distinguished from crimes by the procedures for dealing with them, the relative mildness of the sanctions they attract, and the absence of some of the other consequences that typically attach to conviction for a crime—such as a criminal record. I will not discuss this distinction further here, save to note that it can be justified (if it is justifiable) either on pragmatic grounds—mere violations are not dangerous enough to justify mobilising the expensive resources of the criminal justice system; or on principled grounds—they do not involve serious enough wrongs to merit the condemnation that a criminal conviction, as we will see, involves (for further, more critical discussion, see Weigend 1988; Steiker 1997; Duff et al 2007: ch 6.5.
Second, most legal systems distinguish criminal from civil wrongs: wrongs that ground a criminal prosecution, from those that ground a civil case for damages brought by the injured party. We can clarify the concept of crime by focusing on this distinction. The same conduct often constitutes both a criminal and a civil wrong, as is shown most dramatically when, after a failed prosecution or a decision not to prosecute, the victim or her family bring a civil case for damages against the alleged wrongdoer: but we can still usefully ask what the difference is between defining and treating conduct as a criminal wrong and defining and treating it as a civil wrong (see generally Murphy & Coleman 1990: ch. 3; Boston University Law Review 1996).
Civil wrongs are typically treated as ‘private’ matters in the sense that it is for the victim to investigate what happened, to identify the alleged wrongdoer, and to bring a case against him. The law provides the institutions (the courts, arbitration panels) through which that case can be brought; it lays down the norms by reference to which the case is decided; it specifies what remedies are available; it might also help successful plaintiffs to extract damages from unwilling defendants. But it is for the injured party to bring, or to decide not to bring, a case; to pursue, or to abandon, that case; to insist on extracting the damages the court awarded, or to forgo them. The case is described and understood as ‘P v D’: P sues D, and the case thus belongs to her. The criminal law, however, provides for the public investigation, prosecution and punishment of crimes: for a police force, tasked with investigating (as well as preventing) crime and detecting criminals; for a system of criminal courts, in which defendants are tried for the crimes that they are alleged to have committed (and whose workings are structured by a complex array of procedural rules and requirements); for a system of punishments that will be imposed by the courts, and administered by other institutions and officials. Now the police act in the name and with the authority not just of the victim, but of the whole polity; it is for the prosecuting authority, not for the victim, to decide whether, and on what charge, anyone will be prosecuted. If the victim does not want the case to go to court, the prosecutors will in fact often not proceed with it—because it would be hard to do so without the victim's willing co-operation, or out of concern for the victim's feelings; but cases can be prosecuted despite the victim's unwillingness (this can be an important issue for prosecutors dealing with domestic violence; see Dempsey 2007). When the case comes to court, it is described not as ‘P v D’, but as ‘State v D’, or ‘People v D’, or ‘Queen v D’: D is prosecuted not by an individual victim, but by the polity—or, in societies that have not yet shaken off the trappings of undemocratic monarchy, by its sovereign. (Some legal systems allow the possibility of private prosecutions; this is one of several ways in which the distinction between criminal and civil law is neither sharp nor watertight.)
The difference between the public character of criminal wrongs and the private character of civil wrongs is also evident in the outcomes of the two kinds of legal process. A civil case typically results in a finding either for the plaintiff, or for the defendant; if the plaintiff wins, the defendant may have to pay her damages, as compensation for the harm that she suffered, and for which she has sued. Criminal cases, by contrast, result in a conviction or an acquittal; if the defendant is convicted, he is liable to suffer a punishment. Criminal convictions express an explicit condemnation of the defendant: he has been proved guilty of doing wrong, and the verdict is focused on that wrong. A verdict for the plaintiff in a civil case will typically imply that the defendant acted wrongfully, but the focus of the case, and thus of the verdict, is more on who should pay for whatever harm was caused (see Ripstein 1999: chs. 2-4).
Finally, the punishments imposed for crimes differ from the damages that are awarded as a result of a civil suit—and not just in the fact that whereas the successful plaintiff can forego the damages she is awarded, it is not for the victim of a crime to decide whether the sentence imposed by the court should be carried out. Often punishments take a different material form from civil damages, as when an offender is imprisoned or put on probation. Even when their material form does not differ, however (as when a convicted offender is fined £1,000, and the defendant who loses a civil case is ordered to pay £1,000 in damages), their meanings differ. First, even if the severity of criminal punishments is to some degree determined by the extent of the harm caused (itself a controversial matter), it typically also depends on the nature and degree of the offender's culpability for that harm: someone who kills or injures recklessly can expect to be punished more severely than someone who causes death or injury by a negligent act or omission. Civil damages, however, are proportioned to the harm actually caused; some kind of culpability, such as negligence, might be a threshold requirement, in that the plaintiff must prove that the defendant was at least negligent in relation to the harm he caused; but the damages are not proportioned to the degree of the defendant's culpability, since their purpose is simply to provide compensation for the harm caused. Second, punishments are intended to be painful or burdensome, whereas civil damages are not (indeed, this is standardly cited as a defining feature of punishment). If I am ordered to pay £1,000 compensation for damage that I negligently caused to your property, making that payment might be burdensome for me, if I am not well off, or no burden at all, if I am rich (or have suitable insurance): but the damages serve their purpose in either case. If, however, I am fined as punishment for a crime, that fine is intended to be burdensome: that is why many sentencing authorities aim to proportion fines to the offender's means, to ensure that both rich and poor offenders are burdened fairly and proportionately; and that is what is wrong with the idea that one might take out insurance to cover the cost of fines.
These distinctions between criminal and civil outcomes are often blurred in practice. For instance, English criminal courts can include a ‘compensation order’ in the sentence that they impose, thus bringing a dimension of civil law into the criminal process (see Powers of Criminal Courts (Sentencing) Act 2000 s.130); some civil systems allow for the award of ‘punitive damages’, which are intended to burden the defendant. More generally, civil plaintiffs might be seeking an apology rather than damages that could compensate for the material harm they have suffered—this is often true in libel cases, for instance, or in cases in which bereaved parents sue the hospital or corporation that negligently caused their child's death: in such cases, any damages that are awarded might best be rationalised as a way of giving material form and force to the apology; but if they are to serve that role, they must be burdensome (see Duff 2001: 94-96). Nonetheless, we can still draw a useful analytical distinction between two paradigms: a civil paradigm, which focuses on harm that has been caused and on the question of where the costs of that harm should fall; and a criminal paradigm, which focuses on a wrong that has been done and on the question of who—if anyone—should be condemned and punished for that wrong. The civil paradigm is a matter of private law in the sense that it aims to provide compensation and satisfaction for the aggrieved plaintiff, if she chooses to pursue the case; the criminal paradigm is, by contrast, a matter of public law in the sense that the case is brought and the punishment is imposed in the name and on behalf of the whole polity rather than any individual victim.
We now have a sketch of the criminal law as a distinctive kind of human institution. This then raises three further questions. First, should we have such an institution at all? Second, if we should, what goals or purposes should it serve? Third, what should its content be, or how should that content be determined: what kinds of conduct should be criminal, and how should we go about deciding that issue?
