Instrumental and Moralistic Conceptions of Criminal Law
We can begin to tackle these two questions by distinguishing two radically different ways of conceptualising criminal law. We might decide, in the end, that a plausible account will have to draw on both kinds of conception; but we can usefully begin by contrasting simple, pure versions of each.
One conception is instrumental. The criminal law is a technique or instrument that can be used to serve various possible ends. We are justified in maintaining a system of criminal law if it is an efficient technique for achieving worthwhile ends; its structure and content should then be determined by asking how it can serve those ends most efficiently.
What worthwhile ends could a system of criminal law serve? We cannot simply say that it should prevent or reduce crime, since without the criminal law there would be no crimes—no conduct would count as criminal. However, a number of plausible goals could be posited, reflecting a range of views both about human goods and about the proper roles and functions of the state. The American Model Penal Code, for instance, declares that:
The general purposes of the provisions governing the definition of offenses are:
a) to forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests.
We begin with a set of individual and public interests that merit protection, given their role in human welfare: they can be protected by various methods, including various state activities; a system of criminal law makes its distinctive contribution to their protection by forbidding and thus preventing conduct that threatens substantial harm to them. German criminal law theory posits a similar starting point: a set of individual and collective Rechtsgüter (a Rechtsgut is a good which the law properly recognises as being necessary for social peace or for individual well-being, and as therefore meriting legal protection) which the criminal law protects against conduct that seriously threatens them (see Roxin 2006: 8-47; for critical discussion of the utility of the idea of Rechtsgüter see Wohlers et al 2003). As we will see in § 6, it is not yet clear whether or how individual as distinct from public or collective interests should figure in an account of the protective aims of the criminal law, and some accounts certainly emphasise the collective dimension. Thus on Walker's ‘pragmatic’ account, the criminal law should aim to further the “smooth functioning of society and the preservation of order” (Walker 1980: 18, quoting Devlin 1965: 5)—collective or shared goods which provide essential preconditions for individual flourishing.
Two aspects of such instrumentalist accounts are worth noting here. First, they typically limit the criminal law's concern to serious harms to the specified kinds of interest, that cannot be otherwise prevented: thus the Model Penal Code refers to “substantial harm”, and German theorists argue that criminal law should be used only as a last resort against seriously harmful conduct (see Roxin 2006: 45-7; also, more generally, Husak 2004; Jareborg 2005). This kind of limitation can itself be rationalised in instrumental terms. The criminal law is a blunt and oppressive technique, which impinges seriously on the interests of those who are subjected to its coercive attention: not just those who are convicted and punished, but also those who are caught up in police investigations, or who are tried and acquitted, A consequentialist calculus of costs and benefits is therefore unlikely to favour its use unless it is the only feasible method of preventing quite serious harm.
But, second, the Model Penal Code also limits the criminal law's concern to conduct that “unjustifiably and inexcusably inflicts or threatens substantial harm” (see lso Feinberg 1984: 31-6); and most criminal codes include similar limitations. The ‘unjustifiably’ limit might still be justified instrumentally; we should not want to prevent conduct that justifiably causes harm. Some theorists argue that we can also justify the ‘inexcusably’ limit in instrumental terms (e.g. Braithwaite & Pettit 1990): that the criminal law's goals are not efficiently served by criminalising faultless or excusable conduct. Others, however, ground this limit in a non-instrumental side-constraint on the aim of harm-prevention: a purely instrumentalist theory cannot justify criminalising only culpable conduct; we must instead appeal to a non-instrumentalist demand of justice, that those who lack fault should not be liable to criminal punishment (see Hart 1968: 17-24, 28-53).
What emerges here is a familiar difference between two types of instrumentalist theory (see Braithwaite & Pettit 1990: 26-36). A pure instrumentalist seeks to explain every aspect of a justified system of criminal law in consequentialist terms; in designing a system, we need only ask which doctrines, practices and rules will efficiently serve the goals we have posited. A side-constrained instrumentalist, by contrast, argues that our pursuit of those goals is also constrained by non-consequentialist values—for instance by requirements of justice—which might preclude some practices—for instance the criminalisation of faultless conduct—even if those practices would efficiently serve the system's goals.
For any instrumentalist theory, whether pure or side-constrained, it is an open empirical question whether we should maintain a system of criminal law at all: we should do so only if this is an efficient means to whatever goals the theory posits. For a pure instrumentalist, the proper structure and contents of a system of criminal law also depend on an empirical inquiry into how those goals can be most efficiently served, whilst side-constrained instrumentalists must also attend to whatever non-consequentialist constraints bear on these issues. We cannot pursue the debates between these two kinds of account, but should note one set of questions that must figure in them, about the relation between criminal and moral wrongs.
Some instrumentalists hold that we should criminalise only conduct that is in some way immoral, and should punish only agents who are morally culpable for such conduct: thus, for instance, Braithwaite and Pettit “assume … that only persons who are morally culpable for a prescribed [sic] encroachment upon the dominion of others should be convicted” (1990: 99), whilst the Model Penal Code declares another purpose of the criminal law to be “to safeguard conduct that is without fault from condemnation as criminal” (s. 1.02(1)(c)). Others seem less sure about this. Walker, for instance, sees reason to criminalise conduct that provokes social disorder, even if we would, speaking morally, blame that disorder on the intolerance of others rather than on the moral wrongness of the conduct (1980: 21). As for moral culpability, Hart argues that we should explain excuse doctrines not as aiming to exempt the morally faultless from criminal liability, but as aiming to protect individual freedom by subjecting to liability only those who had a fair opportunity to avoid it (1968: 17-24).
Thus an instrumentalist approach to the justification of criminal law seems to leave it as something of an open question whether the law should criminalise only immoral conduct, or should subject only morally culpable agents to criminal liability. At the other extreme of the spectrum of theories of criminal law, by contrast, we find accounts that make immorality and moral culpability central to the proper concerns of the criminal law.
Criminal law, Stephen notoriously argued, “is in the nature of a persecution of the grosser forms of vice”; conduct is properly criminalised
not only because [it is] dangerous to society, and so ought to be prevented, but also for the sake of gratifying the feeling of hatred—call it revenge, resentment or what you will—which the contemplation of such conduct excites in healthily constituted minds (1873/ 1967: 152).
One could read Stephen as offering what is still an instrumentalist account of criminal law; it is important to satisfy that “feeling of hatred and the desire of vengeance … a regular public and legal manner” (loc. cit.), because otherwise they will find more violent, uncontrolled and socially harmful expression (compare Gardner 1998: 31-32). But he clearly also believed that such feelings and desires were intrinsically appropriate responses to the grosser forms of vice, which deserved to be thus satisfied; and we find a contemporary version of this kind of view in Moore's claim that criminal law should be understood as a functional kind, whose function is to achieve retributive justice by punishing “all and only those who are morally culpable in the doing of some morally wrongful action” (Moore 1997: 35). This is, as it stands, a wholly non-instrumentalist, intrinsicalist account of the proper purpose of the criminal law: it has no purpose beyond itself, beyond the punishment of culpable agents for their immoral conduct; it does not even, apparently, aim to reduce the incidence of such conduct.
Moore offers what looks at first like an extreme and simple version of ‘Legal Moralism’, the view that “all and only moral wrongs should be criminally prohibited” (1997: 662), but in fact the implications of his account are less dramatic than this might suggest. The immorality of a given kind of conduct creates a presumption in favour of criminalising it—it ‘should be criminally prohibited’. However, that presumption can be defeated by other considerations to do with the impact of criminalisation; in particular, a proper regard for individual liberty will dissuade us from actually criminalising much wrongful conduct (see Moore 1997: ch. 18).
There are, of course, other types of Legal Moralism than Moore's. Any version of Legal Moralism claims that the immorality of a given kind of conduct is significantly relevant to the question of whether it should be criminalised. We can then distinguish positive from negative versions. Positive Legal Moralists hold that immorality is a good reason for criminalisation—not necessarily that it creates a presumption in favour of criminalisation, but that it provides a reason that should carry some weight in our deliberations (see Feinberg 1984: 27; 1988: 324). Negative Legal Moralists hold instead that immorality constitutes only a necessary condition for criminalisation: we must not criminalise conduct unless it is immoral, but its immorality does not give us any positive reason to criminalise it. Negative Legal Moralism, like negative retributivism (see Dolinko 1991: 539-43), acts as a side-constraint on our pursuit of the goals that provide our positive reasons for maintaining a system of criminal law, whereas a positive Legal Moralism helps to set those goals. We should note too that a positive Legal Moralist as defined here need not be a negative Legal Moralist: one can believe that immorality provides a good reason for criminalisation whilst also believing that there are other reasons, including reasons for criminalising conduct that is not immoral. (We will also look later at the argument that whilst immorality as such provides no reason for criminalisation, immorality of the right kind does provide a good reason.) Furthermore, even positive Legal Moralists need not think, with Moore, that the reason for criminalising immoral conduct is precisely and only to secure its retributive punishment: she could instead believe, as Feinberg's Legal Moralist does, that we should criminalise it in order to prevent it, and therefore only if criminalising it would be likely to reduce its incidence (see Feinberg 1988: 324).
It might seem that negative Legal Moralism is straightforwardly undermined by the fact that many of the offences defined by a modern criminal law constitute mala prohibita rather than mala in se. Mala in se, as normally understood, are crimes consisting in conduct that is wrong independently of the criminal law—that would have been wrong even had there been no criminal law. Mala prohibita, on the other hand, consist in conduct that is not wrongful independently of the law that prohibits it: if they are wrong, their wrongfulness depends essentially on their illegality. The distinction between mala in se and mala prohibita is neither clear nor uncontroversial, but does point to something important: malicious killing, for instance, is wrong, something that we all have very good reason not to do, independently of law of murder; by contrast, there is nothing wrong with driving from north to south down a narrow street in the absence of a regulation making it a south to north one-way street. However, Legal Moralists can easily justify a category of mala prohibita. If the legislature is justified in creating the kinds of regulation that mala prohibita involve (such as traffic regulations), to serve some aspect of the common good, breaches of such regulations might be moral wrongs (though their weongfulness will need to be shown, not just assumed); that wrongfulness provides, for the Legal Moralist, a reason to criminalise such breaches—to define them not merely as morally neutral breaches of a regulation, but as criminal (see further Green 1997; Duff 2007: chs 4.4, 7.3; and, for criticism, Husak 2005).
Were we faced by a stark choice between an instrumentalist view of the criminal law and a view like Moore's, we might think that some form of instrumentalism has to be right. Even if we think that, once we have a system of criminal law, we must justify criminal punishment in retributivist terms (which is itself controversial), it seems much less plausible to think that we should create and maintain the whole edifice of criminal law simply in order to condemn and punish immoral actions; surely at least a central part of the purpose of a modern system of criminal law must be to protect citizens against various kinds of harm, by preventing kinds of conduct that cause such harm. We must also ask whether positive Legal Moralists are right to believe that every kind of immoral conduct is, in principle, the law's business—that even if in the end the balance of reasons argues against criminalising some kind of immoral conduct, its immorality provided a good reason in favour of its criminalisation. Suppose that I betray a friend by frivolously revealing a secret that she had entrusted to me and that I knew mattered a lot to her: I have done her a grievous moral wrong, and might indeed have fatally damaged our friendship; but are we really to say that such conduct should (ceteris paribus) be criminal, or that its immorality gives us good reason to criminalise it?
We will return to Legal Moralism (in § 6 below), but should not here that there are also some serious questions for instrumentalists. A purely instrumentalist account faces the same questions, the same moral worries, as does any purely consequentialist theory of moral, social or political action: put crudely, the general worry is that any such theory will fail to do justice to individuals and their rights, since it will too easily sanction unjustly sacrificing individuals to the greater social goods that it posits as the justifying aim of our actions. Side-constrained instrumentalists avoid that kind of objection, since the side-constraints that they recognise are precisely intended to rule out such injustice, such infringements of individual rights: but there is a serious question about their conception of criminal law—whether we should see it simply as a technique whose positive justification lies solely in its beneficial effects.
For instrumentalists, whether pure or side-constrained, it is a contingent, empirical issue whether the criminal law is an appropriate institution: it is appropriate if and because it does, as a matter of contingent fact, make an efficient contribution to whatever ends we posited for the state. Now we can agree that this instrumental dimension is crucial to the justification of a system of criminal law: we must surely believe, for instance, that a system which on balance did more harm than good could not be justified. However (leaving aside the question of what is to count as ‘harm’ or ‘good’ for the moment), it does not follow from this that instrumental efficiency is the only positive justifying reason for maintaining a system of criminal law: we could still also believe that such an institution can be justified only if it can be shown to be an intrinsically appropriate way of dealing with and responding to the kinds of conduct that fall within its proper ambit.
Consider what I will argue is an apt analogy. If I believe that a friend ought (morally) to go to visit her sick aunt, I might try to persuade her to do so; and if she is initially unwilling, I will then try to work out how I can best persuade her. What counts as ‘best’ here is in part an instrumental matter: I want to find something to say, or do, that will in fact persuade her. But it is not just an instrumental matter, since I should rule out some possibly effective means of persuading her to visit her aunt—bribery, for instance, or blackmail, or deception. What rules such means out is not that they would not be effective (they might well be), nor merely that they are inconsistent with some non-consequentialist side-constraint, but rather that they are intrinsically inappropriate to the end that I should be pursuing. For if I am to show my friend the respect that is due to her as a moral agent (and as my friend), my aim must be not merely to persuade her, by whatever means will be effective, to act as I think she ought to act: it must be to bring her by a process of rational moral discussion to see for herself that that is how she ought to act; but bribery, blackmail or deception cannot count as means to that end (see Duff 1986: 47-54).
To see how this is an apt analogy to the questions we are pursuing here, about the proper aims of a system of criminal law, we must turn to a question which is not addressed as often as it should be, about the voice—the tones, and the terms—in which the criminal law should address those whom it claims to bind.
