The Law's Voice
On some accounts, the law is not addressed to the citizens at all: it is, rather, addressed to the courts, laying down what actions they should take (what punishments they should impose, for instance) when certain conditions are satisfied (see Hart 1994: 35-38, on Kelsen). Perhaps the law should also be made known to, or easily knowable by, the citizens on whom it is liable to impinge, as a matter of fairness to them: but they are not its direct addressees. Such a view is no doubt true for some aspects of law, including some aspects of criminal law: laws that deal, for instance, with sentencing, or that define various legal excuses, seem to be addressed to courts rather than to the citizens (on the distinction implied here between ‘rules for courts’ and ‘rules for citizens’ see Fletcher 1978: chs. 6.6-8, 7, 9; Dan-Cohen 1984; Robinson 1997). But it is not a plausible view of law as a whole, or of the central, offence-defining aspects of criminal law in particular: the law speaks to all of us, as citizens. We may hear its voice most loudly, most dramatically, if we find ourselves as defendants in a criminal court, when we are called to answer a charge of criminal wrongdoing, and to hear the law's condemnation of our conduct if we are convicted: but in defining which kinds of conduct are criminal, and which are legally permissible, the law speaks to all of us, about what we may or may not do. (Some aspects of the substantive offence-defining criminal law are not addressed to all citizens, but only to those engaged in particular activities: only drivers are addressed by most of the road traffic laws, for instance, and only those who deal in shares are directly addressed by the laws concerning insider trading.)
In what tones and terms, then, does or should the criminal law address the citizens? One view, familiar from the classical positivist theories of Austin and Bentham (see The Nature of Law, § 2), tells us that the law, as addressed to the citizens, consists in a set of commands or orders backed by threats to secure obedience from those who might otherwise disobey. The law says to us “Don't do this!” (or, less frequently, “Do this!”); and if we ask why we should obey that command, the answer will refer either to the law's authority (“Because it is the law and you ought to obey the law”) or to its power (“Because the law will make you suffer if you do not”)—though for classical positivists like Austin and Bentham the law's authority seems to reduce to its power. That simple positivist view of law is no longer widely held, but we can see a vestige of it in the very widespread view that the substantive, offence-defining criminal law consists essentially in a set of ‘prohibitions’ (rules that ‘forbid’ certain kinds of conduct), which citizens are supposed to ‘obey’—which, indeed, they supposedly have an obligation to obey.
Now this might indeed be how the law's voice sounds to those who feel no allegiance to the polity whose law it is, and it is how the law's voice should sound to those who relationship to it and to the polity is that of oppressed subject to alien sovereign: the law does speak to them in the threatening coercive tones of one who demands, and claims to have the power to exact, their obedience. But it is not how the law should speak to the citizens of a liberal polity (see further Duff 2001: 56-68). As citizens, we are members of the normative community whose values the law purports to express: if it is to address us as citizens, and as responsible agents, it must speak to us not in the peremptory, coercive voice of a sovereign who commands our obedience, but in the rational, normative voice of values which demand our allegiance as the values of our polity. The law of a liberal polity, that is to say, must aim to be a common law: a law which belongs to the citizens, as a reflection of the values they share, rather than a law which is imposed on them by an alien sovereign (compare Cotterrell 1995: ch. 11).
The law, or the legislators who create and declare the law, must claim that there are good reasons to criminalise the kinds of conduct it defines as crimes. Since to criminalise conduct is to declare that it should not be done, that claim must be that there are good reasons why the citizens should not engage in such conduct—reasons reflecting the polity's values. If the law is to address us as responsible members of the normative political community, it must address us in terms appropriate to those reasons. In the example offered in § 4, I treat my friend as a responsible agent only if the reasons I offer her for going to visit her aunt are of the right kind—the very reasons that, as I see it, make it right for her to do this. Similarly, I am now suggesting, if the law is to address us as responsible citizens, it must address us in terms that appeal to the right kind of reason for refraining from the conduct that it defines as criminal: in terms that appeal, that is, to the reasons which justified criminalising such conduct in the first place.
What kinds of reason could those be? We will return to this question in the following two sections, but should note here that it will be hard to resist the initial conclusion that they must be moral reasons, to do with the moral wrongfulness of the conduct that is criminalised. For, first, the law's voice is an insistent one. It declares that these things must not be done, even if (it implies) it might suit our individual interests to do them; it attaches significant penalties to the conduct it criminalises: how could such a voice be justified other than by claiming that it is speaking to us of moral duties that we owe to each other and to the polity? Second, the law speaks in terms that appear closely related to the extra-legal languages of morals. It speaks of guilt, of fault, of culpability and wrongdoing; it speaks of murder, rape, dishonesty, theft and the like: unless we are to say that these terms are systematically ambiguous as between their legal and their extra-legal uses (in which case the law would not be making itself accessible or readily intelligible to its citizens), we must conclude that the law's definitions of offences are meant to be legal definitions of moral wrongs—of kinds of conduct that are wrong either pre-legally, as mala in se are; or as breaches of legal regulations which, once they are created, citizens have a moral obligation to obey (see Green 1997). The criminal law's definitions of offences will not always aspire to match precisely our extra-legal understanding of the relevant moral wrongs: there will often be good reasons, to do with the practical and moral constraints of law enforcement and the criminal process, for the law's definitions to diverge from extra-legal moral understandings. But the law's definitions must be grounded in those extra-legal moral understandings. What the criminal law must say to the citizens is therefore not that they must refrain from such conduct because the law forbids it and can demand their obedience, but that they should refrain from such conduct because it is wrong.
Why should we maintain an institution that speaks to its citizens in such terms of wrongs that should not be committed? Part of the reason is obviously to dissuade the citizens (if they need dissuading) from committing such wrongs—that is the truth in the instrumentalist view. Indeed, nothing said so far rules out the familiar suggestion that a central purpose of a system of criminal law is to reduce the incidence of the relevant kinds of wrongdoing by threatening those who might commit them with punishments that will deter them—whether punishment should be justified as a deterrent is a further issue. But this is not to say that instrumentalists are wholly right, or that Moore is wholly wrong to think that the sole purpose of criminal law is to provide for the retributive punishment of those who culpably commit such wrongs. For, first, even if we are in the end justified in using punishment as a deterrent for those who will not otherwise be dissuaded from crime, the law's initial appeal to the citizens must be in the moral language of wrongdoing, not simply in the coercive language of deterrence (see Legal Punishment, s. 6): not because such a moral appeal is likely to be instrumentally effective, but because it is intrinsically appropriate to the law's dealings with the citizens of a liberal polity. Second, we can now plausibly suggest that another purpose of the criminal law is to provide a suitable response to criminal wrongs that are committed. It publicly recognises and condemns them as wrongs by defining them as crimes; it calls those who are alleged to have committed them to account, to answer for that alleged wrongdoing, through a process of criminal trials; it condemns those who are proved to have committed such wrongs by convicting them—and by punishing them, if we understand punishment as involving the communication of censure (see again Legal Punishment, s. 6). The truth in Moore's view is that such responses to crime are justified not merely as instrumentally efficient means to the reduction of harmful conduct, or to other further ends, but as intrinsically appropriate responses to the kinds of wrongdoing that properly concern the criminal law. We must take such wrongdoing seriously, if we take seriously the values against which it offends, the victim's standing as one who has suffered such a wrong, and the wrongdoer's standing as a responsible agent who has done wrong: but to take it seriously is to be prepared to declare it to be wrong it, and to call to account and to condemn those who engage in it.
I have suggested in this section the central purpose of criminal law, as a distinctive kind of law marked out from the other kinds and aspects of law by the features discussed in s. 2, is to define, and to declare the wrongfulness of, certain kinds of wrongdoing, in order not only to dissuade citizens from committing such wrongs, but also to provide appropriate responses to those who commit, or are alleged to have committed, such wrongs. In defining conduct as criminal, the law identifies it as conduct from which we have good reason to refrain, and thus also as conduct for which we will be called to public account, and condemned and punished, if we engage in it. To ask whether we should have a system of criminal law is therefore to ask whether there are kinds of wrongdoing that the state should identify and respond to in such a way—kinds of wrongdoing that the state should take seriously as wrongdoing, and expect its citizens to take similarly seriously.
But what kinds of wrongdoing could these be? We noted that the simple Legal Moralist's claim, the claim that we have good reason to criminalise any kind of immoral conduct simply in virtue of its immorality, seems implausible. My betrayal of my friend, wrong though it is, does not seem like the kind of wrong that merits public denunciation by the criminal law, or for which I should be called to account by the whole polity through its criminal process; it is, surely, a private matter between me and my friend and perhaps the circle of friends to which we both belong), not a public matter that concerns the state, or my fellow citizens as such.
This natural response to this example points us towards one common way of identifying the kinds of wrong that do properly concern the criminal law—the idea that conduct which is to be criminalised ought to constitute a ‘public’, rather than a merely ‘private’, wrong.
