"Theories are nets to catch the world, to rationalise, to explain and to master it" Karl Popper, The Logic of Scientific Discovery (1939)
These notes are designed to orientate students to the principal theories of criminalization (ie the circumstances in which the criminal law should or should not be used to prohibit conduct). It will provide students with a outline of the competing theories about the proper role and purpose of the criminal law. These theories will help students to understand the tensions and contradictions within the substantive laws that will be examined in the unit.
Criminal law is historically and politically contingent - it reflects the concerns and values of the communities which create and administer those laws. The early approach to criminalisation lacked any explicit theoretical foundation and crimes were created (by the courts or legislature) to combat conduct which undermined, or threatened to undermine, the stability of the social order, particularly the authority of the Church or Sovereign. The criminal laws reflected religious prohibitions (eg sodomy, adultery, murder, theft) and crimes against the state (treason, conspiracy).
It is difficult to justify the scope of the modern criminal law by reference to this general aim of social preservation. The reality is that the modern criminal law has a very broad canvas, covering not only serious antisocial acts but also relatively minor harms (A Ashworth, pp 1-5). In numerical terms, the bulk of crimes are statutory "regulatory offences" which regulate conduct in diverse spheres. Motor traffic and public health offences are offences of a regulatory nature. Often this type of offence is distinguished from "real" crimes by the fact that the prosecution need not prove fault (intent, reckless or even negligence) on the part of the defendant. However, one must be cautioned against thinking that all regulatory offences are minor or exceptional. Indeed, in fields like occupational health and safety and environmental regulation, Parliament has created many offences which are more serious in their consequences than theft or criminal damage.
(Primary source: Ashworth, Chapters 1 and 2)
The most significant theoretical contribution, which has informed and shaped the scope of the criminal law, is liberalism. Liberal political theory (19th century) had a profound impact on criminal law, particular since it required those creating laws to justify state intervention. The fundamental tenet of liberalism is the individual liberty or autonomy is of prime importance and should only be curtailed in order to prevent harm to others. This is known as the harm principle. The harm principle emerged first in the 19th Century liberal philosophy of John Stuart Mill:
JS Mill argued that the principle of liberty requires that the only acceptable reason for criminalising behaviour is that it causes harm to others. Thus the criminal law should not be used to control non-harmful behaviour or to prevent a person from harming themselves.
The harm principle, as a product of 19th century liberalism, reflects a view of that the social world is founded upon the individual self interest and right (Norrie, p 19). It aims to accommodate the principal concerns of the state whilst respecting individual freedom and autonomy. The harm principle has played an influential role in the criminal law, informing academic and judicial debates about the limits of consent in rape and assault. It also features in debates over whether homosexuality and prostitution pose a sufficient threat of harm to others to warrant criminal sanction.
The problem with the harm principle is the central notion of "harm to others", which proves to be controversial and notoriously difficult to apply. Reasonable people can disagree over whether offensive or insulting behaviour should be regarded as conduct which causes harm to others. Joel Feinberg has explored this aspect of the harm principle and proposes a broader conception of harm that encompasses a setback to a person's interest. With a broader concept of harm, he develops the "offense principle" which permits prohibitions which are necessary to prevent serious offense to other persons. Offensive conduct crimes exist in most states in Australia and have an extremely controversial history, commonly used against minority groups or groups with unpopular political opinions. Others have attempted to bring offensive conduct within the scope of the harm principle by expanding the notion of harm to include conduct which cause indirect or remote harm to others. This argument is often used to justify tighter criminal regulation of obscene publications. The argument is often put that such publications cause harm indirectly by increasing the likelihood of sexual assault and perpetuating the discrimination against women. This expanded notion of harm significantly weakens the harm principle. (Ashworth, p 30-42)
The other problem with the harm principle is that it focuses on individual harm, rather than harm to the community. It is anthropocentric (that is, human focused). Thus where there is no direct harm to humans, state intervention is not justified. This makes it difficult to justify the use of the criminal law as a means to protecting the environment.
The harm principle fails in many ways. Not only do we have problems in defining harm, but the harm principle is not descriptive of much of the modern criminal law. Many regulatory offences prohibit conduct which does not cause direct harm to others. Other crimes, regulate conduct which only indirectly causes harm. However, the harm principle holds an enormous sway over debates in the criminal law. In Reconstructing Criminal Law, the authors suggest that it is preferable to view the harm principle "as an ideological framework in terms of which much policy debate about criminal law is expressed": (Lacey et al, at p. 4)
(Primary Source: Norrie, pp 18-26)
From prevention let us now turn to consider deterrence. Another purpose (but probably not effect) of the criminal law is its deterrent value. According to liberal theorists to be effective in preventing harm against others, the criminal law must operate as an deterrent. To be an effective deterrent, the rules criminal law must be clearly stated and known in advance. The 19th century liberal reformer, Jeremy Bentham, popularised the view that the primary aim of the the criminal law was deterrence. He was extremely critical of common law crimes where the judges had, in his view, made up the law as they went along. Bentham called this "dog law" because it condemned individuals after the event, in much the same way that owners punish their dogs. Such laws have no deterrent value. Today, for this reason, both law reformers and some judges, stress the importance of clarity and predictability in the criminal law.
Bentham argued that the criminal law will only operate as an effective deterrent where there is proportionality between the crime and the punishment. This means that serious crimes must carry with them serious punishments. It is important to appreciate that in Bentham's day the approach to deterrence and punishment was not very rational. In the 18th century criminal justice system, deterrence was thought best to be served by a bloody and repressive system of punishment. Many minor offences carried the death penalty, such as petty theft and poaching. The system of extreme penalties was tempered only by the prerogative of mercy, or commuting the sentence to transportation.
Benthamism challenged this approach to punishment, arguing for a rational system of laws and penalties. He argued that the level of punishment must be equal to the level of harm inflicted by the defendant. The idea was that the rational, self-interested criminal would conclude that the costs of punishment outweighed the benefits of crime and therefore make the rational decision to desist from its commission. He believed that a code of law geared to rational conduct would reduce crime to virtually nil.
The problem with the idea of criminal law as deterrence is that we do not live in a world of rational individuals. Criminology, a social science discipline, offers some insights on Bentham's principles of punishment. There is research suggesting that social circumstances or biological factors may have an causal connection with crime. Indeed, the empirical evidence does not support the view that the criminal law has much deterrent value eg capital punishment. These theories of social or biological determinism, which are contested and controversial, are countered by research which suggests that crime is not determined but rather is an outcome of individual choice. It is possible to reconcile competing these theories, recognising that people do have some choice in whether or not to commit crime, but that social and biological conditions may impose constraints on the choices available. Moreover, even if we reject the idea that criminality is determined in this way, Bentham's deterrence theory fails for another reason. The truth about human nature is that people usually know what they ought not to do, but nevertheless do what they ought not to. People may be rational and self-interested, but they still make illogical choices to run the risk of severe punishment.
As one criminologist Jock Young concludes:
(Primary Source: Ashworth, pp 42-44)
The alternative to criminal law as prevention and deterrence of crime is the idea that the criminal law should punish only behaviour which is morally wrong. On this view the criminal law is an institutionalised expression of moral condemnation. The idea that the criminal law should enforce and reflect morality are commonly associated with the views of English judge Lord Devlin. Devlin argued strongly in 1960s that the function of the criminal law is to punish conduct which threatens or undermines the common morality.
There are several problems with this conception of the criminal law. The first difficulty is Devlin's belief that common morality is essentially derived from Christian teachings. Devlin admits that modern society is comprised of many different cultures and religions. However, he still argues that it is possible to identify shared moral values. The truth in a modern multicultural society is that it is difficult to discover a shared moral position within the community on many issues, like abortion, pornography, violence against women. The second point to make is that the content of the modern criminal law does not, to any great extent, reflect this conception of the criminal law. Some offences certainly do have a moral dimension. For example there is an offence of conspiring to corrupt public morals or outrage public decency. But at the same time, there are a great many offences which do not have a moral purpose. I have mentioned already the large number of regulatory offences, dealing with motor traffic and environmental matters.
However, the point can be made that the widespread belief in the community that the criminal law does serve this function of reinforcing a shared moral view does underpin its existence. On this view, the criminal law has an important symbolic and ideological function in upholding core social values.
(Primary Source: Ashworth, pp 28-29) Feminist theorist Nicola Lacey has developed an alternative justification for the criminal law. A powerful criticism of liberalism, and the idea of individual autonomy which it embodies, is that it pays no attention to the social context in which we live. The principle of welfare attempts to address this concern. The principle refers to those values, needs and interests which a society has decided through its democratic processes are fundamental to its functioning, and therefore require protection by the criminal law. These values are not necessarily morally derived, and so can be distinguished from Devlin's theory. It emphasises the centrality of collective goals.
This approach to the criminal law is best viewed, not as an overriding principle, but rather as a principle which mediates and limits arguments based on the importance of individual autonomy. Certainly welfare considerations do certainly influence decisions about the scope of the criminal law. Individual autonomy and the harm principle suggest that where individuals agree to resolve a dispute by fighting their conduct does not warrant criminal sanction. However, the well-being (the welfare) of the community would certainly be threatened if individuals were allowed to consent to fights. Ashworth concludes "The adjustment between welfare and autonomy is a matter for reasoned debate within each society".
In Not Just Deserts - A Republican Theory of Criminal Justice (Clarendon Press, Oxford, 1990), John Braithwaite and Phillip Pettit the authors develop a normative theory of criminal justice, which can be applied to various interrelated sub-systems: investigation, prosecution, guilt determination and punishment. The theory is comprehensive. What follows is necessarily an short and simplified rendition of a complex normative theory. Rather than serve retributist, preventionist or utilitarian objectives, the purpose of the criminal justice system should be promote a republican conception of freedom which the author term "dominion" or freedom as non-domination.
Classical liberalism whether presented in a positive or negative form, proposes an asocial concept of individual freedom in which interference by others must be minimised or eliminated (Braithwaite and Pettit: 57). Dominion is not a positive conception of freedom in another form. In common with classical liberals it favours a negative definition as the most appropriate abstract analysis. Dominion however offers a different interpretation of what the ideal of negative liberty involves:
Republican theory attempts to remedy these deficiencies. In Not Just Deserts the authors envision a republican conception of freedom called "dominion". Although dominion is a negative definition of liberty, it offers a radically different interpretation of the concept:
Appropriate dominion synonyms are civic freedom, franchise or citizenship. Dominion is a rival to retributive theories of criminal punishment. Rather than constructing the legal system as a means of ensuring offenders receive their just deserts (that is, punishment proportionate to their wrongdoing), republican theory focuses on ends. As a consequentialist theory, the purpose of the criminal justice system, and its integrated sub-systems, should be the maximisation of dominion.
Dominion has three components. A person enjoys full dominion if and only if:
Dominion is maximised by the use of presumptions relating to (i) parsimony, (ii) the checking of power, (iii) reprobation and (iv) the reintegration of victims and offenders: p 65.
As a comprehensive theory, dominion has implications for debates about criminalisation, the limits of criminal investigation, and sentencing principles. In the context of criminalisation debates, the theory provides an alternative to the harm principle devised by JS Mill, On Liberty (see above) who argued that the principle of liberty requires that "the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others": at 68.
Republicanism realises that law alone cannot achieve structural change, and moreover counsels legal restraint through its adherence to a "presumption of parsimony", ie that intervention by the law should be a measure of last resort. Consequently, republican theory emphasises the importance of non-legal forms of regulation (informal social norms and practices) as a means of maximising dominion.
It is distinguished from utilitarian approaches which seek merely to maximise happiness or welfare. The rights conferred by utilitarianism though are unstable: "it fails to provide the criminal justice authorities with reason to take the rights seriously, attaching moral as well as legal force to them" p 44. It will justify the penalisation of the innocent where it is necessary to maximise overall happiness: 52. Preventionism is a theory which leads to overcriminalisation, (inchoate crimes) and potentially the sacrifice of the individual.
None of the theories about the criminal law outlined above can be said fairly to represent any existing system of criminal law - these theories are normative rather than explanatory. These competing theories about criminalisation are useful in that they provide insight into the ideological framework in which debates about the limits of the criminal law often occur. When considering the arguments for a particular approach in the criminal law, judges and legal academics frame their arguments, expressly or impliedly, in the terms of one of these conceptions. What I have outlined is essentially a pluralistic approach to the criminal law. This approach acknowledges that arguments based on individual autonomy, morality and welfare, to a greater or lesser extent, have a valid role in shaping the contours of the criminal law.
For an application of republican theory to the laws governing public
protest in Australia, see Bronitt and Williams (1997).