§ 9.10 SOCIAL HARM: GENERAL PRINCIPLES

• Jurisdiction: United States

§ 9.10. Social Harm: General Principles

[A] Overview

Holmes has written that the "aim of the law is not to punish sins, but is to prevent certain external results."¹³⁹ Joel Feinberg has stated that "[a]cts of harming . . . are the direct objects of the criminal law.¹⁴⁰ These statements remind us that, to be guilty of an offense, a person must do more than think bad thoughts; she must be guilty of wrongdoing. The voluntary act is the "doing"; the harm caused by the voluntary act is the "wrong" in "wrongdoing."¹⁴¹ The harm is the body—the linchpin—of the crime. And, because crimes are public wrongs, we may describe the harm caused in a criminal case as "social harm."

Some scholars state that "social harm" is an essential element of every crime.¹⁴² This is only true, however, if the term "social harm" is broadly defined. Some conduct that is criminal may cause no "injury" at all, in the layperson's sense of that term. What is the "social harm," for example, in driving while intoxicated, if nobody is hurt and no property is damaged? Or, if D, intending to kill V, who is asleep, pulls the trigger of what turns out to be an unloaded gun, D may be charged with attempted murder, but where is the harm in D's conduct if V never learns of the attempt? If all crimes require "social harm," must such conduct go unpunished?

To a utilitarian, there is no reason why resulting harm should be considered a prerequisite to criminal liability, as long as the actor's conduct demonstrates her propensity to cause future harm, or if punishment of the person will deter future harm by others. In contrast, many retributivists believe that punishment of an actor is unjustified in the absence of social harm. Only then has the actor taken something from society. Only then is a debt owed. Only then is it right for society to take something from the actor by means of punishment.

In most circumstances the views of both schools of thought converge. Murder needs to be deterred and, in any case, causes harm that justifies punishment as repayment; so both utilitarians and retributivists typically can justify punishing murderers. Moreover, even in the case of an intoxicated driver who causes no immediate tangible harm, but who threatens future harm, a retributivist may be able to justify punishment: A drunk driver weaving on the highway, for example, endangers others by her conduct, which endangerment frequently causes apprehension of harm in other drivers who observe the dangerous conduct. Disturbing the public repose is a form of intangible, but entirely real, injury that may justify penal sanction.

Frequently, however, it is hard to conclude that dangerous conduct has hurt anyone, even...