Reconceptualizing criminal law defenses.

AuthorNourse, V.F.

In 1933, one of the leading theorists of the criminal law, Jerome Michael, wrote openly of the criminal law "as an instrument of the state." (1) Today, criminal law is largely allergic to claims of political theory; commentators obsess about theatres of deterrence and retribution, and the technical details of model codes and sentencing grids, but rarely speak of institutional effects or political commitments. In this Article, I aim to change that emphasis and to examine the criminal law as a tool for governance. My approach is explicitly constructive: it accepts the criminal law that we have, places it in a counterfactual perspective, and asks what this means for institutional arrangements--our relations to each other and to the state. This focus is then applied to reconceptualize a variety of criminal law defenses, ranging from self-defense and insanity to necessity and provocation. In, the analysis of these doctrines, I argue that defenses cannot be fully explained by the standard inquiry into individual minds, characters, or virtues. Instead, defenses reflect the need for a liberal polity to control vengeance. I go on to argue that the standard view may yield a "paradox" of individualization which, in some cases, may actually work to the detriment of individuals. To undertake this kind of inquiry invites particular avenues of inquiry in the criminal law that have never received enough support, such as history and comparative law; and provides a new perspective on a variety of theoretical developments of the past decade, including the collapse of the harm principle, the increasing importance of social norm scholarship, and the impact of feminism on the substantive criminal law.

INTRODUCTION

It is occasionally confessed that "the doctrines of substantive criminal law have [little] to do with the causes or prevention of criminal behavior." (2) If there is any truth to this, then a rather large question is left looming: What does explain the criminal law? Deterrence and retribution, the twin pillars of much criminal law theory, too often disappoint. Think about it for a moment: if we truly wanted to deter more crime, or exercise our vengeance to its utmost, we would "string 'em up," kill the offender's children, or jail the innocent. We don't do these things--not necessarily because of deterrence or retribution (whatever these otherwise capacious ideas mean) (3) but because the resulting political order would be intolerable. (4)

We know that dictatorships deal with crime very easily. We also know that they seek to legitimize their violence through the criminal law. Hitler's criminal code formed mens rea and actus reus in the image of the Volk; Stalin's code formed these same ideas in terms of Bolshevik ideology. (5) Today, the new Chinese criminal code limit criminalization to the "harm" principle, (6) but then defines harm in ways that enable the punishment of dissent. (7) Now think about why our criminal law may look as it does. Perhaps we have forgotten to ask whether our criminal law both reflects and helps to construct our own liberal political order.

Some intellectual grounding for this hypothesis can be obtained from John Rawls's famous essay, Two Concepts of Rules. (8) Although the essay is known for other reasons, it makes a very important argument about the nature of punishment as an institution. Rawls argues that the standard tools of punishment discourse--retribution and deterrence (9)--tend to reflect unstated institutional assumptions: utilitarian arguments tend to favor the ideal of the legislator who looks to the future, general needs of the polity; retributive views, by contrast, tend to assume a judicial and retrospective approach focusing on individualized justice. (10) To dramatize the importance of these institutional assumptions and effects, Rawls imagines a rule of individual moral atrocity (punishment of the innocent) and considers its institutional implications (the imaginary system created is dubbed "telishment"). (11)

The point of the telishment example is to show that rules appearing to aim at individuals may also transform the practice of punishment, changing the nature of the offices and roles of those who govern. (12) As Rawls puts it, "[o]nce one realizes that one is involved in setting up an institution, one sees that the hazards are very great." (13) There follows, in this essay, a list of questions about the design of the institution of punishment and the conduct of officials--whether and how, in a system of telishment, we are ever to know whether these officials are "authorized" to issue a "telishment" or systematically "deceptive" about telishment. (14) Put in other words, once one punishes the innocent, one not only harms the individual punished but also creates collateral effects for the law-abiding and for those who govern the practice of punishment.

The logic of this claim parallels the insights of other disciplines, such as law and economics, which insist that to understand the effect of a law, one cannot simply look at the law itself. (15) One must look, as well, to "how people will respond" to the law and what relations they will create in response. (16) Rawls is looking at the institutional and political (rather than market/contract) effects of individualized rules and arguing that one cannot understand an individualized rule (punishing an innocent man) without considering important responses to, or effects of, the rule on (1) law-abiding citizens; (2) legal officials; and (3) the relations created between them. Just as a rule that punishes speech is likely to have "chilling" effects (all law-abiding speakers respond to the rule), the practice of telishment not only causes harm to the individual thrown in jail but inspires widespread fear in the populace about "whether the same fate won't at any time fall on them." (17) The rule also has effects on the relation between citizens and their government; a law that gives officers discretion and opportunities for deception in the determination of "who" is innocent is likely to yield widespread distrust in government officials. In such a world, the "people will come to have a very different attitude towards" (18) the practice of punishment and, I would add, their government as a whole.

The risks of which Rawls speaks are what we might call risks to a political order or claims of political structure. (19) This insight invites important questions about modern views of the criminal law. Since the 1970s, there has been an often unstated consensus that the proper level of analysis of the criminal law is at the individualized level of mind or conduct (whether of individual defendants or the collective sum of all potential defendants). Moreover, it has been assumed that the "individual level" forms an "exception to" and is "opposed to," rather than "constructive of," more generalized rules and institutional commitments. Thus, H.L.A. Hart famously contended that excuses were the individualizing price that a social system of crime control had to pay to protect the "choosing self." (20) But if punishment is seen as a practice, if criminal laws have collateral institutional effects, then perhaps defenses do not represent a price at all, instead serving important purposes not only for defendants but for the law-abiding majority. Indeed, this might explain how, in a world of "tough on crime" politics, we have any defenses as all.

In this Article, I accept Rawls's invitation to consider punishment as an institution. In Part I, I tease out of the criminal law a latent political economy--a set of relations implicit, yet unexpressed, in conventional criminal law theory and public discourse about the criminal law. Using the perspective generated by counterfactual method, (21) I argue that doctrines that have traditionally been thought to focus only on defendants may actually reflect less about the hearts and minds of defendants than about the needs of the law-abiding and their perceived relation to their government. In Part II, I apply this approach in a place where its application might seem unexpected--to a variety of criminal law defenses, including self-defense, necessity, provocation, and insanity. I urge, in each case, that these defenses incorporate elements that demand deference to majoritarian norms and aim to prevent private punishment. (22) Put in other words, as Emile Durkheim posited so long ago, the criminal law is not constructed for defendants, it is constructed for the law-abiding. (23)

In Part III, I respond to potential objections to this approach that argue it is illiberal because it looks beyond individual minds or characters or "choosing selves." I claim that, in its crudest forms, an analysis that is conducted solely at the individualized level may backfire; it may actually undermine a liberal polity's own stated aim to respect the individual. Efforts to intellectually sequester the defendant from the state yield a "paradox of individualization" in which state oppression may thrive, implanted by the law into descriptions of persons' minds and actions. (24) If criminal law theorists are looking for a liberal political theory that can help explain the criminal law, they would be better advised to consider the institutional implications of what Stephen Holmes has called the "anti-self-exemption" principle. (25) Finally, in Part IV, I sketch out some implications for this "collateral effects" approach toward the substantive criminal law, hoping to show how it may help us understand apparently anomalous theoretical developments in the criminal law, such as feminism's successes, the harm principle's demise, and the recent turn toward social norms.

  1. THE CRIMINAL LAW AND GOVERNANCE

    Imagine a world in which there were no criminal laws. If one assumes a society of persons of different strengths and a certain level of natural aggression, then it is fairly easy to imagine a rather nasty and brutish gathering, one...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT