Why have Criminal Law at All?
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The core punishments of the criminal law (deprivation of liberty or life) represent gravely serious assaults on the fundamental rights of persons, stigmatize and humiliate those persons, and typically cause those persons great personal unhappiness. Even when punishments are not actually inflicted on a particular individual, the possibility that they might be inflicted may be sufficient to generate enough fear in that individual to cause him to refrain from acting in ways he otherwise would have found desirable—a coercive curtailment of his liberty.
KeywordsSupra Note Border Crossing Liability Rule Harmful Conduct Auto Theft
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- 2.The following distinctions are drawn from Guido Calabresi and A. Douglas Malamed, “Property Rules, Liability Rules, and Inalienability: One View of the Cathedral,” Harvard Law Review 85 (1972):1089. For applications of this distinction to the problem of criminalization (applications that have influenced the present discussion),CrossRefGoogle Scholar
- 2a.see Alvin Klevorick’s “The Economics of Crime” and Jules Coleman’s “Crime, Kickers and Transaction Stnuctures,” both in NOMOS XXVII: Criminal Justice, eds. J. Roland Pennock and John Chapman (New York: New York University Press, 1984).Google Scholar
- 3.In Anarchy, State and Utopia (New York: Basic Books, 1974), Robert Nozick describes our rights as defining an area of “moral space” around each of us and describes rights violations as “border crossings” or “boundary crossings. “These are powerful metaphors that give one—atleast initially—agood intuitive feel for the nature of rights. For an argument that Nozick’s way of thinking of rights ultimately will not work, see Robert Paul Wolff, “Robert Nozick’s Derivation of the Minimal State,” Arizona Law Review 19 (1977):7.Google Scholar
- 4.Supra, note 3, 55 ff.Google Scholar
- 5.It is perhaps easy to see why we might want absolute prohibitions against others crossing the borders defined by our right to life. But why are we prevented from selling our lives or allowing others to kill us with our consent? Are the reasons here ultimately ones of policy (how would we ever know if consent was really given if the victim was dead?) or are there reasons of principle?Google Scholar
- 6.It is of course possible that, at least for some crimes, criminal conviction and punishment represent society’s way of expressing moral condemnation for the act and reinforcing its own moral code. My point is simply that this cannot be the primary purpose of the criminal law nor is such a purpose limited to the criminal law. (This certainly does seem to be an indirect, costly, and hurtful way to express something!) For a good discussion of these matters, see Joel Feinberg, “The Expressive Function of Punishment,” The Monist 49 (1965).Google Scholar
- 7.This “social contract” way of thinking of the formation and legitimacy of government strikes me as a good metaphor for gaining insights on the purposes of government and the reasons we might have for adopting one or giving one our allegiance. Unlike some of its defenders, however, I do not think such a model proves either the rationality or the moral legitimacy of government.Google Scholar
- 8.The metaphor of the state as a “dominant protective agency” that we might actually hire to do a job for us (much as we might hire a plumber) is drawn from Nozick, supra note 3. This model faces serious problems (see Wolff, supra note 3) but it does have the marvelous feature of demythologizing government and the state.Google Scholar
- 10.For a powerful case that criminal law functions to prevent persons from bypassing an efficient and established market, see Richard Posner, Economic Analysis of Law (Boston: Little, Brown, 1972), chap. 4. This works clearly for property crimes, but it seems counterintuitive for crimes of personal violence, e.g.,rape. (What is the rape market that the rapist bypasses?) For more on this, see my “The Justice of Economics” (reprinted in this collection).Google Scholar
- 11.This is not, of course, to say that the intention of the criminal is usurpation. The criminal is no doubt typically motivated by greed and malice and does not see himself in political terms—i.e., as a revolutionary.Google Scholar
- 12.See the discussion of free expression and its relation to libel and slander in Chapter 2 of The Philosophy of Law: An Introduction to Jurisprudence, by Jeffrie G. Murphy and Jules L. Coleman (Boulder: Westview Press, Revised Edition, 1990).Google Scholar