Question

Explain why the goal of criminal law is NOT 100% prevention

Answer 1

Criminal law, the body of legislation that describes criminal offences, governs the arrest, prosecution and conviction of criminals, and sets the sentences and disciplinary procedures applied to convicted offenders. No-one disputes that you shouldn't criminalize such issues. What's less evident is how we figure out what these issues are. One solution is to impose limits on the allowability of criminalisation. Even if the principles which justify getting criminal law count in favor of criminalisation, our reasons for doing so may be overcome by counter-considering reasons.

A constraint identifies conditions under which the latter reasons always win. Consider, for example, the wrongfulness constraint:

• (W)It is only permissible to criminalize ϕϕing if ϕϕing is morally wrongful conduct.

Principles like (W) give us a line we can draw without reference to (at least some) morally salient particulars. Conduct that falls outside the line may not be criminalized come what may. Imagine we are considering whether to make it a crime to possess guns. Doing so will prevent a great deal of harmful wrongdoing that cannot be prevented otherwise. This is a powerful moral reason to criminalize. But if (W) is sound, and gun possession is not morally wrongful, that powerful reason is irrelevant to the decision with which we are faced. We are not permitted to criminalize, however much harm criminalization would prevent. The consequences of those concepts are very different. That conduct is dangerous, or unreasonably dangerous, doesn't prove that by criminalizing it we can avoid a proportionate amount of harm. Conversely, we may only be able to prevent harm by criminalizing harmless conduct, and that does not risk harm unreasonably.

The constraint to which most attention has been paid is the so-called harm principle. It is nowadays widely recognised that there is no single such principle. Rather, there are many harm principles (Tadros 2011a; Tomlin 2014b; Edwards 2014). One important distinction is between the harmful conduct principle (HCP) and the harm prevention principle (HPP):

• (HCP)It is only permissible to criminalize ϕϕing if ϕϕing is harmful conduct, or conduct that unreasonably risks harm.
• (HPP)It is only permissible to criminalize ϕϕing if criminalizing ϕϕing is necessary to prevent harm, and if the harm done by criminalization is not disproportionate to the harm prevented.

To see the first point, consider the use of drugs. Criminalizing use may turn a drug into forbidden fruit that is more attractive to potential consumers, and place production in the hands of criminal gangs who make consumption ever more harmful. Users may become less likely to seek medical care for fear of revealing their crime, and may end up with criminal records contributing to social stigma, hurting their work opportunities for years to come (UN 2015). Where criminalisation has these consequences, the damage it does is out of all proportion to the avoidance of damage. Even if there is satisfaction with (HCP), (HPP) is not.

Consider ownership of guns, to see the second issue. Possessing a gun isn't dangerous in itself. And others possess weapons without damage worrying unreasonably. If one endorses (HCP), one must either compromise one's preferred theory, or agree that it can not criminalize gun ownership. If one endorses (HPP), then things will be different. Constraints like (W), (HCP), and (HPP) require clarification. To apply (W) we need to know what makes something morally wrongful. Plausibly enough, it is morally wrongful to ϕϕ only if there is decisive reason not to ϕϕ. But while this is necessary, it may not be sufficient. I have decisive reason not to go out in the rain without my umbrella. But it does not seem morally wrongful to do so (Tadros 2016, 11–46). Whatever the correct criterion, we must ask how law-makers are to apply it. Are law-makers to ask whether most members of society believe ϕϕing to be morally wrongful—a matter of conventional morality—or are they to ask whether this is what members would ideally believe—a matter of critical morality (Hart 1963; Devlin 1965)? We must also ask whether just any morally wrongful act will do. Some wrongful acts also violate rights, such that those who commit them wrong others. On one view, it is only when ϕϕing meets this additional test that it is permissible to criminalize ϕϕing . Whatever view of harm we take, we must also decide whether all harms count for the purposes of a given harm principle. People sometimes harm themselves, they are sometimes harmed by natural events, and harm is sometimes done consensually. Recall that if we endorse (HPP), we must decide whether the harm criminalization prevents is proportionate to the harm it does. Can we include all the aforementioned harms in our calculations? Or must we only include harm done to others without their consent (Mill 1859; Dworkin 1972; Feinberg 1986; Coons and Weber 2013)? Some point out that whatever law-makers’ aims, most criminal laws will prevent some non-consensual harm (Feinberg 1986, 138–142; Tadros 2016, 103). Be that as it may, whether we take into account other harms remains important: where the scales would otherwise point against criminalization, giving weight to a wider range of harms may tip the balance decisively in its favour.

A second defence of constraints proceeds from within non-ideal theory: from our account of what should be done when some people will not act as they should. One might say that all criminal law theory is part of non-ideal theory—that we have reason to have criminal law precisely because people will (otherwise) act wrongly. Be that as it may. As well as fallible agents who (would otherwise) commit crimes, there are fallible agents who make, apply, and enforce criminal laws. Any non-ideal theory must also take account of the errors the latter are disposed to make. Some are errors of application and enforcement—errors made when police officers arrest, prosecutors charge, and courts punish the innocent. More important for present purposes are the errors law-makers are disposed to make when creating crimes. These errors matter here for the following reason. Prescriptive norms are often justified on the grounds that they prevent/mitigate errors that would be made in their absence (Schauer 1991, 135–166). If followed, speed limits prevent some drivers from driving in ways that are impeccable in isolation. But the limits are justified if they prevent/mitigate errors that drivers would make if we did without speed limits, and if preventing/mitigating the errors is worth the cost of preventing some driving that is otherwise impeccable. Let us grant that, when followed, constraints like (W) or (HPP) prevent some law-makers from criminalizing in ways that are impeccable in isolation. The constraints may be justified if they prevent/mitigate errors law-makers would make if they did without them, and if preventing/mitigating the errors is worth the cost of preventing criminalization that is otherwise impeccable. The widespread belief that we should not countenance thought crimes, leads most writers to claim that there should be an actus reus element to each criminal offence. Paradigmatically, this element is satisfied only if DD acts in a way that causes some outcome, such as death, or property damage, or fear of violence. This paradigm does, of course, admit of a number of exceptions. As well as inchoate offences—like attempts or conspiracies—most systems of criminal law include liability for some omissions.  Academic debate about causation and omissions largely takes our paradigm for granted. Some writers, however, take a more radical view: they favour a paradigm shift in our thinking about criminal responsibility.