Skip to main content

Advertisement

SpringerLink
Log in

Crimes, Public Wrongs, and Civil Order

  • Original Paper
  • Published:
Criminal Law and Philosophy Aims and scope Submit manuscript

Abstract

The idea that crimes can usefully be understood as ‘public wrongs’, and that this can generate a plausible principle of criminalisation, has found some support in recent years; it has also been subjected to some sharp criticism. This paper aims to sketch the most plausible version of that idea, and to show how, once properly explained, it is not vulnerable to those criticisms. After a brief defence of the negative principle, that we may not criminalise conduct that does not constitute a public wrong, it explains the positive principle, that we have reason to criminalise conduct if it constitutes a public wrong, by drawing an analogy between criminal law and codes of professional ethics, and by appealing to the idea of civil order, as the normative structure of a polity—a structure that criminal law helps both to constitute and to sustain. Four objections are then met: that this account implies an unacceptable relativism; that it distorts the reasons that bear on criminalisation; that it cannot make room for those who do not identify themselves with the polity in which they live; and that it implies an unrealistically demanding conception of what is required for a polity to exist.

This is a preview of subscription content, log in via an institution to check access.

Access this article

Log in via an institution

Price excludes VAT (USA)
Tax calculation will be finalised during checkout.

Instant access to the full article PDF.

Similar content being viewed by others

Notes

  1. For different versions of the idea see SE Marshall and RA Duff, ‘Criminalization and Sharing Wrongs’ (1998) 11 Canadian Journal of Law & Jurisprudence 7, ‘Public and Private Wrongs’, in J Chalmers et al. (eds), Essays in Criminal Law in Honour of Sir Gerald Gordon (Edinburgh UP, 2010) 70; DN Husak, Overcriminalization: The Limits of the Criminal Law (OUP, 2007); G Lamond, ‘What is a Crime?’ (2007) 27 OJLS 609; RA Duff, ‘Towards a Modest Legal Moralism’ (2014) 8 Criminal Law and Philosophy 217; AYK Lee, ‘Public Wrongs and the Criminal Law’ (2015) 9 Criminal Law and Philosophy 155.

  2. See especially MS Moore, ‘Liberty’s Constraints on What Should be Made Criminal’ (in RA Duff et al (eds), Criminalization: The Political Morality of the Criminal Law (OUP, 2014) 182), 198–200; J Edwards and AP Simester, ‘What’s Public About Crime?’ (2017) 37 OJLS 105.

  3. For more detail, see RA Duff, The Realm of Criminal Law (OUP, 2018).

  4. We focus here on domestic criminal law, the criminal law of a nation state: international criminal law requires a more complicated story.

  5. For different versions of this kind of view, see MS Moore, Placing Blame: A Theory of Criminal Law (OUP, 1997), ch 1, and ‘A Tale of Two Theories’ (2009) 28 Criminal Justice Ethics 27; Edwards and Simester (n 2 above), 122–133.

  6. See V Tadros, Wrongs and Crimes (OUP, 2016), ch 17; A Cornford, ‘Rethinking the Wrongness Constraint’ (2017) 36 Law and Philosophy 615; J Edwards, ‘Criminalization without Punishment’ (2017) 23 Legal Theory 69.

  7. But see Duff (n 3 above), chs 2.9, 3.1-2.

  8. Compare J Gardner, ‘Relations of Responsibility’, in R Cruft et al (eds) Crime, Punishment, and Responsibility (OUP, 2011) 87; and M Dempsey, ‘Public Wrongs and the “Criminal Law’s Business”: When Victims Won’t Share’, in Crime, Punishment, and Responsibility, 254.

  9. On the distinction between formal and substantive criminalisation, see N Lacey, ‘Historicising Criminalisation: Conceptual and Empirical Issues’ (2009) 72 MLR 936, 942–947; also J Horder, Ashworth’s Principles of Criminal Law (8th edn; OUP, 2016), 4–10.

  10. Compare Tadros (n 6 above), 112–114.

  11. Edwards and Simester (n 2 above), 108; see also Moore, ‘A Tale of Two Theories’ (n 5 above), 40–41.

  12. The ‘public wrongs’ principle is thus a responsive, rather than a preventive, principle: what gives us reason to criminalise is not (initially or primarily) that by doing so we will prevent the commission of public wrongs, but that this is an appropriate (and sometimes the appropriate) way to respond to public wrongs. Other principles of criminalisation are instead primarily preventive, including the harm principle in its classical formulations, if not always in its application: see, e.g., JS Mill, On Liberty (Parker, 1859), ch 1 para 9; J Feinberg, Harm to Others (OUP, 1984), 26; also J Edwards, ‘Harm Principles’ (2014) 20 Legal Theory 253, 263–264, on ‘act-centered’ and ‘instrumental’ principles. Legal moralist principles, of which the public wrongs principle is one, are typically presented as responsive principles (contrast J Edwards, ‘An Instrumental Legal Moralism’ (2018) 3 Oxford Studies in Philosophy of Law); but we cannot engage here in the debate between (primarily) responsive and (primarily) preventive principles.

  13. We need not concern ourselves here with questions about the relationship between the ‘ethical’ and the ‘moral’ (see B Williams, Ethics and the Limits of Philosophy (Fontana, 1985), especially chs 1, 10). The sphere of the ethical might be wider than that of the moral, and is certainly wider than that of moral obligation or duty; but a code of ethics will include moral requirements.

  14. Professional codes might also cover matters of competence and capacity: see, for instance, the range of grounds on which medical practitioners’ ‘fitness to practice’ can be questioned; General Medical Council, Professional Conduct and Discipline (GMC, 1993).

  15. Professional Conduct and Discipline, para 49: misuse of drugs or alcohol, ‘dishonest behaviour’, and ‘indecent or violent behaviour’ might ‘occasion disciplinary proceedings’, as can any criminal conviction (para 3).

  16. A version of the distinction between mala in se and mala prohibita might appear here: the reason offered for a ban on all sexual relationships between staff and students might not be that all such relationships are unethical in themselves, but rather that such a ban is the only effective way to rule out relationships that are improperly exploitative or coercive—in which case such a ban would resemble the criminalisation of sexual activity with people under a specified age (see, e.g., Sexual Offences Act 2003, ss 9–15).

  17. Edwards and Simester (n 2 above), 108.

  18. This disanalogy will worry those who think that obligations must be, in some sense, voluntarily incurred: thus the obligations that go with my (voluntary) membership of a profession are in that respect unproblematic, while the obligations under the law that go with my (non-voluntary) membership of a polity appear problematic. But we would appeal instead to a conception of associative obligations that go with membership of a community—obligations that do not depend on that membership being voluntary, although they do depend on the character and value of the community (see, e.g., RM Dworkin, Law’s Empire (Fontana, 1986), ch 6; J Horton Political Obligation (2nd edn; Palgrave, 2010); J Seglow, Defending Associative Obligations (Routledge, 2013).

  19. Whereas totalitarianism aims to ‘eras[e] the difference between public and private life’ (T Snyder, On Tyranny: Twenty Lessons from the Twentieth Century (Crown/Archetype, 2017), 88, on Hannah Arendt).

  20. On civil order, see especially M Oakeshott, On Human Conduct (OUP, 1975), ch II (‘On the Civil Condition’); L Farmer, Making the Modern Criminal Law: Criminalization and Civil Order (OUP, 2016), especially ch 2.

  21. See, famously, J Rawls, ‘The Idea of an Overlapping Consensus’ (1987) 7 OJLS 1; and compare HLA Hart, The Concept of Law (3rd edn; OUP, 2012) ch 9, on the ‘minimum content of natural law’.

  22. Which is not to say that we can expect to find agreement in how these kinds of wrong should be understood, or in how they should be legally defined, or in just what their scope should be taken to be: criminalisation is not a process of trying to capture accurately a set of determinate pre-existing wrongs, but a process of constructing a public conception of wrongs that do have an extra-legal or pre-legal existence, but that are given a distinctive shape by the process (see L Farmer, ‘Criminal Wrongs in Historical Perspective’, in RA Duff et al (eds), The Boundaries of the Criminal Law (OUP, 2010), 214; Making the Modern Criminal Law, especially chs 8–9).

  23. We need not here discuss the point that property offences are not pure mala in se (if a malum in se must be a wrong that can be identified as such independently of any kind of legal regulation).

  24. See, e.g., Arts 1–2 of the Iranian Constitution: ‘[t]he form of government of Iran is that of an Islamic Republic’; that republic is to be ‘based on belief in … the One God …, His exclusive sovereignty and right to legislate, and the necessity of submission to His commands’.

  25. See, e.g., Art 1 of the French constitution: ‘France is an indivisible, secular, democratic and social Republic’.

  26. See, belatedly, R v R [1992] 1 AC 599.

  27. As Edwards and Simester (n 2 above) suggest, at 109.

  28. See n 12 above.

  29. This account has affinities with the accounts of criminal law as ‘public law’ offered by Thorburn and Chiao: see M Thorburn, ‘Criminal Law as Public Law’, in RA Duff and SP Green (eds), Philosophical Foundations of Criminal Law (OUP, 2010) 21, and ‘Constitutionalism and the Limits of the Criminal Law’, in RA Duff et al (eds), The Structures of the Criminal Law (OUP, 2011) 85; V Chiao, ‘What is the Criminal Law For?’ (2016) 35 Law and Philosophy 137, ‘Two Conceptions of the Criminal Law’, in C Flanders and Z Hoskins (eds), The New Philosophy of Criminal Law (Rowman & Littlefield, 2016) 19. One important difference between our account and theirs is that they take a ‘public law’ conception of criminal law to rule out a ‘legal moralist’ view, according to which criminal law is centrally concerned with moral wrongdoing; our argument is that criminal law, understood as public law, is properly concerned with (public) moral wrongdoing.

  30. Compare J Finnis, ‘Law, Morality and Sexual Orientation’ (in Finnis, Human Rights and Common Good: Collected Essays Volume III (OUP, 2011), 334), at 344: ‘[a] political community which judges that the stability and protective and educative generosity of family life are of fundamental importance to the whole community’s present and future can rightly judge that it has compelling reasons for judging that homosexual conduct … is never a valid, humanly acceptable choice and form of life, in denying that same-sex partners are capable of marrying, and in doing whatever it properly can … to discourage such conduct’. On fornication laws in the US, see J Sweeney, ‘Undead Statutes: The Rise, Fall, and Continuing Use of Adultery and Fornication Criminal Laws’ (2014) 46 Loyola University Chicago Law Journal 127: some define ‘fornication’ simply as sex between unmarried people, but some require the sexual relationship to be ‘open and notorious’, or to involve (open) cohabitation.

  31. Moore (n 2 above), 199.

  32. See Moore (n 5 above).

  33. More precisely, he could object that, even if these types of conduct were immoral, a proper respect for the value of liberty should preclude their criminalisation: see ‘Liberty’s Constraints on What Should be Made Criminal’. But he would have to allow that in deciding that it has good reason to criminalise such conduct, it acts, in one way, in conformity to his theory of criminalisation.

  34. ‘If you believe as I do—that the morality of both virtue and of obligation is simply silent on sexual matters, such as what organ one puts into what orifice of what gender of what species—then it requires no recourse to a right to liberty to stay the legislative hand on laws regulating sexual behavior’ (‘Four Reflections on Law and Morality’ (2007) 48 William and Mary Law Review 1523, at 1540–1541).

  35. This is an analogue of what Dagger calls the ‘irrelevance objection’ to ‘fair play’ theories of punishment: see R Dagger, Playing Fair: Political Obligation and the Problems of Punishment (OUP 2018), 191–194.

  36. See RA Duff, Answering for Crime (Hart, 2007), ch 4.3.

  37. Compare M Thorburn, ‘Constitutionalism and the Limits of the Criminal Law’ (n 29 above), at 102: ‘The wrong of rape—and of murder, assault, etc—is precisely the objectification of one person by another, but that objectification is of concern to the state because it is the state’s job to ensure the survival of the system that makes it possible for us all to interact on terms that preserve the status of us all as free and equal moral agents’. We must leave aside here the complications created by the various kinds of extra-territorial jurisdiction that systems of domestic criminal law can claim.

  38. Treason Act 1351: see Joyce v DPP [1946] AC 347; J Horder, Ashworth’s Principles of Criminal Law (8th edn; OUP, 2016), 24–26.

  39. See Law Commission, Reforming Misconduct in Public Office (CP No 229; 2016).

  40. See, e.g., Crown Prosecution Service, Election Offences; www.cps.gov.uk/legal/d_to_g/election_offences/.

  41. On the wide (over-wide) range of public order offences, see C Wells and O Quick, Lacey, Wells and Quick Reconstructing Criminal Law: Text and Materials (4th edn; CUP, 2010), chs 4–7; D Ormerod and K Laird, Smith and Hogan’s Criminal Law (14th edn; OUP, 2015) ch 32.

  42. See Duff (n 3 above), ch 7.5.

  43. Edwards and Simester (n 2 above), 116–118.

  44. See B Williams, ‘Utilitarianism and Moral Self-Indulgence’ (in Williams, Moral Luck (CUP, 1981) 40). This objection is, they think, strengthened by the figure of the ‘recusant’, who does not identify herself as part of this community, or find her good in its good; she will not see the fact that by criminalising these kinds of wrong the community will be true to its own values as giving her any reason for action or acceptance; see s 5 below.

  45. The object of our practical attention is the wrong; a condition of directing our attention thus is that the wrong is our business. Similarly, the object of my practical attention when I help a friend is her need; a condition of thus directing my attention is that she is my friend.

  46. See n 18 above.

  47. See Edwards and Simester (n 2 above), 118–121, drawing partly on M Renzo, ‘Associative Responsibilities and Political Obligation’ (2012) 62 Philosophical Quarterly 106.

  48. Edwards and Simester (n 2 above), 120.

  49. See, e.g., R Gaita, Good and Evil: An Absolute Conception (2nd edn; Routledge, 2004), ch 3.

  50. On the status, as ‘guests’, of non-citizen visitors to the polity, and other non-citizens within its territory who are still subject to and protected by its criminal law, see Duff (n 3 above), ch 3.3.

  51. The duty to answer in court if one is accused of criminal wrongdoing is a civic duty: I owe it to my fellows (or, if I am a guest, to my hosts) to answer to them if I am accused (on the basis of sufficiently strong evidence) of committing a wrong that is their business. But whilst we might have good reason to make the duty to appear in court a legal duty, so that those who fail to appear can be forcibly brought to court (for English law, see Bail Act 1976, s 7; but also Magistrates’ Courts Act 1980, ss 11–13), we also have good reason not to impose, or try to enforce, a legal requirement to enter a plea; this is partly because, whilst one who rejects the authority of the court or the polity to try her must still be tried, she should be able, without legal cost, to enact that rejection by refusing to play any part in the trial.

  52. Which some critics would deny: see, for instance, in relation to criminal law, the arguments of proponents of ‘critical legal studies’; e.g., most drastically, M Kelman, ‘Interpretive Construction in the Substantive Criminal Law’(1981) 33 Stanford Law Review 591; and more moderately, AW Norrie, Crime, Reason and History: A Critical Introduction to Criminal Law (3rd edn; CUP, 2014).

  53. See A MacIntyre, After Virtue (3rd edn; Bloomsbury, 2007), chs 1–6.

  54. To say that they ‘impose’ their values on other communities is to say either that they cannot claim that these are values that the others should accept—the gulf between them is too deep for such a claim to be plausible—or that they make such a claim, but also make no honest effort to justify it.

  55. On the cultural defence see AD Renteln, The Cultural Defense (OUP, 2004); W Kymlicka et at (eds), Criminal Law and Cultural Diversity (OUP, 2014).

  56. Edwards and Simester, n 2 above, 131.

  57. Compare Aquinas, Summa Theologiae 1a2ae90–97: he does not here make the claim often ascribed to natural law theorists that ‘unjust law is not law’, but says that law that radically fails to be what, in terms of its ‘ratio’, it ought to be, is a ‘perversion’ or ‘abuse’ of law, or ‘spoilt’ law.

  58. See W Stuntz, ‘The Pathological Politics of Criminal Law’ (2001) 100 Michigan Law Review 505.

  59. See, e.g., A Lerman and V Weaver, Arresting Citizenship: The Democratic Consequences of American Crime Control (University of Chicago Press, 2014).

  60. See, e.g., J Rawls, ‘The Idea of an Overlapping Consensus’ (1987) 7 OJLS 1.

  61. G Gaus, The Order of Public Reason: A Theory of Freedom and Morality in a Diverse and Bounded World (CUP, 2010).

  62. Edwards and Simester (n 2 above), 131.

  63. Compare, classically, Mill on the value of freedom of speech in On Liberty.

Author information

Authors and Affiliations

  1. Department of Philosophy, University of Stirling, Stirling, FK9 4LA, UK

    R. A. Duff & S. E. Marshall

Authors
  1. R. A. Duff
    View author publications

    You can also search for this author in PubMed Google Scholar

  2. S. E. Marshall
    View author publications

    You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to R. A. Duff.

Rights and permissions

Reprints and permissions

About this article

Check for updates. Verify currency and authenticity via CrossMark

Cite this article

Duff, R.A., Marshall, S.E. Crimes, Public Wrongs, and Civil Order. Criminal Law, Philosophy 13, 27–48 (2019). https://doi.org/10.1007/s11572-018-9457-x

Download citation

  • Published:

  • Issue Date:

  • DOI: https://doi.org/10.1007/s11572-018-9457-x

Keywords

Search

Navigation