To endorse the curial view is not, of course, to say that we should do away with criminal punishment. But it is to say that the connection between trial and punishment is not merely instrumental. Some think that the facts that make punishment fitting—say, culpable wrongdoing—obtain independently of criminal proceedings themselves Moore , The fitting way to respond to criminal wrongdoing, on this view, is to call the wrongdoer to account for her wrong.
We can see the implications of this view by imagining a world in which trials are abolished, because some new-fangled machine allows us to identify culpable wrongdoers with perfect accuracy. On the curial view, the punishments we impose are inherently defective: they are not imposed as part of a process of calling to account.
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Though our new-fangled machine might justify doing away with trials—once we factor in how expensive they can be—we would lose something of value in doing away with them. If criminal law does have a particular function, we can ask whether that function is distinctive of criminal law.
We can ask, in other words, whether it helps distinguish criminal law from the rest of the legal system. It has been claimed that criminal law is distinctive in imposing punishment Moore , 18—30; Husak , One might also claim that criminal law alone calls defendants to account. But punishments are imposed in civil proceedings—exemplary damages are the obvious case. And it is arguable that civil proceedings also call defendants to account—that they too invite defendants to offer a denial or plead a defence; that they too use the prospect of legal liability to put defendants under pressure to account adequately Duff a.
In response, one might try to refine the function that is distinctive of criminal law. What we should make of this proposal depends on what a public wrong is Lamond ; Lee ; Edwards and Simester To make progress, we can distinguish between primary duties—like duties not to rape or rob—and secondary duties—like duties to answer, or suffer punishment, for rape or robbery. We incur duties of the latter kind by breaching duties of the former.
Many wrongs are both crimes and torts. So the two bodies of law often respond to breaches of the same primary duty. A more promising proposal looks to secondary duties. Perhaps the function of civil law is to respond to wrongs on behalf of some of us —to discharge secondary duties owed to particular individuals. This might be thought to explain why criminal proceedings, unlike civil proceedings, are controlled by state officials: why officials can initiate proceedings that individual victims oppose, and discontinue proceedings that victims initiate.
The view described in the previous paragraph conceives of criminal law as an instrument of the community—a way of ensuring that the community gets what it is owed from wrongdoers. Call it the communitarian view. If we combine this with the curial view, the distinctive function of criminal law is to seek answers owed to the community as a whole. One might doubt that the functions of criminal and civil law can be so neatly distinguished.
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More importantly, one might claim that in the case of paradigmatic crimes—like robbery, rape, or battery—criminal law responds to wrongs on behalf of particular individuals—on behalf of those who have been robbed, raped, or battered. Those who reject the communitarian view might be thought to face the following difficulty: they might be thought to lack an explanation of official control over how far criminal proceedings go. Not necessarily. First, we should not always require the wronged to have to pursue those who have wronged them.
Second, we should not always support those who think themselves wronged in pursuing alleged wrongdoers. As to the first point, some are trapped in abusive relationships with those who wrong them. Others are susceptible to manipulation that serves to silence their complaints.
Some wrongdoers can use wealth and social status to stop accusers in their tracks. As to the second point, the temptation to retaliate in the face of wrongdoing is often great. It is all too easy for the pursuit of justice to become the pursuit of revenge, and for the perceived urgency of the pursuit to generate false accusations. Official control can help vulnerable individuals—like those described above—to get what they are owed. And it can mitigate the damage done by those trying to exact vengeance and settle scores Gardner , — It can ensure that those in positions of power cannot wrong others with impunity, and reduce the likelihood that vindictiveness begets retaliation, which begets violent conflict from which all lose out Wellman , 8— We can add that criminal proceedings may help protect others against being wronged in future.
Those wronged may have a duty to give up control of proceedings in order to provide this protection Tadros c, — These remarks suggest an alternative to the communitarian view. According to the alternative, the secondary duties of concern in civil and criminal proceedings are typically one and the same.
Call this the imperfectionist view. What is distinctive of criminal law, on this view, is not its function but its mode of functioning: the manner in which it fulfills functions shared with other bodies of law. What is distinctive about criminal law, they claim, is that it publicly censures or condemns. This expressive function is sometimes associated with criminal punishment Husak , 92— Because other bodies of law sometimes punish, and because punishment typically—perhaps necessarily—expresses censure Feinberg , the expressive function is at least partly shared.
But the message sent by criminal law is not sent only at the sentencing stage.
Though additional detail may generate the same conclusion in the case of a civil verdict, such detail is not required in the case of criminal conviction. If this is right, the distinctiveness of criminal law turns out not to consist in the fact that it provides for punishment. It turns out to consist at least in part in the provision of a technique for condemning wrongdoers which does not require that we punish in order to condemn. So far, we have focused on the functions criminal law fulfills in response to the commission of crime. We can see this by asking what success would look like for the criminal law.
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Would criminal law have succeeded if all thieves and murderers were tried and punished? Or would it have succeeded if there was no theft or murder, because criminalization resulted in would-be thieves and murderers refraining from such wrongs? Notice that to pose these two questions as alternatives is not to deny that punishment might be justified in preventive terms.
It is rather to suggest that resorting to punishment to achieve prevention is already a partial failure for the criminal law. It is a failure to deter those who, ex hypothesi , have already committed criminal offences. Had the creation of those offences been an unqualified success, there would have been nothing for which to punish anyone. Call this the preventive view. Defenders of this view need not say that we should enact whatever laws will achieve the most prevention. That cutting is the function of knives does not entail that knife-holders are justified in cutting whatever they see.
Holders of the preventive view can, in other words, accept the existence of constraints on prevention, that are not themselves justified in preventive terms Hart , 35— What they cannot accept is a positive case for criminal law that is not preventive. Some hold a mixed view that combines elements of those considered above Alexander and Ferzan , 3—19; Simester and von Hirsch , 3—18; Tadros , — One way to construct such a view is by distinguishing between primary and secondary functions.
Primary functions are those that, when all else is equal, we have most reason to want the law to fulfil. Secondary functions are those we have reason to want the law to fulfil if it fails to fulfil its primary functions. Ceteris paribus , we have most reason to want criminal law to bring about a world in which wrongs like theft or murder do not occur. Failing that, we have reason to want criminal law to call thieves and murderers to account, and to punish those who have no adequate account to offer.
There is some scepticism about mixed views. For some, the worries are conceptual. Moore claims that justified punishment must be imposed for reasons of desert, and that for this reason the punitive and preventive functions cannot be combined. Several replies are available.
First, even if this is a problem for a mixed view of punishment , it need not be for a mixed view of criminal law. Grant that punishment must be imposed for reasons of desert. It does not follow that criminal offences cannot be created for reasons of prevention. Criminalization and punishment are different acts, and can be performed for different reasons Edwards and Simester Reasons that help make a positive case for our actions are often reasons for which we should not act.
That one will be financially secure is a reason to get married, but one should not get married in order to be financially secure. Similarly, to say that prevention helps make a positive case for criminal law—and for punishment—is not to say that judges should punish for that reason.
Other worries about mixed views are pragmatic Duff a. As criminal wrongdoing will persist whatever we do, the preventive function sets criminal law an insatiable goal. There is a standing risk that law-makers who pursue that goal will deprive us of a criminal law that fulfills its other functions. Consider again the curial view.
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Plausibly, we have reason to account for wrongs like theft and fraud in criminal court, but no reason to account for every interaction with property or all misleading statements from which we stand to gain. If defendants are to be called to account for the wrongs, it is these that must be criminalized. To criminalize trivialities—in pursuit of preventive ends—is to drain criminal proceedings of their intrinsic value Duff b. No doubt these are important worries. But they do nothing to suggest that we should reject a mixed view. At most, they show that law-makers also should not take prevention to be part of their mission.
As we already saw, this conclusion does not show that prevention is not part of the positive case for criminal law. And it may anyway be too strong. Law-makers who exclude prevention from their mission may refuse to create crimes that would prevent a great deal of harm. The cost of refusing to create these crimes might be greater than the cost of calling people to account for trivialities, and this might be so even when alternative means of prevention are factored in.
If we should not be abolitionists, criminal law must be capable of realizing some value that gives us sufficient reason to retain it. To offer an account of this value is to offer a general justification of criminal law. Obviously enough, the functions of criminal law tell us something about what this might be. If the curial view is correct, that value consists in part in people offering answers that they have reason to offer.
If the preventive view is correct, it consists in preventing criminal wrongs. So stated, however, these views do not tell us what the value of fulfilling each function actually is. The punitive view tells us nothing about what justifies criminal punishment. The curial view tells us nothing about the value of calling people to account in criminal courts. The preventive view tells us nothing about the value of preventing crime.
A general justification of criminal law fills this explanatory gap.
We can make progress by distinguishing between value of different kinds. Some value is relational—it exists in virtue of relationships in which people stand. That a relationship has such value is a reason to do what will bring it into existence. The value of friendship is a reason to make friends.