Theories of Criminal Law

A common debate is what the aim of the criminal law should be. Should the criminal law aim at effectively and efficiently preventing harm to some identified public and/or private interest? This instrumentalist, or consequentialist, position is, in part, the one taken by The American Model Penal Code. Or, should the criminal law be moralistic? That is, should it aim at vindicating a sense of justice by punishing transgressions that are, at some level, felt to be wrong? In other words, should criminal law be prophylactic or punitive?

Of course, in reality, criminal law is both prophylactic and punitive and probably rightfully so, but it is worthwhile to briefly (and admittedly far from exhaustively) explore the theoretical roots of each individual position.

The instrumentalists position starts from the premise that there are certain ends which can be effectively served by the existence of criminal law. These ends could be anything, but it is useful to focus on what they actually have been rather than what they could be. The Model Penal Code declares:

The general purposes of the provisions governing the definition of offenses are:

a) to forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests [s.1.01(1)]

Thus, on this view, the criminal law's purpose is, in the main, straightforwardly practical-- to forbid and prevent conduct that actually does inflict or threatens to inflict relatively serious harm to important interests. Because the aim of instrumentalist criminal law is practical, it is necessarily relies on empirical evidence both for its initial development and as a way of testing the real world effects of the law that has developed. After all, an instrumentalist criminal law that is not providing the desired ends-means fit has failed by its own terms.

The moralistic view differs in that it accepts the prophylactic nature of criminal law but insists on something more. This something more is the idea that the criminal law must also gratify the human need for revenge. Thus, harmful conduct should not only be forbidden and prevented, but it must also be punished. This view hinges on the concept of moral responsibility. The need for revenge only arises where there is some responsibility to refrain from given conduct and that responsibility has been abdicated. The act of abdication gives rise to a sense of outrage that can be satisfied only through the infliction of punishment. But if there is no moral responsibility, indeed, if the concept of morality is wholly removed from the structure of the criminal law as it is on the purely instrumentalist view, then there is no basis for outrage and hence no basis for punishment for the sake of punishment. To the extent punishment deters undesirable conduct, however, there may still be room for it on the instrumentalist view.

The moralistic view has its critics, especially to the extent that what is "moral" is tied to religion. In 1930, Bertrand Russell wrote an essay called Has Religion Made Useful Contributions to Civilization. Russell, being no friend of religion, could only bring himself to admit two contributions of religion to civilization--helping to fix the calendar and causing Egyptian priests to chronicle eclipses with such care that they in time became able to predict them. Russell found a moralistic view of criminal law irrational and detestable. He noted that "No man treats a motorcar as foolishly as he treats another human being. When the car will not go, he does not attribute its annoying behavior to sin; he does not say, 'You are a wicked motorcar, and I shall not give you any more petrol until you go.' He attempts to find out what is wrong and to set it right." Russell instead advocated an instrumentalist view of criminal law where the question of culpability was mooted and only practical considerations were admitted. Of course, Russell's analogy between man and motorcar only works if one discounts the possibility that people, unlike motorcars, can chose to act or refrain from acting and may be held accountable for that choice.

I think it is clear that the modern criminal law rightfully incorporates elements of both theories. As rational and dispassionate as we may like to think society has become, we have not come so far as to be beyond our feelings of moral outrage. Nor should we be because, although we should always be aware of the inherent prejudices and limitations of our sense of morality, sometimes it is the best guide to what is right and what is wrong. Moreover, were our system of justice to lack some element of institutional revenge, there would be that much more incentive for individuals to seek personal revenge. And that possibility is so hugely destabilizing to society that maybe its prevention provides a way to harmonize the instrumentalist and moralist views.

For a more thorough discussion of this topic see the Stanford Encyclopedia of Philosophy.