Normative gaps in the criminal Law: A reasons theory of wrongdoing

New Criminal Law Review

Volumn 10, Issue 1, 2007, Pages 102-141

  Aponte, Luis Ernesto Chiesa ^a  

^a NONE

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EID: 34247527919     PISSN: 19334192     EISSN: None     Source Type: Journal    
DOI: 10.1525/nclr.2007.10.1.102     Document Type: Article

References (144)

1. Re A (children) (conjoined twins: Surgical separation), [2005] 4 All ER Ca 961.
2. Id. at 1018.
3. These categories represent the traditional approach to criminal law defenses both in the common law and continental tradition. In Anglo-America see, for example, Paul H. Robinson, Structure and Function in Criminal Law 11-14 (1997) [hereinafter Robinson, Structure].
4. In Europe see, e.g., Enrique Bacigalupo, Lineamientos de la Teoría del Delito 43 (3rd ed. 1994).
5. There is an additional category that explains why some conduct, eventhough unjustified and unexcused, can be exempt from punishment. Professor Paul Robinson calls this category "non-exculpatory defenses." 2 Paul H. Robinson, Criminal Law Defenses 460 (1984) [hereinafter 2 Robinson, Defenses]. Non-exculpatory defenses are not of importance for the purposes of this article.
6. See, e.g., Henry M. Hart, Jr., The Aims of the Criminal Law, 23 Law & Contemp. Probs. 401 (1958).
7. Two Anglo-American scholars have actually paid attention to this query: H.L.A. Hart & George P. Fletcher. See H.L.A. Hart, Punishment and Responsibility (1968)
8. George P. Fletcher, What Is Punishment Imposed For?, 5 J. Contemp. Legal Issues 101 (1994).
9. G.W.F. Hegel, Philosophy of Right 69 (T.M. Knox trans., 1942).
10. Immanuel Kant, The Metaphysics of Morals 141 (Mary Gregor trans., 1991).
11. Santiago Mir Puig, Derecho Penal: Parte General 91 (7th ed. 2004).
12. Alejandro Alagia, Alejandro Slokar, & Eugenio Raúl Zaffaroni, Derecho Penal: Parte General 57 (2nd ed. 2002).
13. R.A. Duff, Penal Communications: Recent Works in the Philosophy of Punishment, 20 Crime & Just. 1 (M. Tonry ed., 1996).
14. George P. Fletcher, Basic Concepts of Criminal Law 37-38 (1998).
15. See, for example, the different uses of the word "por" and "para" in a Spanish dictionary. "Por" can be used to inquire into the causation of events while "para" can be used to inquire into the aims or purposes of our actions. These differing functions of both prepositions are not interchangeable. 2 Real Academia Española, Diccionario de la Lengua Española 1674, 1803-04 (22 ed. 2001).
16. Hegel, Duff, and Fletcher are retributivists albeit for different reasons (Hegel focused on the abstract "reassertion of the Right" while Duff stresses a "communicative" account of retribution and Fletcher views it as a way of reestablishing equality between victim and offender). Contrarily, Feuerbach and Ferri are consequentialists (Feuerbach believed that general deterrence is the aim of punishment while Ferri believed that special deterrence was the aim of punishment).
17. Hart, supra note 5, at 4-5.
18. Fletcher, supra note 11, at 35.
19. This definitional or conceptual connection between punishment and the past commission of an offense is also apparent in the works of Leo Zaibert. See, for example, Leo Zaibert, Punishments, Institutions and Justifications, 30 Stud L. Pol. & Soc'y 51, 53 (2003) (stating that "[p]unishment, by definition, is an act carried out in response to something else ...." (emphasis added)).
20. Fletcher, supra note 11. Of course, this should not be read to mean that punishment cannot serve the purpose of social protection. See, e.g., Francisco Muñoz Conde & Mercedes García Arán, Derecho Penal: Parte General 50-51 (6th ed. 2004).
21. Günther Jakobs, Imputation in the Criminal Law and the Conditions for Norm Validity, 7 Buff. Crim. L. Rev. 491, 495 (2004).
22. Id. at 496.
23. Muñoz Conde & García Arán, supra note 16, at 35.
24. See, for example, the Model Penal Code's the formulation of the insanity defense. Model Penal Code 4§.01 (Proposed Official Draft 1962) (actor not responsible if he lacks capacity to appreciate the criminality or wrongfulness of his act). An actor who alleges the excuse of mistake of law also implicitly admits that his conduct violated the norm (i.e., is "wrongful"). His defense rests on his admittedly mistaken perception that the norm was not violated. It is more difficult to see why someone who establishes a claim of duress or excusable necessity (i.e., "personal necessity) implicitly admits the violation of the norm. Maybe the fact that an actor may exert self-defense against someone acting under duress or excusable necessity indirectly supposes that the norm was violated since self-defense can only be exerted against a "wrongful" aggression. I'm grateful to Professor George P. Fletcher for pointing this out.
25. Fletcher, however, could be read in a way that could lend support to a different proposition. Namely, that punishment is imposed for a culpable and wrongful norm violation and not merely for a wrongful one. In his words: "[p]unishment is imposed, therefore, for wrongdoing as reduced by the extent to which culpability is diminished." Fletcher, supra note 5, at 109.
26. If his view were that punishment is imposed both for a wrongful and culpable act I would have to disagree. As I have attempted to show, conceptually speaking, punishment is imposed for wrongdoing and nothing more. The relationship between culpability and punishment is not a matter of conceptual necessity but of justice. However, I find it unclear from his writings whether he actually supports this view or the one I defend in this Article. See Fletcher, supra note 5, at 105 (stating that punishment "is imposed for the act of wrongdoing").
27. Robert Nozick, Philosophical Explanations 363 (1981)
28. see also Fletcher, supra note 5, at 109.
29. Where P equals "punishment", W equals "wrongdoing" and R equals "responsibility".
30. The term "paradigm" is used as a translation for the German "tatbestand" and the Spanish "tipo." Roughly speaking, the "paradigm" of an offense is equivalent to the "definition (or elements) of an offense." However, "paradigm" should be preferred over "definition" because it illuminates the fact that conduct infringing the elements of an offense is a normal or paradigmatic case of wrongful conduct. Of course, one may prove that this instance of "normally" wrongful conduct is, exceptionally, not wrongful. See Albin Eser, Justification and Excuse: A Key Issue in the Concept of Crime, in 1 Justification and Excuse: Comparative Perspectives 17, 37 (George P. Fletcher & Albin Eser eds., 1987).
31. See, e.g., Robinson, supra note 3, at 22.
32. Fletcher, Rethinking Criminal Law 554 (2000)
33. Fletcher, supra note 11, at 102.
34. See, e.g., Mir Puig, supra note 8, at 222-23.
35. The awareness that the result is a natural consequence of the action to be performed suffices to establish the mental element required for the crime of murder. Model Penal Code §§ 2.02(2)(b), 210.2(1)(a) (Proposed Official Draft 1962).
36. Fletcher, supra note 11, at 67-68.
37. Of course, actions infringing the paradigm might not be punishable because, eventhough wrongful, they are excused.
38. Model Penal Cod, §220.3(1)(a) (Proposed Official Draft 1962).
39. Id.
40. Model Penal Code §§ 3.01-3.02 (Proposed Official Draft 1962).
41. Some scholars, such as Mitchell Berman, believe that this description of justificatory defenses is wrong. According to this strand in criminal law theory, for something to be justified it need not be the "right thing to do" under the circumstances. It may suffice for the conduct to be "permissible" under the circumstances. See generally Mitchell N. Berman, Justification and Excuse, Law and Morality, 53 Duke L.J. 1 (2003). Notwithstanding its several appeals, I disagree with that position. My disagreement flows form the fact that both in ordinary and philosophical parlance, to be "justified" in doing something usually entails something more than being "permitted" to do it. Therefore, when we claim to be "justified" in doing something we usually mean that doing so is not merely a permissible course of action but the "right" one.
42. In Anglo-American criminal law and the MPC see generally Robinson, supra note 3, ch. 4.
43. In continental criminal law see, generally, Enrique Bacigalupo, Derecho Penal Parte General § §49-52 (2d ed. 1999).
44. See, e.g., Fletcher, supra note 26, at 792 (stating that "a justification speaks to the rightness of the act").
45. See, generally, Joshua Dressler, Understanding Criminal Law § 18.02(b)(1) (3d ed. 2001)
46. Fletcher, supra note 26, at 760.
47. Judith Jarvis Thompson, A Defense of Abortion, 1 J. Phil. & Pub. Aff. 47 (1971).
48. Fletcher, supra note 26, at 863.
49. Id.
50. Oliver Wendel Holmes, The Common Law 3 (2004).
51. In Germany, see Claus Roxin, Derecho Penal: Parte General 612 (Diego-Manuel Luzón Peña, Miguel Díaz y García Conlledo, & Javier de Vicente Remesal trans., 1997).
52. In Spain see Mir Puig, supra note 8, at 431.
53. In Latin America see Alagia, Slokar, & Zaffaroni, supra note 9, at 618.
54. Diego-Manuel Luzón Peña, Aspectos Esenciales de la Legítima Defensa 127 (2d ed. 2002).
55. See Model Penal Code §3.07(5)(a)(i), (2)(b)(3) (Proposed Official Draft 1962)
56. Dressler, supra note 37, §21.05 (B), (C).
57. Model Penal Code §3.07, cmt. c, at 131 (Official Draft and Revised Comments 1980).
58. 4 William Blackstone, Commentaries on the Laws of England 30 (1979), Regina v. Dudley and Stephens, 14 Q.B.D. 273 (1884), U.S. v. Holmes, 26 F. Cas. 360 (Pa. 1842).
59. See also Perkins & Boyce, supra note 8, at 1055-59
60. George P. Fletcher, The Individualization of Excusing Conditions, 47 S. Cal. L. Rev. 1269, 1278-79 (1974).
61. 14 Q.B.D. 273, 287.
62. Benjamin Cardozo, Law and Literature 113 (1930) (emphasis added).
63. Kant, supra note 7, at 60
64. Fletcher, supra note 46, at 1279.
65. Talmud, Pesahim 25 (b).
66. See Model Penal Code §2.02 (2)(c) cmt. 3, at 237 (Official Draft and Revised Comments 1980).
67. Muñoz Conde & García Arán, supra note 16., at 294-95.
68. See Kent Greenawalt, Natural Law and Political Choice: The General Justification Defense - Criteria for Political Action and the Duty to Obey the Law, 36 Cath. U. L. Rev. 1, 12-13 (1986) (citing authorities).
69. See, e.g., Michael Walzer, Just and Unjust Wars 152-59 (3d ed. 2000).
70. I would like to clarify that some scholars argue that, if the actor's purpose was to save lives and not to kill, the doctrine of double effect can also be used to justify engaging in conduct that inevitably will produce the death of another person. I believe, however, that engaging in conduct that is practically certain to cause the death of an innocent human being can never be justified.
71. See, e.g., Alagia, Slokar, & Zaffaroni, supra note 9, at 631 (stating that it is impossible to weigh the value of competing human lives).
72. Johannes Andenaes, The General Part of the Criminal Law of Norway 169 (Thomas Ogle trans., 1965)
73. Several scholars have questioned this basic tenet of the common law. See, e.g., Wayne R. LaFave, Substantive Criminal Law §10.1 (d)(2) (2d ed. 2003).
74. Professor Joshua Dressler seems to flirt with this solution as well. Dressler, supra note 27, 2§2.04.
75. The drafters of the Model Penal Code broke, as well, from this tradition when they stated that it would be possible to grant a necessity defense to actors who kill innocent human beings in order to save a larger amount of lives. See Model Penal Code §3.02, cmt. 3, at 14-15 (Official Draft and Revised Comments 1980).
76. This position strikes me as clearly objectionable from deontological grounds. I cannot accept the view that human lives can be used as a means to achieve an end (even if the end is to save human lives). For this reason the common law viewpoint is preferable to the MPCs. Furthermore, the MPC solution has never gained acceptance in the civil law tradition. It seems clear to continental criminal law scholars that the death of a non-harmful person can never be justified under a theory of necessity. See, e.g., Hans-Heinrich Jescheck & Thomas Weigend, Tratado de Derecho Penal: Parte General 387 (Miguel Olmedo Cardenete trans., 2d ed. 2002).
77. Of course, the officials could validly claim self-defense against the hijackers. Self-defense, however, is unavailable as a defense to the killing of the passengers since they were innocent third parties who did not unlawfully attack the occupants of the building.
78. For examples of scholars who hold this common opinion in the United States see Fletcher, supra note 11, at 81-81.
79. In Spain, see Mir Puig, supra note 8, at 164
80. and in Latin America, see Alagia, Slokar, & Zaffaroni, supra note 9, at 590.
81. For example, Professor Fletcher, an avowed kantian and retributivist, has expressed to me that he considers that, event though not justified, both the doctor and the officials are acting in a non-wrongful manner.
82. As Professor Fletcher has noted, even though ley and derecho are easily translatable into many languages, the translation to English is quite difficult. For example, the Germans have the terms gesetz and Recht and the French have the terms loi and Droit. See George P. Fletcher, Basic Concepts of Legal Thought 35 (1996).
83. I am employing the concept "rule of recognition" in the sense given to it by Hart. See H.L.A. Hart, The Concept of Law 94 (2d ed. 1994).
84. Certain other legal rules in the American legal system form part of the positive law. Administrative regulations are good examples of these rules.
85. Dworkin readily accepts the difference between positive law and law in principle. See, e.g., Ronald Dworkin, Law's Empire 217 (1986).
86. Fletcher, supra note 62, at 209.
87. The most prominent exception to this trend is the work of Douglas Husak. One can clearly see how much of his work aims at working out a political conception of wrong-doing that serves as a limit to legitimate state intervention with individual liberties. See, e.g., Douglas Husak, The Criminal Law As Last Resort, 24 Oxford J. Legal Stud. 207 (2004)
88. Douglas Husak, Legalize This! The Case for Decriminalizing Drugs (2002).
89. The work of moral philosophers such as John Gardner illustrates the point. His work is primarily, if not entirely, concerned with providing a moral justification for the criminal law without paying attention to the political implications of his theory. For a good example of this see John Gardner, Wrongs and Faults, in Appraising Strict Liability 51 (A.P. Simester ed., 2005).
90. Roxin, supra note 42, at 144-45.
91. See, e.g., Stuart P. Green, Why It's a Crime to Tear the Tag off a Mattress: Overcriminalization and the Moral Content of Regulatory Offenses, 46 Emory L.J. 1533 (1997),
92. and Douglas N. Husak, Reasonable Risk Creation and Overinclusive Legislation, 1 Buff. Crim. L. Rev. 599 (1998).
93. See, e.g., Douglas N. Husak, Crimes Outside the Core, 39 Tulsa L. Rev. 755 (2004).
94. For a discussion of the meaning and scope of the concept of a "legal good" in English see Bernd Shünemann, The System of Criminal Wrongs: The Concept of Legal Goods and Victim-based Jurisprudence As a Bridge between the General and Special Parts of the Criminal Code, 7 Buff. Crim. L. Rev. 551 (2004).
95. See, e.g., 1 Juan J. Bustos Ramírez & Hernán Hormazábal Malarée, Lecciones de Derecho Penal 27-44 (1997).
96. The emergence of the concept of legal good has been traced back to the German scholar Birnbaum. However, it was not until the works of von Liszt that the concept actually acquired a substantive content that was meant to limit the lawmaking power of the legislature to define criminal conduct. See Mir Puig, supra note 8, at 129
97. Shünemann, supra note 72, at 552 and accompanying footnotes.
98. Francesco Carrara, I Programa de Derecho Criminal 18 (1996).
99. See generally Shünemann, supra note 72, at 552.
100. Francisco Muñoz Conde, Teoría General del Delito 236 (3d ed. 2003).
101. See also Mir Puig, supra note 8, at 128-30.
102. Shünemann, supra note 72, at 253.
103. See, e.g., Mir Puig, supra note 8, at 128-30.
104. See id.
105. John Stuart Mill, On Liberty 10-11 (1978).
106. H.L.A. Hart, Law, Liberty and Morality 47 (1963).
107. See, e.g., Roxin, supra note 42, at 100.
108. STC, July 4, 1991 (B.O.E., no. 19910729, p. 150).
109. Const. Arg. Art. 19.
110. See generally Alagia, Slokar, & Zaffaroni, supra note 9, at 126-28.
111. Robinson v. California, 370 U.S. 660 (1962)
112. Powell v. Texas, 392 U.S. 514 (1968).
113. Mullaney v. Wilbur, 421 U.S. 684 (1975).
114. Apprendi v. New Jersey, 530 U.S. 466 (2000).
115. Blakely v. Washington, 542 U.S. 296 (2004).
116. United State v. Booker, 543 U.S. 220 (2005).
117. McMillan v. Pennsylvania, 477 U.S. 79 (1986).
118. See generally Daniel Suleiman, The Capital Punishment Exception: A Case for Constitutionalizing the Substantive Criminal Law, 104 Col. L. Rev. 426 (2004).
119. Atkins v. Virginia, 536 U.S. 304 (2002).
120. Coker v. Georgia, 433 U.S. 584 (1977).
121. Ring v. Arizona, 536 U.S. 584 (2002).
122. Markus Dirk Dubber, Toward a Constitutional Law of Crime and Punishment, 55 Hastings L.J. 509, 514 (2004).
123. Lawrence v. Texas, 539 U.S. 558 (2003).
124. Id. at 578.
125. Id. at 577.
126. Planned Parenthood v. Casey, 505 U.S. 833 (1992).
127. Id. at 850.
128. 539 U.S. at 571.
129. Id. at 560.
130. I admit that there are other plausible ways of interpreting the aforementioned cases. Someone might point out, for example, that these Supreme Court cases do not necessarily mean that the constitution compels the adoption of a reasons theory of wrong-doing. It could be argued that they mean nothing more than that the right to privacy extends to certain fundamental decisions such as having an abortion or deciding whether to engage in certain consensual sexual acts. Additionally, someone may point out that there appear to countless "victimless crimes" in the books and that courts don't appear to be willing to strike them down as unconstitutional anytime soon. Regarding the first objection, I can only say that my interpretation of the above cited case law is at least as plausible as any alternative version. However, my analysis has the advantage of grouping what can be thought of as a collection of haphazard decisions into a coherent set of judgments that lend support to the reasons theory of wrongdoing. With regard to the second objection, I believe that only time will tell whether victimless crimes are in fact deemed unconstitutional under a reasons theory of wrongdoing. My impression is that as time goes by the courts will find more and more victimless crimes to be unconstitutional.
131. The standard of no substantial injury to the public was adopted by the U.S. Supreme Court in Mugler v. Kansas, 123 U.S. 623 (M87).
132. However, since Nebbia v. New York, the Court has been reluctant to apply this doctrine. 291 U.S. 502, (1934).
133. Nonetheless, the doctrine is very much alive in state constitutional case law. For more information on the subject see LaFave, supra note 58, §3.3(b).
134. City of Shreveport v. Curry, 357 So. 2d 1078 (La. 1978).
135. This theory of justification is based primarily on John Gardner's theory of justifications as reasons. See, for example, John Gardner, Fletcher on Offences and Defences, 39 Tulsa L. Rev. 817 (2004) [hereinafter Gardner, Offences];
136. John Gardner, Justifications and Reasons, in Harm and Culpability 103 (A.P. Simester & A.T.H. Smith eds., 1996) [hereinafter Gardner, Justifications]
137. Kenneth Campbell, Offence and Defence, in Criminal Law and Justice: Essays from the W.G. Hart Workshops, 1986 at 73 (I.H. Dennis ed., 1987). His theory is based on Joseph Raz's theory of norms.
138. See Joseph Raz, Practical Reason and Norms (1999). Whether the reasons to be taken into account are "objective" or "subjective," "guiding" or "explanatory" is something better left for a future occasion. Suffice it to say that there is a fair amount of scholarly literature on this subject.
139. See, e.g., Paul H. Robinson, A Theory of Justification: Societal Harm As a Prerequisite for Criminal Liability, 23 UCLA L. Rev. 266 (1975)
140. George F. Fletcher, The Right Deed for the Wrong Reason: A Reply to Mr. Robinson, 23 UCLA L. Rev. 293 (1975).
141. I want to make clear that Gardner justified an act only when the reasons in favor of performing it prevail over the reasons against it Cases where the reasons in favor merely offset the reasons against are not cases of justified conduct. This can be seen in Gardner, Justifications, supra, at 107
142. Gardner, Offences, supra, at 819.
143. This is also consequent with Raz's discussion of exclusionary permissions. See Raz, supra, at 81.
144. See Gardner, Justifications, supra note 108.