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Crime: Definition - Nonpositivist Approaches

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The foregoing limitations on the notion of an offense suggest that while the positivistic approach to offense definition may be the prevailing one in our constitutional jurisprudence, there is reason to question the depth of our commitment to it. We do not in fact accept that any conduct a legislature wishes to make criminal is rightly punished, and the restrictions we impose on the use of the criminal sanction cannot be entirely accounted for as restrictions imposed by the first eight amendments to the Constitution. Some conduct seems so unsuitable as an object of criminal prohibition that we feel it stretches the concept of crime to apply it to those cases. In extreme cases the point would be clear: Statutes that made criminal punishment retroactive rather than prospective, that punished for thoughts without any accompanying deeds, that enacted a separate set of prohibitions for each separate member of the community, that established a separate count of theft for each thirty-second period that a thief withheld the stolen item from its owner, or that adopted an arbitrary class of subjects to whom the prohibition would apply, would be so out of keeping with the way we think of crime that we might be inclined to reject the suggestion that the statutes made the conduct (or thoughts) crimes. In what sense would they be crimes? Simply arresting a person and subjecting him to incarceration or other harsh treatment does not by itself make the conduct for which he was arrested criminal. It does not even do so when the legislature has authorized the behavior in the form of a law. While one might hope to limit the use of the criminal sanction in such cases by the sorts of ancillary constitutional restrictions on legislative discretion discussed above, these will prove insufficient to capture our current understanding of crime. It may be, therefore, that it is the concept of crime itself that limits what a legislature may prohibit and how it may ensure adherence to those limits.

At least to some extent, then, our understanding of crime is normative as well as descriptive. In particular, there may be conditions of justification that are themselves part of the notion of crime. If this is correct, then part of what we mean when we speak of a criminal offense is that the infringement of liberty the statute authorizes is justified by the importance of inducing conformity with the criminal prohibition. This approach would suggest not only that punishing an individual for something he had no reason to know was forbidden is not, properly speaking, punishment, but that the conduct thus penalized could not be correctly called "criminal," even if the legislature has called it a crime and has attached the kinds of penalties to it that typically accompany so-called criminal conduct. The normative approach to crime would thus provide a way of evaluating legislative uses of the power to criminalize by establishing criteria that are internal to the notion of crime itself. Such criteria would make it possible to say quite directly that the legislature erred in prohibiting a certain kind of conduct and providing stringent penalties for its occurrence, on the grounds that the prohibited conduct is not an appropriate object of criminal prohibition. And while legislatures might have significant latitude in determining the acceptable objects of criminal prohibition, under a normative approach to crime, their decisionmaking would operate within certain broadly defined limits.

Legal moralism. Unlike their judicial counterparts, criminal law scholars tend to favor some sort of normative approach to the notion of an offense. There is, however, no nonpositivistic definition of crime that would command uniform assent among them. One school of thought about crime is called "legal moralism." The legal moralist maintains that a crime is an immoral act, and accordingly that all and only immoral acts ought to be punished. Thus the legal moralist not only believes that every crime is in some way an immoral act, or that it tends to produce an immoral act, but also that there are no immoral acts that should go unpunished. One class of crime appears to pose a problem for the legal moralist, namely the crimes often referred to as mala prohibita. Mala prohibita crimes identify acts that are bad only because the legislature has forbidden them. By contrast, mala in se crimes prohibit acts that are bad in and of themselves. The legal moralist has difficulty with this distinction, because he seems to regard all crimes as mala in se, to the extent that he thinks it is the underlying immorality of an act that justifies prohibiting it under the criminal law. Legal moralists sometimes seek to solve the problem of mala prohibita crimes by saying that the acts they prohibit are instrumentally related to an act or state of affairs that is mala in se. While it is not immoral to drive on the left rather than on the right, it is immoral to impose grave risk of injury on one's fellows. In this way, the legal moralist explains the law mandating driving on the left, in the United States, or on the right, in Britain, as a necessary prohibition in order to avoid the truly immoral act of plowing into cars coming in the opposite direction.

Social practice view. A second nonpositivistic view of the notion of an offense sees crimes as prohibited acts, where the explanation for these prohibitions is that they are forbidden by certain social practices, or by those possessing authority to make criminalization decisions in light of a social practice allocating the power to do so. H. L. A. Hart, for example, thought of criminal law as a set of "primary rules" designed to regulate conduct. But the primary rules, he argued, are law only because they are made by officials whose authority rests on a social practice that identifies when a rule counts as law. The rule that men must remove their hats in church, he wrote, identifies a social practice. But not all social practices have the force of law. Unlike customs and ordinary, quotidian conventions, the social rules that are law are ones that are identified in a special way within the practice as having the force of law. Only those rules possessing a certain "pedigree," namely those created by individuals authorized by "secondary rules" to create, interpret, and apply primary rules, will be so recognized. The social practice view of crime may seem similar to the positivistic approach, given that both approaches treat crime as a set of prohibitions created by those authorized to do so. It might thus be thought simply a different brand of positivism. But unlike the Supreme Court's brand of positivism about crime, Hart's account would allow for evaluative judgments about a legislature's criminalization decisions, based on their fidelity to an underlying notion of crime. A legislature that created draconian criminal prohibitions under a social practice view could be found to be exceeding its authority as established by the relevant secondary rules. As such, its dictates would not have the force of law.

Economic account. A third prominent nonpositivistic alternative is the economic account of crime. According to some theorists, a crime is an inefficient act—inefficient because it bypasses a voluntary market. Criminal sanctions are necessary to give individuals sufficient incentive to obtain what they want through the market, rather than to take what they want by force. In this, criminal sanctions are slightly different from civil penalties. While the legal economist sees rules of civil and criminal liability as serving the same purpose, namely to provide incentives for efficient behavior, the incentive structures needed to promote efficiency for the two kinds of acts diverge. According to the economic account of crime, the criminal sanction ought to apply to acts that are always inefficient. The criminal law must threaten potential defendants with sufficiently stringent punishment to ensure that criminal acts are never worthwhile. Sometimes, by contrast, the acts that violate civil law are in fact efficient, despite the fact that they are prohibited. It is thus sometimes efficient to allow individuals to break a contract or to run a risk of injuring another person. Unlike criminal sanctions, which must always induce conformity, the penalty for civil wrongs need only be equal to the damage caused in order to provide the incentives for efficient behavior. By forcing injurers or those wishing to breach a contract to "internalize" the cost of the damage they cause, they will injure or breach only when it is efficient to do so. Criminal penalties are just like civil penalties, with the exception that civil sanctions must contain a "kicker" added to the damage caused, in order to ensure that it is never sufficiently advantageous to violate the prohibitory norm. Indeed, the decreasing distance between tort law and criminal law in recent years may itself be testimony to the influence of law and economics on judicial and legislative methodology.

While the positivistic view of crime enjoys a rhetorical advantage in our system, the actual understanding of crime our legal system presupposes seems rather to display an admixture of descriptive and normative facts. We look to legislative pronouncement to learn the content of those prohibitions we call "crimes," but we also make normative judgments about criminal statutes based on an implicit sense of what constitutes a correct application of the notion of crime. It is perhaps, moreover, because the conceptual limits of "crime" are reasonably well ensconced in our public use of the term that states do not attempt to eliminate the defense of self-defense or, for the most part, make chatting on a street corner a crime.

Harm-based theory. Jeremy Bentham is often thought of as the father of legal positivism. But even Bentham recognized that the notion of crime must incorporate normative elements. Bentham took the standard positivist line that laws, and criminal laws in particular, are commands of the sovereign. Whatever is commanded has the force of law. But Bentham also argued interestingly that a command does not count as law if it is not "complete." In order for a law to be complete, it has to identify a discrete harm or evil at which the legal prohibition aims. Thus even for Bentham, the notion of crime rests on a pre-legislative concept, namely the notion of harm. Building an account of crime on the idea of harm represents a fourth nonpositivistic approach. The beginnings of such an account were suggested by John Stuart Mill, who articulated what has come to be knows as the "harm principle." In On Liberty Mill wrote: "The only purpose for which power can rightfully be exercised over any member of a civilized community against his will is to prevent harm to others" (pp. 10–11). More recently, Joel Feinberg has developed Mill's basic approach in greater detail. He has argued, however, that harm may not provide the only legitimate grounds for making criminal sanction. Even if Feinberg is right that we do not adhere to the harm principle without exception, the harm principle may nevertheless lie at the heart of American criminal law's approach to the notion of an offense.

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