Victor Tadros

The ends of harm : the moral foundations of criminal law

1. Introduction THE AIMS OF PUNISHMENT 2. Justifying Punishment 3. Recognition and Choice 4. Against Desert 5. The Limits of Communication MEANS, MOTIVATIONS, AND ENDS 6. Defending the Means Principle 7. Wrongdoing and Motivation PERMISSIBILITY, HARM, AND SELF-DEFENCE 8. Choice, Responsibility, and Permissible Harm 9. Conflicts and Permissibility 10. Mistakes and Self-Defence 11. Responsibility and Self-Defence PUNISHMENT AND THE DUTIES OF OFFENDERS 12. Punishment as a Remedy 13. State Punishment 14. Protection Against Punishment 15. Proportionate Punishment

The boundaries of the criminal law

1. Introduction: The Boundaries of the Criminal Law 2. Criminalization and the Criminal Process: Prudential Mercy as a Limit on Penal Sanctions in an Era of Mass Incarceration 3. Preventative Orders: A Problem of Undercriminalization? 4. Perversions and Subversions of Criminal Law 5. Proactive Forensic Profiling: Proactive Criminalization? 6. Horrific Crime 7. Criminalization and Regulation 8. Criminal Law between Public and Private Law 9. Criminal Wrongs in Historical Perspective 10. Theories of Criminalization and the Limits of Criminal Law: a Legal Cultural Approach

HARM, SOVEREIGNTY, AND PROHIBITION

What restrictions are there on the scope of the criminal law? One familiar suggestion is that it is wrong to criminalize conduct that is not harmful. Another suggestion is that it is wrong to criminalize conduct if criminalizing that conduct does not prevent harm. The first suggestion focuses on the conduct criminalized. The second focuses on the effects of the decision to criminalize. A third suggestion is that it is wrong to criminalize conduct if that conduct does not wrongfully interfere with the sovereignty of others. None of these suggestions points to a valid principle of criminalization, though each points to part of the truth. Versions of the harm principle can deal with some familiar objections but cannot explain why it is permissible to criminalize interference with some nonharmful conduct, for example, interference with self-sacrificial acts. The sovereignty principle can explain the cases that the harm principle struggles with. But it makes the permissibility of preventing harm through the criminal law depend on interference with sovereignty. This is not attractive either with respect to the protection of those who have the capacity for sovereignty but especially with respect to the protection of those who do not. I conclude that any valid principle of criminalization will be complex, drawing on two independent ideas: of harm and of interference with sovereignty.

The constitution of the criminal law

R.A. Duff and John Gardner have recently suggested that responsibility should be understood in terms of answerability, i.e. in terms of the reasons offered by the agent in order to justify her conduct. However, this idea is formulated in very different ways by the two. Gardner’s account is “non-relational” in that it assumes that all moral reasons ultimately apply to every moral agent and that “everyone’s conformity to every reason is everyone’s business”. This means that, although there are obvious pragmatic reasons to limit the practice of calling each other to account, in principle we are answerable to everyone for everything. The model defended by Duff, on the other hand, is relational in that it ties the right to call someone to account to the existence of relevant normative relationships between members of specific groups. In particular, Duff ties criminal responsibility to membership in the political community: being criminally responsible is being answerable to our fellow citizens for those wrongs that violate the fundamental values of the political community. While espousing the relational model defended by Duff, I suggest that there is a class of wrongs, namely violations of basic human rights, for which we are answerable not only to our fellow citizens, but also to all human beings. This is because while we can account for the wrongness of crimes such as theft or tax evasion simply by appealing to Duff’s thought that these crimes violate the fundamental values of the political community, the wrongness of crimes such as murder or rape cannot be reduced to that. We are certainly answerable for these crimes to our fellow citizens because to the extent that our polity declares them as public wrongs, in perpetrating them we fail to treat the victim with the respect owed to her as a fellow citizen. But we are also answerable for them to the whole of humanity because in committing them we also fail to treat the victim with the respect owed to her as a fellow human being.

Duty and Liability

In his recent book, Killing in War, Jeff McMahan sets out a number of conditions for a person to be liable to attack, provided the attack is used to avert an objectively unjust threat: (1) The threat, if realized, will wrongfully harm another; (2) the person is responsible for creating the threat; (3) killing the person is necessary to avert the threat, and (4) killing the person is a proportionate response to the threat. The present article focuses on McMahans second condition, which links liability with responsibility. McMahans use of the responsibility criterion, the article contends, is too restrictive as an account of liability in general and an account of liability to be killed in particular. In order to defend this claim, the article disambiguates the concept of liability and explores its role in the philosophical analysis of the permission to cause harm to others.

Causal Contributions and Liability

This article explores the extent to which the magnitude of harm that a person is liable to suffer to avert a threat depends on the magnitude of her causal contribution to the threat. Several different versions of this view are considered. The conclusions are mostly skeptical—facts that may determine how large of a causal contribution a person makes to a threat are not morally significant, or not sufficiently significant to make an important difference to liability. However, understanding ways in which causation may be scalar helps to deepen our understanding of other morally significant facts, such as responsibility.

The Architecture of Criminalization

Most people who think seriously about the criminal law think that there should be less of it. Not only should there be less of it in some areas, there should be less of it overall. Douglas Husak is no exception to this general trend, but he is also probably the person who has thought most deeply about the moral and political issues that underpin this thought, and he has done the most to encourage theoretical investigation of it. His book Overcriminalization provides the best attempt that has been made to articulate a comprehensive framework for discussion of the principles that ought to govern the limits of the criminal law. (1) Husak is explicit that the book provides only a framework for investigation rather than a fully developed set of principles that could be applied directly to the question. Nevertheless, the book makes real and substantial progress in improving our understanding of it. Much of the recent discussion about the limits of the criminal law is confined to debating the harm principle. The questions are: What is harm? How should the harm principle be rendered? Should the principle be satisfied in every case, or are there additional grounds for criminalization? Focusing on these questions has not been useless by any means. But when one looks at the ways in which the criminal law is expanding, for example through a multitude of possession offenses, through an expansion of inchoate offenses, and through a range of hybrid civil/criminal measures, the harm principle appears to have very little bite. (2) It was of more use when a central concern of overcriminalization was the criminalization of non-mainstream sexual practices. But as that is less the case than it once was, the harm principle should now at most be seen as Husak sees it, as a smaller part of a more developed armory of constraints to regulate the criminal law. Husak argues that there are seven constraints on the scope of the criminal law. He divides them roughly into internal and external constraints. Internal constraints are constraints that result from the nature of the criminal law itself: the fact that the criminal law is part of the law, and the fact that it has an important connection to punishment. External constraints are constraints derived from the scope and function of the state. Husak develops these latter constraints by considering the way in which legislation is scrutinized in the constitutional tradition. To put things crudely, we grasp internal constraints on the criminal law through reflection on the criminal law itself. We grasp external constraints on it through reflection on the limits of state action. My focus will be on how we should see the architecture of a theory of criminalization. One ambition of this essay is to consider the extent to which Husaks framework provides a clear basis to restrain the scope of the criminal law. Although I will suggest that the constraints are plausible, it is not clear how independent they are of each other, or how they are to be rendered more specific in a way that can provide us with determinate conclusions about the scope of the criminal law. What Husak has provided us with is an architecture within which more particular principles to govern the criminal law can be developed. But much of that work is yet to be done, and it is often not clear how to proceed without making more controversial claims in moral and political theory than Husak wants to make. Furthermore, once Husaks general principles are made more specific, it is likely that the framework will come to be replaced by another, as it will become clear that some constraints are redundant, or subsidiary to others. A second ambition is to indicate an important but neglected aspect of the theoretical architecture of criminalization: the distinction between ideal and non-ideal implications of criminalization. This distinction is important particularly to encourage further thinking about what I call non-ideal consequences of criminalization: the effects that a new criminal offense is likely to have in the real world and the extent to which it will alter the risks of hardship that people will suffer. …

The persistence of the right of return

This article defends the right that Palestinians have to return to the territory governed by Israel. However, it does not defend the duty on Israel to permit return. Whether there is such a duty depends on whether the economic, social and security costs override that right. In order to defend the right of return, it is shown both that the current generation of Palestinians retain a significant interest in return, and that insofar as their interests are diminished, their rights are not diminished proportionally. The interests of Jewish Israelis in excluding the Palestinians are then considered. Their rights of self-determination, it is argued, do not powerfully favour excluding the Palestinians. The economic, social and security costs may do so. Overall, I conclude that either the Israel should grant return to the Palestinians or it should properly acknowledge the right of return and respond appropriately through a powerful effort to compensate and resettle them.