Function & Value of Criminal Law - 7
Value of Criminal Law
What is Criminal Law and Should we Have it?
Crime = an act prohibited by criminal law
Punishment = ‘imposition of something that is intended to be both burdensome and
reprobative on a supposed offender for a supposed crime, by a person or body who claims
authority to do so‘ (Hoskins & Duff 2021)
need not actually be burdensome / reprobative e.g. if you are fined but are a multi-
millionaire if won’t be burdensome
the punisher need not be actually legitimate anyone that thinks they have some
standing to do this
Punishment vs Compensation 2 legal responses to wrongs
can be a fineline between the 2 e.g. financial punishment
car crash money - usually seen as asking for compensation
just because you compensated someone it does not mean you have necessarily
escaped punishment
compensation is usually private, whilst punishment is dealt out by the state
Some think that punishment of adults by the state is unjustified (Zimmerman 2011)
is incarceration justified?
may think punishment is justifiable even if you think the way in which you enforce
punishment (incarceration) is not justifiable
Does the authority have authority to punish?
Function(s) of Criminal Law
What is Punishment Good for?
1 - Punishment as intrinsically valuable
Retributivism = punishment as the end goal (rather than means to end)
Retributivists think that meeting our punishment to those who deserve it is an intrinsic
moral good
it is intrinsically morally good for a legitimate punisher to punish them
it is intrinsically morally good for us to get what we deserve
2 - Punishment as instrumentally valuable
Prevention Punishment may reduce crime in a number of ways:
, deterrent, incapacitation, rehabilitation
empirical question: are these deterrents preventive of crime?
Not all wrongs are crimes, or ought to be criminalised
the kinds of wrongs that should be criminalised include: murder, rape, child and
domestic abuse, theft
wrongs such as lying and betrayal are more of a grey area including betrayal
wrongs to state, community, family members etc.
need theoretical work to figure out why e.g. someone harming another
indidividual counts as a wrong such that it ought to be criminalised vs someone
being mean to someone else is not
‘What’s Public About Crime?’ Edwards & Simester
3 - Punishment as communicatively valuable
Communication condemning certain acts provides a moral education
Expression of censure / public condemnation criminalising something is one kind of
political communication (condemnation of acts of type x)
Q: Must we punish (in the form of hard treatment) to achieve this function of
communication? Must we impose something burdensome to censure?
is imprisonment the best way to communicate condemnation?
Intended audience of such communication includes delinquents, young people
vulnerable to turning to crime
what is communication good for?
protection?
Moral education (Hampton 1984)
Constraints of Justified Punishment
Whatever the function of criminal law and punishment, there are some constraints on
legitimate punishment:
1. Legitimate punisher
2. Punishment constrains on means
3. Proportionate
Proportionality
Absolute Proportionality ‘a punishment should not be disproportional to the
crime‘ (Holroyd 2010:14)
However, this principle of absolute proportionality is often not met in our society:
some countries have longer prison sentences or even a death sentence for
, homosexual activity than for rape
homicide vs theft
Concerns about the way sin which gendered violence does not meet the same kind of
punishment as non-gendered violence. Concerns about teh way sin which disabled
people and unhoused people are punished for e.g. loitering / squatting.
Relative Proportionality ‘a punishment should not be disproportional to punishments
for similar crimes‘ (Holroyd 2010: 15)
However, this principle of relative proportionality is also often not met in our society:
racial discrimination and prejudices seem to play a role in the severity of punishment
one receives in some parts of the world
Key Q - How should systematic injustice affect our understanding and practice of criminal
justice?
Whose Business is it Anyway?
Does the state lose its standing to punish given systematic injustice?
‘When the criminal law holds individuals to account for violation of its laws, in the form of
trial, conviction, and punishment, it presumes a legitimate claim against them for
compliance with those laws. Without such a claim, violators would not be answerable to
legal authorities. It is this presumption that is undermined by the existence of sever social
injustice.‘
(A moral predicament in the criminal law - Watson 2015, 174)
#appliedethics
Value of Criminal Law
What is Criminal Law and Should we Have it?
Crime = an act prohibited by criminal law
Punishment = ‘imposition of something that is intended to be both burdensome and
reprobative on a supposed offender for a supposed crime, by a person or body who claims
authority to do so‘ (Hoskins & Duff 2021)
need not actually be burdensome / reprobative e.g. if you are fined but are a multi-
millionaire if won’t be burdensome
the punisher need not be actually legitimate anyone that thinks they have some
standing to do this
Punishment vs Compensation 2 legal responses to wrongs
can be a fineline between the 2 e.g. financial punishment
car crash money - usually seen as asking for compensation
just because you compensated someone it does not mean you have necessarily
escaped punishment
compensation is usually private, whilst punishment is dealt out by the state
Some think that punishment of adults by the state is unjustified (Zimmerman 2011)
is incarceration justified?
may think punishment is justifiable even if you think the way in which you enforce
punishment (incarceration) is not justifiable
Does the authority have authority to punish?
Function(s) of Criminal Law
What is Punishment Good for?
1 - Punishment as intrinsically valuable
Retributivism = punishment as the end goal (rather than means to end)
Retributivists think that meeting our punishment to those who deserve it is an intrinsic
moral good
it is intrinsically morally good for a legitimate punisher to punish them
it is intrinsically morally good for us to get what we deserve
2 - Punishment as instrumentally valuable
Prevention Punishment may reduce crime in a number of ways:
, deterrent, incapacitation, rehabilitation
empirical question: are these deterrents preventive of crime?
Not all wrongs are crimes, or ought to be criminalised
the kinds of wrongs that should be criminalised include: murder, rape, child and
domestic abuse, theft
wrongs such as lying and betrayal are more of a grey area including betrayal
wrongs to state, community, family members etc.
need theoretical work to figure out why e.g. someone harming another
indidividual counts as a wrong such that it ought to be criminalised vs someone
being mean to someone else is not
‘What’s Public About Crime?’ Edwards & Simester
3 - Punishment as communicatively valuable
Communication condemning certain acts provides a moral education
Expression of censure / public condemnation criminalising something is one kind of
political communication (condemnation of acts of type x)
Q: Must we punish (in the form of hard treatment) to achieve this function of
communication? Must we impose something burdensome to censure?
is imprisonment the best way to communicate condemnation?
Intended audience of such communication includes delinquents, young people
vulnerable to turning to crime
what is communication good for?
protection?
Moral education (Hampton 1984)
Constraints of Justified Punishment
Whatever the function of criminal law and punishment, there are some constraints on
legitimate punishment:
1. Legitimate punisher
2. Punishment constrains on means
3. Proportionate
Proportionality
Absolute Proportionality ‘a punishment should not be disproportional to the
crime‘ (Holroyd 2010:14)
However, this principle of absolute proportionality is often not met in our society:
some countries have longer prison sentences or even a death sentence for
, homosexual activity than for rape
homicide vs theft
Concerns about the way sin which gendered violence does not meet the same kind of
punishment as non-gendered violence. Concerns about teh way sin which disabled
people and unhoused people are punished for e.g. loitering / squatting.
Relative Proportionality ‘a punishment should not be disproportional to punishments
for similar crimes‘ (Holroyd 2010: 15)
However, this principle of relative proportionality is also often not met in our society:
racial discrimination and prejudices seem to play a role in the severity of punishment
one receives in some parts of the world
Key Q - How should systematic injustice affect our understanding and practice of criminal
justice?
Whose Business is it Anyway?
Does the state lose its standing to punish given systematic injustice?
‘When the criminal law holds individuals to account for violation of its laws, in the form of
trial, conviction, and punishment, it presumes a legitimate claim against them for
compliance with those laws. Without such a claim, violators would not be answerable to
legal authorities. It is this presumption that is undermined by the existence of sever social
injustice.‘
(A moral predicament in the criminal law - Watson 2015, 174)
#appliedethics
