Tuesday, September 22, 2009

A Contradiction in Our Criminal System

We tend to think that moral blameworthiness is indelibly linked to intent. Evil intentions are, in a way, the ground of moral evil.

And we think of the criminal system as having something to do with blameworthiness.

And yet, in criminal law, we rate blameworthiness by outcome, not intent (we usually want intent included, but the RESULT is the key). Does someone actually die when you intend to kill? The outcomes aren't tethered to the intention, and yet we punish based on outcomes.

A tries to kill B, but only with regret. He succeeds.
C tries to kill D, with glee and malice, and fails.

We punish A much more severely than C.

There are theories that may answer this paradox, but it is worth thinking about.


Matt Chandler said...

Now, I'm not a Harvard law student or anything, but I assume the contradiction results from two things--one an inherent flaw in legal theory, and the other an necessary tenet of legal theory.

The second is easier to grasp: the law governs acts, period. Because human behavior is complicated, it is necessary for the law to draw a hard line between intentional acts and accidents. Thus, all crimes require both actus reus and mens rea--a criminal action and criminal intent. Of course, there is the sticky business of proving intent and defining criminal negligence, but nevertheless, it is necessary to include intent as a requirement for culpability in a crime.

The first problem, and the one you ostensibly mean to highlight in your post, is that of merging moral philosophy with law. The law is always meant to be a reflection of the moral values of a society, but I doubt it ever really is. As you say, "Evil intentions are, in a way, the ground of moral evil." This point surely appeals to the moral values of most people in our society. Supposedly, the law corrects social evils, especially by punishing the criminals whom we blame for individual manifestations of social evils. But if the law were to really correct evil, then it would nip it in the bud, and target intent, for criminal intent is by necessity seminal to criminal action. The thing is, law doesn't in the end have that much to do with instituting morality. Instead, law is more about maintaining social order and/or creating some portrait of aggregate justice. I don't think it is a paradox; I just think it's wrong to assume that the law accurately reflects any legitimate ethical system. I think it may also be wrong to try to create a legal system that institutes morality.

Naturally, there is a lot more that should be discussed in this vein, but I'll state my main reason for this stance succinctly. I can only think of two instances in which a government could legitimately institute morality: 1) if the governing body is truly morally superior to the general population (i.e. direct divine rule), or 2) if the citizens to which the law applies willfully and knowingly enter into a social contract, the terms of which are instituted by and for the relevant citizens only. Since neither conditions are met in any current legal system I know of, then no existing legal system has moral legitimacy. What they have is power, and by that power they do manage to maintain a strong semblance of the kind of order that should result from correctly instituted morality. I am not fooled, however. Success is no substitute for legitimacy.

Let me end my comment with a huge caveat: almost everything I think I know about the US criminal justice system I learned from watching Law and Order: Special Victims Unit. (Wink.)

Ron said...

As to law and order...no kidding.

Just kidding.

Interestingly enough, one hybrid theory of deterrence uses social science to show that when the law is retributive in character, is it perceived as just by the population and is extremely effective in deterrence because it becomes a proxy for morality in the minds of people in general.

(e.g. Should I do this? I dunno. It's against the law? Okay I won't). Research suggests that this proxy effect is more efficacious than the deterrence meted out by punishment.

That doesn't answer your main question (I guess question is the wrong word) as to whether the legal system is actually a moral system.

You're starting to uncover my point, which is that the two are oddly conflated in popular and occasionally legal parlance.

What's funny, is legal theorists rarely see it this way (although some Kantian retributivists do).

But most lawmakers design laws with person views of morality in mind, and design punishments to reflect more societal moral opprobium associated with wrong acts.

And yet wrong acts are indelibly linked more to the mens rea, at least it is popularly thought.

The contradiction is in the dueling conceptualizations. But these conceptualizations do play out in the laws we enact, and so it is in fact fair to say that the paradox lies within the law.

So we punish as if it is moral opprobrium, but we simultaneously believe that our moral outrage is best reserved for intents, not the "moral luck" outcomes of such intents.

Matt Chandler said...

My wife informs me that contemporary social science research (e.g. crime statistics) nullifies the hypothesis that when the populace perceives the law as a proxy for morality, it serves as an effective deterrent for crime. She works for a certain well-known national association representing the legal profession, and she wrote her MA thesis on the rule of law and distributive justice, so I trust her. I can have her send you some articles if you want to challenge your professors.

My own study of legal theory has revolved mostly around international law, especially genocide and crimes against humanity, so I tend to focus on the broad concepts of law. I have been sadly disappointed with the intellectual output of the human rights community, which, I think, are the worst culprits of conflating morality with law. For international law to stick for the high crimes, it has to rely on a concept of jus cogens, i.e. absolute morality that is supposedly self-evident.

Ron, I want the inside scoop: do the legal elites even read philosophy any more?

Ron said...

As to Social Science: It's a field without absolute convergence. My professors don't tout the above, it's just one we well regarded theory within the field (presented among various kantian, utilitarian, social contract and other theories).

I also think you might be confusing what I'm saying (which is probably my fault). None of my professors has claimed that law is a proxy for morality, only one has pointed to research that suggests that law ACTS as a proxy for morality in the mind of a large number of people who blieve their legal system is legitimate.

It's a question of function, not metaphysics.

That said, I'd love the articles. I'll see if I can look up the thinkers who made this claim.

I'm sorry I don't know much about the theoretical output of the international rights community. I'd imagine that their concerns aren't primary theoretical, as the exigencies of that field aren't defined primarily by seeing coherence, nor are the people who are attracted to that field likely primarily concerned with this desiderata.

Yes, they read philosophy (and assign it). Mostly Kant lately.

Ewei said...

Hi Ron,

I see no contradiction.

Human assessment of intent is fraught with the poential for error. Penalizing intent will result in tyranny. Ever heard of the phrase, "thought police". Tell me, who is the transcendent figure on earth that will accurately assess intent? By what criteria? As Washington said, government is not reason, not eloquence, it is a force, like fire, ... a fearful master.

Therefore, laws should only punish behavior, with one exception.

The only place in the Bible, and I could be way wrong on this, where intent is taken into account is premeditated murder. See Exodus 21:12-14.

The current example is hate crime legislation. Why is an assault any more heinous because the attacker thought the victim was homosexual versus the attacker thinking the victim was part of the rich overclass taking advantage of the poor?

One of the reasons you might get tangled up in this question is because a lawyer might be required to establish intent. However, he generally only does so to support proof of action in the absence of no direct proof of action.

One additional point, make no mistake, all laws are based on morals. The question is whose morals.