Crime and Human Rights (14): The Limits of the Law

We need rules to live together in a spirit of respect for each other’s rights, freedom and equality. We need to tell people what they can, cannot or should do in order to respect the rights, freedom and equality of others, and we need to coerce people if they don’t respect these rules.

It seems that the best way to do this is to translate these rule into laws and then to use a justice system and a police system to enforce respect for these laws. That’s obviously not the only way to do it – education, tradition, social control, incentives etc. are other ways – but it’s one that has proven to be successful (yet not perfectly successful since legal prohibition of acts and enforcement of this prohibition never completely prevent those acts and may even backfire). If that is correct, then laws and their enforcement institutions are necessary parts of modern life.

So, these are, in broad strokes, the limits of the law: laws should protect people’s rights, freedom and equality, no more, no less, and nothing else. However, once the institutions of the law and of law enforcement have been created, there’s always the possibility and perhaps even the certainty that they will be used not to protect rights, freedom and equality, but for other purposes, or for the enforcement of controversial and exotic interpretations of rights, freedom and equality. That’s one way in which the law can overstep its limits or, if you want, become corrupted. (I focus here on the corruption of the law, not the law enforcement institutions. The latter is for another time).

Quantitative limitations

But a system of law can overstep its limits in several other ways as well. The purpose of the law – rights, freedom and equality – is a limitation, but it’s a limitation that requires other limitations, for example a quantitative limitation. There’s always a tendency for the number of laws to become too large. That’s a problem because a violation of this quantitative limitation has qualitative consequences for the ability of the system of law to serve its purpose, namely the protection of rights, freedom and equality:

  • When laws become too numerous, it becomes difficult for people to know what is and is not legal. As a result, people may find that they are ambushed by the law. When people are ambushed in this way, they risk losing their freedom through no fault of their own, and that means that the system of law doesn’t perform its main function, namely protecting rights, freedom and equality. Moreover, after having endured or seen this kind of ambush, people will start doubting the value of the whole system of law. This undermines the credibility of the system, making it again difficult to use it for its intended function.
  • When laws become too numerous, the enforcement institutions will have an increasingly difficult task. Some laws will no longer be enforced, or will be enforced in an unsatisfactory or selective way, something which again destroys the credibility and hence the effectiveness of the system of law and again has consequences for the purpose of the system.
  • When laws become too numerous, it’s likely that the focus of the law will be lost. People have a limited number of rights, and there are a limited number of ways in which people can infringe on each other’s freedom and equality. Hence, the number of laws should also be limited. When there are more laws than necessary, people will be coerced for other reasons than rights, freedom and equality, and they will rightly resent this. This resentment will again be directed at the law in general, including the laws that are necessary for rights, freedom and equality.

Formal limitations

It’s not only the number of laws that can force the system of law beyond its limits. The nature of laws is also important. After all, just as a vast body of law can coerce too much, so can one very sweeping law. Laws should have certain characteristics if they are to stay within their limits:

  • Laws should be precise: they should be targeted at very specific threats to freedom, equality and rights, and not at vague threats or at threats to something else. For instance, a law that makes hate speech illegal, but doesn’t specify hate speech, is too vague. It risks coercing too much and hence destroying rights, freedom and equality rather than protecting those values.
  • Laws should also be effective: they should have a proven track record of countering specific threats to rights, freedom and equality. Otherwise they should be repealed. It often happens that laws are counterproductive: rather than countering a specific threat to rights, freedom and equality, they enhance it. For example, capital punishment for murder may make it more likely that witnesses are murdered.
  • Laws should be proportional. They should not provide a punishment for those threatening rights, freedom and equality that produces a greater threat to the rights, freedom and equality of the punished criminals (and their relatives etc.). And they should not produce other unwanted side-effects that have an impact on rights, freedom and equality. An example of a law – or better a set of laws – that creates more harm than it prevents is the “war on drugs”. Maybe this is a set of laws that effectively suppresses drugs, but in doing so it disproportionately harms rights, freedom and equality in other places (it leads to excessive incarceration of ethnic minorities).
  • Laws should not be secret, retroactive (a retroactive law is one that punishes acts that have occurred before the law came into force) or unstable (they should not change all of the time). Otherwise, it becomes very difficult for people to respect the law, creating again the risk of ambush and the consequent loss of credibility for the whole system of law.
  • Laws should not be bad law. They should not be too complex, incomprehensible or contradictory. Otherwise they will have the same effect as secret, retroactive or unstable laws.
  • And, finally, laws should be necessary. If there’s a non-coercive tool to protect rights, freedom and equality that is equally effective and proportional, then this tool should used. A law, after all, because it is coercive, is a violation of freedom. Laws can therefore only be used if they are the only available means to produce more freedom than they take away, or if they are more effective.

Content limitations

Another limitation of the law is that it can only be designed to serve rights, freedom and equality. If people want to waive or destroy their own rights, freedom and equality, the law should not force them to do otherwise. In other words, the law should not be paternalistic, although there may be room for some form of soft paternalism in the case of people who obviously don’t understand their own interests or who have a hard time acting on their interests. If paternalism can enhance autonomy, why not. I won’t develop that point in this post, however.

Some also argue that religious people, or people holding other, non-religious but substantial moral convictions that are very controversial, should avoid using those religious or moral convictions as a justification for laws. Laws should in other words be neutral in order to avoid coercing people in ways that they can never accept. I rejected this argument here, so in my view that’s not a proper content limitation of the law.

If we want to keep the law within the limits stipulated here, we have to be aware of the possible roads to corruption. First, legislators should think, in every legislative decision, about the ways in which the proposed law is necessary and effective for the protection of freedom, equality and rights. Next, they should respect some formal and content limitations, as well as quantitative ones. And finally, they should have a coherent understanding of the nature of freedom, equality and rights. That, of course, in controversial – different people will always have different views of the proper meaning of these concepts. However, democratic deliberation and public reasoning can at least guarantee majority support for a particular interpretation of this meaning, and make it possible to avoid private and self-interested meanings to sneak into the law.

Crime and Human Rights (11): The Preconditions for Criminal Punishment

I know that the worst thing about crime is what happens to the victims of crimes, not what happens to convicted criminals. Still, I want to focus on the latter for a moment. Criminal punishment is almost always a limitation of the criminal’s human rights, so it is a legitimate area of concern, although perhaps not the most important one. Whether we put criminals in prison, kill them, flog them, cut off their hands or put their names and addresses on the internet, we limit some or even many of their human rights.

So, if we want to maintain a system of criminal punishment, and if we agree that people don’t lose their human rights simply because they commit a crime, then we have to formulate a justification of the limits we impose on the rights of criminals. When are such limits justified, and when are they arbitrary, excessive or dictatorial? I believe criminal punishment is morally justified if, and only if, at least the following 8 conditions are met simultaneously:

1. Criminal punishment is necessary for the protection of the rights of others

A particular punishment, involving very specific limitations of the rights of the convicted criminal, has to be necessary for the protection of the rights of others. No other goal can be served by criminal punishment, and no other means or punishments, less harmful to the rights of the criminal have the same effect on the rights of others.

Criminal punishment not intended to protect the rights of others is therefore unacceptable, as is criminal punishment which imposes harm on the criminal that goes beyond what is necessary for the protection of the rights of others. For example, putting someone in prison because she has a certain opinion, is unacceptable because this punishment doesn’t protect the rights of others. And putting someone in prison because she steals a newspaper is also unacceptable because this punishment goes beyond what is necessary to protect the property rights of others. Rights protection in this case can be achieved by other means which are less harmful to the rights of the criminal (a fine for instance).

So both the type of punishment and its severity have to be taken into account when judging whether the punishment is morally justified. Simple retribution, proportionality or lex talionis can, in some cases, satisfy this first condition of morally justified punishment, but only by accident. In many cases, you will not deliver a morally justified punishment when you think only in terms of retribution, proportionality or lex talionis because you won’t automatically consider the effect of the punishment on the rights of others.

For example, take the case of a jealous artist vandalizing the work of a rival. Lex talionis would recommend that the vandals art be also vandalized. However, this punishment may be proportional and adequate retribution, and the vandal will undoubtedly suffer from it like he made his rival suffer, but no one’s rights are protected in this way. On the contrary, if the vandal is a good artist the punishment may even violate the rights of large numbers of people.

A punishment should be designed in such a way that it protects the rights of the victims and possible victims of the criminal who is about to be punished. This is the case when incarceration of a sexual maniac will protect the rights of his victim (although not retroactively) and of possible future victims, and such a punishment does seem to be what is required while avoiding the imposition of excessive harm on the maniac. In other words, there isn’t a more lenient sentence available which would offer the same protections to the rights of others while imposing less restrictions on the rights of the maniac. And neither is the punishment too severe for the purpose it serves, namely the protection of the rights of others.

But these “others” are not only the victims or possible victims of the criminal. Punishment is also signaling: by showing possible maniacs what happens to actual maniacs, we want to deter crime. Deterrence, like punishment, also protects the rights of others, “others” meaning here not the victims or possible victims of an actual criminal but the possible victims of a possible criminal. There is room for deterrence, but only when the deterrent effect is real, in other words when it really helps to protect the rights of others. We should be careful with deterrence, because deterrence means the instrumentalization of human beings. When there is doubt about a deterrence effect, and when at the same time the proposed punishment is very harsh, we should avoid designing the punishment with deterrence in mind. For example, if a very high fine for shoplifting has been shown empirically to deter a high percentage of possible shoplifters, then it would be morally justified to impose such a high fine on a specific shoplifter, even if a much lower fine would suffice to protect the rights of the actual and possible victims of this specific shoplifter. So this is an exception to the rule stated a moment ago.

On the other hand, if it can be shown empirically that the deterrent effect of capital punishment is doubtful, then we should not impose that punishment on a specific criminal, except when it is necessary to protect the rights of the actual and possible victims of that specific criminal. But when is this necessary? Often if not always we can find a more lenient sentence which will offer the same protections to the rights of actual and possible victims of an actual criminal, while imposing less restrictions on the rights of the criminal (e.g. life without parole).

2. The criminal acted with free will

We should assume that people generally have free will. There doesn’t seem to be room for moral responsibility or criminal culpability without this assumption. There can’t be criminals in a world in which everything is governed by “blind” cause and effect. People have free will when they have the capacity to choose a course of action from among a set of alternatives. If a criminal’s will and choice of action are not decided by himself, we can hardly say that he’s responsible for his actions. Only if he could have acted differently can he be held responsible for his actual actions. Imagine a brainwashed spy being sent abroad by his totalitarian government in order to kill political opponents. This person couldn’t have acted differently and didn’t have the capacity to choose from among different courses of action. Hence he can’t be held responsible for his actions.

We should start from the general assumption that people normally act on the basis of free will, but if we find that this assumption doesn’t hold in a particular case, then either criminal punishment is not justified or the punishment should be less severe. People can be determined to will certain ends without having been brainwashed. A drug addict for example suffers from a compulsive and controlling desire and has lost his free will. Addiction impairs the will. If he acts on the basis of this compulsive desire and commits a crime along the way, it’s common to take the absence of free will into account when determining the severity of the punishment. Both external manipulation of our psychology and internal compulsions can force us to do things we don’t desire or choose to do, and they can even force us to desire or choose things we wouldn’t freely desire or choose. (Hypnosis can also be an example). In either case, we are not culpable, or at least the level of our culpability is reduced.

3. The criminal did not act because of “force majeure”

Force majeure is a term for an action that is caused by events or circumstances beyond the control of the agent. For example, someone kills another person because he was instructed to do so by gunmen holding his children hostage. Sometimes, there are external constraints on the range of options we have, and things beyond our control can force us to act (or not act) in a certain way.

This condition should be distinguished from free will. It’s not because some external causes force you to act in a certain way that you lose your free will. You act in a certain way but at the same time you don’t have to want to act in that way.

4. The criminal was aware of alternative courses of action and of the moral significance of those alternatives

For example, if a criminal was convinced that he had no alternative and had to commit the crime, then he may not be culpable, even if in reality there were alternatives. Imagine the same case of the father being forced to kill by gunmen holding his children hostage. Maybe there was an easy and safe way for the police to free the children. However, if the father was unaware of this and executed the demands of the gunmen without contacting the police, then he shouldn’t be found guilty of a crime.

However, the father may have been culpably unaware: reasonable people can agree that he should and could have been aware of the possibility to involve the police, but he failed to do everything possible to examine the alternatives. In that case, he should be found guilty.

5. The criminal acted with intent

If the consequences of an action were not intended by the agent, then either he is not culpable or his culpability is diminished. This 5th condition should be distinguished from free will: an action can be undertaken with free will but without intending all the consequences that occur. A woman who is not acting compulsively (who is not addicted for example), who is not forced by external powers to desire things she would normally not desire or to do things she doesn’t want to do, and who reasonably reflected on possible alternatives, acts in a chosen way. To her surprise, her actions lead to someone’s death. She didn’t intend this outcome, and hence she’s not culpable, or at least her culpability is reduced.

6. The criminal caused the crime

There should be no doubt about the causal link between the criminal’s actions and the crime. Let’s elaborate the previous example: the woman caused the death by hitting the victim with her car. The victim didn’t violate any traffic rules for pedestrians. The woman wasn’t speeding compulsively. She wasn’t under hypnosis or forced to hit the victim by gunmen threatening her children. And she wasn’t culpably unaware of the risk of driving a car in that particular street. Moreover, there’s some medical doubt as to the actual cause of death. It seems that the pedestrian was suffering from a heart condition and a heart attack caused the pedestrian to stumble on the road. Hence the woman driver isn’t culpable.

7. The criminal is found guilty after a fair trial

Only if the rules on the fairness of criminal trials are respected can we impose criminal punishment. A person accused of a crime should be able to use a defense lawyer to guarantee that the judge takes all the 6 previous preconditions into account when sentencing. The trial should be public so that we can all see that criminal punishment is imposed fairly. Etc.

8. The criminal is found guilty on the basis of proper laws

The laws which the criminal is supposed to have violated should be universal laws. In other words, they shouldn’t be targeted at the criminal specifically. The rule of law imposes this restriction. Laws that are not equally applicable to all, including the legislators, are not proper laws, but simply a disguised form of the rule of man. Other rules of legislation should also be respected (no retroactive laws etc.).

Conclusion

If both judges and legislators keep these 8 points in mind when deciding the type and severity of the punishment that has to be imposed for a particular crime and on a particular criminal, then we will, in all likelihood, be able to avoid some of the worst injustices in our current criminal justice system. We won’t have overpopulated prisons, we won’t incarcerate people for silly offenses or lock them up for years and years for a crime that merely requires a few months, and we won’t use capital punishment as often as we do now.