Making sense of the shift in paradigm on cartel enforcement: the case for applying a desert perspective.

• Author: Quaid, Jennifer A.
• Position: II. Considering Another Explanation: The Case for Applying a Desert Perspective to Cartel Enforcement A. Building a Desert Perspective 2. A Desert-Based Understanding of the Link Between the Scope of the Criminal Law and Justifications for Punishment through Conclusions, with footnotes, p. 183-198

Theorists who discuss punishment and criminal law together nevertheless tend to make two important assumptions about the criminal law: first, that its scope is determined in accordance with sound principles, usually those consistent with liberal democratic values, (108) and second, that once that scope is determined, the specific norms that a particular criminal prohibition is designed to uphold are basically legitimate. (109) I will discuss why my desert-based approach requires a detailed discussion of the first assumption but not the second.

When I refer to how the scope of the criminal law is determined, I am referring to the general basis on which we decide what kind of undesirable conduct ought to be subject to the public sanction of punishment. This determination matters in a desert-based account, which necessarily begins with some understanding of the wrongfulness that constitutes a crime. To make sense of the idea of an offender deserving punishment, there must be some general principles that set out what kind of wrongfulness rises to the level of a crime. This is not, however, the same as the second assumption, which assumes that the behaviour targeted by a specific criminal prohibition conforms to the general standard of wrongfulness and is thus properly subject to the criminal law. (110)

Distinguishing between the general principles that mark certain behaviour as criminal and the specific assessment of the legitimacy of a given criminal offence is important. The first assumption is part of a general justification for punishment, because it helps us understand why punishment is the required response to crime--we need to know what makes crime a special category of wrongful behaviour in order to justify why we need to use punishment, as opposed to other methods, to enforce the criminal law. The second assumption is not part of a general justification of punishment, because it is concerned only with whether a specific instance of criminalization is appropriate--it does not speak to the justifications of punishment at all. Debating the merits of the form that an instance of criminalization takes is not the same thing as debating whether the basic conduct targeted by that criminalization is the kind of wrong that can be considered a crime. Thus, while there may be general agreement that murder is the kind of special wrong that requires enforcement by the criminal law, there can be disagreement about the exact bounds of a given legal prohibition against murder. (111)

As my focus is on developing a theoretical framework to explain what it is about cartels that makes them criminal and why they are appropriately subject to punishment, my analysis must be seen as a general justification of the use of the criminal law and punishment against cartels and not a specific justification of a given form of legal prohibition against cartels. For my purposes, it is sufficient that the intention behind the 2009 amendments was to narrow the focus of the criminal provisions to cartel behaviour. This is not altered by the possibility of noncartel conduct falling within the scope of the provisions at the margins. (112)

I will now explain how the desert-based approach of Arthur Ripstein offers a very helpful way of tackling the key questions we need to answer in order to justify the Bureau's move toward a stance that criminal enforcement be firmly grounded on the inherently criminal nature of cartels: why are cartels criminal, and why do they demand the response of punishment?

3. What Sets Criminal Conduct Apart: Unilateral Disregard of Public Standards

   The first question to be answered is what sets criminal conduct apart from other conduct. Assuming that, in order for behaviour to be considered criminally wrongful, something more is required than the breach of a legal provision enforced through punitive sanctions, what makes certain kinds of wrongful behaviour so serious as to warrant the use of criminal law and enforcement through punishment?

   Ripstein's core idea is that a society depends on the existence of law (including the criminal law) to maintain the "fair terms of interaction" between persons. He uses this phrase to describe the equilibrium that a legal system, and a political philosophy, should strive to attain between individual freedom of action and protection from the interference of others. (113) By upholding the fair terms of interaction, the law enables an individual person to exercise his or her freedom of action independently of the choices .of others. As the expression suggests, however, the fair terms of interaction make no sense in the absence of others. The exercise of freedom by one depends on a mutual recognition of the fair limits of freedom by all. Thus, embedded in this equilibrium is the expectation that reasonable people understand the need for legally enforceable constraints on individual freedom and will abide by them, regardless of their individual opinions as to the merits of any specific constraint. In this way, the fair terms of interaction set the outer limits of acceptable behaviour and what is reasonable. It follows then that behaviour that does not respect these limits is wrong.

   Since it is inevitable that some individuals will fail to act within the limits of acceptable behaviour, the law provides responses to instances of wrongdoing. It does not, however, respond to all wrongs in the same way. How, then, do we identify those wrongs that are properly dealt with by the criminal law? When is the failure to act in a manner consistent with the balance of freedom and protection criminally wrongful and deserving of punishment? Ripstein sums up his answer as follows:

   Any account of punishment needs to explain why punishment is sometimes required in addition to compensation, as well as to say why intentional acts are the appropriate occasions for that additional response. I begin by suggesting that crimes are torts with some thing added. Once we see what is added, we see why punishment is the appropriate response to that extra thing. (114) To distill this extra element, Ripstein separates the wrongfulness of crimes into two parts: wrongful injury and wrongful denial of rights. Wrongful injury refers to losses suffered as a result of wrongful behaviour. Both torts and crimes can cause wrongful injury and the law protects victims by giving them the right to seek damages from the wrongdoer for the losses suffered. Wrongful denial of rights is of a different nature and is what sets crime apart from tort. A wrongful denial of rights occurs when the wrongdoer subjects the victim's rights to his or her will. This occurs because the wrongdoer deliberately ignores the fair terms of interaction and acts in a way that denies the victim's freedom to decide independently of others how to exercise his or her rights. (115)

   Analyzed in this way, what makes crime particularly objectionable is not the ultimate ends of the conduct (though these can be very objectionable) but rather the means by which the wrongdoer sought to reach those ends. (116) Focusing on the wrongfulness of the means directs our attention to the need for a certain deliberation in the behaviour of the offender. By deliberation, I am not referring here to the specific intent requirements that may be set out in a particular offence, but to the general idea that crimes are usually committed advertently. In the context of understanding what makes crimes different from torts, this advertence does not arise from the fact that the effects of crime are intentionally sought (though they often are) but rather from the offender's choice to pursue a particular course of action despite being aware that it disregards the rights of others (usually because the conduct will cause injury or expose others to an unreasonable risk of injury). (117)

   Set in the larger context of Ripstein's fair terms of interaction, a crime is essentially a deliberate misuse of the freedom that the fair terms of interaction are intended to uphold. But what is it about misusing freedom in this way that requires the special response of punishment? To understand why punishment is required, we need to look again at the nature of the fair terms of interaction.

   As conceived by Ripstein, the fair terms of interaction are a legally maintained balance of freedom of action and freedom from interference. (118) Leaving aside whether it is possible for the law to uphold the optimal balance between these two elements (however that may be defined by a given society), the law does uphold a balance by identifying the extent and nature of freedom that will be legally protected. (119) In my view, this legally protected freedom can be understood as having two separate but reciprocal components. First, this freedom includes the ability for individuals to choose how to exercise certain fundamental rights conferred on them by law. (120) Second, this freedom excludes behaviour that is inconsistent with respect for the freedom of others (by disregarding either the protected individual rights of others or the rules intended to protect the public in general). The intersection of these two elements sets the legally enforced parameters of acceptable behaviour. They are the authoritative and public source of expectations of behaviour, overriding competing private sources * of expectations such as personal belief or morality, however reasonable these latter may be. Moreover, these public expectations allow responsible citizens to guide their own behavior by reference to what the law has declared is acceptable or not.

   Ripstein calls these parameters public "standards of reasonableness". (121) These standards are upheld and enforced by "public" law, which encompasses the rules and institutions designed to protect the system of equal freedom around which a society is unified. Public law demands compliance because it is directed at maintaining the system on behalf of all, something Ripstein has...