The challenge of the bad man.

• Author: Plaxton, Michael
• Position: Oliver Wendell Holmes Jr.'s criminal law theory that people respond to the threat of sanctions, discretion and rule of law conflicts

H.L.A. Hart's insight, that some people may be guided by an offence provision because they take it as authoritative and not merely to avoid sanctions, has had an enormous influence upon criminal law theory. Hart, however, did not claim that any person in any actual legal order in fact thinks like the "puzzled man", and there is lingering doubt as to the extent to which we should place him at the center of our analysis as we try to make sense of moral problems in the criminal law. Instead, we might find that our understanding of at least some issues in criminal law theory is advanced when we look through the eyes of Holmes' "bad man". This becomes clear when we consider the respective works by Hart and Douglas Husak on overcriminalization, James Chalmers and Fiona Leverick's recent discussion of fair labeling, and Meir Dan-Cohen's classic analysis of acoustic separation. These works also suggest, in different ways, that an emphasis on the bad man can expose the role of discretion in criminal justice systems, and the rule of law problems it generates.

La suggestion de H.L.A. Hart que certaines personnes obeissent a une disposition penale car ils la considerent comme une source d'autorite, plutot que pour simplement eviter des sanctions, a eu une enorme influence sur la theorie du droit penal. Cependant, Hart n'a pas pretendu que, dans les faits, toute personne dans n'importe quel ordre juridique reel pense comme > et il existe des doutes persistants quant a la mesure dans laquelle nous devrions le placer au centre de notre analyse alors que nous essayons de donner un sens a des problemes moraux au sein du droit penal. Plutot, nous pourrions decouvrir que notre comprehension d'au moins quelques questions de theorie du droit penal est amelioree lorsque nous regardons a travers les yeux de 1'> de Holmes. Cela devient evident lorsque l'on considere les oeuvres respectifs de Hart et Doublas Husak sur la surcriminalisation, la discussion recente de James Chalmers et Fiona Leverick sur l'etiquetage equitable et l'analyse classique de Meir DanCohen sur la separation acoustique. Ces travaux suggerent egalement, de differentes manieres, qu'un accent sur l'homme mauvais peut exposer le role de la discretion dans les systemes de justice penale, et les problemes de primaute du droit qu'il genere.

Introduction I. Hart's Puzzled Man II. Should We Care About the Puzzled Man? III. The Bad Man and the Moral Limits of the Criminal Law IV. Husak on Overcriminalization: Recalibrating the Terms of the Debate V. Chalmers and Leverick on Fair Labelling VI. Dan-Cohen and the Brutality of Acoustic Separation Conclusion Introduction

In The Concept of Law, H. L. A. Hart distinguished criminal offences from "orders backed by threats." (1) He did so by observing that a person might be guided by an offence provision not because it credibly threatens her with sanctions, but because she takes it as an authoritative pronouncement that the course of conduct it prohibits is wrongful. This insight has had an enormous influence upon criminal law theory. Hart, however, did not claim that any person in any actual legal order responded to criminal prohibitions in the manner of the "puzzled man", and there is lingering doubt as to the extent to which we should place him at the centre of our analysis as we try to make sense of moral problems in the criminal law. Instead, we might take Holmes' bad man--the person who responds to the threat of sanctions--as our model.

In this paper, I want to make three modest and related claims. First, I argue that with respect to some issues in criminal law theory, it is appropriate to assume that compliance with criminal prohibitions is driven, at least in part, by fear of sanctions rather than by respect for legal authority. Second, I argue that once we premise law's effectiveness on the fear of sanctions, our attention is inevitably drawn away from the role of the legislature in the criminal justice system and toward the discretionary decisions of executive actors (e.g., police officers and prosecutors). Finally, this emphasis on discretion makes apparent ubiquitous rule-of-law problems that an emphasis on the puzzled man would tend to obscure. To make these claims, I draw upon four works presupposing that at least some legal subjects respond to criminal prohibitions in the manner of the bad man: Hart's Law, Liberty, and Morality, Douglas Husak's important book on overcriminalization, James Chalmers and Fiona Leverick's recent paper on fair labelling, and Meir Dan-Cohen's noteworthy paper on acoustic separation. (2)

This paper proceeds in six Parts. Parts II to IV dwell predominantly on Hart's use of the puzzled man and the bad man in his work on juris-prudence and criminal law theory. Part II explains Hart's argument that an appreciation of law's normativity requires us to conceptually separate criminal prohibitions from criminal sanctions. This point, we will see, has been quite influential. Part III warns against reading too much into Hart's discussion of normativity in The Concept of Law. His object, there, was to make a conceptual claim about the nature of law, and not an empirical claim about the attitude that actual citizens in any actual legal orders have toward criminal prohibitions. Hart did not deny, then, that some (perhaps many or all) citizens could obey criminal prohibitions solely to avoid sanctions. We will see in Part IV, moreover, that Hart's own arguments about the moral limits of the criminal law presuppose that at least some of those subject to criminal prohibitions would think along the lines of a Holmesian bad man.

Parts V and VI examine the role of the bad man in three later works in criminal law theory, and show that this shift in emphasis toward the bad man leads us to devote closer attention to the role and significance of administrative discretion in the criminal justice system. In Part V, we will see that Douglas Husak's objection to overcriminalization is premised on the scope of discretion enjoyed by prosecutors when deciding whether and how to charge suspects for alleged violations of the criminal law, and on the fact that this discretion interferes with the ability of citizens to weigh the costs attached to law breaking. Husak's understanding of overcriminalization as a rule-of-law problem, then, is grounded in his presupposition that citizens frequently think like Holmes' bad man. In Part VI, moreover, I look at Chalmers and Leverick's recent discussion of fair labelling. Like Husak, they anticipate that members of the public obey the criminal law primarily to avoid sanctions and not wrongdoing as such. Fair labelling, on their reading, is a concern insofar as executive actors fail to explain to offenders how and why their conduct was subject to sanctions. This transforms the issue of fair labelling into a problem of administrative discretion rather than a problem with the way in which criminal legislation is crafted.

Finally, in Part VIII, I consider Dan-Cohen's paper on acoustic separation. Dan-Cohen argues that, inasmuch as some citizens obey the law only to avoid sanctions, the law's concealment of the rules guiding discretion in the criminal justice process amounts to a kind of brutality. In taking that view, Dan-Cohen echoes concerns expressed by Husak that police and prosecutorial discretion are problematic from a rule-of-law perspective. And, although Chalmers and Leverick's analysis could be seen as a reply to Dan-Cohen, their approach ultimately raises new rule-of-law issues.

1. Hart's Puzzled Man

   In The Concept of Law, Hart purported to show that laws are not merely "orders backed by threats" akin to the demands of an armed bandit. (3) We may obey the bandit only insofar as she has the power to oblige us to do so; that is, to the extent she makes threats that are sufficiently terrible, and convinces us that she is willing and able to enforce them if and when we fail to comply with her demands. (4) By contrast, Hart argued, at least some people obey the substantive criminal law because they regard themselves as obligated to do so (i.e., because they believe they ought to follow the substantive rules it contains) whether or not a threat of punishment is attached to a criminal prohibition, and whether or not there is any realistic prospect that violations of the prohibition will be investigated, prosecuted, or punished. For these people, represented in The Concept of Law by the figure of the "puzzled man", the very fact that a course of conduct has been declared criminal by the legislature provides a reason to regard it as wrongful, and therefore as a course of action to be avoided. The criminal law's normative significance distinguishes it from the orders of the gunman.

   Once we look at the criminal law through the eyes of the puzzled man, Hart claimed, we are better able to understand how it is distinct from other legal rules. The law is shot through with provisions setting out the circumstances under which a member of the public may be subjected to one sort of deprivation or another. Income tax legislation sets out the conditions under which a person may be moved into a higher tax bracket. Civil forfeiture laws articulate some of the conditions under which a person may be deprived of property. Civil commitment legislation tells us some of the circumstances under which the mentally ill may be forcibly detained. Each of these statutory provisions aims simply at distributing benefits and burdens. At first glance, we might regard the substantive criminal law in the same way as we regard these other provisions--as statements of the conditions under which a person will undergo a deprivation (either in the form of a fine or a term of imprisonment). To the puzzled man, though, they are not the same. Income tax legislation does not aim at discouraging people from earning more income. Property may be seized as proceeds of crime whether or not it was obtained in a...