The impossibility of a critically objective criminal law.

• Author: Baker, Dennis J.

In this paper, I argue that principled criminalization does not have to rely on critical objectivity. It is not necessary to demonstrate that conduct is criminalizable only if it is wrong in a transcultural and truly correct sense. I argue that such standards are impossible to identify and that a sounder basis for criminalization decisions can be found by drawing on our deep conventional understandings of wrong. I argue that Feinberg's harm principle can be supported with conventional accounts of harm, and that such harms can be identified as objectively harmful when measured against our deep conventional understandings of harm. The distinction that critical moralists make between truly harmful conduct and conventionally objective harmful conduct is unsustainable because many conventional harms impact real victims in social contexts. The best that we can do is to scrutinize our conventional conceptualizations of harm and badness, but that scrutiny is constrained by the limits of epistemological inquiry and our capacity for rationality at any given point in time. Many acts are criminalizable because they violate social conventions that are shareable by communally situated agents.

Dans cet essai, je soutiens que les principes de la criminalisation ne reposent pas forcement sur l'objectivite crrique. Il n'est pas necessaire de demontrer qu'un comportement est << criminalisable >> seulement s'il est reellement reprehensible au sens transculturel. Je souriens que de tels criteres sont impossibles a identifier et que nos notions conventionnelles et approfondies du mal constituent une base plus saine pour les decisions relatives a la criminalisation. Je soutiens que les explications conventionnelles du mal appuient le principe elabore par Feinberg et que ces maux peuvent etre identities comme etant objectivement nuisibles lorsque compares a notre comprehension conventionnelle et approfondie du mal. La distinction qu'etablissent les moralistes critiques entre le comportement reellement nocif et le comportement generalement considere comme etant objectivement nocif est intenable parce que de nombreux maux conventionnels affectent des victimes reelles dans des contextes sociaux. Le mieux que nous pouvons faire est d'examiner de facon minutieuse nos conceptions du mal et de la mechancete. Cet examen est toutefois limite par les limites de l'enquete epistemologique et par notre capacite de rationalite a un moment donne. De nombreux actes sont << crminalisables >> parce qu'ils violent des conventions sociales qui peuvent se partager par l'entremise d'agents collectifs.

Introduction I. Criminalizaaon II. The Vacuity of Critical Moral Accounts of Harm and Offence III. Conventionally Contingent Harms IV. The Conventional Badness of Offence-Doing V. Principled Criminalization and Conventionally Contingent Wrongs Conclusion Introduction

The famous debate between H.L.A. Hart and Lord Devlin was about principled and unprincipled criminalization. Hart argued that there was no principled justification for criminalizing many of the activities that Lord Devlin advocated criminalizing, such as homosexuality or prostitution. Hart argued for principled criminalization, which he suggested would be criminalization that could be justified by pointing to critical moral standards. (1) Hart took the view that culpable harm provided a critical moral justification for criminalization--that is, a justification that is universally right. (2) Joel Feinberg refers to critical morality as true morality, which according to him is "a collection of governing principles thought to be 'part of the nature of things,' critical, rational, and correct." (3)

Like Hart, Feinberg asserts that a positive justification for criminalization is only valid to the extent that "it is also a correct rule of morality, capable of satisfying a transcultural critical standard." (4) Feinberg attempts to limit criminalization by arguing that normative or objective moral accounts of harm can be used to constrain positive or conventional accounts of harm employed to justify penal censure. Critical moralists seem to take the view that deep personal conviction or practical reasoning allows moral agents to identify objective or normative accounts of harm. (5) I present a more modest account of the moral agent because I view the moral agent as nothing greater than a communally situated human being. If practical reasoners are merely communally situated humans trying to solve conventional conflicts, then it is fairly clear that it is impossible for such creatures to identify fully "correct" accounts of harm and badness, goodness, rightness, wrongness, and so forth.

Standards identified by human thinkers cannot be truly correct because it is impossible for us to know whether a standard is truly correct. Furthermore, in practice all reasoning (notwithstanding the belief of some commentators that these standards are mind-independent) is influenced by societal evolution, convention, and human biases. (6) The human mind is not a computer! It is not possible to claim that certain conventional wrongs are truly wrong, bad, or harmful in a transcultural sense, but principled justifications can be supplied for criminalizing many conventionally contingent wrongs. There is no doubt that intersubjective deliberation will give us better results, but it cannot tell us whether a particular moral standard is correct.

Hart suggests that an objective account of harm can be discovered and therefore can provide a critical moral justification for or against criminalization. But the harm principle itself is a conventional construct, and conceptualizations of harm depend on convention. It might be argued that deep ("deep", meaning long-held and widely shared understandings in Western society) conventional agreement about the harmfulness of certain acts, such as murder, is sufficient to provide a principled-harm argument for outlawing it. This provides a strong conventionally objective case for outlawing such wrongs. Feinberg, however, supplements the harm principle (7) with an offence principle, (8) which holds that culpable offence-doing also provides a critical moral justification for criminalization. The problem with offensive conduct and trivial harms is that there is no deep or constant (intersubjectively shared) agreement about the badness or wrongness of such acts. I could provide many examples, but I think nudity in ancient art, movies, and modern art, might be sufficient for tentatively claiming that exhibitionism has not been constantly considered to be bad, harmful, or wrong. Feinberg is particularly critical of Lord Devlin's positive morality, (9) but it is not clear that Feinberg's offence principle rests on anything more than positive morality. Feinberg does not explain why culpable offence-doing is inherently wrong in a critical moral sense rather than a conventional sense--or why standards cannot be developed from conventional morality to provide principled justifications for criminalization.

While I develop the idea of conventional objectivity more fully throughout the paper, the basic theory is that we are able to draw on our deeply held conventional understandings of wrong and harm (including our scientific and biological accounts of harm and bad consequences--in addition to conventional understandings about privacy and autonomy in modern society) in order to formulate a case either for or against criminalization. We may change our minds about what is bad, harmful, and wrong depending on the social context. Hence, our conceptualizations of harm and wrong depend on conventional understandings of harm and on socialization. We may therefore claim that something is objectively harmful within a certain conventional context, but this is entirely different than claiming that something is bad or harmful in a transcultural critical objective sense. For the most part, at the most basic level all societies have similar conventional understandings about the badness, wrongness, and harmfulness of conduct such as genocide, murder, starvation, torture, and so forth. Such understandings have emerged because humans have drawn on basic biological information, human instincts, and evolving social norms to solve conventional conflicts.

Transculturally, there are shared understandings about the badness and harmfulness of fairly primitive (10) harms such as wantonly amputating another's hand. For instance, in some countries the justification for chopping off a thief's hand for shoplifting hinges on an understanding that it is bad and harmful to wantonly amputate a person's hand. It is because hand amputation is understood to be bad and harmful that it is used as a punishment rather than a reward. I do not know of any state where the conventional understanding is that hand amputation is good and thus should be used as a reward. The same might be said for the death penalty. There is no transcultural disagreement about death (capital punishment) or hand amputation as bad and harmful. Rather, the disagreement is about whether such punishments are proportionate or necessary given our respect for humanity and life. But this does not mean those acts are truly harmful or bad. Empirical information (i.e., biological, scientific, and medical explanations of pain and damage) and our conventional understanding of pain, hurt, and culpability, are more than sufficient for providing an objective account of the harmfulness of wanton hand amputation; this alone, however, cannot be used to prove that it is objectively harmful in a critical moral sense.

Ashworth's claim that the criminal law has been influenced by the political demands of the day is beyond dispute, and unless we can identify appropriate constraints, it might be impossible to have a principled criminal law. (11) If the harm and offence principles do not provide critical reasons for constraining criminalization, then it might not be possible to...