STANFORD LAW SCHOOL A Canon of the criminal law eisberg Stanford Law school orking Paper No 10 May,2000 Stanford Public law and Legal theory Working Paper Series Stanford Law School Crown Quadrangle 559 Nathan Abbott Way Stanford. California 94305-8610 So This paper can be downloaded without charge from the ocial Science Research Network Electronic Paper Collection http:/papers.ssrn.com/paper.taf?abstractid=231952
S T A N F O R D L A W S C H O O L A Canon of the Criminal Law by Robert Weisberg Stanford Law School Working Paper No. 10 May, 2000 Stanford Public Law and Legal Theory Working Paper Series Stanford Law School Crown Quadrangle 559 Nathan Abbott Way Stanford, California 94305-8610 This paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection http://papers.ssrn.com/paper.taf?abstract_id=231952
A Canon of the criminal lay Robert Weisberg Stanford Law School I write in the imperative(more modestly, in the exhortative) to one who has asked what one must read to understand our criminal law. And since this essay will address the elationship between desert and utility, let"canon"here mean a combination of those works most deserving to be read for their merit and those most useful to read, even as only data(though crucial data Few associate Blackstone with the criminal law but read the section of his Commentaries on"Public Wrongs. 1 You will be chastened: However much we believe in elemental principles, we are all probably anti-Langdellian enough to be embarrassed by the near sufficiency of Blackstone in laying out, over two centuries ago, the fundamentals of criminal jurisprudence and the elements of major crimes. Perhaps most strikingly, Blackstone quickly recognizes the main problem in generating prescriptive principles of criminal liability. He posits the various potential purposes of criminal punishment, and he recognizes that any combination of two or more of them will thwart any very systematic formula for correlating crime to punishment. And he makes no effort to finesse the problem by suggesting any easy pluralism I William Blackstone, IV Commentaries on the Laws of England( George Sharswood, ed 1908)
1 A Canon of the Criminal Law Robert Weisberg Stanford Law School I write in the imperative (more modestly, in the exhortative) to one who has asked what one must read to understand our criminal law. And since this essay will address the relationship between desert and utility, let "canon" here mean a combination of those works most deserving to be read for their merit and those most useful to read, even as only data (though crucial data). Few associate Blackstone with the criminal law, but read the section of his Commentaries on “Public Wrongs.”1 You will be chastened: However much we believe in elemental principles, we are all probably anti-Langdellian enough to be embarrassed by the near sufficiency of Blackstone in laying out, over two centuries ago, the fundamentals of criminal jurisprudence and the elements of major crimes. Perhaps most strikingly, Blackstone quickly recognizes the main problem in generating prescriptive principles of criminal liability. He posits the various potential purposes of criminal punishment, and he recognizes that any combination of two or more of them will thwart any very systematic formula for correlating crime to punishment. And he makes no effort to finesse the problem by suggesting any easy pluralism. 1William Blackstone, IV Commentaries on the Laws of England (George Sharswood, ed. 1908)
For though the end of punishment is to deter men from offending, it never can follow from thence that it is lawful to deter them at any rate and by any means, since there may be unlawful methods of enforcing obedience even to the justest laws... Where the evil to be prevented is not adequate to the violence of the preventive, a sovereign that thinks seriously can never justify such a law to the dictates of conscience and humanity. 2 Blackstone worries over punishments for inchoate crimes, where culpability exceeds harm. He rejects the lex talionis for most crimes because sometimes it fails to explain the punishment--i.e, the"execution of a needy decrepit assassin "is hardly recompense for the murder of a worthy youth, and, contrarily, because sometimes the punishment should exceed the injury, "especially as the suffering of the innocent is past and irrevocable, [while] that of the guilty is future, contingent, and liable to be escaped or evaded. "3 Thus recognizing that rational punishment cannot escape contradiction, Blackstone proceeds to catalog elements of crimes and issues of interpretation that leave little for successors to amend He recognizes that no abstract notion of a "reasonable person"can capture the variety of impassioning circumstance The age, education, and character of the offender: the repetition(or therwise)of the offense; the time, the place, the company, wherein it was committed; all these, and a thousand other incidents, may aggravate or extenuate the crime 4 2Id. at 8 3 Id. at 12
2 For though the end of punishment is to deter men from offending, it never can follow from thence that it is lawful to deter them at any rate and by any means; since there may be unlawful methods of enforcing obedience even to the justest laws. . . . . Where the evil to be prevented is not adequate to the violence of the preventive, a sovereign that thinks seriously can never justify such a law to the dictates of conscience and humanity.2 Blackstone worries over punishments for inchoate crimes, where culpability exceeds harm. He rejects the lex talionis for most crimes, because sometimes it fails to explain the punishment--i.e., the "execution of a needy decrepit assassin" is hardly recompense for the murder of a worthy youth, and, contrarily, because sometimes the punishment should exceed the injury, "especially as the suffering of the innocent is past and irrevocable, [while] that of the guilty is future, contingent, and liable to be escaped or evaded."3 Thus recognizing that rational punishment cannot escape contradiction, Blackstone proceeds to catalog elements of crimes and issues of interpretation that leave little for successors to amend. He recognizes that no abstract notion of a “reasonable person” can capture the variety of impassioning circumstances: The age, education, and character of the offender: the repetition (or otherwise) of the offense; the time, the place, the company, wherein it was committed; all these, and a thousand other incidents, may aggravate or extenuate the crime.4 2Id. at 8. 3 Id. at 12. 4Id. at 14
He heroically assays the problem of defining murder in abstract terms, recognizing that malice"is both an orginary concept and yet also merely a name for a collection of types of moral and mental conditions which, by common intuition, seem to merit a similar degree of punishment.5 He recognizes that in laying out the terms of mental and moral culpability, one can establish ends of the culpability continuum at careless accidents and premeditated harm. 6 But Blackstone knows we still have to face the convergence of the key concerns about severity of punishment on a collection of acts that exhibit what we now call recklessness--that subtle mid-point on the continuum, that elusive condition of willingness to bear the risk of antisocial harm for antisocial purposes. 7 You will find Blackstone asking all the key questions: How do we generate consistent rules on the basis of inconsistent premises? What manifestations of character merit moral condemnation How do we avoid degrading character into a mere sum of acts? Why should it matter whether a criminal causes harm? Because if he has caused harm he deserves punishment or because if he caused harm then punishing him will prevent future harm? If we do require harm, how can one volitional person cause another to exercise his volition to commit crime? And so most generally, Blackstone recognizes that criminal law cannot help but worry over a fundamental agony of liberalism: How do we reconcile the deserved with the useful? Blackstone 's questions underlie the effort to sustain the legal authority of the liberal state, a state in which the government may engage in force and violence against individuals who break or threaten a social contract so severely as to merit that higher 5ld.at193-95.198
3 He heroically assays the problem of defining murder in abstract terms, recognizing that "malice" is both an orginary concept and yet also merely a name for a collection of types of moral and mental conditions which, by common intuition, seem to merit a similar degree of punishment.5 He recognizes that in laying out the terms of mental and moral culpability, one can establish ends of the culpability continuum at careless accidents and premeditated harm.6 But Blackstone knows we still have to face the convergence of the key concerns about severity of punishment on a collection of acts that exhibit what we now call recklessness--that subtle mid-point on the continuum, that elusive condition of willingness to bear the risk of antisocial harm for antisocial purposes.7 You will find Blackstone asking all the key questions: How do we generate consistent rules on the basis of inconsistent premises? What manifestations of character merit moral condemnation? How do we avoid degrading character into a mere sum of acts? Why should it matter whether a criminal causes harm? Because if he has caused harm he deserves punishment or because if he caused harm then punishing him will prevent future harm? If we do require harm, how can one volitional person cause another to exercise his volition to commit crime? And so most generally, Blackstone recognizes that criminal law cannot help but worry over a fundamental agony of liberalism: How do we reconcile the deserved with the useful? Blackstone's questions underlie the effort to sustain the legal authority of the liberal state, a state in which the government may engage in force and violence against individuals who break or threaten a social contract so severely as to merit that higher 5Id. at 193-95. 198. 6Id. at 26. 7Id. at 198
form of sanction called punishment. In so doing, the criminal law must respect the volitional capacity of individuals. Arguably, it can punish only where in some sense the antisocial action is volitional. It may punish in that circumstance, and from the Kantian perspective, it must punish in that circumstance, because not to do so is to disrespect the power of individuals to break a contract, and thus to devalue our civilization-and soul saving capacity to make and fulfill a contract. But what has that do do with more mundane social utility? And what happens when mundane social utility becomes the dominant, indeed, exalted end of punishment? Read Bentham's Theory of legislation, which is concerned that punishment may be unfair, that it may be"inefficacious, when it acts on those who cannot or will not fear criminal sanctions, and also that it is potentially"too expensive"in light of its social costs le Ist. Evil of coercion. It imposes a privation more or less painful according to the degree of pleasure which the thing forbidden has the power of conferring. 2nd. The sufferings caused by the punishment whenever it is actually carried into execution. 3rd. Evil of apprehension suffered by those who have violated the law or who fear a prosecution in consequence. 4th. Evil of false prosecutions. This inconvenience appertains to all penal laws, but particularly to laws which are obscure and to imaginary offences .. 5th. Derivative evil suffered by the parents or friends of those who are exposed to the rigour of the law. ...8 8Jeremy Bentham, The Theory Of Legislation 322-324, 338(1950)
4 form of sanction called punishment. In so doing, the criminal law must respect the volitional capacity of individuals. Arguably, it can punish only where in some sense the antisocial action is volitional. It may punish in that circumstance, and from the Kantian perspective, it must punish in that circumstance, because not to do so is to disrespect the power of individuals to break a contract, and thus to devalue our civilization-and soulsaving capacity to make and fulfill a contract. But what has that do do with more mundane social utility? And what happens when mundane social utility becomes the dominant, indeed, exalted end of punishment? Read Bentham's Theory of Legislation, which is concerned that punishment may be unfair, that it may be "inefficacious," when it acts on those who cannot or will not fear criminal sanctions, and also that it is potentially "too expensive" in light of its social costs, i.e.: --1st. Evil of coercion. It imposes a privation more or less painful according to the degree of pleasure which the thing forbidden has the power of conferring. 2nd. The sufferings caused by the punishment, whenever it is actually carried into execution. 3rd. Evil of apprehension suffered by those who have violated the law or who fear a prosecution in consequence. 4th. Evil of false prosecutions. This inconvenience appertains to all penal laws, but particularly to laws which are obscure and to imaginary offences. ... 5th. Derivative evil suffered by the parents or friends of those who are exposed to the rigour of the law. ...8 8Jeremy Bentham, The Theory Of Legislation 322-324, 338 (1950)