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Published online by Cambridge University Press: 06 February 2018
There are a set of wrongs that are normatively distinct as ‘criminal wrongs’, and yet, there is disagreement as to ‘the basic features of criminal liability’ that explain this normative distinctiveness. The only consensus has been that criminal wrongs are ‘public wrongs’. For some, they are public wrongs in the sense that they infringe the values and interests for which the community has a shared and mutual concern. For others, they are public wrongs in the sense that they are the wrongs that public officials are responsible for punishing. A third view is that they are public wrongs in the sense that there are procedural advantages of having public officials empowered to address the wrongdoing. I argue here that the first two views are analytically inseparable: the considerations that explain the wrongs that merit social prohibition are the same considerations that explain the censuring and punitive response of the criminal law. I also argue here that, contrary to the third view, the powers of public officials in criminal law procedures follow from, rather than explain, the concept of a crime being a public wrong. Procedural advantages can explain how criminal wrongs are public wrongs, but they cannot explain why criminal wrongs are public wrongs.
1. SE Marshall & RA Duff, “Criminalization and Sharing Wrongs” (1998) 11:1 Can JL & Jur 7 at 20 [Marshall & Duff, “Criminalization”]:
A group can in this way ‘share’ the wrongs done to its individual members, insofar as it defines and identifies itself as a community united by mutual concern, by genuinely shared (as distinct from contingently coincident) values and interests, and by the shared recognition that its members’ goods (and their identity) are bound up with their membership of the community. Wrongs done to individual members of the community are then wrongs against the whole community—injuries to a common or shared, not merely to an individual, good. This, we suggest, provides an appropriate perspective from which we can understand the point and significance of a ‘criminal’ rather than a ‘civil’ process.
See further RA Duff & SE Marshall, “Public and Private Wrongs” [Duff & Marshall, “Wrongs”] in James Chalmers, Fiona Leverick & Lindsay Farmer, eds, Essays in Criminal Law in Honour of Sir Gerald Gordon (Edinburgh University Press, 2010) 70 at 71: “A better understanding of the idea of a public wrong is, we suggest, that it is the kind of wrong that properly concerns ‘the public’—a wrong that is a matter of public interest in the sense that it properly concerns all members of the polity by virtue simply of their shared membership of the political community.”
2. Grant Lamond, “What is a Crime?” (2007) 27:4 Oxford J Legal Stud 609 at 611:
My main claim about fault-based crimes will be the deceptively simple thesis that they are wrongs that merit punishment by the state, i.e. that the state is responsible for punishing. Simple as this thesis may seem, it involves the complicated task of understanding what sorts of wrongs deserve punishment, rather than some other type of response, and which of these wrongs are properly the matters for the state.
3. Ambrose YK Lee, “Public Wrongs and the Criminal Law” (2015) 9 Criminal Law and Philosophy 155 at 156 [footnotes omitted]: “In particular, I shall argue ‘public wrongs’ should not be understood merely as wrongs that properly concern the public, but more specifically as those which the state, as the public, ought to punish.” Ibid at 169, n 53: “Nevertheless, I am not convinced with [Lamond’s] criticism of Duff and Marshall, which is grounded in seeing them as arguing that ‘public wrongs’ should be understood as wrongs to the public.”
4. James Edwards & Andrew Simester, “What’s Public About Crime?” (2017) 37:1 Oxford J Legal Stud 105 at 132 [footnote omitted]: “Wrongdoers are publicly responsible when public officials are well placed to get answers from those wrongdoers on behalf of beneficiaries—those whose interests generate the duty the wrongdoer has breached. In such cases, officials have a right to call such wrongdoers to answer for their wrongs.”
5. John Gardner, “Torts and Other Wrongs” (2011) 39 Fla St UL Rev 43 at 61 [Gardner, “Other Wrongs”].
6. Ibid. “[D]esignating some wrong as a tort is a way of taking quite a significant body of doctrine off the shelf and applying it to that wrong.”
7. Ibid at 63.
8. Ibid at 63-64.
9. See, for instance: Jesse Wall, “No-fault Compensation and Unlocking Tort Law’s Reciprocal Normative Embrace” 27:1 NZULR 125.
10. Lamond, supra note 2 at 610.
11. Blackstone, William, Commentaries on the Laws of England, bk 4 (Clarendon Press, 1765-1769) at 5;Google Scholar George P Fletcher, “Domination in Wrongdoing” (1996) 76 BUL Rev 347 at 347.
12. Edwards & Simester, supra note 4 at 108.
13. Ibid.
14. Ibid.
15. Duff & Marshall, “Wrongs”, supra note 1 at 70.
16. Edwards & Simester, supra note 4 at 108.
17. Marshall & Duff, “Criminalization”, supra note 1 at 17.
18. Ibid at 18.
19. Ibid.
20. Ibid at 20.
21. Duff & Marshall, “Wrongs”, supra note 1 at 71.
22. Marshall & Duff, “Criminalization”, supra note 1 at 20.
23. Ibid at 21.
24. Ibid at 16.
25. Ibid at 20.
26. Ibid at 8.
27. Peter Birks, “The Concept of a Civil Wrong” in Owen, David G, ed, The Philosophical Foundations of Tort Law (Clarendon Press, 1995) 31 Google Scholar at 37.
28. Ibid at 41.
29. Lamond, supra note 2 at 630.
30. Ibid.
31. Ibid at 617.
32. Ibid.
33. Ibid.
34. Ibid at 618.
35. Ibid [footnote omitted].
36. Ibid at 621.
37. Ibid.
38. Ibid.
39. Ibid.
40. Ibid at 622: “What marks out the failure to be guided as particularly reprehensible, and thus eligible for punishment, is an unwillingness to be guided by the value in the appropriate way.”
41. Ibid at 626.
42. Ibid at 629.
43. Ibid at 618.
44. Ibid at 630.
45. Ibid.
46. Ibid.
47. Ibid.
48. Alan Brudner, Punishment and Freedom: A Liberal Theory of Penal Justice (Oxford University Press, 2009) 176.
49. Birks, supra note 27 at 42.
50. John Gardner, “What is Tort Law For? Part 2. The Place of Distributive Justice” in John Oberdiek, ed, Philosophical Foundations of the Law of Torts (Oxford University Press, 2014) 335 at 340 [Gardner, “Distributive Justice”].
51. Ibid at 340.
52. John Gardner, “Wrongs and Faults” in AP Simester, ed, Appraising Strict Liability (Oxford University Press, 2005) 51 at 55.
53. Ibid at 57.
54. Ibid.
55. And at the periphery, to be ‘unwilling to be guided by a value’ may extend to offences that demonstrate a disrespect—through conduct alone—for scheme of co-ordination that promote certain goods. See Lamond, supra note 2 at 630.
56. DN MacCormick, “The Obligation of Reparation” (1977-1978) 78 Proceedings of the Aristotelian Society 175 at 183.
57. John Gardner, “What is Tort Law For? Part 1. The Place of Corrective Justice” (2011) 30:1 Law & Phil 1 at 9 [Gardner, “Corrective Justice”]: “Norms of corrective justice […] are to be understood on the ‘arithmetic’ model of addition and subtraction. Only two potential holders are in play at a time. One of them has gained certain goods or ills from, or lost certain goods or ills to, the other. The question is whether and how the transaction is to be reversed, undone, counteracted.”
58. Ibid at 33-34: “The normal reason why one has an obligation to pay for the losses that one wrongfully occasioned […] is that this constitutes the best still-available conformity with, or satisfaction of, the reasons why one had that obligation.”
59. MacCormick, supra note 56 at 176: “[T]o say that there is an obligation of reparation is to imply that it would be blameworthy [conduct] if [the obligation was] subsequently […] refused or neglected”.
60. Lamond, supra note 2 at 621.
61. Ibid at 622 [emphasis omitted].
62. Ibid at 618.
63. Ibid at 629.
64. Marshall & Duff, “Criminalization”, supra note 1 at 17:
The final, but separable, implication of criminalization is thus that crimes are punished: to ask what kinds of conduct should be criminalized is to ask, in part, what kinds of conduct should attract punishment rather than merely formal censure or liability to pay compensation (though any answer to that question must also depend on our understanding of the rationale of punishment).
Now it might be tempting to take the question of punishment as the central (if not the only) question about criminalization […] But our discussion of the different aspects of the concept of crime should have shown that this would be a mistake.
65. Ibid at 16.
66. Birks, supra note 27 at 36.
67. Ibid.
68. Marshall & Duff, “Criminalization”, supra note 1 at 16.
69. Gardner, “Other Wrongs”, supra note 5 at 60.
70. Ibid at 56.
71. Ibid at 59.
72. Marshall & Duff, “Criminalization”, supra note 1 at 16.
73. Ibid.
74. It is shorthand terminology in the sense that both the criminal law and private law doctrines can be understood in terms of the conferral of rights and imposition of obligations and duties.
75. Gardner, “Distributive Justice”, supra note 50 at 343-44.
76. Ibid at 340-41.
77. Gardner, “Corrective Justice”, supra note 57 at 33-34.
78. Ibid.
79. Marshall & Duff, “Criminalization”, supra note 1 at 17.
80. Edwards & Simester, supra note 4 at 132.
81. Ibid at 111; Duff & Marshall, “Wrongs”, supra note 1 at 72.
82. Edwards & Simester, supra note 4 at 117.
83. Ibid at 117, n 42.
84. Ibid at 116, citing Bernard Williams, Moral Luck: Philosophical Papers 1973-1980 (Cambridge University Press, 1981) ch 3 at 45, 47.
85. Edwards & Simester, supra note 4 at 116.
86. Ibid at 117.
87. Ibid at 122.
88. Ibid [footnote omitted].
89. Ibid at 122, n 59.
90. Ibid at 125.
91. Ibid at 126.
92. Ibid.
93. Gardner, “Corrective Justice”, supra note 57 at 33-34.
94. Ernest J Weinrib, The Idea of Private Law (Oxford University Press, 2012) ch 5 at 123.
95. Ibid at 136.
96. Ibid.
97. Ibid at 142.
98. Ibid at 143.
99. Lamond, supra note 2 at 620.
100. Marshall & Duff, “Criminalization”, supra note 1 at 16.
101. Lamond, supra note 2 at 621.
102. Cf Gardner, “Other Wrongs”, supra note 5 at 59: “Once we know that the law of torts involves civil recourse, we naturally want to know what form the recourse takes.”
103. Edwards & Simester, supra note 4 at 132 [emphasis added] [footnote omitted].
104. Marshall & Duff, “Criminalization”, supra note 1 at 17.
105. Ibid.
106. Cf Duff & Marshal, “Wrongs”, supra note 1 at 82-83:
Outside the law, we recognize three kinds or categories of wrong. There are, first, those that are too trivial to be worth pursuing very far […] Second, there are wrongs which it would be reasonable for the wronged party to pursue, but which she might also quite reasonably shrug off as relatively unimportant […] Third, there are wrongs that the victim ought to pursue, that it would be wrong to shrug off or ignore […].
