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Friday, February 10, 2006

Is the Criminal Law Inherently Coercive?

In The Moral Limits of the Criminal Law, Joel Feinberg argued that the criminal law faces two distinct challenges to its legitimacy: (i) punishment, which involves the deliberate imposition of human suffering, and (ii) coercion, which involves the limitation of liberty through the threat of punishment. His four-volume masterwork was premised on this distinction, since he sought to specify the limits of state coercion without reference to a theory of punishment. I have come to suspect, however, that desert theory (a.k.a. retributivism for the faint of heart) cannot accommodate the distinction. As Alan Wertheimer rigorously argues in his monograph on Coercion, coercion involves reasonable surrender to a credible threat, and threats are best distinguished from offers by reference to a normative baseline: threats propose to make someone worse off than they have a right to be while offers propose to make someone better off than they have a right to be. One interesting consequence of this view, it would seem, is that according to it a law attaching a deserved punishment to an offense does not issue a threat.

The law proposes to put wrongdoers in exactly the position they have a right to be in, no better and no worse.

It would only be a slight exaggeration to say that criminal laws are not threats (or offers) but promises. Furthermore, since punishment is deserved only for wrongdoing, the criminal law does not deprive those governed by it of any morally legitimate liberty interest. Feinberg famously imagined liberty as a system of railroad tracks, each track representing a course of action which individuals may choose to pursue. The criminal law, in its coercive role, cuts off these options as if removing rails from the tracks. What the image leaves out, from a desert-based perspective, is the extent to which options are cut off by morality before the law intervenes. When the criminal law tracks morality, it does not deprive us of options that are truly open to us, that we are truly free to choose. We are again made no worse off than we have a right to be. It therefore would seem that on desert-based views a just criminal law is not one which coerces but is justified in doing so, but rather one which cannot be said to coerce at all. Thus, criminal law is inherently punitive but not inherently coercive. I’m both attracted to and troubled by the QED quality of this line of reasoning, and curious to hear what others think.

Posted by Adil Haque on February 10, 2006 at 03:29 AM in Criminal Law | Permalink


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I am a former criminal defense lawyer and it bothers me too to pay prison guards instead of policemen. The prison industry as it has developed in the last twenty years is a disgrace to our country. Nonetheless, I am not cynical about the law because I never believed that it had a moral component. "Morality" is make-work for priests and scholars who either have no need to work for a living or find others to pay them for their thoughts. The law is a bastion for ordinary people who just want to enjoy the bread that they earned with the sweat of their brows in peace. Most people do not take pleasure in imprisoning and putting to death their fellow human beings. The reason law-and-order politicians succeed in passing harsher laws is because the majority believes that they are necessary. I am not wise enough to say that the majority's perception is wrong. Even if it is, I much prefer it to a philosopher-king.

Posted by: nk | Feb 10, 2006 11:05:34 PM

This is a great conversation, like in the earlier post about self defense, let me give you the criminal defense lawyer's view.

Criminal law provisions operate in two manners to prevent crime - the first being normative (reasonable submission to the prospect of being worse off) and moralistic (society has deemed x conduct to be illegal, so therefore I will comport with soceity's view). Both operate to prevent crime depending on the individual. To a great extent, which of the two illicits a law-abiding response will depend to a great extent on the background and upbringing of the individual.

Post-crime, though, the meting out of punishments is mainly about coercion. About 96% of all charged defendants eventually plea bargain. The formula I literally define for my clients is this - (1) what is the exposure (2) weigh that against the current offer; (3) then ask what are my chances at success in trial and (4) if I am not successful what is the likely punishment? Plenty of plea bargains occur not because the client is guilty, but because of the outcome of that formula which is implicitly used by all defendants and their lawyers, dictates that it is in the client's best interests to accept the offer.

One final thought. I am quite cynical, and I believe that the moral component of criminal law left a long time ago. Now, criminal law developments are essentially a political exercise wrapped up in faux morality. Hence, during election years one sees a spate of anti-crime legislation which does nothing other than raise senetences for pre-existing crimes.

Posted by: Wieland | Feb 10, 2006 9:23:24 PM


Posted by: Adil Haque | Feb 10, 2006 4:38:04 PM

I agree that the question, "Is all law coercive?" is interesting. But I don't think adopting a moralized conception of coercion is what makes it interesting. That said, I agree that coercion is a complicated concept. I didn't mean to give a definition above (though it may have read that way--my fault, not yours), only to suggest that it could be defined without moral content.

Posted by: m | Feb 10, 2006 3:26:00 PM

To m: I didn't mean to dismiss the plausibility of rejecting the moralized conception of coercion; I think the tone of that sentence may have been a little off. But I'm not sure that all force is coercive, only force directed at making someone do something or prevent them from doing something. Just beating someone up for the heck of it is terrible but I wouldn't call it "coercive". Although police officers do sometimes physically restrain people from committing crimes, the criminal law primarily gets people to do or not do things by defining offenses and setting punishments. So the question is whether the prospect of punishment is coercive. That question can be answered psychologically (do people feel pressured to obey the law due to the prospect of punishment?), normatively (are people reasonable in submitting to the law due to the prospect of being made worse off than they have a right to be?), or otherwise. We probably can't settle that question here (though if anyone has a knock-down argument by all means share) but I think it's an interesting issue to raise.

Posted by: Adil Haque | Feb 10, 2006 3:18:31 PM

Ideas about justice and many other things as well (the Preamble to the Constitution is not a bad list) but still a tool in the way a hammer is a tool for implementing ideas about carpentry, masonry and metal shaping. I admit freely that it may be a lack on my part, but I simply cannot see the law as an abstract concept that can be justified or even explained. I see it as an actual phenomenon which can only be examined and described. A Pythagorean subject -- not Platonic or even Archimedian. What and how but not why.

Posted by: nk | Feb 10, 2006 2:55:09 PM

Yes, but your major premise is doing all the work. It's a simple argument after that. So it makes sense to focus on the first step. And of course you're right that, on the moralized conception as you define it, other moral values might come into play for an all-things-considered judgment. But this is making my point for me, I think. Why build some of the moral considerations into the conception and leave others out? Why is that helpful? Better just to say: using force (for any reason) is coercive (which is a common understanding in ordinary language). Then ask whether it (1) violates rights, and (2) is justified all things considered. Problem evaporates.

Posted by: m | Feb 10, 2006 2:43:33 PM

To Guest: Your post reminds me of Jeffrie Murphy's article on Marxism and Retributivism. The relationship between distributive, retributive, and corrective justice is fascinating. To nk: "the law is a tool and not an idea". Perhaps the law is a tool for implementing ideas, specifically ideas about justice? (Great formulation, by the way). To m: Rejecting the major premise is definitely one way to skip the tracks (last pun, promise). Oh, but "unjustified coercion" isn't totally redundant on the moralized view; after all, sometimes we are justified in violating people's rights.

Posted by: Adil Haque | Feb 10, 2006 11:05:28 AM

There are a lot of problems here, but Adil has a good knack for generating philosophical problems. Still, I think this is mainly conceptual gymnastics. If you accept a moralized conception of coercion, then, on this definition, a law that does not "propose" to make you worse off than you have a right to be is not (just by definition) coercive. But a moralized conception of coercion is controversial, and, just because Wertheimer argues rigorously for it doesn't mean we should buy in. We wouldn't be the first to get off the train, so to speak, at the point. Hobbes showed us how to do it a long time ago. (And there are more recent examples--G.A. Cohen rejects a moralized conception of coercion in his work on money and freedom.)

The bigger issue here is: what turns on this? Once we understand that all the action is in the moral theory built into the definition coercion, the focus of our attention shifts there. From an ordinary language perspective, I think the moralized conception creates confusion and reduces analytic clarity. Those may seem like mundane reasons for resisting that conception, but no less important for that. (What's wrong with saying that something is "unjustified coercion?")

Posted by: m | Feb 10, 2006 10:31:19 AM

Would you not prefer to say that criminal law is by definition punitive but not invariably coercive? And I understand Guest's point. Criminal law applies simple economics. In some instances it threatens a loss which is greater than the forbidden gain: Selling an ounce of cocaine for a $1,000.00 profit will result in six to thirty years in prison. In other instances it elicits a desired behavior by a relatively small threat because there is little or no profit in not complying: Not wearing your seatbelt is punishable by a $25.00 to $50.00 dollar fine. In either instance, the threat is meaningful only to people who perceive that they have something to lose.

The difficulty with any attempt to form a philosophical theory around the law is that the law is a tool and not an idea. At its most basic function, it is the means by which the ruler communicates his will on the ruled. Less crudely, it is a mechanism which assists society's more complex functions. Its nature is that of an elaboration of social convention. It fits better in anthropology than in philosophy.

Posted by: nk | Feb 10, 2006 8:56:11 AM

What happens if you're born a few miles from the nearest set of tracks? Many people are born worse off than they have a right to be. From this initial posture threats are meaningless, offers are fatuous, and desert-based punishments are, well, purgatorial I guess you could say. Your model is interesting, but I'm not sure what you mean when you use the word morality.

Posted by: Guest | Feb 10, 2006 4:08:30 AM

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