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Saturday, May 16, 2009

Criminal Law, Foreboding, and the Forbidden

I had the great fortune to teach criminal law this spring and the even greater fortune to use Joshua Dressler's book.  Professor Dressler's book begins with what may be a familiar tract by Henry Hart, wherein Hart argues that what distinguishes criminal from civil sanction is a certain type of community condemnation.  Quoting George Gardner (and echoing James Fitzjames Stephen), Hart writes that punishment is an expression of the community's "hatred, fear, or contempt" for the convict himself (or, if I might be permitted a softening touch, for the act done). 

This is of course a grossly overinclusive description.  As students proceed through the course, they meet many crimes and criminals that do not elicit such responses in them (say, certain strict liability crimes, to take only one obvious example).  And the degree of hatred, fear, or contempt that different crimes elicit can be quite various.  For some, drunk driving is deeply contemptible, for others less so.  For many, narcotics offenses, and particularly possession, are not at all contemptible.  Murder and rape tend to draw out emotions of fear and contempt, but again, the degree and quality of such feelings varies substantially with the particulars of the case.  In one of the battered woman syndrome cases, State v. Norman, it is the victim who is the object of intense contempt -- and quite rightly, in light of his vicious, sadistic, and horrifyingly interminable degradation of his wife -- while the battered woman murderer is deemed praiseworthy by many.  Child abuse draws universal condemnation, even hatred, and the word "evil" seems ever to be just at the tips of many students' tongues.  I had more than a few students tell me that they were extremely uncomfortable just reading such cases precisely because the facts stirred those disturbing emotions in them.

But I do think that there is something unique in criminal law that is captured by Hart's observations, though it is not a something that is at all conceptually necessary or essential to criminality.  It is merely a feature of certain criminal acts and actors, sometimes present, sometimes not, but rarely existing in other legal contexts and subject areas -- or if existing, not with the same intensity.

That something, I think, is the interdictory uniqueness of criminal law.  There are certain types of human acts that, when combined with certain mental states, do elicit intense fear, opprobrium, and condemnation.  These fears run deep -- criminal law seems to me to be a field where the students arrive with highly developed sentiments and opinions that bubble up and froth out of them.  Their intuitions about wrongfulness -- about what must not be done -- are rather muscular.  Just like the rest of us, they know fear.  Certain crimes, and certain defenses too, bring out a powerful sense of foreboding. 

If people will know fear, if their sense of foreboding is so keen, much depends upon which fears they know most intimately.  The fears that people know best -- those with which they are most familiar -- they want given voice by the powerful interdictions and necessary denials of the criminal law.  When the great "No!  Do it not!" of criminal law is transgressed, when one's deepest fears have been actuated, there is, not only the sense that punishment is owed to right the wrong, but the rather different, and much more problematic, feeling that anything less than a perfectly proportionate retaliation cannot be tolerated.  It is this sense of forbiddenness that laces a good deal of criminal law and that is -- in my admittedly limited experience with the subject -- quite unique to it.

I am not remotely the first to take notice of the psychology of fear that bathes criminal law in dark hues.  But I did find it somewhat arresting that this component of criminal law was felt so acutely by my wonderful students.  I should also emphasize that I mean neither to praise nor condemn this quality of criminal law.  Fear may be just as necessary as it is destructive.  I do suspect, however (and to close on a controversial note!), that there may be subterranean connections between, on the one hand, the sense of the forbidden in criminal law and, on the other, today's debates about whether torture can ever be "worth" the moral cost.  

Posted by Marc DeGirolami on May 16, 2009 at 09:30 PM | Permalink


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Thank you Marc.

I suspect the "deep psychological hurt" you refer to in this case may have something to do with our normative conceptions of what it is to be human or with human nature. Assuming an open ended view of same, and thus an enormously plastic capacity for either good or evil, reminders of the darker side of human potential I think are frightening if only because of their apparent ability to act on the order of a self-fulfilling prophecy: knowledge and focus on the evil we are capable of committing can serve as both an ex ante and ex post psychological rationale for people to behave in just that way.

If this sounds extravagantly implausible, I would only ask that we consider, for example, the social psychological effects that seem to follow one (historical) species of Christianity, namely, the kind that focuses on our liability to sin, on original sin, on our "fallenness," at the expense of an emphasis or focus on "the good" with which we are capable (cf. Aristotelia potentia). Even with substitutionary atonement theory (indeed, perhaps the problem is exacerbated by satisfaction doctrine), the attention devoted to our "dark side" can have perverse psychological effects: I'm a sinner by nature, hence I sin (knowing in the back of my mind God will forgive me, indeed, Jesus died and atoned for my sins through his suffering and death on the cross); after sinning I seek God's forgiveness and pray to sin no more (knowing in the back of my mind that I'm a sinner by nature); yet I yield to temptation to sin once again, owing to my constitutional weakness (I'm a sinner after all)...but at least I know God has forgiven me--through Jesus--for my sins; and so on and so on. Now of course all people aren't Christians of this sort, but I think a perverse psychology along these lines helps to illustrate the danger of concentrating on the evil we are capable of, at least when it comes at the expense of perfectionist or perfectibilist moral psychologies, be they secular or religious (exemplary atonement theory in Christianity would have us follow the teachings and practice of Christ, which are far broader than his suffering and death insofar as they have to do with an ethic of love in daily life and, loosely speaking, counsels of perfection).

This hardly means we need ignore "the problem of evil" and human weakness (or ignore the fact that, as psychoanalysis and cognitive psychology inform us in their unique ways, that we have a proclivity for self-deception, a fondness for states of denial and wishful thinking, a massive capacity for rationalizaiton, a constitutional susceptibility to akrasia, an infatuation with the seven deadly sins, and so forth) but perhaps the psychological taboos associated with crossing certain thresholds reveal an awareness of some such understanding of the possibility for succumbing to self-fulfilling prophecies (and particular religious traditions or doctrines may be more susceptible to aiding and abetting such 'prophecies' than others): instances of crossing the threshold reinforce the picture of us as fallen creatures liable to commit horrific acts of evil. And perhaps this helps to explain the necessity and power of jus cogens norms (as minimalist, and secular, natural law principles) like the prohibition against torture in international law.

Well, if it wasn't controversial before...!

Posted by: Patrick S. O'Donnell | May 17, 2009 9:02:16 AM

I should also clarify that I think Hart's characterization is both underinclusive and overinclusive. It is overinclusive because much that is feared, hated, and found contemptible is not the province of criminal law at all. It is underinclusive because many, many crimes do not elicit these emotions.

Posted by: Marc DeGirolami | May 17, 2009 8:56:33 AM

Patrick, thanks. I guess I mean that there may be a relationship between what one believes cannot, under any circumstances, be violated in criminal law and in the torture context. But I mean it in a certain way. It seemed to me in my class that criminal law sometimes (not always) reflects the responses to people's darkest fears. It erects barriers, and when those barriers are breached, there is much more than the sense that a rule has been broken. A deep psychological hurt has been inflicted as well. Someone has broken through to a place that must not, under *any* circumstances, be visited.

But once one begins to feel less acutely the violation of these barriers, once they become simply cost/benefit assessments or other fully rational calculations and the idea of the great "NO" in criminal law is discarded as an outdated relic, that may have other sorts of consequences. My own view is that torture may be one area where those consequences will matter.

Maybe this is not controversial at all, though.

Posted by: Marc DeGirolami | May 17, 2009 6:28:15 AM


Perhaps you could fill out further what you mean by stating "that there may be subterranean connections between, on the one hand, the sense of the forbidden in criminal law and, on the other, today's debates about whether torture can ever be 'worth' the moral cost."

Why? Well, I don't see how this would be in any way "controversial" (I could be missing something fairly obvious to others).

Posted by: Patrick S. O'Donnell | May 17, 2009 2:13:07 AM

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