Some have a mixed view, combining elements of those discussed above (Alexander and Ferzan 2009, 3-19; Simester and von Hirsch, 2011, pp. 3-18; Tadros 2016, 159-172). One way to construct such a view is to distinguish between primary and secondary functions. The main functions are those which, all other things being equal, we have the most reason to want to comply with the law. The secondary functions are those that we are right why the law fulfills when it does not fulfill its primary functions. The primary functions of criminal law, it is plausible to think, are preventive. Ceteris paribus, we have the most reason to want criminal law to create a world where injustice such as theft or murder does not occur. Otherwise, we have reason to want the criminal law to hold thieves and murderers accountable and punish those who cannot be sufficiently responsible. To say that an act is a crime when it is defined by law is little more than tautological.
In light of this, Jerome Michael and Mortimer Adler argued in 1933 that “the criminal law is the formal cause of crime.” This was the formal cause, they said, not because “the law produces the conduct it prohibits,” but because it gives certain acts their “criminal character.” Without a penal code, there would be no crime. It follows from this point of view that one can commit an illegal act without committing a crime, whereas a criminal act can be completely legal. Many Enlightenment thinkers (such as Adam Smith and the American founding fathers) shared this view to some extent, and it remains influential among so-called classical liberals and libertarians. [ref. Because society regards so many rights as natural (hence the term law) and not man-made, what constitutes a crime is also considered natural, unlike laws (which are considered man-made). Adam Smith illustrates this point by saying that a smuggler would be an excellent citizen.” If the laws of his country had not made it a crime, nature would never have wanted to be. This argument can be developed as follows. Just as slaves depend on their masters, we are interdependent when there is no legal rights framework: just as masters harm their slaves, no matter how they treat them, we are doomed to harm each other when there is no such framework. To avoid this, we need more than rights that exist on paper.
We need sufficient assurance that our rights will be respected, and we need a mechanism to reaffirm their supremacy in the face of intentional violations. The value of criminal law lies in giving us what we need. The criminal sanction is equivalent to a new affirmation. Crime prevention ensures safety. At the function level, this is what the last section called a mixed view. But the value of fulfilling both functions is the same: it is the value of ensuring our independence from each other, so that we cease to bind ourselves to each other as master and slave and begin to do so as independent beings. Since it is often (rightly or wrongly) associated with Kant`s political philosophy, we can call this the Kantian point of view. Although Rome left its British provinces around 400 AD, Germanic mercenaries – who were instrumental in enforcing Roman rule in Britain – acquired land there and continued to use a mixture of Roman and Teutonic law, much of which was written under the early Anglo-Saxon kings. [36] But it was only when a more centralized English monarchy emerged after the Norman invasion, and when the kings of England tried to assert their power over the country and its peoples, that the modern concept of crime not only as an insult to the “individual” but also as an injustice against the “state” emerged. [37] Under English common law, crimes were classified as treason, felony or misdemeanor, with treason sometimes a felony. This system was based on the perceived seriousness of the crime.
It is still used in the United States, but the distinction between felony and misdemeanour has been abolished in England, Wales and Northern Ireland. The label “crime” and the social stigma that accompanies it generally limits its scope to activities considered harmful to the general population or the state, including those that cause serious loss or harm to individuals. Those who use the labels “crime” or “criminal” intend to assert the hegemony of a dominant population or reflect a consensus of condemnation for the identified behavior and justify state-mandated penalties (in the case where standard treatment convicts an accused of a crime). A felony is misconduct that is classified as a felony or misdemeanor by the state or Congress.3 min spent reading An objection to the opinion described in the previous paragraph is that it is too conservative. What justifies the criminalization of injustice – from this point of view – is that injustice is already rooted in the defining values of the community: it is because of this state that not criminalizing it would be a form of self-treason. However, some communities are characterized by a systematic neglect of important values – patriarchy, racism or distributive inequality. If so, part of the justification for criminalization is not that it helps the community stay true to itself, but that it helps transform the community by reconstituting it in valuable ways (Dempsey 2009; 2011). One source of the value of the criminal law from this alternative perspective is its ability to alter social morality so that community members take neglected values seriously (Green 2013a). When this succeeds, criminal law can largely disappear from the motivational horizon of members: we refrain from behaviour for the moral reasons that make it bad, without pointing out that the behaviour is criminal.
The general justifications of criminal law, as set out in the last paragraphs, give rise to a number of criticisms. One objection is that they are too broad: much of moral misconduct—even much that creates secondary duties to suffer or protect—is not a matter of criminal law. Not helping your friend move because you`re lazy is a culpable mistake. But since failure is a private matter – to be resolved by the friends themselves – there is no reason for legislators to criminalize injustice (Duff 2014b; Husak 2014, 215-216). There is certainly no reason for them to criminalize it when the friends are both citizens of another state and the failure occurs in the other jurisdiction (Duff 2016). The reasons for criminalization exist, as is often said, only where the legislator stands.
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