Functions of Criminal Law

Few deny that one function of criminal law is to deliver

justified punishment. Some go further and claim that
this is the sole function of criminal law (Moore 1997,
28–29). Call this the punitive view. Rules of criminal
procedure and evidence, on this view, help facilitate the
imposition of justified punishment, while keeping the
risk of unjustified punishment within acceptable
bounds. Rules of substantive criminal law help give
potential offenders fair warning that they may be
punished. Both sets of rules combat objections we
might otherwise make to laws that authorize the
intentional imposition of harm. To combat objections,
of course, is not itself to make a positive case for such
laws. That case, on the punitive view, is made by the
justified punishments that criminal courts impose. This
is not to say anything about what the justification of
punishment is. It is merely to say that criminal law is to
be justified in punitive terms.
Some object that this focus on punishment is misplaced.
The central function criminal law fulfills in responding
to crime, some say, is that of calling suspected
offenders to account in criminal courts (Gardner 2007,
80; Duff 2010c, 16). This view puts the criminal trial at
the centre, not just of criminal proceedings, but of
criminal law as a whole (Duff 2013a, 196). Trials invite
defendants to account for themselves either by denying
the accusation that they offended, or by pleading a
defence. The prospect of conviction and punishment
puts defendants under pressure to offer an adequate
account. Call this the curial view. It differs from the
punitive view in two ways. First, part of the positive
case for criminal law is independent of the imposition
of punishment. Second, part of the positive case for
imposing criminal punishment is dependent on the
punishment being part of a process of calling to
account. The following two paragraphs expand on both
these claims.
As to the first, we often have reason to account for our
actions to others. We can leave open for now the
precise conditions under which this is so. But it is
plausible to think that if Alisha steals from Bintu she
has reason for account for the theft, and that if Chika
intentionally kills Dawn she has reason to account for
the killing. Defenders of the curial view argue that
criminal proceedings are of intrinsic value when
defendants (are called to) offer accounts of themselves
that they have reason to offer in criminal courts
(Gardner 2007, 190–191; Duff 2010c, 15–17). Imagine
Alisha stole from Bintu because she was under duress.
Imagine Chika intentionally killed Dawn to defend
herself or others. Neither of these defendants, we can
assume, is justifiably punished. On the punitive view,
criminal law’s function does not stand to be fulfilled.
On the curial view, things are different. Alisha and
Chika both have reason to account for their behaviour—
to explain what they did and why they did it. Criminal
proceedings invite each to provide that account and put
each under pressure to do so. Assuming Alisha and
Chika have reason to account in a criminal court,
proceedings in which they (are called to) do so are of
intrinsic value. One of criminal law’s functions is
fulfilled even if no-one is, or should be, punished.
To endorse the curial view is not, of course, to say that
we should do away with criminal punishment. But
it is to say that the connection between trial and
punishment is not merely instrumental. Some think that
the facts that make punishment fitting—say, culpable
wrongdoing—obtain independently of criminal
proceedings themselves (Moore 1997, 33). We use
those proceedings to ensure that said facts are highly
likely to have obtained—that DD is highly likely to
have culpably committed a wrong. On the curial view,
the fact that DD has been tried and found guilty (or has
entered a guilty plea) is itself part of what makes it
fitting that DD is punished. The fitting way to respond
to criminal wrongdoing, on this view, is to call the
wrongdoer to account for her wrong. To call DD to
account is to attempt to both (a) get DD to answer for
wrongdoing (as occurs in court), and (b) get DD to
confront wrongdoing for which she has no satisfactory
answer (as occurs when DD is punished). So it is
only because DD has first been tried and found guilty
(or has entered a guilty plea) that punishment counts as
a fitting response to DD’s wrong (Gardner 2007, 80;
Duff 2013a, 205). We can see the implications of this
view by imagining a world in which trials are abolished,
because some new-fangled machine allows us to
identify culpable wrongdoers with perfect accuracy.
Having no doubt that DD is guilty, we simply impose
punishment on DD. On the curial view, the
punishments we impose are inherently defective: they
are not imposed as part of a process of calling to
account. Though our new-fangled machine might
justify doing away with trials—once we factor in how
expensive they can be—we would lose something of
value in doing away with them.
If criminal law does have a particular function, we can
ask whether that function is distinctive of criminal law.
We can ask, in other words, whether it helps distinguish
criminal law from the rest of the legal system. It has
been claimed that criminal law is distinctive in
imposing punishment (Moore 1997, 18–30; Husak
2008, 72). One might also claim that criminal law alone
calls defendants to account. But punishments are
imposed in civil proceedings—exemplary damages are
the obvious case. And it is arguable that civil
proceedings also call defendants to account—that they
too invite defendants to offer a denial or plead a
defence; that they too use the prospect of legal liability
to put defendants under pressure to account adequately
(Duff 2014a).
In response, one might try to refine the function that is
distinctive of criminal law. Perhaps criminal law’s
function is to respond to public wrongs (whether by
calling to account or punishing such wrongdoers),
whereas the function of civil law is to respond to private
wrongs. What we should make of this proposal depends
on what a public wrong is (Lamond 2007; Lee 2015;
Edwards and Simester 2017). To make progress, we can
distinguish between primary duties—like duties not to
rape or rob—and secondary duties—like duties to
answer, or suffer punishment, for rape or robbery. We
incur duties of the latter kind by breaching duties of the
former.
If the public/private distinction is cashed out in terms of
primary duties, then responding to public wrongs
cannot be distinctive of criminal law. Many wrongs are
both crimes and torts. So the two bodies of law often
respond to breaches of the same primary duty. A more
promising proposal looks to secondary duties. Perhaps
criminal law’s distinctive function is to respond to
wrongs on behalf of us all—to discharge secondary
duties owed to the community as a whole (Duff 2011,
140). Perhaps the function of civil law is to respond to
wrongs on behalf of some of us—to discharge
secondary duties owed to particular individuals. This
might be thought to explain why criminal proceedings,
unlike civil proceedings, are controlled by state
officials: why officials can initiate proceedings that
individual victims oppose, and discontinue proceedings
that victims initiate.
The view described in the previous paragraph conceives
of criminal law as an instrument of the community—a
way of ensuring that the community gets what it is
owed from wrongdoers. Call it the communitarian view.
If we combine this with the curial view, the distinctive
function of criminal law is to seek answers owed to the
community as a whole. One might doubt that the
functions of criminal and civil law can be so neatly
distinguished. It is arguable that civil law sometimes
responds to wrongs on behalf of all of us—civil
proceedings can be brought against DD on the basis
that her conduct is a nuisance to the public at large, or
on the basis that DD is a public official whose conduct
is an abuse of power. More importantly, one might
claim that in the case of paradigmatic crimes—like
robbery, rape, or battery—criminal law responds to
wrongs on behalf of particular individuals—on behalf
of those who have been robbed, raped, or battered. On
this view, a positive case for criminalization need not
await the finding that DD owes something to the whole
community. It is at least sometimes enough
that DD owes something to those DD has wronged,
which DD would fail to provide in the absence of
criminal proceedings.
Those who reject the communitarian view might be
thought to face the following difficulty: they might be
thought to lack an explanation of official control over
how far criminal proceedings go. If criminal law seeks
what is owed by wrongdoers to the wronged, doesn’t
official control amount to theft of a conflict properly
controlled by the two parties (Christie 1977)? Not
necessarily. First, we should not always require the
wronged to have to pursue those who have wronged
them. Second, we should not always support those who
think themselves wronged in pursuing alleged
wrongdoers. As to the first point, some are trapped in
abusive relationships with those who wrong them.
Others are susceptible to manipulation that serves to
silence their complaints. Some wrongdoers can use
wealth and social status to stop accusers in their tracks.
As to the second point, the temptation to retaliate in the
face of wrongdoing is often great. It is all too easy for
the pursuit of justice to become the pursuit of revenge,
and for the perceived urgency of the pursuit to generate
false accusations. Official control can help vulnerable
individuals—like those described above—to get what
they are owed. And it can mitigate the damage done by
those trying to exact vengeance and settle scores
(Gardner 2007, 214–216). It can ensure that those in
positions of power cannot wrong others with impunity,
and reduce the likelihood that vindictiveness begets
retaliation, which begets violent conflict from which all
lose out (Wellman 2005, 8–10). We can add that
criminal proceedings may help protect others against
being wronged in future. Those wronged may have a
duty to give up control of proceedings in order to
provide this protection (Tadros 2011c, 297–299).
These remarks suggest an alternative to the
communitarian view. According to the alternative, the
secondary duties of concern in civil and criminal
proceedings are typically one and the same. The
positive case for criminal law’s involvement is not that
it discharges duties of interest to the criminal law alone,
but that it enables duties of general interest to be
discharged less imperfectly than they otherwise would
be—than they would be if the criminal law took no
interest in them. Call this the imperfectionist view. What
is distinctive of criminal law, on this view, is not its
function but its mode of functioning: the manner in
which it fulfills functions shared with other bodies of
law.
Some writers seek criminal law’s distinctiveness in a
different place. What is distinctive about criminal law,
they claim, is that it publicly censures or condemns.
This expressive function is sometimes associated with
criminal punishment (Husak 2008, 92–95). Because
other bodies of law sometimes punish, and because
punishment typically—perhaps necessarily—expresses
censure (Feinberg 1970), the expressive function is at
least partly shared. But the message sent by criminal
law is not sent only at the sentencing stage. It is sent the
moment a guilty verdict is reached by a criminal court
—by the declaration that DD has been criminally
convicted (Simester 2005, 33–36). The social
significance of conviction is very different to that of
(say) the verdict that DD is a tortfeasor: the former
verdict conveys, in and of itself, that DD’s conduct
reflects badly on DD. Though additional detail may
generate the same conclusion in the case of a civil
verdict, such detail is not required in the case of
criminal conviction. If this is right, the distinctiveness
of criminal law turns out not to consist in the fact that it
provides for punishment. It turns out to consist (at least
in part) in the provision of a technique for condemning
wrongdoers which does not require that we punish in
order to condemn.
So far, we have focused on the functions criminal law
fulfills in response to the commission of crime. It is
plausible to think, however, that criminal law’s
functions include preventing crime from occurring. We
can see this by asking what success would look like for
the criminal law. Would criminal law have succeeded if
all thieves and murderers were tried and punished? Or
would it have succeeded if there was no theft or murder,
because criminalization resulted in would-be thieves
and murderers refraining from such wrongs? Notice that
to pose these two questions as alternatives is not to deny
that punishment might be justified in preventive terms.
It is rather to suggest that resorting to punishment to
achieve prevention is already a partial failure for the
criminal law. It is a failure to deter those who, ex
hypothesi, have already committed criminal offences.
Had the creation of those offences been an unqualified
success, there would have been nothing for which to
punish anyone.
One might hold that criminal law’s sole function is to
prevent criminal wrongdoing. Call this the preventive
view. Defenders of this view need not say that we
should enact whatever laws will achieve the most
prevention. That XX is the function of YY does not
entail that we are justified in doing whatever will
achieve most of XX with YY. That cutting is the
function of knives does not entail that knife-holders are
justified in cutting whatever they see. Holders of the
preventive view can, in other words, accept the
existence of constraints on prevention, that are not
themselves justified in preventive terms (Hart 1968, 35–
50). What they cannot accept is a positive case for
criminal law that is not preventive.
Some hold a mixed view that combines elements of
those considered above (Alexander and Ferzan 2009, 3–
19; Simester and von Hirsch 2011, 3–18; Tadros 2016,
159–172). One way to construct such a view is by
distinguishing between primary and secondary
functions. Primary functions are those that, when all
else is equal, we have most reason to want the law to
fulfil. Secondary functions are those we have reason to
want the law to fulfil if it fails to fulfil its primary
functions. Criminal law’s primary functions, it is
plausible to think, are preventive. Ceteris paribus, we
have most reason to want criminal law to bring about a
world in which wrongs like theft or murder do not
occur. Failing that, we have reason to want criminal law
to call thieves and murderers to account, and to punish
those who have no adequate account to offer.
There is some scepticism about mixed views. For some,
the worries are conceptual. Moore claims that justified
punishment must be imposed for reasons of desert, and
that for this reason the punitive and preventive
functions cannot be combined. We are unable to ‘kill
two birds with the proverbial one stone, for by aiming
at one of the birds we will necessarily miss the other’
(Moore 1997, 28). Several replies are available. First,
even if this is a problem for a mixed view
of punishment, it need not be for a mixed view
of criminal law. Grant that punishment must be
imposed for reasons of desert. It does not follow that
criminal offences cannot be created for reasons of
prevention. Criminalization and punishment are
different acts, and can be performed for different
reasons (Edwards and Simester 2014). Second, to claim
that XX is part of the positive case for criminal law—
that it is one of criminal law’s functions—is not to
claim that XX should be part of the mission of every
criminal justice official (Gardner 2007, 202). Reasons
that help make a positive case for our actions are often
reasons for which we should not act. That one will be
financially secure is a reason to get married, but one
should not get married in order to be financially secure.
Similarly, to say that prevention helps make a positive
case for criminal law—and for punishment—is not to
say that judges should punish for that reason.
Other worries about mixed views are pragmatic (Duff
2010a). As criminal wrongdoing will persist whatever
we do, the preventive function sets criminal law an
insatiable goal. There is a standing risk that law-makers
who pursue that goal will deprive us of a criminal law
that fulfills its other functions. Consider again the curial
view. Plausibly, we have reason to account for wrongs
like theft and fraud in criminal court, but no reason to
account for every interaction with property or all
misleading statements from which we stand to gain. If
defendants are to be called to account for the wrongs, it
is these that must be criminalized. To criminalize
trivialities—in pursuit of preventive ends—is to drain
criminal proceedings of their intrinsic value (Duff
2010b). No doubt these are important worries. But they
do nothing to suggest that we should reject a mixed
view. At most, they show that law-makers also should
not take prevention to be part of their mission. As we
already saw, this conclusion does not show that
prevention is not part of the positive case for criminal
law. And it may anyway be too strong. Law-makers
who exclude prevention from their mission may refuse
to create crimes that would prevent a great deal of
harm. The cost of refusing to create these crimes might
be greater than the cost of calling people to account for
trivialities, and this might be so even when alternative
means of prevention are factored in. If it would,
criminal law’s preventive function should be part of the
law-making mission: it is a function law-makers should
indeed aim to fulfil.