Criminal Law and Social Morality
Since the theory or philosophy of criminal law is a large area of academic inquiry in its own right, this chapter will necessarily be introductory and somewhat selective in its focus.1 Topics covered in this chapter include the relationship between the criminal law and morality, and the extent to which the criminal law has an objective basis. The objective basis in question pertains not only to the objectivity or otherwise of the moral principles the criminal law typically enshrines (as in the case of laws proscribing murder), but also to objectivity more broadly construed (such as the objectivity or otherwise of the scientific theory underpinning recent 
developments in DNA research). As will become clear, it is important for police to attend to the question of the objectivity or otherwise of the criminal law, since police are a critical element of the system of its enforcement. That is, police should only be enforcing the criminal law if it has an objective basis; merely subjective or fanciful prescriptions should not be enforced. But now the question arises: What is this objective basis?
Criminal laws, like other laws, are enacted by a legislature. Moreover, in a democracy by virtue of being laws passed by the duly elected representatives of the polity, criminal laws, like other laws, reflect the will of the citizenry. However, it is often held that criminal laws, unlike many other laws, not only reflect the will of the legislators and those who elect them but also embody core moral norms of the community, i.e. socially accepted, morally significant, regularities in action. Here I need to draw attention to two sets of distinctions. The first distinction is between subjective social morality and objective morality. Subjective social morality is simply the moral principles and values that the members of some social group happen to believe in and comply with, e.g. the social morality of contemporary western society or that of cannibalistic tribes in Papua and New Guinea. Objective morality is the structure of moral principles and values that the members of a given society ought to believe in and comply with because it is objectively correct (in the circumstances that the members of the society in question find themselves in).
Here I note that the notion of objectivity pertains to the truth/falsity or correctness/incorrectness of judgments, beliefs, claims, statements, principles, theories and the like, and stands in contrast with the notion of subjectivity (or relativism). Roughly speaking, subjectivism or relativism holds that there is no truth or correctness to be had in relation to some class of judgments, claims etc. Such classes of statements might include moral statements, empirical statements, mathematical statements and so on. As we will see some social scientists, for example, reject the objectivity of moral statements but accept the objectivity of empirical statements made by scientists.
The second distinction is between the descriptive claim that criminal laws in fact embody core socially accepted moral norms of a community (its basic social morality) and a related normative one, namely, that they ought to do so. Certainly, there are many criminal laws which embody widely held moral attitudes, e.g. laws against murder, assault and theft, and it is agreed on all hands that such socially accepted moral principles do play a central role in the criminal law.
However, in the light of these two sets of distinctions we can now differentiate between two normative claims that are sometimes conflated. The first of these is the one just mentioned, namely, that the criminal law ought to embody (subjective) social morality. The second helps itself to the notion of objective morality and states that the criminal law ought to embody objective morality.
These preliminary remarks suggest that the relationship between the criminal law and morality is a complex one and warrants further exploration. As we have seen, the criminal law and morality are closely related. Indeed, many people conflate the criminal law and morality—they think that every act of compliance with a criminal law is morally right, and every act that is morally right is an act of compliance with the criminal law. So if A assaults B without justification then A’s act is both unlawful and immoral. And if C bribes D to win a large government contract then this act of bribery is both unlawful and immoral. Moreover, it is held that what makes such acts immoral is the fact that they are unlawful, rather than the other way around. This view is perhaps particularly common among people whose task it is to administer or enforce the criminal law, such as lawyers and police officers. It is, however, a view which should be resisted: first, because law and morality are not the same things and, second, because law to a great extent reflects morality rather than the reverse.
Law and morality are not the same thing. Laws have properties that moral principles and values do not necessarily have. Thus, for something to be a law, whether it be a criminal law or some other kind of law, it must have certain institutional properties not necessarily possessed by moral principles and values. For example, laws are enacted by some institutional authority, (e.g. a parliament), in accordance with some valid institutional process, (e.g. the legislative processes of the Australian parliament), and laws typically have an explicit formulation in a specified location, (e.g. a law which is an explicit directive in the English language in the statute books of the Australian parliament).
The criminal law to a considerable extent reflects morality rather than the reverse. Certain acts are made unlawful—specifically, count as breaches of criminal codes—because they are regarded by the community as being serious forms of immorality; that is, the criminal law reflects (subjective) social morality. Thus murder, rape and assault are unlawful in large part because they are regarded as profoundly immoral. Again, bribery is unlawful because it is regarded as a serious moral infraction. Further, at least some of these criminal laws not only reflect subjective social morality, they also reflect objective morality; presumably murder is a case in point.
Some forms of serious moral wrongdoing are not unlawful in some jurisdictions, even though they ought to be. Bribery is a case in point. Bribery is not unlawful in some jurisdictions; this might be because it is not regarded as a serious moral wrong in those jurisdictions, but rather as a practice that facilitates commerce or as a legitimate form of gift-giving or some such. On the other hand, arguably bribery in commercial dealings is, objectively speaking, a serious moral wrong because—let us assume—it actually undermines free and fair competition in the economic sphere and, as a consequence, does great economic harm. If so, then enacting laws against bribery would reflect objective morality, but not necessarily subjective social morality.
Because law and morality, specifically, objective morality, are conceptually distinct notions we find that not all laws are morally right. This is probably most clear in the case of repressive states such as Nazi Germany or South Africa in the apartheid era. In these states laws were enacted which discriminated against people on racial grounds. For example, blacks could not vote or own property. These regimes passed many laws that were valid qua laws, e.g. passed by the legislature according to the proper procedures, yet morally abhorrent. We also find that not all morally good actions are legally enforced and, indeed, not all morally good actions should be legally enforced. Parents should be kind to the children, but there is no law to this effect—nor should there be.
So law and objective morality are not the same thing; nor, for that matter, are law and subjective social morality the same thing. From this it follows that sometimes the requirements of law and morality can pull us in opposite directions. This potential conflict between the criminal law, on the one hand, and social morality and/or objective morality, on the other, raises issues of profound importance. Consider the laws prohibiting voluntary euthanasia or ones instigating mandatory sentencing of juveniles for minor crimes. Notwithstanding that it might be unlawful, should doctors engage in voluntary euthanasia in some cases, (e.g. terminally ill patients suffering great pain), especially if there is a widespread view in the community that they should? There is evidence that some doctors do just this, and do so in violation of the law. What of judges, lawyers and police in relation to crimes that they know are subject to mandatory sentencing? Should police officers on occasion turn a blind eye to an offence subject to mandatory sentencing, if they know that the outcome of making an arrest in such an instance will be far worse for all concerned, including the community? More generally, should police themselves on occasion breach the law for the greater good?
Notwithstanding the fact that law and morality are not necessarily the same thing, it is nevertheless true, at least in the case of the criminal law, that law and morality often coincide. Here I have in mind the coincidence not only between the criminal law and subjective social morality, but also between the criminal law and objective morality. For example, there are laws against theft, fraud, assault and murder, and theft, fraud, assault and murder are both widely believed to be morally wrong and morally wrong as a matter of objective truth.
This coincidence or overlap between much of the criminal law and central moral principles suggests that an important purpose of the criminal law is to maintain a community’s minimum moral standards (Devlin 1968). Naturally, some of these are contentious, and as society undergoes change some of these hitherto socially accepted, moral norms change. For example, moral attitudes in relation to homosexuality have changed. However, there is evidently a core of widely accepted, moral norms that there is reason to believe will never change or ought not to change, e.g. the right to life and physical security, and freedom of thought and speech; presumably, these are in part constitutive of objective morality. But how do we demarcate those moral norms which ought to be criminalised from those which ought not; and do so on an objective basis?
One historically important attempt within the liberal tradition to delimit on an objective basis the sphere of moral norms which ought to be enshrined in the criminal law does so by recourse to the principle not to harm others famously espoused by J.S. Mill (Mill). Here it is assumed with some plausibility that the notion of harm can be objectively specified. Certainly physical harm can be objectively specified, as can some forms of psychological harm. Thus a form of behaviour, on this view, ought to be criminalised only if it consists in harming others and, specifically, seriously harming others and doing so deliberately (or at least recklessly or negligently). Naturally, others might consent to being harmed, e.g. professional boxers, or the harming in question might be morally justified, e.g. harming in self-defence. If so, then the harming in question presumably ought not to be criminalised. So let us restrict the ‘Don’t harm others’ principle to acts of moral wrongdoing which consist of seriously harming (non-consenting) others without adequate justification, albeit we cannot here embark on the project of specifying what counts as serious harm or an adequate justification (Feinberg 1987).
This view has been subjected to various criticisms including the need to criminalise behaviour which consists in failing to assist others who are suffering severe deprivations (as opposed to harming them), e.g. behaviour which consists in refraining to pay taxes the purpose of which is to provide medical and other welfare benefits to the needy. In short, the criminal law should attend not simply to serious harm causing but also to omissions in respect of serious deprivations.
Accordingly, another way to delimit the sphere of moral norms which ought to be enshrined in the criminal law is by recourse to the notion of moral rights with respect to serious harms and deprivations, specifically so-called basic moral rights (Shue 1984). Basic rights are those moral rights the enjoyment of which is necessary for an ordinary human being to be able to exercise their basic liberties and satisfy their basic needs in a social setting; basic rights would include the right to physical security, food, water, shelter, essential medical assistance, elementary education, access to work opportunities that would enable a person to provide for themselves and their children, freedom of movement, thought, communication, and of association with others etc.
Notice that the moral rights in question include many enshrined in human rights legislation and like documents, including the Universal Declaration of Human Rights. Here I need to stress the above-described distinction between the moral and the legal and, in this instance, between moral rights and legal rights. Although something might be a legal right and, indeed referred to as a legal human right—for example, in some legal instruments workers have what is referred to in these documents as a human right to a paid holiday (Article 24, Human Declaration of Human Rights)—it is a further question as to whether it is in fact a moral right. Moreover, as will become evident below there is a distinction to be made within moral rights between human (moral) rights—moral rights one has qua human being, such as the moral right not to be tortured—and institutional (moral) rights— moral rights one has in part by virtue of institutional arrangements, such as the right to a fair trial (Nickel 2007, Chap. 1).
Notice further that the rights in question are not restricted to rights not to be harmed by others; they include rights to assistance of various kinds when one is suffering severe deprivations, e.g. rights to food when one is starving. Notice further that the rights in question can plausibly be given an objective basis in terms of the notion of harm (as we saw in relation to the ‘Don’t harm others’ principle) and also the notion of the basic needs of a human being in a social setting. This can be done notwithstanding the vagueness of the boundary between basic and non-basic; after all, there is a perceptual distinction between the colour black and the colour white notwithstanding the existence of the colour grey. The idea here would be that behaviour which consists in the violation of basic moral rights ought to be criminalised. In so far as the violation of basic rights typically involves harming someone then this conception captures a central moral intuition of the earlier ‘Don’t harm others’ view. However, it is wider than this in that it includes rights to assistance when one is suffering severe deprivations.
This rights-based view will be open to criticism from those who object for a variety of reasons to positive rights and, especially, to the enforcement of positive rights. Elsewhere I have elaborated a normative theory of institutions which tries to deal with this kind of objection (Miller 2010). This rights-based view can also be criticised for making the standard for criminality too restrictive; surely there is behaviour above and beyond that which violates basic rights which ought to be criminalised. For example, should not the wilful destruction or damaging of cultural objects, such as ancient cave paintings, be criminalised? Evidently, the notion of a moral right in play here needs to be extended to include moral rights above and beyond basic rights.
On the other hand, if this view is adjusted so that it includes all moral rights then it can be criticised for making the standard for criminality too permissive. For there are some moral rights the violations of which ought not to be criminalised;
specifically, moral rights the violations of which do not consist in causing serious harm and/or do not entail serious deprivation. Perhaps under a university’s rules governing a series of public lectures on controversial topics the main speaker has a right of reply to his or her commentator/critic. Suppose a particular speaker agrees (informally) to do her public lecture only on condition that she can exercise her right of reply. Suppose further that the chairperson arbitrarily refuses to allow the speaker to exercise their right of reply. Surely we would not want to criminalise such a minor rights violation.
What criterion ought we to use to adjudicate between moral rights the violations of which ought to be criminalised and those for which this is not the case? We have already helped ourselves to the notion of rights violations which consist of causing serious harms and/or ones which entail serious deprivations. Accordingly, the question becomes: What criterion can be use to demarcate rights violations involving serious harms/deprivations—ones which, therefore, warrant criminalisation—from less serious ones (ones which do not warrant criminalisation)?
Ultimately, the harms/deprivations in question will have to be subject to scrutiny on a case by case basis. However, one possible general criterion is morally justifiable enforcement (understood as coercive enforcement). If the violations of a right are regarded as sufficiently egregious to warrant coercive enforcement then the right in question is, at least prima facie, of sufficient moral weight for violations of it to warrant criminalisation.
Here there are three points to be made. First, the level of coercive force that is morally justified is on a sliding scale depending on the moral weight that the right has. For example, the right to life justifies the use of lethal force in its enforcement, but minor property rights might only justify the use of non-lethal force in their enforcement. Second, aggregated violations of a right might justify a high level of coercive enforcement, even though one-off single violations do not, (e.g. the use of rubber bullets against a mob engaged in looting might be justified, but not such use against a single offender). Third, an agent might perform an action which is not in itself a direct rights violation but which is, nevertheless, an action that the agent knows, or should know, will indirectly cause harmful or other rights violations, (e.g. provoking others to commit unjustified violence). Various acts which cause damage to institutions, such as bribery and abuse of authority, evidently fit into this category. Use of coercive force in relation to such indirectly harmful actions might well be morally justified.
Here I note the distinction between moral rights and other kinds of moral or ethical consideration. An obvious contrast here is between behaviour in compliance with rights and behaviour expressive of virtue. Kind or generous behaviour is an expression of the virtue of kindness or generosity. One person does not necessarily have a moral right to another person’s kindness or generosity, notwithstanding that it is a good thing to be kind or generous. Another contrast is between moral rights and intended or otherwise aimed at good outcomes. Perhaps it is a bad thing not to assist one’s profligate friend by assisting with their rental payments; a bad thing because the friend will be forced to seek accommodation with his ageing parents who already live in cramped quarters. But surely one’s friend does not have a moral right to such financial assistance.
I have distinguished between basic moral rights and (in effect) non-basic moral rights. A further distinction which cuts across this one is that between human rights and institutional rights (some basic rights are human rights but some are evidently institutional rights, e.g. the right to an elementary education). Human rights are moral rights that individuals possess solely by virtue of properties they have as human beings, e.g. the right to life and the right to freedom of thought (Miller 2003). Institutional (moral) rights are moral rights that individuals possess in part by virtue of rights-generating properties that they have as human beings, and in part by virtue of their membership of a community or morally legitimate institution, or their occupancy of a morally legitimate institutional role with specific moral purposes definitive of it. Thus the right to vote is an institutional right, since it exists in part by virtue of possession of the rights-generating property of autonomy, and in part by virtue of membership of a political community. Again, the right, indeed duty, to arrest and detain someone for assault is a moral right and duty possessed by police officers which is not necessarily possessed by ordinary citizens in the same circumstances. This institutional right and duty is derived from the moral purpose definitive of the role of a police officer, namely, to protect the rights of citizens and, in this particular case, to protect the right of the victim not to be assaulted. This latter right of the victim is not merely a legal right but also a moral right and, indeed, a human right (in the sense of a moral right possessed by virtue of being a human being).
Moreover, we are assuming the following properties of the moral rights in question. First, moral rights generate concomitant duties on others, e.g. A’s right to life generates a duty on the part of B not to kill A. Second, human rights and some, but not all, institutional moral rights, are justifiably enforceable, e.g. A has a right not to be assaulted by B, and if B assaults or attempts to assault A, then B can legitimately be prevented from assaulting A by means of coercion.11 An example of a justifiably enforceable institutional moral right is the right to vote; it ought to be a criminal offence to prevent someone from exercising their right to vote. Again, it ought to be a criminal offence to commit perjury in a court of law, even in a civil case in which the matter in dispute involved no criminal behaviour. Arguably, the underpinning moral rights in play here are those of the citizenry with respect to those who appear before their courts. Third, bearers of human rights, in particular, do not necessarily have to assert a given human right in order for them to possess it, and for the right to be violated, e.g. an infant may have a right to life even though it does not have the ability to assert it (or for that matter to waive it).
Above I distinguished between law and morality (and within morality between moral rights and other moral phenomena). Moreover, I have argued that the criminal laws can usefully be understood as embodying justifiably enforceable moral rights not to be seriously harmed or suffer serious needs-based deprivations, and that the latter moral rights are objective in character. It follows that I have provided, at least in principle, an objective basis for the content of the criminal law. However, this is not the end of the matter, since the criminal law has various other dimensions, (e.g. a semantic dimension in so far as laws need to framed in a language and interpreted), and relies for its application on non-legal considerations, (e.g. testimonial evidence), and these, it might be argued—being necessarily subjective in character—continue to threaten any claim that the criminal law is objective, even in principle. Accordingly, I need to further discuss the (alleged) subjectivity of the criminal law, notably in relation to so-called facts, and the important distinction made by the courts between law and fact. Given the already established relation between criminal law and morality, this will in turn raise the question of the distinction between morality and fact.
-  Earlier versions of the material in this chapter appeared in Chaps. 1 and 2 of Miller and Gordon(2014), Miller et al. (2005), Chap. 2, and Miller (2001), Chaps. 4 and 6. © The Author(s) 2016 1 S. Miller, Corruption and Anti-Corruption in Policing—Philosophical and Ethical Issues, SpringerBriefs in Ethics, DOI 10.1007/978-3-319-46991-1_1
-  At least ideally or by the lights of standard democratic theory. In practice, of course, many lawsare in part reflective of powerful sectional interest groups who successfully lobby, or are otherwiseable to influence, democratically elected governments.
-  Widely different circumstances might require (objectively speaking) different social norms. Thisrelativisation of norms to context is consistent with objectivity and, therefore, needs to be distinguished from relativism with respect to truth. See main text below.
-  The idea, roughly speaking, is that (other things being equal) one’s action is morally wrong if oneintentionally harms another (and one’s intention is under one’s control) or one knowingly causesharm to another (and could have done otherwise) or one unknowingly causes harm to another,could have done otherwise and should have known that one’s action would cause the harm inquestion. For a detailed recent account of causation and responsibility in the law and morality seeMoore (2009). On the more specific notion of collective moral responsibility see Miller (2006).
-  Taxes typically provide for goods to which the citizenry have basic rights and goods to whichthey do not. On the view under consideration there would presumably be a different moraljustification for the enforcement of taxes to provide for goods in respect of which the citizens didnot have basic rights, i.e. to pay taxes above and beyond those required to ensure basic rights arerespected.
-  The terminology used to refer to these various categories of legal and moral rights can beconfusing.
-  Or at least rights to such assistance when it can be relatively easily provided.
-  The intuitive idea is that there are certain properties that individual human beings possess that areat least in part constitutive of their humanity. Naturally there is room for dispute as to what theseproperties are; indeed, some putative properties might be criteria rather than defining properties.Moreover, while some putative properties, e.g. the capacity to reason, are more salient than others,e.g. the capacity for bodily movement, I do not have a worked-out theory to offer. However, themain point to stress here is that the properties in question are ones that are held to have moralvalue, e.g. individual autonomy or life. This conception is consistent with a view of human beingsas essentially social animals.
-  Note that a human right in my sense is not merely a right enshrined in human rights documents,such as those promulgated by the United Nations.
-  Typically, a distinction is made between so-called claim rights (e.g. one’s right not to be killed)and so-called liberty rights (e.g. a right to sit on a park bench in a public area). If A has a claimright to x then B has no right to x and, indeed, B has a duty to refrain from taking x (or otherwiseinterfering with A’s enjoyment of x). If A has a liberty right to x then B may well also have aliberty right to x. However, B has a duty to refrain from preventing A from exercising A’s right tox (other than incidentally by B exercising B’s right to x).