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What’s Wrong and What’s Right with Deterrence Theories in Criminal Law
Criminal law has many aims, one of them being that it seeks to influence human conduct. Criminal law has in-built theories about human action. Often some sort of rational action theory serves as a model. According to classical law and economics, human beings can be deterred by keeping the costs of offending high enough. The model of rational economic action has famously been challenged by findings of the so-called behavioral economics and law. Human beings simply fail to act rationally when studied empirically. Behavioral law and economics has created its own way, even its own language, to study law and regulation. We all know about ‘endowment’, ‘bounded rationality’, ‘nudging’, and ‘choice architecture’.
The theory of positive general prevention, well known to Continental criminal law scholars, works on somewhat different premises than classical law and economics. According to that theory, human beings are able to internalize the moral and ethical values that the criminal law tells about which in turn gives individuals additional reasons not to offend. This theory could even be linked with the theory of a democratic Rechtsstaat, since the citizens quite obviously have reasons to respect legitimate norms. Even legal doctrines which provide for legal security and predictability could contribute to the legitimacy of criminal law.
We should also mention regulatory theory, which has equally departed from classical law and economics. According to regulatory theory, at least if we read Christopher Hodges, no-blame cultures are most efficient as means to improve the quality of human action, be it in terms of security in civil aviation, or reducing malpractice by medical professionals. Often the solution seems to be to choose another regulatory option than criminal law. For serious violations of interests of others we may still need criminal law. From a regulatory point of view criminal law would still always also interact with ethics and social norms since criminalisations trigger effects on the side of the legal subjects, and on the side of the society at large. Hodges claims that behavioral law and economics is not enough to found socio-legal structures on the reality of how people make decisions. He tries to build an integrated theory, integrating theories of regulation, enforcement, compliance and ethics.
I wish to look at more closely whether behavioral law and economics as well as the theory of regulation call for a reassessment of how we should think about criminal law as a way of regulating behavior. Is behavioral economics still too narrow, too utilitarian, to be relevant for criminal law theory? Isn’t it too reductionist in its style? How would regulatory theory see this? Should we only adopt the psychology part of it?
It seems that the various approaches to and understandings about seeking to influence human behavior have very different criminal policy implications. As concerns environmental criminal law or economic criminal law, to take two examples, the Chicago-style law and economics leads to stressing the severity of (criminal) sanctions, whereas positive general prevention would leave more room for additional ethical reasons for actors in a company frame to work for minimizing the risk of crime. We do not need severe punishments to communicate blame. Much of EU criminal law seems to build on negative general deterrence.
It looks as if it makes sense to stress that criminal law possesses certain specific qualities which go beyond simple instrumental and utilitarian concerns. The theory of positive general prevention might work even if we cannot expect people to act rationally. As criminal law uses blameworthiness to communicate values, this goes well together with the idea that the individuals should be approached as responsible citizens who have the ability to learn to do better. We need to go beyond a utilitarian theory of regulating behavior. This could even be a paradox: we have to introduce non-instrumental views about how criminal law is anchored in the society in order to truly understand how criminal law operates and becomes functional. There is different politics of criminal law involved, and a different view of the society.
Nicola Lacey has put it aptly:
‘… as democratization proceeds, with the normative implication that the regulatory subject should be treated not only as a rational chooser but also in some stronger sense as an agent – as someone who not only makes choices but has some deeper form of responsibility for those choices, as a queen and not as a pawn – a non-instrumental attachment to the responsibility condition emerges.’ ‘Criminalization as Regulation’, in, Regulating Law (Eds. Parker et al), Oxford 2004, 158-159.
University of Helsinki
Faculty of Law
Wed, Oct 3, 2018
12:30 PM - 02:00 PM
Centre for Ethics, University of Toronto