Legal Commentary

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.