Ability to obey the law

One very important burden that laws impose on people is that they make them liable to sanctions, by punishing them or making them pay compensation, if they commit legal wrongs.

Who, then, can fairly be made liable to a sanction? Laws that forbid people to commit crimes or torts are addressed to everybody. But their point is to influence behaviour, to get people to do or not to do certain things; and so it seems just to take account of whether the people to whom they are addressed can obey them. If it is just to take account of a person's capacity to exercise the vote in fixing a voting system, it must be right to take account of their ability to obey a law in settling who is liable to be punished.

In all systems of criminal law people under a certain age are free from punishment and so are those who because of mental illness cannot control their behaviour properly. (If they are a danger to themselves and others they can be kept in an institution but not punished). Even normal people may find it very difficult to control themselves under great stress; and many systems of law also take this into account in fixing the punishment.

The law about provocation is an example. Suppose someone is so seriously provoked that his conduct, though not excusable, is morally less serious than it would otherwise be. Someone is provoked by a vicious attack into losing his self-control and killing his attacker, though he did not need to kill him in order to defend himself. The person provoked is in many countries held to have committed a less serious crime than someone who plans a murder.

Justice seems to require that in fixing punishments account should be taken of ability to obey the law. This is to go on the common sense assumption that some people can control their conduct more easily than others.

This assumption is not however accepted by everybody. Some people, called determinists, deny it. They say that our behaviour is determined, and that we can never do anything except what we actually do. If so, it seems to follow that justice has nothing to say about excusing young children and the mentally disturbed from punishment or making allowances for those who are provoked. They are in no worse position, and have no more right to be excused, than anyone else. To put it the other way round, everyone has as much right to be excused as they have.

On the determinist view the only question we should ask when we decide whether people should be liable to punishment is whether the threat of punishment is likely to influence their behaviour. If the young, the mentally disturbed and the provoked are more difficult to influence, it would be sensible to threaten and punish them more severely than ordinary people.

It is not certain that determinism makes sense. But if it does, and if it is true, we have a dilemma. We should not punish people unless we can find some reason apart from their being able to obey the law why it is right to punish normal adults but not the young or mentally unstable.

I think there is a reason, one connected with the idea that the state should, in dealing with its citizens, aim at a balance of benefits and burdens. Even if we can never do anything except what we actually do, the fact remains that normal adults, unlike the very young and the mentally disturbed, generally succeed in doing what they try to do, at any rate when the task is not complicated. They benefit from the esteem that goes with being modestly successful.

It seems fair that those who benefit from the fact that they can generally get things right should bear the burden of being made liable to a sanction if they do things wrong and harm others, even supposing that they could not help it.

Дата добавления: 2015-07-20