Regulatory crimes

Apart from behaviour that threatens persons, property and public security there are in modern systems of law a whole range of crimes that consist in breaking regulations. They can be called regulatory crimes. They work by imposing fines on people whose behaviour threatens something of value to the community: health, road safety, the environment, the working of the courts, the welfare of employees and so on. It can be a crime, for instance, to drive or trade without a license, to sell stale food, to pollute a river, to interfere with a witness in a lawsuit, to describe goods for sale in a misleading way, and to bribe an official. These actions indirectly threaten our security but they are made crimes mainly to ensure that the services on which a modern society depends run smoothly. A private individual would seldom be interested in seeing that these regulations were enforced. So the state steps in.

So far there is general agreement about the sort of things that should be made crimes, though the details differ from country to country. Two other types of conduct that are sometimes made criminal are controversial. They are paternalistic and purely moral crimes.

Sometimes the state in making conduct a crime behaves like an old-fashioned parent. The idea behind paternalistic crimes is that people need to be protected against themselves. Certainly most of us would agree that some people need this protection some of the time. For example, it is everywhere a crime to have sexual relations with young children or people who are mentally ill even with their consent. Only the minimum age of consent varies from one country to another. The young and the mentally ill are not mature or sensible enough to decide for themselves whether to consent to sex.

It is more difficult to say whether the state should intervene to prevent adults from, say, taking drugs. In most countries it is a crime to supply certain drugs, such as cannabis and heroin, and it is often a crime even for adults to possess or consume them. The thinking behind this is that taking these drugs, at least the hard drugs, tends in the long run to deprive people of control over their lives. So freedom to take drugs may later undermine their ability to make choices. Drug addiction also throws a burden on other people, and on the medical services, which have to look after addicts when they are hooked.

On the other hand it is nowhere, so far as I know, a crime to sell, possess or smoke cigarettes, though these can be addictive, can cause a range of illnesses and can burden the medical services. In some countries the state insists that the manufacturer or seller should warn the buyer of the dangers of smoking, but it does not go so far as to forbid smoking.

Whether there is any real difference between nicotine and other drugs, or whether the explanation is that the manufacturers of cigar­ettes have more political clout than the makers of drugs, is not clear. No doubt when someone does not realise the risk they are running a warning is often justified. This applies not just to smoking cigarettes but to activities like pot-holing, where those who get into trouble put both themselves and rescuers at risk.

But is the state justified in forbidding adults from harming them­selves, or risking their own lives, as opposed to harming others or exposing others to risk? Some countries make it a crime to attempt suicide or maim oneself, others do not. The case for making these things crimes is less strong now that states have given up (or should have given up) the idea that a country needs a large, healthy popula­tion to fight wars.

The other doubtful type of crime is the purely moral offence. This term refers to such things as homosexuality and bigamy (marriage by a person who is already married). The criminal law of most countries allows homosexuality in some circumstances (between consenting adults) and some countries allow polygamy (having more than one wife or husband). In other countries, however, they are or have until recently been strictly forbidden.

The sense in which these crimes are purely moral is that they offend people in a different way from the crimes that create physical insecurity, like assaults, or physical offence, like excessive noise and smells. The people they offend regard these lifestyles as morally rather than physically offensive. The point they are making is that they do not want to live in a society in which these things are freely permitted.

But, apart from the fact that many people do not share these views, the attitude of those who object raises another problem. To what extent are people who would prefer to live in a certain moral environment entitled to force others to conform to their views? Would it be right for vegetarians to insist that the rest of society gave up eating meat? Does the answer depend on whether they are in a majority?

There are also international crimes, like state aggression against another state, piracy, hijacking and genocide. These are forms of behaviour by governments or individuals that threaten the international community and its system of communications. They do so in much the same way that state crimes threaten the security of citizens.

13. When is it fair to hold someone guilty of a crime?

So much for the sort of behaviour that the state does or should make criminal. For someone to be guilty of a crime he must obviously have done what the state forbids. It would be unfair to punish someone who had not broken the law. To be stamped a criminal is, at any rate if the crime is serious, to suffer disgrace. Before anyone is held up to shame in this way, it seems fair that he should have known, or at least been able to find out, what the law forbade. And he must have been able to avoid breaking the law.

Should we go further and say that it is only fair to punish someone when he intended to do what the law forbade? Or is it enough that he negligently broke the law, through not taking enough trouble to keep it? Most countries demand some form of fault, either intention or negligence, before anyone is convicted of a crime, apart from reg­ulatory crimes. But they differ in their view of what sort of negligence is criminal.

All these points concern fairness to the person charged. This has to be balanced against the need to reduce to a minimum harms that menace the security of citizens and the stability of a society. The points about fairness need to be gone through one by one.

Did the person charged do what the law forbade?

To show that someone is guilty of a crime the state must prove that he did what the law forbade. Otherwise criminal punishment would be quite arbitrary. The government could punish any behaviour, such as wearing earrings, of which it happened to disapprove, even though it had never gone to the trouble of making a law against it. What the law forbids depends on the definition of the crime; and crimes are mostly defined in codes or statutes, though in some countries judges define them.

Homicide is a good example to take. One form of homicide (murder) is probably the most serious crime; but almost any other crime could be chosen to illustrate the idea of doing what the criminal law forbids.

Homicide is killing another human being. The state's aim in making homicide a crime is to prevent killing. But what is it to kill another person? To kill someone means to cause his death. But it is not always easy to decide what amounts to causing another person's death. Suppose I stab Tom. Tom is taken to hospital and given the wrong medical treatment. He dies, though the right treatment would have saved his life.

Have I killed him? He would not have died had I not stabbed him. But does it follow that I killed him? The stab wound does not have to be the only cause of Tom's death, but it must be a cause; and we have plenty of practice in everyday life in picking out the causes of events.

How can we decide if I have killed Tom? Would it make a difference if the medical treatment seemed right at the time, though in retrospect, because of an allergy from which he suffered, it was mistaken? Or if the treatment was obviously mistaken, even at the time? These are questions to be answered in the light of common sense.

Дата добавления: 2015-07-20