Should We Abolish the Criminal Law?

Although the criminal law is a pervasive, and might seem to be an inescapable, feature of the developed societies in which we live, there are those who argue that, precisely in virtue of the paradigmatic features identified in the previous section, it is an institution that we should seek to abolish: this is a central strand of the‘abolitionist’ movement which, whilst often focusing most directly on the abolition of criminal punishment, also incorporates a critique of criminal law (see Legal Punishment ss. 2, 7). Abolitionist critics focus on three aspects of criminal law which, they argue, make it an utterly unsuitable institution for the kinds of social life and the kinds of relationship that we should seek (see Christie 1977; Hulsman 1986; Bianchi 1994).

First, the criminal law purports to declare and enforce authoritative standards of value, in particular of moral value: it claims the authority to tell us how we should live, and to enforce its demands on us if we disagree or disobey. But this, critics argue, amounts to an illegitimate attempt to impose a moral consensus—inevitably the consensus of those with political power—on societies which are rather characterised by radical moral disagreement; it denies to those who do not share that consensus the freedom to think and live as they see fit.

Second, the criminal law ‘steals conflicts’ from those to whom they properly belong. Of course citizens often find themselves in conflict with one another; their relationships are often impaired by various ‘troubles’. Such conflicts and troubles must be resolved; any harms that have been done must be repaired. But that is a task for those most directly involved—for the ‘victim’and the ‘offender’ (though we should be cautious about such notions), with the help of their local community. The criminal law, however, in defining such conflicts or troubles as criminal wrongs to be dealt with by a public criminal process, steals them: it transfers them to the professionalized context of a criminal justice system in which neither victims nor offenders are allowed really to participate; it thus denies those to whom the conflict belongs the chance to work it out for themselves.

Third, the criminal law deals in punishment—in ‘pain delivery’—when what is needed is instead a process that will repair whatever harm was caused, reconcile the people involved in the conflict, and thus restore the relationships that the conflict damaged. Criminal punishment cannot contribute to those appropriate ends: it reflects a primitive, backward-looking concern with retributive justice, whereas we should rather be seeking a forward-looking restorative or reparative justice.

I will not discuss the third objection here, since it belongs with the discussion of criminal punishment (see Legal Punishment ss. 2, 7): but we will see that the familiar consequentialist and retributivist models for the justification of punishment have analogues in accounts of the proper aims of criminal law more generally. The following sections will constitute an answer to the first two objections. Abolitionists are right to highlight these two features of a system of criminal law: it claims the authority to declare certain public norms of conduct (norms that must, as we will see, claim a moral foundation), and to insist on respect for those norms even from those who do not share them; and it makes breaches of those norms its business, and so the business of the whole polity in whose name and on whose behalf the law claims to speak and to act, rather than leaving them as the business purely of those who are most immediately involved. The question is whether and how we can justify maintaining institutional practices of this kind.

The first objection is, as it stands, unimpressive, and sometimes expresses an incoherent moral relativism which makes the moral demand that we should not make moral demands of others (see B. Williams 1976: 34-9). It does reflect two general issues that face any attempt to justify systems of political authority and law: the question of how far a polity depends for its legitimacy on a normative consensus, at least a Rawlsian overlapping consensus, amongst its members, and how far law and polity are possible in contexts of radical disagreement; and the question of whether and how a polity can claim legitimate authority over those who reject its central values and its normative claims. We cannot pursue these questions here, although we may note that they are as urgent for abolitionists as they are for advocates of the criminal law, since their favoured practices and institutions depend, just as a system of criminal law does, on the legitimacy and authority of the polity that sustains them. However, this first objection does also raise a question that is more specific to the criminal law, and that must be answered by those who would defend the criminal law: what kinds of norm, with what kind of claimed authority, does or should the criminal law declare—and should we maintain an institution that seeks to declare and support such norms?

The second objection focuses our attention on the distinction between civil and criminal law sketched in the previous section. We might agree with the abolitionists that our existing criminal procedures do not allow either victims or offenders the actively participatory roles that they should be able and encouraged to play, but the basic question is still this: should we maintain a system of law that defines and responds to a category of ‘public’wrongs—wrongs that concern not only the particular victim and offender, but the whole polity; wrongs which are ‘our’business collectively as a polity, and which must therefore be investigated and dealt with by a public process—which inevitably involves taking them out of the hands of those most immediately affected by them?