The term positive law refers to what is also sometimes called “black-letter law”; that is, positive law is law that is written down, on the books. Positive law is law that exists factually as law because it has been duly passed by a legislature, or duly stated by a court to be a rule of law. Positive law is where formal legal doctrine is to be found, the positive criminal law. Criminal justice ethics is concerned about legal doctrine both from the perspective of what the law should contain and from the perspective of how the law should be interpreted and applied.
In ancient Greece, the term for those who made the law was nomothetes—from the word for law, nomos, and the verb tithenai, meaning “to put” or “to place.” So lawmakers were “law placers.” In the medieval period, when Latin became the language of scholarship, scholars simply used for lawmaking the equivalent Latin verb meaning “to place,” of which positum is one of its grammatical forms. Lex positivus identifies law made (placed) by a lawmaker. The modern term positive law is simply a direct translation of the Latin expression. The term positive has no more connotations than that.
Positive law is a pretheoretical term; it has in itself no theoretical commitments. In particular, to acknowledge and use the term positive law does not imply adherence to the jurisprudential theory known as legal positivism. Legal positivism is the theory that the term law is properly applied only to positive law, or that the concept of law is essentially the concept of positive law. Those who reject legal positivism—natural law theorists, for example—also use the term positive law to refer to enacted laws. Natural law theorists differ from positivists, not in denying the existence of positive law, but in thinking that the term law properly means more than merely positive law.
That part of positive law that is of interest to criminal justice ethics may be called “positive criminal law.” The interest of criminal justice ethics in the content of positive criminal law is broad in scope, covering both substance and procedure. For what should the positive criminal law impose criminal liability? Under what conditions should the positive criminal law impose criminal liability? By what procedures should the positive criminal law impose criminal liability? Andrew Ashworth refers to “the contours of criminal liability.” Following Ashworth, one can consider the contours of criminal liability under three headings—range, scope, and conditions. All three of these headings implicate criminal justice ethics.
With respect to the range of criminal liability as found in the positive criminal law of the typical modern democracy, there are five main areas—violations of the person, violations of general public interests, violations of the environment and the proper conditions of life, violations of property interests, and violations of the rules for the proper conduct of business and economic affairs. Ethically, people place a high value on the life, liberty, and security of their persons. Many of the actions, therefore, that positive criminal law identifies as offenses are ethically unproblematic: offenses of wounding and causing death, sexual, and other assaults; offenses relating to the reckless use of weapons such as firearms, or the reckless or negligent operation of vehicles, or breaches of workplace safety standards; offenses against the administration of justice or connected with public obligations such as taxation, and breaches of product and environmental quality laws (given that people value highly personal property), breaches of the laws relating to possession and ownership (given that people value some degree of economic free enterprise), and breaches of the laws relating to the fair and efficient operation of the economy. Other aspects of positive criminal law are more controversial ethically, at least as to where the boundary is between ethically acceptable and ethically unacceptable instances of such laws: laws relating to the preservation of public order or to the maintenance of an alleged public morality, laws that seem to intrude upon individual liberty, and laws that seem to favor the interests of one kind of citizen over other kinds.
With respect to the proper scope of positive criminal law, the ethically unproblematic paradigm is the individual person who performs the prohibited act. Positive criminal law, however, extends its scope beyond this paradigm—in the case of the original actor to legal persons, corporations, and to persons associated with the original actor through doctrines of accomplice liability or complicity, and doctrines of vicarious responsibility (that is, where one person is held liable for the actions of another person). Then there is the mass of what are technically called “inchoate crimes,” crimes where the harm that the law aims to prohibit has not yet occurred. The category includes attempts, endangerments, conspiracies existing but as yet unconsummated, encouragings, and so on. Ethics wrestles with the propriety of these crimes simply because if criminal liability ethically should follow on the occurrence of harm, no harm has yet occurred.
The conditions of criminal liability are a major concern of criminal justice ethics. The term conditions here conventionally refers to what has to be true of the individual person who has caused some prohibited harm before they can be held liable under the positive criminal law. Generally speaking, the main condition is some form of fault or culpability/blameworthiness. These latter are fundamentally ethical concepts, and criminal justice ethics aims to have the conditions of liability in the positive criminal law as far as possible track the conditions of liability in ethics itself.
The main device in positive criminal law for defining the conditions of liability in this sense is the legal doctrine of mens rea, “the guilty mind,” with all its internal complexity. Ethical questions arising include: Should the positive criminal law always require as a condition of criminal liability that the accused intended the prohibited harm or was consciously aware of risking the prohibited harm? Or is it ethically permissible for criminal liability to be imposed if a reasonable person would have seen the risk of harm although the accused did not? Is it ethically permissible to impose criminal liability for a prohibited harm caused by the accused unless the accused can prove they did all they could to prevent the harm? Is it ethically permissible to impose criminal liability for a prohibited harm caused by the accused without having to prove any fault or culpability on the part of the accused at all?
Two further sources of ethical concern about the positive criminal law are these. First, ethics acknowledges the availability of various excuses and justification to those who have caused harms— duress, provocation, mistake, self-defense, and the like. Ethics also acknowledges that “ought implies can,” that those who could not help doing what they did for reasons of psychological infirmity of one kind or another should not be held blameworthy. Ethics asks the positive criminal law to track these principles. Second, the principles of criminal justice ethics include general rule-of-law principles ensuring that those subject to the positive criminal law have a fair chance to know when they are behaving in conformity with the criminal law and when not. So the positive criminal law needs to be clear and precise, not overbroad, not retrospective, not made in secret, and so on.
As far as concerns criminal procedure, the best guide to the demands of criminal justice ethics is the typical charter or bill of individual citizen or human rights. These documents contain many ethical constraints on positive criminal law, all familiar—the right against unreasonable search and seizure, the presumption of innocence, the right to a speedy trial, the right against self-incrimination, the right to consult counsel, and so forth.
The positive criminal law must be central to any concern of criminal justice ethics, since it is there that citizens will find the norms of behavior that their fellow citizens expect them to follow, and that the state will enforce coercively through the criminal justice system. Criminal justice ethics assesses these norms of positive law for their compatibility with principles of fundamental criminal justice, and in a fair and just society the norms of positive law are not found wanting. The positive criminal law is central to criminal justice ethics, but it does not exhaust the interest of criminal justice ethics in the criminal justice system. There are many aspects of the working of the system that do not have directly to do with the content of the positive criminal law. As Nicola Lacey has emphasized, criminalization occurs through social practices that are far wider in their extent than simply the enactment of the positive criminal law. These practices include the politics of criminal lawmaking; the social memes that identify forms of criminality; the way that lawmaking, law enforcing, and law applying agencies exercise the discretionary powers that the positive criminal law grants to them; and the way that structures of social and economic power influence all these practices.
- Ashworth, A. Principles of Criminal Law. 6th ed. Oxford: Clarendon Press, 2009.
- Duff, R. Answering for Crime: Responsibility and Liability in the Criminal Law. Oxford: Hart, 2007.
- Lacey, N. “Analytical Jurisprudence Versus Descriptive Sociology Revisited.” Texas Law Review, v.84 (2006).
- Lacey, N. “Contingency and Criminalization.” In Frontiers of Criminality, I. Loveland, ed. London: Sweet and Maxwell, 1995.
- Shiner, R. A. “Theorizing Criminal Law Reform.” Criminal Law and Philosophy, v.3 (2009).
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