Non Consequentialist Approach Essay

Week 7

Q1

According to Duff and Garland, what are the central differences between consequentialist and non-consequentialist’ theories of punishment?

- The former asserts that the “correctness” of an action should be assessed based upon its consequences. Thus to justify punishment, it must be devoid of actual or potential undesirable results. Seeing as it is incredibly unlikely that this will be achieved, this is qualified by the opting for a method that operates at the greatest level of efficiency whilst having the least negative impacts. Although a further complication is that there is no fixed criteria of what constitutes a positive impact or a fixed hierarchy of negative results. The utilitarian approach is one means of helping to measure the positive impacts, looking at human rights and societal as well as individual welfare; something that the non-consequentialist approach does not focus on. This denotes the biggest difference being that this

is very much a forward looking theory whereas the latter is very much retroactive. Looking at restoring some form of balance. It brings us to Duff and Garland’s pointing out of another key difference being that the justification for the punishment can stand alone with no reference being made to the crime itself, just providing the good that the punishment will bestow upon society; reaffirming its position as a prospective theory.
- The retributivist theory assesses ‘correctness’ in a completely different matter: it focuses solely on the character of the action itself, separate from the consequences. Thus it presents a punishment intrinsically justified (and apparently morally justified) by the execution of the crime itself. Thus contrary to the former it is very much retrospective.
o There is a subset of this theory that looks partially at the consequences of the crime itself, and assesses a punishment that corresponds to what the perpetrator ‘deserves’ based upon the consequences. This is still distinct from the consequentialist theory for that looks more at the consequences of the punishment and its effect on society, whereas this is retrospective in that it looks at the consequences of the crime, not the punishment, and uses the severity of the transgression to create a punishment fitting of the crime.

Q2
How do the perspectives of criminal law scholars differ from those of criminologists? How do they complement one another?
- Criminal law scholars are much more limited, basing their studies on the formally established norms of law and judicial precedent. They look at the current rules and interpretations of these and comment upon alternative interpretations and means of giving fairer results. They are not as widely engaged with social phenomena, and thus analyses ‘justice’ with a much smaller, but arguably more practical, ‘toolkit’ than criminologists. A criminologists’ focal point is the normative social aspect; analysis of the social construction of the given facts and the social norms that make up the impetus in crimes. This wide spectrum looks broadly at factors of a political, social and economic (among others) nature, all to determine contributions to pattern of crimes. To summarise I could state they are engaged with criminal framework as a product of social phenomena, and the exploration of that phenomena.
- Thus they complement each other for the former can influence the latter in their application of fairness to the rigid framework of the law. With their practical expertise, Criminal law scholars can provide areas of focus for criminologists whereas criminologists can help provide criminal law scholars with reasoned accounts of behavioural patterns. There is also the idea that one could argue criminologists examine areas a criminal law scholar might overlook; for it studies the various forces and factors operating behind the formalities of the criminal legal system and parliamentary select committees.

Q3
What are the most significant challenges in defining criminality?
- I cannot stress strongly enough the importance of normativity and arbitrariness that accompany the concept of ‘criminality’ for that is exactly wat it is: a moral concept. Criminality in itself is a negative moral perspective, and is ergo, a moral judgement. Thus as accompanies any moral judgement, there is the problem that understanding will differ from person to person based upon each of their internal ‘moral codes’, their experiences, and their susceptibility to their surrounding environment. Thus to create a definition to make everyone happy is incredibly unlikely; and this is both characterised and further complicated by the vast number of agents that play a role in dealing with criminality. Duff and Garland highlight the significance of this, with different institutions having different views of punishment and what constitutes a ‘fair punishment’. A concept that itself is marred with divisive theories of consequentialism and retributivism. When one actually engages with these debate you will see merits to both and problems associated with an absolute adoption of either. One may opt in favour of the retributivist approach in a crime such as murder or rape, but what about less morally repulsive crimes with significant mitigating circumstances; such as a hungry family stealing from a rich family to feed themselves. So defining criminality would need a label to fit all of these problems and everyone’s predispositions.
- A further challenge is highlighted by Lacey and Zedner, in that there being a critical distinction between formal and substantive criminality, and that the latter forms the heart of criminality as a social concept.

However, when we put so much formal criminality into practise, can we hope to create a definition that caters only to substantive criminality when its formal counterpart makes up a predominant part of a society’s law? One could suggest a two-fold definition that sees the formal aspect providing a more subtle support mechanism for the latter to make it practical and workable. But incorporating the formal aspect would almost ignore the fluidity of criminality and ignore the fact that criminality is an ever changing thing; thus casting doubt over whether it is wise to even begin to make a definition of criminality. And if I revert back to the suggestion of a two-fold definition, it would be rendered redundant when the formal side cannot match the substantive side; something that is unlikely to occur so

readily.
- There is also the challenge posed from human rights and the complications they throw into the mix. They can serve to undermine our current definitions of criminality and thus we reject them, or alternatively, they can challenge our current law, and this tends to accompany particular interpretations of the less broad provisions of documents such as the European Convention of Human Rights or the European Charter of Human Rights. Invoking these doctrines also sees a mixture of different jurisdictions and out interpretations are tainted by national pride and thus human rights can be associated with infringements upon sovereignty. It also attempts to provide rules of morality that we all must follow, and animosity at such imposition can prevent a definition being universally accepted, and even these broad rules do little to harmonise our opinions on criminality. So how can we compose a definition when we are told that our means of punishment based upon our predominant thoughts of criminality are immoral, as our methods have been so challenged in cases such as Hirst [2004], where the UK has been told its method of punishment is contrary to human rights, with a significant part of the UK population believing the European Court incorrect to conclude this.
- A final obstacle that I would like the stress the importance of is the moral grey areas that Duff and Garland describe that accompany the challenges of adopting consequentialist or non-consequentialist theories of punishment. As highlighted earlier it is not simple to formulate an appropriate punishment and that compromise is necessary. The difficulty is increased with each new view introduced to the mix that must be accommodated. There may be some agreements on more onerous acts, but when presented with an apparently fair punishment in a circumstance that it would be ‘unjust’ to administer, we immediately concede that criminality depends upon circumstance as much as the act and harm itself; and thus we open up an infinite number of circumstances, and creating a definition to apply uniformly and adequately throughout is not going to be easy at all.