Tuesday, February 07, 2006

Criminal law and individual responsibility

I wonder if criminal law works well when we get past individuals, past close coordination of small groups, and into large-scale structures that have more power than the individual that fits into them. Human rights abuses are usually done with the consent of a significant portion of society. While you can pin individual responsibility on a militiaman who commits an outrage against another tribe, it is speaking equivocally to call this the same responsibility that a thief bears in a mostly law-abiding society. I'm not saying that war crimes are not crimes; I'm just saying they are crimes in a Wittgensteinian family-resemblance type way, not members of the same genus. I'm still thinking about this, and how it applies to corporations, and troubled inner cities.

This also bears on how tort law got less and less compelling to me last semester as we got away from striking people with sticks (good clean torts!) to calculating market share of companies that could not possibly have known their drug would injure users, but are held to account because of an overall society structure.

Somewhere I got this list of antinomies: criminal law seems successful at the former and not the latter.
  1. individual v systemic
  2. ordinary v extraordinary
  3. crimes v warcrimes
  4. banal v demonic
That is, when the law can (1) assign personal responsibility, (2) make predictable rules, (3) view transgressions in a social context, and (4) understand the actor's motivation, then criminal law functions well. Criminal law is always on the edge of making things worse: it is more likely to step over the line when the right half of the antinomies are satisfied.


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