Homicide and the Politics of Law Reform
Author: Jeremy Horder
Publisher: Oxford, UK: Oxford University Press, 2012. 330p.
Reviewer: Guyora Binder | November 2013
Jeremy Horder, long at the forefront of English criminal law scholarship, served his country as Law Commissioner in charge of criminal law reform from 2005 to 2010. His new book, a report from the trenches of English criminal law reform, combines a populist challenge to criminal law theory with an opinionated review of current doctrinal problems in English homicide law. The impact of each of these contributions would have been greater if they had been better and more explicitly connected. If his favored doctrinal solutions are motivated by his theoretical views he rarely explains how.
Horder objects to scholarly efforts to derive coherent rules of criminal law from moral principles or conceptual definitions, ignoring or disregarding popular opinion. He argues that this way of proceeding is undemocratic. Horder appears to particularly object to the tyranny of two prevailing positions in criminal law theory. One is the “correspondence principle,” defining offenses exclusively as injuries or endangerments to an interest combined with a mental state regarding that injury or endangerment. The other is “subjectivism,” requiring that offenders be punished according to their expectations of harm rather than the actual harm they cause.
When he turns to doctrinal issues, Horder mostly defends the proposals of the Law Commission on which he served. He supports continuing the English practice of conditioning homicide liability on culpable mental states with respect to injury (rather than only death) in violation of the correspondence principle. He also supports sweeping co-conspirator (or “joint venturer”) liability for secondary crimes, and expansive causal responsibility in violation of subjectivism. Yet, in so far as he defends these conclusions, he invokes moral principle rather than public opinion.
Horder challenges criminal law theory by asking why, in a democracy, criminal law scholars presume that their own normative views should matter in law reform. In a review of the history of criminal law reform in England, Horder offers an unflattering answer to this question. In the early nineteenth century, two orthogonal vectors pushed criminal law reform into the domain of the judges. On one hand, codifiers like Bentham critiqued existing criminal legislation as unreflective and reactive. On the other hand, conservative opponents of reform disparaged the rationality of the public and invoked the ideology of the benign common law. The result was that judges came to be seen as authoritative voices on law reform. Academics sought to influence judges by offering them theories and principles. They claimed privileged access to the judicial ear while also protecting the authority of judges by presenting law reform as concerned with technical questions requiring legal expertise. Eventually, after World War II, the prestige of academic experts was at an historic high and academics began to dispense with their judicial patrons and address the legislative and executive branches directly.
Throughout this development, legislators, officials, judges, and academics did not consult the general public. Benthamites by and large retired to their studies to work out systematic conceptual terminologies rather than gathering data about social utility. Late nineteenth century legal scholars studied the common law as a repository of societal experience rather than conducting victim surveys. Consultation of the public began to enter criminal lawmaking only with the spread of regulatory regimes, like those governing vehicles and drugs, into criminal law. Yet Horder critiques this form of consultation as limited to stakeholding pressure groups and excluding the general public.
Moreover, some criminal law reform efforts excluded the public by design. Horder points to the Royal Commission on Capital Punishment in the 1950s as having endeavored to reduce capital punishment without provoking popular backlash by stealthily expanding doctrines of mitigation. The unfortunate result, Horder complains, is a complex, arcane and incoherent body of doctrine that undermines norms against private violence, including domestic violence. Ironically, these perverse consequences persist long after the English public has come to accept the abolition of capital punishment.
In Horder’s view, criminal law is better reformed openly, with the participation of the public as a whole rather than just a few professional stakeholders. Academics should gather evidence of public opinion on questions of criminal justice as, for example, Paul Robinson and John Darley have done, and address their arguments and proposals to the public. Laws should have sunset provisions, requiring periodic review and reenactment.
Horder’s historical account suggests that criminal law scholars developed a professional self-image as idealized legislators by allying and identifying with anti-democratic institutions. As a result, they came to present potentially controversial moral views about criminal liability as technical requirements accepted by a professional consensus.
In perhaps the strangest twist, criminal law scholars eventually came to identify themselves as experts in moral philosophy, and to offer pronouncements on what rules of criminal law morality requires. In a liberal, democratic state, committed to tolerating moral disagreement while generally giving effect to majority will, one would expect a moral theory of criminal law to be a non-starter.
To be sure, criminal justice policy debates sometimes sound like clashes of moral philosophies. Much of the conceptual architecture of criminal law in common law systems, including the “correspondence principle” and “subjectivism” can be traced to the utilitarian legal theories of Bentham and Austin. Moreover, utilitarianism was long associated with arguments for leniency, including the abolition of capital punishment. Thus it may have seemed natural for the late twentieth century popular backlash against leniency to prompt renewed interest in retribution as an aim of punishment. Indeed, in the U.S., retribution figured prominently in arguments for capital punishment and determinate sentencing addressed to courts and legislators. Since desert is a moral concept, it may have seemed natural to justify retributive punishment as not just popular but morally required. The result was that while academic advocates of retributive punishment responded to shifting popular opinion, they erected their theory on the high ground of moral principle, rendering it impregnable to democratic critique.
While setting criminal law theory on moral foundations seems natural, it is not necessary. We can justify using punishment to maximize welfare without accepting a moral duty to maximize welfare in every act. We may simply recognize aggregate welfare as a reasonable criterion for public policy, that people of widely disparate moral views can agree on as a basis for public deliberation and collective action. Thus, regardless of its validity as a moral end, aggregate welfare is generally useful as a metric for law because it can supply legitimacy and thereby induce compliance and confidence. Indeed, Bentham advocated its use on just this basis.
We can similarly justify imposing punishments that meet widely shared criteria of fairness and desert without accepting a moral duty to do so. Thus, we may conclude that retributively just punishment legitimates law with the attendant benefits of compliance and security. Such punishment might restore the damaged social dignity of victims by effectively mobilizing collective disapproval of offenses, blame of offenders, and recognition of victims as worthy of protection. Knowing that equal social dignity is generally secured in this way might obviate vengeance and give potential victims a stake in the success of law. Identification with law could motivate compliance and support for its collective expressions of blame and respect. We might adopt such an institution of retributive punishment as conducive to a rule of law without committing ourselves to deontological ethics. Indeed, Paul Robinson has argued on a similar basis that retributively just punishment serves utility.
If indeed scholars can build criminal law theory on such pragmatic and political foundations, why don’t we? Horder’s history suggests that a more democratic account of the legitimacy of punishment would undermine legal scholars’ long-asserted claim of standing to participate in an elite process of policy development. A discourse of moral philosophy preserves our seat at an exclusive table, without inviting the public to join the party.
When Horder turns his attention from the process of law reform to substantive issues in the law of homicide, the reader expects him to offer democratic justifications for his proposals. Unfortunately, he does so only obliquely.
One theme running through Horder’s discussion of substantive law is his support for the traditional English pattern of conditioning homicide liability on intentional injury, in resistance to the correspondence principle. Thus he endorses his commission’s proposal to create a second degree of murder for killing with intent to commit serious injury as well as mitigated intentional killings. According to this proposal, first degree murder would include not only intentional killing, but also killing accompanied by an intention to seriously injure combined with awareness of a high risk of death. A killing with intent to inflict a moderate injury combined with awareness of a high risk of death would be graded as second degree murder. Finally, a killing with either intent to inflict a moderate injury or awareness of a high risk of serious injury would be graded as manslaughter. Thus, the commission’s proposal would condition all three grades of homicide liability on mental states regarding injury.
Horder hints that the correspondence principle offers no justification for excluding intent to injure from homicide law, because it lacks democratic legitimacy. Yet he never quite connects these dots. Horder might have further defended intent to injure homicide offenses as democratically legitimate on the grounds that they accord with settled tradition, are endorsed by democratically enacted legislation, and give jurors a manageable task. In most murder cases, there is no real evidence of intent to kill beyond intentional shooting, which is much stronger evidence of intent to wound. In the U.S., where intent to kill is generally required, juries typically nullify the law in favor of the prosecution by finding intent to kill on just such evidence. On the other hand, if they identify more with the assailant than the victim, perhaps for discriminatory reasons, a requirement of intent to kill authorizes them to reject a murder charge. It is arguably more honest and less subversive of the authority of law to bring it in line with prevailing jury behavior by requiring intent to wound rather than intent to kill.
Instead of making these kinds of arguments, Horder offers fragments of a moral theory of personhood. Thus he argues that physical integrity should be seen as a unified interest invested with personal identity so that the person herself is violated and her “life force” endangered by any interference with it. From this, he concludes that an intention to damage physical integrity in any way makes a killing culpable. It is hard to see what authority such a moral argument could have under Horder’s democratic premises.
In addition to supporting intent to injure as a mental element of homicide offenses, Horder supports joint venture liability for any secondary crimes “within the scope” of the agreement. This goes beyond American standards like the “Pinkerton Rule,” which also require that the secondary crime be foreseeable as a result of, and in furtherance of, the planned crime. Horder concedes that a simple “within-the-scope” standard can result in a co-venturer being guilty of a serious homicide offense with much less culpability than the actual killer. Yet he dismisses this concern as reflecting subjectivists’ unrealistic hope to banish moral luck from the criminal law. Presumably Horder believes that subjectivism, like the correspondence principle, lacks a democratic warrant. Yet he is sometimes responsive to subjectivist arguments. Thus Horder is very critical of American felony murder liability, even though it typically restricts accomplice liability more narrowly than his proposed coventurer rule. Although acknowledging that such a sweeping coventurer rule could impose undeserved liability, Horder defends it with conventional deterrence arguments. Thus he notes that gang members commit more crime and are more likely to carry deadly weapons than other members of the public. He also argues that common law courts will prevent undeserved outcomes by narrowing the rule. This reliance on judicial discretion hardly seems a very democratic approach to law reform. It becomes even harder to square Horder’s position with his democratic commitments when he acknowledges that available opinion evidence indicates that the public opposes co-venturer liability.
At such moments this reader wished that Horder had not tried to critique the origins of English homicide law and defend its content in the same book.
Guyora Binder, SUNY Distinguished Professor, State University of New York at Buffalo Law School