Are crimes morally wrong?

By Hyman Gross

Are crimes morally wrong?

Yes and no; it depends. It’s easy to think we know what we’re talking about when we ask this question. But do we? We need to know what we mean by ‘crimes’. And we need to know what we mean by ‘morally wrong’. This turns out to be trickier than we may at first think.

First of all, there are two different conceptions of crimes, and the answer to our question will be different depending on which conception we have in mind.

One conception sends us to the law books, where crimes are defined in terms of the conduct, the consequences, and the circumstances that are required for a crime to be committed. Here, it is liability to criminal punishment that is of concern, and I will call this the criminal liability conception of crime.

The other conception, which I will call the narrative conception of crime, is quite different. When a crime is the subject of a story there are many things included that are legally irrelevant, yet often they turn out to be at the very heart of the story. The story will almost always include some account of what prompted the crime as well as interesting facts about perpetrator, victim, and others who are in one way or another related to the crime. News stories fit this conception of a crime, and so do the accounts in books that tell the story of the crime as a human narrative. Not all stories of crimes are equally interesting, yet each and every crime that interests the legal system has such a story to be told to anyone who will listen.

Just what is it that makes a crime morally wrong, if indeed it is morally wrong? Looking first at crimes as the law conceives them – the criminal liability conception of crime – I suggest there are three considerations to make:

1. The suffering a crime causes marks it as morally wrong.
2. Then there is the violation of rights when a crime is committed, such as a right to life, a right to be secure in one’s person and one’s property, and a host of other rights the law is intended to protect. Such violation of a right seems a good reason for regarding a crime as morally wrong.
3. And finally, admittedly more controversial, but not implausible, a third reason for saying a crime is morally wrong is the act of bad faith it represents in failing to observe a presumed undertaking to abide by the law, an undertaking that every member of society is bound to adhere to as a condition of enjoying the benefits of living in the society.

Crimes are of various sorts, and when subjected to moral scrutiny, different sorts turn out to be different morally. The most serious crimes, such as murder, rape, robbery, satisfy all three conditions. Other crimes satisfy only one or two conditions, which is enough to mark them as morally wrong, though less so. At the other extreme we have a myriad of crimes, created to enforce some special regulatory policy of government, where commission of the crime causes no suffering, violates no rights, and can not be said to be a breach of a mutual undertaking to abide by the law since the law is not of general benefit. Such crimes are therefore not morally wrong, though this does not mean that it is morally wrong to enforce them. That is quite a different matter. Though a crime may not be morally wrong, it is morally permissible for the law that creates it to be enforced so long as the policy the enforcement supports is a morally sound policy, and there is no alternative to criminalization to achieve compliance. Incidentally, and paradoxically, many crimes designated as morals offenses are not morally wrong. These crimes, which typically are related to sexual taboos, do not satisfy any of the three conditions and, furthermore, are often expressions of policies who soundness is questionable, as evidenced by their rapid disappearance with changes in social attitudes.

Now for what I have called the narrative conception of crime. Think of Billy Budd, Jesus Christ, Raskolnikov, and Colonel von Stauffenberg. This odd assortment each has his own very different story of a crime he committed. Asking whether the crime was morally wrong takes us into territory that the law itself knows nothing of, nor is there any reason why it should. The business of the law in determining criminal liability is a concern with the harm that has allegedly been produced or threatened by the conduct of the accused. Literature and history abound with examples of indisputable legal guilt and equally indisputable moral innocence welded together. Even in the humble everyday workings of criminal justice, the truth of tout comprendre, c’est tout pardonner resides in the very different moral assessment that the fuller context produces, for now we are judging human life, and not simply an abstraction from it that suits legal purposes. The case for moral exoneration is often stronger than the case for moral condemnation if all of the morally relevant elements bearing on the criminal conduct is given due consideration. It is not that the legal system means to be morally parsimonious or morally perverse, only that its role as protector and enforcer would be fatally compromised if what seemed the best case to be made morally, with everything of moral relevance admissible, were allowed to prevail in a court of law.

While determinations of guilt or innocence must adhere rigorously to the criminal liability conception of a crime, elements of the narrative conception show themselves at other stages of the criminal process where discretion is needed. In deciding whether to prosecute, and on what charges, a fuller picture of the person and the events will inevitably have significant influence. An even greater influence is exerted when sentencing decisions are made. And even during the course of a trial, a great deal of the evidence will influence a jury’s view of the defendant’s moral standing as that evidence tells a larger story even though the evidence is introduced just to determine whether he committed the crime. The view of his moral standing will, in the jury’s mind, tend to replaced the question “Did he, or didn’t he” with the more comprehensive question “Should we, or shouldn’t we, find him guilty”.

Crimes may or may not be morally wrong. Even if they are, that is not a good reason for punishing the perpetrator. What is a good reason is an equally tricky question. But I leave that for another day.

Hyman Gross is a retired law professor, now living in Cambridge, England, and is sometime Arthur Goodhart Professor of Legal Science and a Fellow of Corpus Christi College, Cambridge. He is the author of Crime and Punishment: A Concise Moral Critique

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