A few months ago, I was attending a university level criminal law class in a Muslim country that recognizes sharia law in the constitution. The class was lively, the students were prepared, and it was incredibly enjoyable listening to these students chew through topics like the presumption of innocence and burden of proof. At one point, during a discussion of the country’s penal code, a student raised his hand and asked why drinking alcohol was against the law in that country, when it was not criminalized in America. “How can one act be a crime in one country, and not in another?” The teacher, probably not willing to be waylaid by a philosophical discussion of “what is crime” punted the question and briefly talked about sharia before moving on. I think it’s too bad that the teacher didn’t delve into the question of “what is crime” because approached from a comparative law standpoint, it is pretty fascinating.
The differences in what acts are criminalized vary from country to country, even when religious law is not taken into account. A few years ago I was living in the Hague, clerking at a court there. The very excellent Anne Frank home and museum was a short train trip away in Amsterdam, and I visited a few times. At the end of the very affecting tour, the curators have set up an interactive learning center. One exhibit is a “you be the judge” kind of auditorium where they play a short documentary, and then ask the audience to vote on a moral or legal position. One hypothetical question involved a hate speech situation, where either political or religious reactionaries were advocating for extreme discrimination against a minority. The hypothetical question that the audience had to vote on was “should this speech be criminalized?” As a recent law school graduate, I was appalled that anyone would even ask the question. Of course not! In America we protect the rights of individuals as a paramount and fundamental value. My neighbors speech may be heinous, offensive, and despicable, but I defend his right to say it. (I also defend my right to respond.) I was shocked that more than half the audience disagreed with my position. I think that most of the audience was European. In discussing the issue with my German roommate later, she was unsurprised. The protection of minorities in the community outweighed free speech rights in many European countries, and she reflected that it was likely a direct outgrowth of post-WWII moral reflection.
Common law vs. civil law countries deal with defamation differently. In our common law country, we recognize that someone has legal recourse if they have been libeled or slandered, but it is classified as a tort, and therefore does not fall under criminal jurisdiction. In civil law countries, defamation is usually classified as a crime, and the victim of defamation has the right to go to police for relief. If anyone has seen or read “The Girl with the Dragon Tattoo” the opening scenes with regarding Mikael Blomkvist’s trial deal with criminal defamation charges, and in the book he actually serves jail time following the guilty verdict. (No, that’s not a spoiler, folks.) There can be both good and bad consequences for this rubric. While we dislike the outcome in Mikael Blomkvist’s case, I know of a domestic violence shelter in a civil law country that was able to shut down a muckraking journalist who was airing slanderous and dangerous statements about the shelter by appealing to the police and filing criminal charges.
So why am I thinking about this? After sitting in that criminal law class, it occurred to me that codification of laws (or the development of precedent in a common law system) is a process by which society makes decisions about its identity and morality. When something is deemed “criminal” it means that this issue is so important it moves beyond regular dispute and dispute resolution processes and rises to the level of government interference. What you, as a commiter of crime, have done is so serious that we ought to expend the treasure of the state and the time and effort of state agents (i.e. police) to find you, try you, and incarcerate you. Your business is so bad, it is now everyone’s business and we all pay to make sure you pay. Choosing what falls into that category is serious business, and it is not the same in every culture. Our own shared history as a nation trumps whatever human inclinations we have for collective protection and that results in varying codified outcomes across countries.
That’s the comparative part of it. Perhaps the more interesting part of it is to think about how we deal with that within our own society. In America what does crime mean? By and large, I think we are mostly in agreement about what constitutes crime. We all think that robbery, assault, and murder are bad and ought to be criminalized. We disagree when we reach two issues: (1) the procedure used for dealing with criminal trials, and (2) moral issues that intersect with religious injunctions. The discussion of Miranda rights can wait for another day (although I would argue that thanks to Dick Wolf and his Hollywood colleagues, Miranda rights are one of our most interesting exports). The moral issues that intersect with religious beliefs are tougher. In general, I think that most Americans share a common religion of protection of individual rights combined with promotion of safe communities. We are more liberatarian than many of our world neighbors and prefer to keep out of each others’ business when it is safe to do so. (Yes, I am using broad sweeping generalizations. Work with me here.) I think we could even consider that while most of our criminal laws reflect common morality, it is a secular morality that recognizes the autonomy and safety of members of the community. However, there are certain issues that are tougher: blue laws, alcohol laws, criminalization of certain sex acts and relationships, etc. How ought we to evaluate the criminalization of activities that we may consider to be wrong, but our neighbors do not recognize as wrong, or vice versa? Do we have an obligation to try and find common ground and agree on a course for the common good using utilitarian principles, or in the alternative, ought we to vigorously defend our moral positions reasoning that the other side has the ability to defend their ground and through that adversarial process we will find the best path as a society? Is compromise on criminalization of morality a moral good or a moral failure?