Criminal Theory and International Human Rights Law

Steven Malby

• Publisher: Routledge
• Year: 2019
• ISBN:
  9780429594434
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The development of an international human rights jurisprudence on criminalization is in its relative infancy. Nonetheless, systematic examination of international decisions on acts engaging the criminal law reveals an emerging human rights approach to the acceptability, or not, of criminalization. This book provides an in-depth characterization of the reasoning and principles that underpin those decisions.

The work builds upon and adds value to existing literature by bringing together two fields of study – international human rights law and criminal theory – that usually receive separate treatment. It provides an in-depth analysis of human rights criminalization jurisprudence and presents a systematic identification of underlying reasoning and concepts that influence international human rights decisions on criminalization. The work thus advances both fields independently, as well as providing an example of inter-(sub)disciplinary analysis.

The book will be a valuable resource for academics and students working in the areas of International Human Rights Law, Criminal Law, and Moral Philosophy.

1 Introduction

If criminal theory and international human rights law were ever considered the sole domain of philosophers, lawyers, and legislators, the critical questions with which they deal have undoubtedly been pushed into the mainstream. The terms “criminalization” and “human rights” are now common parlance. Debates on the criminalization, and perhaps more frequently decriminalization, of conduct emerge in the media on a regular basis. Such debates include whether conduct as diverse as forced marriage, squatting, polygamy, possession of narcotic drugs for personal use, and prostitution should or should not be a criminal offence. The criminal law makes headlines around the world when individuals are convicted and incarcerated, or even sentenced to death, for acts such as adultery, blasphemy, and apostasy. At the same time, human rights are often portrayed as at a global juncture, openly questioned by some and lamented as in demise by others, in the context of polarized societies and moves away from global dialogue and multilateralism.

Contemporary phenomena such as the misuse of global information and communications technologies, violent extremism, and terrorism increasingly present complex challenges to safe and peaceful societies. As governments develop new criminal law responses, an expanding reach of criminalization risks threatening the rule of law and a proportionately restrained criminal law. New criminal laws such as encouraging or preparing for acts of terrorism may come up against specific human rights law objections. The need for a principled criminal law, guided by external values and standards, is as great as ever.

Whilst the proper extent and nature of the criminal law have been a topic of intense academic debate from the time of John Locke, Jean-Jacque Rousseau, and Immanuel Kant, recent waves of development of criminal law theory have both reflected and ignited societal concern over the correctness of the scope of criminal liability. The influential 2007 text by Douglas Husak on overcriminalization, for instance, encapsulates an argument that the United States suffers from too much criminal law and too much punishment,¹ a theme subsequently emphasized at the political level by the Over-Criminalization Task Force of the Committee on the Judiciary of the United States House of Representatives.

Criminal theorists assert that the heart of the problem lies in the absence of a viable account of criminalization. A gap that Husak suggests is perhaps the single most glaring failure of penal theory. The criticism is that theorists, legislators, and judges have had too little to say about the proper scope of criminal law. As noted by Anthony Duff, if not directly about what kinds of conduct should or should not be criminalized, then at least about the considerations that should bear on questions of criminalization, and about the procedures through which such questions should be settled. This includes justification not only as to which acts should count as criminal offences but also as to when and why we should prefer criminalization to other possible ways of responding (or not responding) to such acts. As Duff notes, in a nutshell, we need to be clear about why rape, tax evasion, and driving when uninsured are properly criminal, as well as about why sexual infidelity and rudeness are not.²

1 Husak, D., 2007.

2 Duff, R.A., 2010, pp.16–19.

Recent years have seen a renewed focus on outlining, if not a theoretical framework for criminalization, then at least guiding moral and legal principles for use of the criminal law.³ Nonetheless, the literature is still far from a settled account of acceptable criminalization. Criminalization theory typically invokes an abundance of terms and concepts, including harm, offence, wrongfulness, morality and moralism, paternalism, culpability, public concern, legal goods, ultimo ratio (last resort), deterrence, and retribution. Such concepts may be found in a range of combinations, relationships, and interactions. A number of contemporary commentators have begun to coalesce around the idea that there is no unified, grand theory for criminalization but rather that basic elements may interact to make or deny a case for criminalization. Nonetheless, views on the exact content, place, and interrelationship of individual criminalization concepts remain incredibly diverse.

This perceived lack of clarity in the philosophical account of criminalization is not unrelated to an equivalent criticism made by Dennis Baker: that even the legal boundaries of criminal offences – and specifically their relationship with moral limits – are equally undefined.⁴ In practice, such legal limits are often expressed through constitutional limits on the criminal law. Constitutional constraints on the substantive criminal law are found, for example, in the US and German constitutions.⁵ Such constraints include the human rights and fundamental freedoms enshrined in most national constitutions. The existence of constitutional rights-based challenges to the criminal law has long been recognized by criminal theorists, who variously have either tried to rationalize criminalization findings of constitutional courts with reference to criminal theory or argued that constitutional rights are unsuitable as the cornerstone of a general theory of criminalization.⁶ Whether from a legal or philosophical perspective, however, a clear area for enquiry emerges: the need for a viable account of criminalization and the potential role of human rights in determining such an account. As López-Rey asserted from the legal-political perspective, over 40 years ago, crime is what is defined by law as such. On the other hand, the definition must take into account the existence of, and respect for, human rights and not merely be the expression of arbitrary power.⁷

3 See, for example, Simester, A.P., and von Hirsch, A., 2011; Ashworth, A., and Horder, J., 2013; Matravers, M., 2016.

4 Baker, D.J., 2011, p.1.

5 Bendor, A.L., and Dancig-Rosenberg, H., 2016; Lagodny, O., 1999.

6 Baker, D.J., 2011, pp.245–254; Simester, A.P., and von Hirsch, A., 2011, pp.134–137.

7 López-Rey, M., 1978, p.11.

This book is concerned with exactly that issue. Whilst human rights take many forms in both the domains of legal positivism and legal theory, the focus here is specifically on human rights as contained in international human rights law. From a global perspective, international human rights law stands as the only common international legal framework that can be applied across a range of modern dilemmas and that aims to clearly delineate state responsibilities and individual entitlements. The rights contained in international human rights law are often the same, or similar, to those protected by national constitutions. International human rights law, as a field in its own right, however, has its own jurisprudence, its own dedicated international mechanisms, and, as this book examines, its own approach to questions of criminalization.

International human rights law cannot be viewed as a substitute for domestic criminal or civil law. However, the positive international obligations of states to ensure realization of human rights will only be fully discharged if individuals are protected by the state, not just against violations of rights by its agent but also against acts committed by private persons or entities that would impair the enjoyment of human rights. This includes in the exercise of due diligence to prevent, punish, investigate, or redress harm caused by private persons or entities. At the same time, however, criminal law and penalties must always themselves avoid violating the rights of individuals. It seems almost self-evident that international human rights law would have something to say about the proper exercise of national criminal law. This book explores the differences between criminal theory and an international human rights law approach to criminalization, and considers whether gains may be achieved at the intersection of the two.

Bringing the two fields together

Whilst international human rights law jurisprudence on matters of substantive criminal law exists, the relationship between international human rights law and criminal theory has not been extensively or systematically explored. Rather, the literature tends to either reflect a broad discussion of a possible place for rights within criminal theory or be limited to examples of the human rights implications of criminalization of limited specific conduct, such as the criminalization of homelessness or HIV transmission.⁸ Where legal theorists have attempted to integrate a human rights discourse into criminalization theory, they have often not engaged seriously with the framework and lessons of international human rights law. Rather, many criminalization works are completed in isolation from developments in the jurisprudence of international human rights law, preferring instead theories based in welfare rights and deontological moral rights. One major recent initiative aimed at developing a normative theory of criminalization, for example, largely limited its discussion on the place of human rights in criminal theory to that of international criminal responsibility.⁹ It is perhaps not surprising that the non-governmental International Council on Human Rights Policy concluded in 2010 that there remains an urgent need for a human rights-based narrative of crime and criminality and responses to crime.¹⁰ In so far as any account of the criminal law must grapple seriously with the concept of wrongdoing, it appears that such a project could benefit significantly from a body of law and thought, such as international human rights law, that proclaims itself to be a foundation of freedom, justice, and peace in the world, as a common standard of achievement for all peoples and all nations.

8 See, for example, Hörnle, T., 2016; Langley, E.E., and Nardi, Jr., D.J., 2010; Baker D.J., 2009.

9 Renzo, M., 2013.

10 International Council on Human Rights Policy, 2010, p.v.

The limited examination of criminal theory together with international human rights law to date is perhaps all the more surprising in light of the fact that the two fields share a number of common features. From the perspective of underlying legal theory, both the notions of criminalization and human rights concern the idea of constraint on action. The subjects of this constraint are, of course, different: primarily states or public authorities in the case of international human rights law and individuals or groups of individuals in the case of criminal law. Nonetheless, both fields purport to guide their subjects, to a greater or lesser degree through the threat of sanctions for violation, as to an acceptable range of actions. In this respect, both fields share something of a common philosophical heritage from Enlightenment thinkers. The work and philosophy of Immanuel Kant, for instance, are habitually invoked in (separate) academic commentary on human rights and on criminalization.¹¹ Notwithstanding such elements of common heritage, however, legal philosophical work related to criminalization and human rights tends to remain compartmentalized. The elaboration of capability theory by Sen and Nussbaum, for example, occurred primarily within the language and context of human rights discourse. The theory is rarely discussed in the context of criminalization, despite the importance of criminalization as a constraint on permissible human action.¹² Conversely, well-known concepts that are inherent to many criminalization theories, such as harm theory, find little place within academic discourse on human rights. Indeed, academic commentators who systematically apply legal reasoning or moral and critical philosophy in such areas appear for the most part to identify themselves with the field of either human rights or criminalization, but rarely both.

11 In the field of human rights, see, for example, Demenchonok, E., 2009. In the field of criminalization, see Richards, D.A.J., 1979b.

12 A number of commentators have recently started to acknowledge the notion of Sen’s capabilities in the context of resources to be protected by the harm principle in criminalization theory. See, for example, von Hirsch, A., 2014, p.249.

In the positivist legal world, the two bodies of law frequently occ...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Table of Contents
• Tables and figures
• Preface
• Abbreviations
• 1. Introduction
• 2. An international human rights law approach
• 3. Rights in criminal theory
• 4. Crime and criminalization obligations in international human rights law
• 5. Criminalization in human rights treaties
• 6. Criminalization in human rights cases
• 7. Reasoning in criminalization cases
• 8. Differences between criminal theory and an international human rights law approach
• 9. The value of international human rights law for criminal theory
• 10. Conclusion
• References
• Table of ECHR criminalization cases by crime classification, outcome, and reasoning
• Index