The Smoldering Core of the Criminal Law

It has been a couple of days since a jury decided on the death penalty for one of the two men who invaded the home of a Connecticut family, tortured and brutalized them, raped the mother and daughters, and slaughtered all but the father.  I've been reflecting on why there hasn't been much commentary in the legal blogosphere about the incident, an exceptionally horrible one factually.  My guess is that the lack of attention would be explained by the absence of any "legally" important question.  But two responses occur to me.  First, since when has that ever stopped people from commenting.  Second, and much more important, I don't think it's remotely true that the incident does not raise important legal questions; apart from the death penalty issue (a perennial favorite of legal academics), there is the horrible brutality of the incident itself.

I can anticipate that the response to that last point might well be -- but there's nothing of real academic interest for criminal law scholars in reflecting on horrifying facts.  And I think that's exactly right, but only as a descriptive account of the discomfort that legal academics feel when confronting what I want to call "the core" of the criminal law.

By "the core," I should first make clear what I don't mean.  I don't mean that all criminal acts partake of the core, or that to be "criminal" is to be within the core (that is, I don't mean something like a Rawlsian range property).  Clearly there are many criminally proscribed acts which do not share the attributes of the core.  I also don't mean that there is anything focal or of the essence of the core -- something that makes the core more essentially "criminal" than other acts which are not at the core but are also criminal.  (I take this to be something like John Finnis's description of focal cases of law in NLNR).

Instead, the core of the criminal law is merely a feature of certain kinds of criminality, a trait, sometimes present, sometimes not, but rarely (if ever) existing in other legal contexts.  The core of the criminal law concerns acts which powerfully elicit visceral fear and hatred because of their transgressiveness -- their violation of the most deep-rooted interdictions.  What makes these acts "core" is that they are legally unique insofar as they dredge up these sentiments.  Law students will not encounter them in civil procedure, or contracts, or property, or even torts (though perhaps certain kinds of intentional tort come close).  The core elicits an overpowering sense of foreboding, of terror, and even of rage at what must not be done.

One might wonder why criminal law scholarship so often neglects the core.  A first reason is methodological: criminal law scholarship often is influenced by criminological work, which has a social scientific orientation.  Still, as this sharp comparative paper by Joshua Kleinfeld points out, the subject of evil in criminal law is enormously -- almost intentionally -- under-theorized even by those who do not share those methodological commitments.  After surveying various classic sources which dealt penetratingly with the idea of evil -- St. Augustine's privation theory, Milton's ideas of wrongful choice, and Arendt's conception of banal malevolence -- Kleinfeld concludes that the most plausible characterization of evil for our modern times is something like "the blank and feral desire to harm," which takes form in a human being "that hates what is good, or just doesn't give a damn about it, because it is good, or for no reason whatsoever."  American law recognizes this as a feature of criminality.

But I doubt that most legal academics do.  The more important reason that the core of the criminal law is avoided, I think, is that it fits awkwardly with contemporary academic attitudes toward criminality.  It is deemed, at least implicitly, to be the vestige of a bygone, more barbarous, less humane age.  As Kleinfeld puts it, "there is in it something that feels too absolute, too rigid for reasoned social analysis in the contemporary style."  One can see this type of view even in the NY Times piece above, where legal scholars are much more inclined to focus on issues like procedural fairness and the right to a fair trial than the nature of the core.  When they do approach the core from a theoretical perspective, legal academics will make arguments from utility (deterrence, for example) that have only a glancing effect on it -- a bit like sprinkling a few droplets of water from one's hand onto the seething embers of a roaring fire.  Not only will the droplets have little impact on the coals; they will also elicit a disapproving hiss, as if the embers were saying, 'this is not the place for you.'  Even modern retributivist theories -- in many ways the intellectual children of Herbert Morris and Michael Moore -- have little to say directly to the core, as their largely Kantian premises about what all human beings deserve from the law sound somehow spectacularly out of place and irrelevant when one reads the passage by Don DeLillo quoted by Kleinfeld.

Indeed, it is a mark of our discomfiture with the core -- the strangeness of it to legal academic eyes -- that even a writer as sensitive as Kleinfeld must resort to fiction in attempting to access it.  It would be a rare thing indeed for a legal scholar to take real legal cases and make arguments about the nature of the core.  It is easier to imagine the core through fictional accounts than to believe it to be a very real part of our world.  To confront the core of criminal law requires a skill that is not often developed: something like the obverse of empathy.  If empathy is the exercise of imagination in order to understand sympathetically, its obverse is the exercise of imagination in order to understand antipathetically. 

I have tried to remain descriptive in this post, and have stayed clear of discussing whether we ought to be trying to strip criminal law of the core, to get past the idea of evil.  To be sure, that's an interesting question too, and perhaps even more interesting is whether the effort to do so will only deepen the chasm that separates academic law from real law.  Another issue -- also worth pursuing -- is this: if the traditional functions of punishment are not capable of addressing the core, might it be advisable to expand our theoretical repertoire?  Or even to reformulate our theories of punishment? 

Until then, the smoldering core of the criminal law will remain a fixture in the unspoken backdrop of academic discourse, a fault line in legal scholars' collective unconscious.