McGill Law Journal ~ Revue de droit de McGill
THE CHALLENGE OF THE BAD MAN
Michael Plaxton*
H.L.A. Harts insight, that some people
may be guided by an offence provision because
they take it as authoritative and not merely to
avoid sanctions, has had an enormous influence
upon criminal law theory. Hart, however, did
not claim that any person in any actual legal
order in fact thinks like the puzzled man, and
there is lingering doubt as to the extent to
which we should place him at the center of our
analysis as we try to make sense of moral prob-
lems in the criminal law. Instead, we might find
that our understanding of at least some issues
in criminal law theory is advanced when we
look through the eyes of Holmes bad man.
This becomes clear when we consider the re-
spective works by Hart and Douglas Husak on
overcriminalization, James Chalmers and Fiona
Levericks recent discussion of fair labeling, and
Meir Dan-Cohens classic analysis of acoustic
separation. These works also suggest, in differ-
ent ways, that an emphasis on the bad man can
expose the role of discretion in criminal justice
systems, and the rule of law problems it gener-
ates.
La suggestion de H.L.A. Hart que cer-
taines personnes obissent une disposition
pnale car ils la considrent comme une source
dautorit, plutt que pour simplement viter
des sanctions, a eu une norme influence sur la
thorie du droit pnal. Cependant, Hart na pas
prtendu que, dans les faits, toute personne
dans nimporte quel ordre juridique rel pense
comme lhomme perplexe et il existe des
doutes persistants quant la mesure dans la-
quelle nous devrions le placer au centre de
notre analyse alors que nous essayons de don-
ner un sens des problmes moraux au sein du
droit pnal. Plutt, nous pourrions dcouvrir
que notre comprhension dau moins quelques
questions de thorie du droit pnal est amlio-
re lorsque nous regardons travers les yeux de
l homme mauvais de Holmes. Cela devient
vident lorsque l’on considre les uvres res-
pectifs de Hart et Doublas Husak sur la surcri-
minalisation, la discussion rcente de James
Chalmers et Fiona Leverick sur ltiquetage
quitable et lanalyse classique de Meir Dan-
Cohen sur la sparation acoustique. Ces tra-
vaux suggrent galement, de diffrentes ma-
nires, quun accent sur lhomme mauvais peut
exposer le rle de la discrtion dans les sys-
tmes de justice pnale, et les problmes de
primaut du droit quil gnre.
* College of Law, University of Saskatchewan. I am grateful to Mark Carter, David Jen-
kins, Carissima Mathen, and Lisa Clark for their comments and suggestions on this
paper, and to Dwight Newman, Glen Luther, Findlay Stark, James Chalmers, and Fio-
na Leverick for their comments on an earlier incarnation of it. The usual disclaimer ap-
plies.
Citation: (2012) 58:2 McGill LJ 451 ~ Rfrence : (2012) 58 : 2 RD McGill 451
Michael Plaxton 2012
452 (2012) 58:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Introduction
I. Harts Puzzled Man
II.
Should We Care About the Puzzled Man?
III. The Bad Man and the Moral Limits of the
Criminal Law
IV. Husak on Overcriminalization: Recalibrating
the Terms of the Debate
V. Chalmers and Leverick on Fair Labelling
VI. Dan-Cohen and the Brutality of Acoustic
Separation
Conclusion
453
454
456
459
465
468
474
479
THE CHALLENGE OF THE BAD MAN 453
Introduction
In The Concept of Law, H. L. A. Hart distinguished criminal offences
from orders backed by threats.1 He did so by observing that a person
might be guided by an offence provision not because it credibly threatens
her with sanctions, but because she takes it as an authoritative pro-
nouncement that the course of conduct it prohibits is wrongful. This in-
sight has had an enormous influence upon criminal law theory. Hart,
however, did not claim that any person in any actual legal order respond-
ed to criminal prohibitions in the manner of the puzzled man, and there
is lingering doubt as to the extent to which we should place him at the
centre of our analysis as we try to make sense of moral problems in the
criminal law. Instead, we might take Holmes bad manthe person who
responds to the threat of sanctionsas our model.
In this paper, I want to make three modest and related claims. First, I
argue that with respect to some issues in criminal law theory, it is appro-
priate to assume that compliance with criminal prohibitions is driven, at
least in part, by fear of sanctions rather than by respect for legal authori-
ty. Second, I argue that once we premise laws effectiveness on the fear of
sanctions, our attention is inevitably drawn away from the role of the leg-
islature in the criminal justice system and toward the discretionary deci-
sions of executive actors (e.g., police officers and prosecutors). Finally, this
emphasis on discretion makes apparent ubiquitous rule-of-law problems
that an emphasis on the puzzled man would tend to obscure. To make
these claims, I draw upon four works presupposing that at least some le-
gal subjects respond to criminal prohibitions in the manner of the bad
man: Harts Law, Liberty, and Morality, Douglas Husaks important book
on overcriminalization, James Chalmers and Fiona Levericks recent pa-
per on fair labelling, and Meir Dan-Cohens noteworthy paper on acoustic
separation.2
This paper proceeds in six Parts. Parts II to IV dwell predominantly
on Harts use of the puzzled man and the bad man in his work on juris-
prudence and criminal law theory. Part II explains Harts argument that
an appreciation of laws normativity requires us to conceptually separate
criminal prohibitions from criminal sanctions. This point, we will see, has
1 HLA Hart, The Concept of Law, 2d ed (Oxford: Clarendon Press, 1994) [Hart, The Con-
cept of Law].
2 HLA Hart, Law, Liberty, and Morality (Stanford: Stanford University Press, 1963)
[Hart, Law, Liberty, and Morality]; Douglas N Husak, Overcriminalization: The Limits
of the Criminal Law (Oxford: Oxford University Press, 2008); James Chalmers & Fiona
Leverick, Fair Labelling in Criminal Law (2008) 71:2 Mod L Rev 217; Meir Dan-
Cohen, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law
(1984) 97:3 Harv L Rev 625.
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been quite influential. Part III warns against reading too much into
Harts discussion of normativity in The Concept of Law. His object, there,
was to make a conceptual claim about the nature of law, and not an em-
pirical claim about the attitude that actual citizens in any actual legal or-
ders have toward criminal prohibitions. Hart did not deny, then, that
some (perhaps many or all) citizens could obey criminal prohibitions solely
to avoid sanctions. We will see in Part IV, moreover, that Harts own ar-
guments about the moral limits of the criminal law presuppose that at
least some of those subject to criminal prohibitions would think along the
lines of a Holmesian bad man.
Parts V and VI examine the role of the bad man in three later works
in criminal law theory, and show that this shift in emphasis toward the
bad man leads us to devote closer attention to the role and significance of
administrative discretion in the criminal justice system. In Part V, we will
see that Douglas Husaks objection to overcriminalization is premised on
the scope of discretion enjoyed by prosecutors when deciding whether and
how to charge suspects for alleged violations of the criminal law, and on
the fact that this discretion interferes with the ability of citizens to weigh
the costs attached to law breaking. Husaks understanding of overcrimi-
nalization as a rule-of-law problem, then, is grounded in his presupposi-
tion that citizens frequently think like Holmes bad man. In Part VI,
moreover, I look at Chalmers and Levericks recent discussion of fair la-
belling. Like Husak, they anticipate that members of the public obey the
criminal law primarily to avoid sanctions and not wrongdoing as such.
Fair labelling, on their reading, is a concern insofar as executive actors
fail to explain to offenders how and why their conduct was subject to sanc-
tions. This transforms the issue of fair labelling into a problem of admin-
istrative discretion rather than a problem with the way in which criminal
legislation is crafted.
Finally, in Part VIII, I consider Dan-Cohens paper on acoustic separa-
tion. Dan-Cohen argues that, inasmuch as some citizens obey the law only
to avoid sanctions, the laws concealment of the rules guiding discretion in
the criminal justice process amounts to a kind of brutality. In taking that
view, Dan-Cohen echoes concerns expressed by Husak that police and
prosecutorial discretion are problematic from a rule-of-law perspective.
And, although Chalmers and Levericks analysis could be seen as a reply
to Dan-Cohen, their approach ultimately raises new rule-of-law issues.
I. Harts Puzzled Man
In The Concept of Law, Hart purported to show that laws are not
merely orders backed by threats akin to the demands of an armed ban-
THE CHALLENGE OF THE BAD MAN 455
dit.3 We may obey the bandit only insofar as she has the power to oblige
us to do so; that is, to the extent she makes threats that are sufficiently
terrible, and convinces us that she is willing and able to enforce them if
and when we fail to comply with her demands.4 By contrast, Hart argued,
at least some people obey the substantive criminal law because they re-
gard themselves as obligated to do so (i.e., because they believe they ought
to follow the substantive rules it contains) whether or not a threat of pun-
ishment is attached to a criminal prohibition, and whether or not there is
any realistic prospect that violations of the prohibition will be investigat-
ed, prosecuted, or punished. For these people, represented in The Concept
of Law by the figure of the puzzled man, the very fact that a course of
conduct has been declared criminal by the legislature provides a reason to
regard it as wrongful, and therefore as a course of action to be avoided.
The criminal laws normative significance distinguishes it from the orders
of the gunman.
Once we look at the criminal law through the eyes of the puzzled man,
Hart claimed, we are better able to understand how it is distinct from
other legal rules. The law is shot through with provisions setting out the
circumstances under which a member of the public may be subjected to
one sort of deprivation or another. Income tax legislation sets out the con-
ditions under which a person may be moved into a higher tax bracket.
Civil forfeiture laws articulate some of the conditions under which a per-
son may be deprived of property. Civil commitment legislation tells us
some of the circumstances under which the mentally ill may be forcibly
detained. Each of these statutory provisions aims simply at distributing
benefits and burdens. At first glance, we might regard the substantive
criminal law in the same way as we regard these other provisionsas
statements of the conditions under which a person will undergo a depriva-
tion (either in the form of a fine or a term of imprisonment). To the puz-
zled man, though, they are not the same. Income tax legislation does not
aim at discouraging people from earning more income. Property may be
seized as proceeds of crime whether or not it was obtained in a blamewor-
thy fashion. If and when the mentally ill are forcibly committed, it is for
the sake of their own well-being or the protection of others, and not be-
cause they have done anything warranting disapproval. Criminal pun-
ishment, on the other hand, necessarily is administered to censure the of-
fender for engaging in wrongdoingfor breaching an obligation. It is in
this sense that a fine is materially different from a tax; that a prison sen-
tence is different from state-imposed quarantine.
3 Hart, The Concept of Law, supra note 1 at 19.
4 Ibid ch 2.
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To say that criminal sanctions are supposed to censure wrongdoing,
rather than distribute benefits and burdens, is just to make a common-
sense (but, before Hart, surprisingly elusive) observation: the primary
purpose of the substantive criminal law is not to tell police officers when
they can arrest citizens,5 prosecutors when (and what) they can charge,
triers of fact when they can convict, and judges what kinds of sentences
they can deliver. Rather, its central object is to guide citizens away from
the kinds of wrongful conduct that, if proven, warrant criminal depriva-
tions in the first place. If the criminal law truly functioned as it shouldif
it successfully and authoritatively conveyed the wrongfulness of all the
courses of action it sought to condemnthere would be no crimes to pros-
ecute or punish.6
II. Should We Care About the Puzzled Man?
Despite Harts influence, it is not universally accepted that we can
conceptually separate the criminal laws normative force from the use of
sanctions. There are at least two reasons for doubt. First, Hart did not
suggest that everyoneor even anyonein a given legal order has the
puzzled mans socialized perspective of the criminal law.7 His project,
remember, was only to describe the concept of law; to provide an account
of the essential features of law, as opposed to the contingent features of
any particular legal order.8 To that end, Hart observed that it is possible
to imagine a legal order in which sanctions are not used to enforce prohi-
bitions.9 He invoked the puzzled man to illustrate how and why a person
could regard a criminal prohibition as obligation-creating even in the ab-
sence of a sanction. But Hart never insisted that citizens in any particular
legal system ought to think about the criminal law in the fashion of the
puzzled man, and did not claim that any actual citizens do.
Second, there is something suspicious about Harts suggestion that le-
gal obligations can be conceptually divorced from sanctions. His argument
was primarily grounded in the observation that when ordinary people
speak of having an obligation to do something, they mean something
5 I use the term citizen as a shorthand for members of the public. Obviously, the sub-
stantive criminal law is meant to guide everyone within a countrys borders, not only
citizens in the strict sense.
6 Hart, The Concept of Law, supra note 1 at 38-39.
7 Ibid at 198.
8 Ibid at 239.
9 Ibid at 198 (noting that sanctions are not required as the normal motive for obeying
the law, but only as a guarantee).
THE CHALLENGE OF THE BAD MAN 457
other than that they are obliged to do it.10 We might speak of the gun-
man obliging us to do his bidding, Hart argued, but surely not of him
obligating us to do so. The trouble with this argument, as Schauer has
recently noted, is that it is not self-evident that we do use these words in
importantly different wayswe frequently speak of people with obliga-
tions as being obliged, and of people who are obliged as having obliga-
tions.11 We should not make too much of this point; at any given time, we
may slide between talk of being obliged and talk of having obligations
because we cannot be bothered to reflect on whether we have, at that
moment, a genuine duty. Fuzzy usage may simply reflect fuzzy thinking.12
This in itself, though, suggests that we should not rely on conventions of
usage as a central pillar in an account of legal obligations.
If we discard Harts argument on the distinction between obliged
and obligated, it begins to appear quite problematic to claim, as a de-
scriptive matter, that we can have legal obligations in the absence of at
least the threat of sanctions.13 Hart produced no empirical evidence in
support of such a claim.14 As we have seen, he thought it unnecessary (in-
deed, counterproductive) to examine the features of any actual legal sys-
tems given that his aim was to describe the essence of law. But if his ac-
count of the essence of law omits a feature that many of us consider an
important fact about all legal systems in the world as we know itthat
they deploy sanctionsthen we may well wonder how it is, properly
speaking, a description at all. This is all the more true with respect to the
criminal law, which, Hart pointedly observed, best (if imperfectly) fits the
Austinian sanction-based theory.15
We may agree, of course, that a society in which citizens obey the law
because they regard legal obligations as legitimately imposed has, all oth-
er things being equal, a healthier legal order than one in which sanctions
(whether formal or informal) are relied upon to secure compliance.16 Cer-
10 Ibid at 82-91. See also Leslie Green, Positivism and the Inseparability of Law and
Morals (2008) 83:4 NYUL Rev 1035 at 1048-49.
11 Frederick Schauer, Was Austin Right After All? On the Role of Sanctions in a Theory
of Law (2010) 23:1 Ratio Juris 1 at 12-14.
12 See Andrew Halpin, Definition in the Criminal Law (Oxford: Hart Publishing, 2004).
13 See Schauer, supra note 11 at 13.
14 This point lies at the heart of the criticism that The Concept of Law fails as a descrip-
tive sociology: see Stephen R Perry, Harts Methodological Positivism (1998) 4:4 Le-
gal Theory 427.
15 Hart, The Concept of Law, supra note 1 at 31.
16 See Dale A Nance, Rules, Standards, and the Internal Point of View (2006) 75:3 Ford-
ham L Rev 1287 [Nance, Internal Point of View]; W Bradley Wendel, Lawyers, Citi-
zens, and the Internal Point of View (2006) 75:3 Fordham L Rev 1473.
458 (2012) 58:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
tainly, it may be worthwhile to consider how citizens can be encouraged to
think like the puzzled man, and thereby reduce the (perceived) need for
legal institutions to rely upon threats. But if we want to explain how the
criminal law actually does create obligations and how it ought to function
in the world in which we live, we may think it wise to recognize the fact
that many citizens do not resemble the puzzled man in the way they think
about criminal prohibitions. Instead, they think (at least sometimes) like
Holmes bad man, the figure who cares only for the material conse-
quences which … knowledge [of the law] enables him to predict.17 To the
bad man, the substantive criminal law is useful, not mainly (or, anyway,
not only) because it signals which courses of action are morally wrongful,
but because it makes it possible for him to predict when a deprivation will
be imposed. In the eyes of the bad man, the criminal law lacks the norma-
tive significance it has for the puzzled man. To be sure, the bad man re-
gards the substantive criminal law as an institution that affects how he
ought to act, but only in the prudential, self-interested sense of ought.
He believes that he ought not to engage in speeding in the same sense in
which he believes he ought not to earn just enough to fall into a higher
income tax bracketthat is, because he stands to lose money by acting in
these ways.18 To say that the deprivation is a fine on one hand and a tax
on the other is to draw a distinction without a difference to the bad man.
By contrast, the puzzled man takes a criminal prohibition not only as a
harbinger of harm[s] that may or may not happen to befall him if he
runs afoul of it, but as a good and valid reason why others should subject
him to strong criticism if he runs afoul of it.19
It was plainly with the bad man in mind that Hart remarked that,
practically speaking, it may be inadvisable for a legal order to attempt to
function without the threat of sanctions. This is not just because the bad
man will respond to criminal prohibitions only to the extent that breaches
will meet with deprivations. It is also because the puzzled man may feel
himself under considerable pressure to violate the law if he knows that
others are willing to do so, and can do so with impunity. As Hart said:
[S]ubmission to the system of restraints would be folly if there were
no organization for the coercion of those who would then try to ob-
tain the advantages of the system without submitting to its obliga-
tions. Sanctions are therefore required not as the normal motive
for obedience, but as a guarantee that those who would voluntarily
17 OW Holmes, The Path of the Law (1897) 10:8 Harv L Rev 457 at 459.
18 Ibid. I proceed here on the basis that higher income tax rates are not levied on a mar-
ginal basis.
19 See Scott J Shapiro, The Bad Man and the Internal Point of View in Steven J Burton,
ed, The Path of the Law and Its Influence: The Legacy of Oliver Wendell Holmes, Jr.
(Cambridge, UK: Cambridge University Press, 2000) 197 at 198-200.
THE CHALLENGE OF THE BAD MAN 459
obey shall not be sacrificed to those who would not. To obey, without
this, would be to risk going to the wall.20
Notwithstanding Harts observations about the lack of any necessary con-
ceptual connection between obedience and sanctions, then, the bad man
still exerted some pull on his analysis of the criminal law. To make this
point is not to call into question Harts central claims about laws norma-
tivity, but to note that his claim was conceptual, not empirical. Indeed, we
may want to acknowledge that certain discrete issues in the substantive
criminal law can be appreciated best if we approach them from the point
of view of the bad man. The overcriminalization debate provides a case in
point.
III. The Bad Man and the Moral Limits of the Criminal Law
For one familiar with Harts path-breaking work on normativity, Law,
Liberty, and Moralityhis important reply to Lord Devlin on the moral
limits of the criminal law21can be a disorienting experience.22 This is
true for a number of reasons. First, Hart follows Devlins lead in framing
the central issue as one concerning the legal enforcement of morality.23
Indeed, at the outset of the book, he expresses an intention to address the
following questions: Is the fact that certain conduct is by common stand-
ards immoral sufficient to justify making that conduct punishable by law?
Is it morally permissible to enforce morality as such? Ought immorality as
such to be a crime?24 Hart, then, straightaway gives the impression that
the prohibition per se of sexually immoral practices is not his primary
concern; rather, his concern is with the use of the criminal law to coerce
citizens into complying with accepted standards of sexual morality.
This is interesting from a thinker who, in The Concept of Law, rejected
any necessary connection between obedience and the threat of sanctions.
The clear implication was that the criminal law is not inherently coer-
20 Hart, The Concept of Law, supra note 1 at 198 [emphasis in original]. Hart uses similar
language in Punishment and Responsibility: Essays in the Philosophy of Law, 2d ed
(Oxford: Oxford University Press, 2011) at 50 [Hart, Punishment and Responsibility].
21 See Patrick Devlin, The Enforcement of Morals (London: Oxford University Press,
1959). See also Nicola Lacey, A Life of H.L.A. Hart: The Nightmare and the Noble
Dream (Oxford: Oxford University Press, 2004) at 256-59.
22 Hart, Law, Liberty, and Morality supra note 2.
23 Ibid at 4 [emphasis added].
24 Ibid [emphasis added].
460 (2012) 58:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
cive25 since the puzzled man will obey because he wants to avoid wrongdo-
ing and accepts that the legislature is the final arbiter on what wrongdo-
ing entails. Yet, the puzzled man is nowhere to be found in Harts analysis
of what it is that is prima facie objectionable in the legal enforcement of
morality.26 Consider these remarks:
[T]he idea of legal enforcement … has two different but related as-
pects. One is the actual punishment of the offender. This character-
istically involves depriving him of liberty of movement or of property
or of association with family or friends, or the infliction upon him of
physical pain or even death. All these are things which are assumed
to be wrong to inflict on others without special justification.27
He continues:
The second aspect of legal enforcement bears on those who may
never offend against the law, but are coerced into obedience by the
threat of legal punishment. … [I]t is itself the infliction of a special
form of sufferingoften very acuteon those whose desires are
frustrated by the fear of punishment. This is of particular im-
portance in the case of laws enforcing a sexual morality. They may
create misery of a quite special degree. For both the difficulties in-
volved in the repression of sexual impulses and the consequences of
repression are quite different from those involved in the abstention
from ordinary crime. Unlike sexual impulses, the impulse to steal
or to wound or even kill is not, except in a minority of mentally ab-
normal cases, a recurrent and insistent part of daily life. Resistance
to the temptation to commit these crimes is not often, as the sup-
pression of sexual impulses generally is, something which affects the
development or balance of the individuals emotional life, happiness,
and personality.28
The concern, in both passages, is not for the citizen who accepts the legis-
latures determination that some sexual practice or another is wrongful
and decides on that basis not to engage in itHarts concern is for the
person who does not accept it, and is either punished for disobedience or
coerced into complying by the threat of legal punishment. Insofar as we
cannot separate his reasons for obeyingif he doesfrom the point that
sanctions may be imposed for breach, the object of Harts concern cannot
be the puzzled man. Rather, it must be Holmes bad man.29 This is further
25 On the point that law is not inherently brutal, see Jeremy Waldron, Torture and Posi-
tive Law: Jurisprudence for the White House (2005) 105:6 Colum L Rev 1681 at 1726-
27.
26 Hart, Law, Liberty, and Morality, supra note 2 at 21.
27 Ibid.
28 Ibid at 21-22.
29 The fact that a person may be characterized as a Holmesian bad man merely because,
or to the extent that, she is prepared to game or skirt laws enforcing sexual morality
THE CHALLENGE OF THE BAD MAN 461
underscored by the fact that Hart clearly thought it important to his ar-
gument to show that sexual offences in the United States were, at least
occasionally, actually enforced and prosecuted:
No doubt much, and perhaps most, of this American legislation
against sexual morality is as dead a letter as it is commonly said to
be. But the facts as to law enforcement are at present very hard to
establish. In many states, California among them, the annual crimi-
nal statistics do not usually break down figures for sex crimes fur-
ther than the two heads of Rape and Other sexual offences. But
in Boston as late as 1954 the sex laws were reported to receive
normal enforcement, and in 1948 there were 248 arrests for adul-
tery in that city. No one, I think, should contemplate this situation
with complacency, for in combination with inadequate published sta-
tistics the existence of criminal laws which are generally not en-
forced places formidable discriminatory powers in the hands of the
police and prosecuting authorities.30
Again, there is no obvious reason to care about arrest and prosecution sta-
tistics for sexual offences unless Harts principal worry is that citizens
face a real threat of prosecution and punishment, a concern that would be
decidedly less urgent if citizens were guided by criminal prohibitions irre-
spective of sanctions.
That Hart himself framed the issue as one of unjust punishment and
coercion is noteworthy because of the approach he took in The Concept of
Law. He is not, however, the only significant thinker to pose the matter in
these terms. Joel Feinberg, introducing his exhaustive four-volume work
on the subject, defended his decision to focus exclusively on the criminal
law in part by observing: The threat of legal punishment enforces public
opinion by putting the nonconformist in a terror of apprehension, render-
ing his privacy precarious, and his prospects in life uncertain. The pun-
ishments themselves brand him with societys most powerful stigma and
underscores that there may not be anything especially bad about the bad man. He
need not be evil, only insufficiently socialized to accept the legislatures determination
that a given practice is truly wrongful. Indeed, criminal laws enforcing sexual morality
so troubled Hart, as the above quotation suggests, because they require people who
generally respect the law to choose between obedience and happiness. The photogra-
pher Cecil Beaton, lamenting that it had taken so long for consensual sodomy to be de-
criminalized in Britain, remarked: It is not that I would have wished to avail myself of
further licence, but to feel that one was not a felon and an outcast would have helped
enormously during the difficult young years (Hugo Vickers, ed, Beaton in the Sixties:
The Cecil Beaton Diaries as They were Written (Michigan: Knopf Publishing, 2004) at
185). Laceys biography of Hart shows that he would have been exceedingly sensitive to
the difficulties to which Beaton alluded: see Lacey, supra note 21 at 74-75.
30 Hart, Law, Liberty, and Morality, supra note 2 at 27.
462 (2012) 58:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
undermine his life projects, in career or family, disastrously.31 Feinberg,
like Hart in Law, Liberty, and Morality, emphasized the coercive aspects
of criminalizationwhich is to say he presupposed that many citizens
would not respond to at least some criminal prohibitions like Harts puz-
zled man.
It is easy to see why Hart paid so little attention to the puzzled man in
Law, Liberty, and Morality. Intuitively, the problem with illiberal uses of
the criminal law-making power is that it diminishes the autonomy of citi-
zens.32 When people are made to comply with a criminal offence through
the credible threat of sanctions, it is reasonably plain that their autonomy
has been undermined to some extent. It is less obvious, however, that the
autonomy of citizens is similarly undermined when they comply with a
criminal statute just because they accept the legislatures determination
that the course of action it has criminalized is indeed wrongful. It would,
after all, be strange to infer that a person acts with something less than
complete autonomy simply because she chooses not to act in a way that
she believes would be a wrong way to act. By that reasoning, Dworkins
judges lack autonomy when they decide cases in the manner of Hercules
rather than flip a coin;33 Christian husbands and wives lack autonomy
when they choose to live monogamously with one another; chess players
lack autonomy when they choose to move their rooks only lengthwise
across the board rather than diagonally; and English pub goers lack au-
tonomy when they offer to buy the bartender a drink rather than offer a
tip.34 To be sure, Harts puzzled man, Dworkins judge, the faithful hus-
band, the chess player, and the English pub goer are all constrained in
some sense by the rules of the practice in which each is engaged, but only
in the sense that each takes deviation from those rules as good and valid
reasons for criticizing themselves.35
This is not to deny that a persons autonomy can be compromised by
the beliefs she has. A person born into slavery may think it right to obey
31 Joel Feinberg, The Moral Limits of the Criminal Law: Harm to Others, vol 1 (Oxford:
Oxford University Press, 1984) at 4.
32 Consider the analysis in William Wilson, Central Issues in Criminal Law Theory (Ox-
ford: Hart Publishing, 2002) ch 1.
33 See Ronald Dworkin, Taking Rights Seriously (Cambridge, Mass: Harvard University
Press, 1978) ch 4.
34 See Kate Fox, Watching the English: The Hidden Rules of English Behaviour (London:
Hodder & Stoughton, 2004) at 95-98.
35 For the definition of a practice, see Alasdair MacIntyre, After Virtue: A Study in Moral
Theory, 3d ed (Notre Dame: University of Notre Dame Press, 2007) at 187-88. For
Harts discussion of rules, see Hart, The Concept of Law, supra note 1 ch 4-5.
THE CHALLENGE OF THE BAD MAN 463
her master, never giving a thought to escape.36 Women, particularly in
developing countries, may believe it is wrong to learn even basic literacy
skills, leaving themselves at the mercy of their families.37 A person sub-
jected to intense brainwashing may hold an entire set of values that we
would hesitate to call her own.38 We do not tend to think that merely be-
cause such people contentedly (or resignedly) act on the beliefs they hold,
their autonomy is anything other than impaired. Quite the contrary, we
think of them as essentially trapped in (perhaps stiflingly narrow) world
views.39 But these are decidedly stark examples, in which individuals are
denied the psychological or mental resources to function as fully fledged
moral agents in the first place. Once we leave these limit cases behind,
we will (rightly) be reluctant to say that people who choose not to act in
one way rather than another, on the basis of their belief that the course of
action in question is wrongful, are acting anything other than autono-
mously. For that reason, debates surrounding the moral limits of the
criminal law cannot presuppose that citizens have the puzzled mans atti-
tude toward law without obscuring the fact that what is at stake is their
autonomy.
Before moving on, it is worth noting that Hart also reserved a space
for the bad man in his other great work on criminal law theory, Punish-
ment and Responsibility. Hart claimed that the central justifying aim of
criminal punishment is to reduce future wrongdoing.40 For Hart, the in-
fliction of suffering is never valuable in and of itself; it is defensible only
insofar as it discourages the commission of wrongful acts. It may be possi-
ble for criminal punishment to nudge individuals away from law breaking
even if there are no Holmesian bad men in a given society. As Hart ob-
served on a number of occasions, even the puzzled man needs the assur-
ance that, by obeying the law, he does not leave himself uniquely vulner-
able to predators whose obedience is predicated on cold calculations of
profit and loss.41 But the puzzled man is not motivated by the sanction. It
is, rather, a background consideration informing his judgment that the
law will guide others; that it will serve to coordinate everyone, and that
36 See, for instance, the figure of Uncle Tom in Harriett Beecher Stowes Uncle Toms Cab-
in (Cambridge, Mass: Harvard University Press, 2009).
37 See Martha C Nussbaum, Women and Human Development: The Capabilities Approach
(Cambridge, UK: Cambridge University Press, 2000) at 1.
38 For a discussion of brainwashing, see David Sussman, Whats Wrong with Torture?
(2005) 33:1 Phil & Pub Aff 1 at 8-11.
39 Ibid at 9-10.
40 Hart, Punishment and Responsibility, supra note 20 at 6-7.
41 Hart, The Concept of Law, supra note 1 at 198; Hart, Punishment and Responsibility,
supra note 20 at 50.
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he may allow himself to be guided by it. The person who stands to be most
influenced by the sanction is Holmes calculating bad man. What is more,
the sanction provides assurance to the puzzled man only to the extent
that it is capable of giving the bad manif he existsa motivation to
obey the law that he might otherwise lack.42
Harts argument for recognizing excusing mental conditions hints at
an even stronger role for the bad man. Hart acknowledges that the avail-
ability of excuses tends to diminish the deterrent effect of criminal pun-
ishment, since some members of the public will try to use them to escape
liability even when the prohibited act was intended.43 The very fact that
some citizens think like the bad man, then, calls into question the utility
of excuses.44 Yet, Hart claims, we should nonetheless insist that the crim-
inal law recognize excuses. In doing so, he argues, the law respects us as
choosing being[s].45 It allows us to predict when sanctions will be im-
posed and to decide whether the costs of engaging in a given course of ac-
tion outweigh the benefits.46 The availability of excuses is salutary, in
other words, precisely because it allows us to make the very sort of cost-
benefit calculations that Holmes bad man would want to make before de-
ciding whether or not to obey the law. This is a good thing, Hart wants to
say, because the criminal law may be oppressiveit may require us to do
things that are morally wrongful or prohibit courses of actions that are, on
any plausible moral theory, innocent. In making this point, Hart refers to
apartheid South Africa, Soviet Russia, and Nazi Germany,47 but he might
just as easily have mentioned laws enforcing sexual morality. Harts ar-
gument for excuses buttresses his argument in Law, Liberty, and Morali-
ty. On his analysis, moral limits on the criminal law and the availability
of excuses both preserve the autonomy of citizens, albeit in somewhat dif-
ferent ways. The former ensure that citizens can be guided by the law
without needlessly sacrificing their individual conceptions of the good life;
the latter ensures that, where the state fails to heed moral limits on the
criminal law-making power, citizens are nonetheless in a position to
choose between adherence to law and adherence to conscience.48 In both
42 See the discussion by John Gardner in his introduction to Punishment and Responsibil-
ity, ibid at xliii.
43 Ibid at 43-44, 49.
44 Ibid at 49.
45 Ibid.
46 Ibid at 47.
47 Ibid.
48 For a brief discussion of Harts view of excuses, see Gardners introduction in ibid at
xlvi-xlviii.
cases, though, Hart shows the relationship between law and autonomy by
evoking the bad man.
THE CHALLENGE OF THE BAD MAN 465
IV. Husak on Overcriminalization: Recalibrating the Terms of the Debate
In the previous section, I deliberately avoided using the term over-
criminalization. There is a good reason for this. The term has an ambigu-
ity that, if glossed over, invites us to collapse quite different arguments
and concerns into each other as if they were the same. Overcriminaliza-
tion can refer to the criminalization of courses of action that legislatures
(at least those in liberal democratic states) ought not to make criminal.
On this understanding, thinkers who address the phenomenon of over-
criminalization are more or less talking about the moral limits of the
criminal law. Overcriminalization in this sense is concerned with what
the legislature may criminalize: with whether, for example, it may crimi-
nalize conduct on the basis of the harm it causes to oneself, specified oth-
ers, or to society at large; or whether offensiveness is sufficient basis for
criminalization; or whether the criminal law-making power may be used
to address private in addition to public wrongs. The foundational works of
Mill,49 Devlin,50 Hart,51 and Feinberg52 (to say nothing of the contributions
by Dworkin53 and Duff54) all tackle the phenomenon of overcriminalization
in this narrow sense.
An exclusive focus on the what of criminalization makes it impossi-
ble to criticize certain uses of the criminal law-making power that many of
us find intuitively problematic. Kent Roach, for example, vigorously criti-
cized the Canadian Parliament for devising new criminal offences in re-
sponse to the 9/11 attacks.55 This criticism was based, in part, on the
premise that there was no need for such offencesthat existing criminal
offences would have been adequate to prosecute and convict the 9/11 at-
tackers, even before the attack had been carried out.56 But there can be
little doubt that acts of terrorism, by any standard, pass the threshold for
what the state is entitled to criminalize, even assuming that the prepara-
49 See John Stuart Mill, On Liberty (New Haven: Yale University Press, 2003) ch 1, 4.
50 Devlin, supra note 21.
51 Hart, Law, Liberty, and Morality, supra note 2.
52 Feinberg, supra note 31.
53 Ronald Dworkin, Lord Devlin and the Enforcement of Morals (1966) 75:6 Yale LJ 986.
54 See RA Duff, Answering for Crime: Responsibility and Liability in the Criminal Law
(Oxford: Hart Publishing, 2007) ch 6.
55 Kent Roach, September 11: Consequences for Canada (Montreal: McGill-Queens Uni-
versity Press, 2003) at 23-25.
56 Ibid at 21-23
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tory offences do not. Roachs overarching objection to the use of the crimi-
nal law to address terrorism concerns was not that Parliament had ap-
plied the wrong test for what may be criminalized, but that it was unnec-
essary. There is little or nothing in Hart or Feinbergs work that gives us
the resources to make sense of such a problem.
To say that critics of overcriminalization have tended to worry about
the what of criminalization is just to say that their preoccupation has
been with the undue expan[sion of] the type of conduct subjected to liabil-
ity.57 Many new offences, in fact, do not have this effect. Many overlap
with preexisting offences,58 in the sense that they create new bases of lia-
bility for conduct that would have been criminal with or without the new
offence. Furthermore, we have seen that overlapping offences often target
clearly harmful or wrongful conduct (albeit conduct that has already been
targeted by other offences). Traditional criticisms of overcriminalization,
therefore, simply do not apply to them. In order to explain why the crea-
tion of overlapping offences is problematic, we must use overcriminaliza-
tion in a broader sense: as an issue, not with what the criminal law-
making power is used to prohibit, but with how often it is used.
Husaks Overcriminalization confronts this issue head on. He observes
that, even if new offences do not expand liability, they expand the discre-
tionary powers of prosecutors. By giving prosecutors new and further ba-
ses upon which to charge individuals, new offences facilitate charge-
stacking and make it easier to leverage guilty pleas and obtain higher
(and disproportionate) sentences.59 The sheer number of possible ways to
be charged for a given course of conduct makes it virtually impossible for
even informed members of the public to predict how they might be pun-
ished for engaging in such conduct.60 This, Husak concludes, amounts to a
serious rule-of-law issue.61
Husak worries that legal officials, particularly prosecutors, have too
much discretion to punish citizens. The proliferation of criminal offences
places legal officials in a position in which they could successfully prose-
cute an offender for any one of several offences, each carrying a quite dif-
ferent sanction, even though there was only a single criminal transaction.
Though decision rules (to use Dan-Cohens language)62 narrow the cir-
cumstances under which one may be successfully prosecuted for, say, as-
57 Husak, supra note 2 at 20.
58 Ibid at 9, 36-37.
59 Ibid at 14-15, 21-27, 37-38.
60 Ibid at 29-31.
61 Ibid at 27.
62 See discussion in Part VI below.
THE CHALLENGE OF THE BAD MAN 467
sault, they do not require legal officials to address a given criminal act as
an assault rather than some other criminal offence. Since it is the decision
to charge a given offender in one way rather than another that will ulti-
mately determine whether and how her criminal conduct will be sanc-
tioned, and since the phenomenon of overcriminalization presents the
prosecutor with an extensive menu of (more or less unreviewable) charg-
ing options, Husak implicitly argues that decision rules in fact do little
work in constraining prosecutorial discretion.
This lack of constraint is a rule-of-law problem for Husak because pos-
sible offenders cannot predict how they would be sanctioned if they en-
gaged in criminal conduct. This would not be so problematic for Husak if
he took the view that citizens ought to adopt the point of view of the puz-
zled manin that case, it would not obviously matter that a given crimi-
nal act could be sanctioned in any number of (unpredictable) ways, so long
as citizens knew in advance that the act was criminal. Husak, though,
proceeds on the basis that citizens are entitled to know when and how
breaches will be sanctioned.63 His discretion-focused critique of overcrimi-
nalization rests on the view that individuals are entitled to know not just
whether a course of conduct is criminal, but (roughly) how it will be pun-
ished if prosecuted. The average person, he claims, responds to criminal
legislation not like Harts puzzled man but like Holmes bad man. Husak
remarks, Without endorsing the whole school of jurisprudence Holmes
sought to defend, he clearly articulated the central concern of laypersons
who make inquiries about the law.64 He reiterates this point later: I as-
sume that laypersons are raising Holmess question when they ask how
the law will react to a marijuana offender.65
Husak puts the bad man at the centre of his analysis for the same tac-
tical reason that Hart did in Law, Liberty, and Morality: without doing so,
it is difficult to grasp what is morally problematic about overcriminaliza-
tion in its broad sense. Since the puzzled man does not need the threat of
sanctions to be guided by criminal prohibitions, the fact that he does not
know what those sanctions will be is irrelevant. That being the case, it
makes no difference to him that overcriminalization expands prosecutori-
al discretion. But it makes an important difference to the bad man, whose
decision to obey (or not) rests on a calculation of costs and benefits. Wide
prosecutorial discretion prevents the bad man from making that decision
in an informed way, and, to that extent, interferes with his autonomy.
Just as Hart could not explain how overcriminalization in the narrow
63 Husak, supra note 2 at 17-32.
64 Ibid at 27.
65 Ibid at 29.
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sense affects autonomy without positing a citizen who thinks like the bad
man, so Husak is similarly constrained when he tries to explain how au-
tonomy is undermined by overcriminalization in the broad sense.
Husaks work is instructive in an additional way: it illustrates, to a
degree Harts work does not, that when we consider the criminal law from
the perspective of the bad man, we shift our attention away from the leg-
islature that crafts criminal prohibitions and toward the conduct of ad-
ministrative actors in the criminal justice system.66 To be sure, Husaks
answer to the overcriminalization problem complicates this reading. He
suggests that the state should bear a burden of justificationif only a po-
litical burdenwhen new criminal offences are created.67 He does not
claim that prosecutorial discretion is problematic in itself. That position,
however, may simply reflect the centrality of discretion in Anglo-
American criminal justice systemsto propose limitations on it is effec-
tively to propose a radical transformation of the way those systems func-
tion.68 To avoid making that more contentious argument, Husak instead
suggests political limits on the creation of new offences. There is no doubt,
though, that the problem he wants to address is administrative discretion,
and that it is revealed as a problem only by drawing upon the experience
of the bad man.
V. Chalmers and Leverick on Fair Labelling
By presupposing that at least some ordinary citizens respond to crimi-
nal prohibitions in the manner of the bad man, Husak draws our atten-
tion away from legislative processes and toward executive decision mak-
ing and discretion. Once we shift our attention away from the impact that
declarations of wrongfulness as such will have on the puzzled man and
toward the impact that criminal prohibitions as a deterrent threat will
have on the bad man, we are irrevocably led to consider how decisions to
arrest, prosecute, and convict are actually made, and whether they are de-
66 Hart, to a degree, acknowledged that the quoted passage in Part III indicates some
alertness to the connection between issues of criminalization and executive discretion:
see supra note 20. But he was chiefly preoccupied with the states criminalization of of-
fences of sexual morality, and especially with offences that tended to be committed in
private, between consenting adults, and that therefore could not be easily enforced.
That may explain why Hart, though focusing on the bad mans experience of overcrimi-
nalization in the narrow sense, did not dwell on executive discretion. See the discussion
of Hart, Law, Liberty, and Morality (supra note 2) in Part III.
67 Husak, supra note 2 at 128-29.
68 See Benjamin L Berger, The Abiding Presence of Conscience: Criminal Justice Against
the Law and the Modern Constitutional Imagination (2011) 61:4 UTLJ 579 at 610-13.
See also Rachel E Barkow, The Ascent of the Administrative State and the Demise of
Mercy (2008) 121:5 Harv L Rev 1332 at 1351ff.
THE CHALLENGE OF THE BAD MAN 469
fensible. We are led to focus, in other words, upon the very questions that
preoccupy the bad man. We can see the pull of the bad man away from
abstract substantive law and toward policing and prosecutorial practice in
James Chalmers and Fiona Levericks work on fair labelling.69
The principle of fair labelling expresses the common conviction that
the name we attach to a criminal offence should, at least to some degree,
accurately track the nature and magnitude of the wrongdoing it pro-
scribes.70 The principle should be distinguished from the related view that
the elements that must be proven by the Crown in order to secure a con-
viction for a given offence should reflect the wrong that Parliament seeks
to address by creating that offence.71 Even if the elements of a given of-
fence are such that no citizen can be convicted of it without engaging in
the wrongful conduct targeted by Parliament, we have a powerful sense
that the name given to the offence can itself be inappropriate insofar as it
misrepresents the nature or magnitude of the wrong targeted. The reason
is straightforward enough: to say only that a given course of conduct is
criminal tells us nothing about the precise wrong that Parliament has
sought to address by making it criminal. And, in various contexts and for
various reasons, it is often important that we and others be able to identi-
fy the precise wrong that Parliament meant to target with a particular of-
fence.
That is, of course, only half of the story. We may agree that people
sometimes need to know whats wrong with a particular criminal act,
yet think that offence elements can tell us all we need to know. If the ele-
ments of an offence can only be proven when a person has engaged in the
targeted wrong, then why not look to them rather than the offence label to
reveal what the targeted wrong is? We can get some insight by looking to
two observations by Dan-Cohen. First, few citizens (we may reasonably
suppose) have direct contact with offence elements, and fewer still would
be expected to know how those elements have been interpreted by the
courts. They will likely know, for example, that theft is a crime, and may
believe that they know what theft entails in its ordinary meaning (even
if they disagree with each other about what that ordinary meaning is).
But there is no guarantee that the ordinary sense of theft will match the
technical, legal meaning of theftindeed, the former will often be
69 Chalmers & Leverick, supra note 2.
70 Andrew Ashworth, Principles of Criminal Law, 5th ed (Oxford: Oxford University
Press, 2006) at 88.
71 See Victor Tadros & Stephen Tierney, The Presumption of Innocence and the Human
Rights Act (2004) 67:3 Mod Law Rev 402; Duff, supra note 54 at 200.
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broader than the latter.72 Insofar as it is ordinary citizens, rather than le-
gal officials, who need to grasp the precise nature of the targeted wrong,
offence elements generally have little (or, at best, hypothetical) value.
Second, the fact that the technical meaning of an offence label is narrower
than its ordinary meaning does not necessarily mean that Parliament in-
tended to target a narrower class of wrongs. It may merely have decided
that, in some circumstances, citizens should not be punished for engaging
in the targeted wrong. One may, then, get a distorted sense of Parlia-
ments intention by looking to the offence elements rather than the of-
fence label.
The principle of fair labelling has not been subjected to much focused
scholarly attention. Its importance has tended to be presupposed by crim-
inal law thinkers invoking it in the course of making an argument about
something else. That has changed with James Chalmers and Fiona Lever-
icks recent analysis.
Chalmers and Leverick examine a range of arguments that can be
made in support of the principle of fair labelling. For our purposes, two
have particular interest. First, the principle of fair labelling might be said
to protect the reputation of offenders by ensuring that their criminal rec-
ords do not misrepresent the nature and gravity of their transgressions to
non-legal officialsi.e., the media, prospective employers, and the public
at large.73 Chalmers and Leverick are receptive to this argument, noting
that non-legal professionals will generally rely on the offence label as they
decide how it is appropriate to treat a given offenderfor example, as
dishonest rather than violent, reckless rather than malicious, or oppor-
tunistic rather than predatory. Whereas legal officials need offence labels
merely to differentiate one offence from another, non-legal decision mak-
ers rely upon offence labels to accurately describe the nature and magni-
tude of the wrong in question.74
Second, fair labelling may be thought to ensure that offenders are
properly educated as to what they did wrong, such that criminal punish-
ment is not experienced as an arbitrary burden.75 Interestingly, Chalmers
and Leverick dismiss this argument almost out of hand. They write:
But this is not a particularly convincing justification for fair la-
belling. If one is to educate offenders in this way, the offence name
72 Where the technical legal meaning is broader than the ordinary meaning, more urgent
rule-of-law concerns arise: see e.g. Stephen Shute, Appropriation and the Law of Theft
[2002] Crim L Rev 445.
73 Chalmers & Leverick, supra note 2 at 226-29.
74 Ibid at 238-39.
75 Ibid at 229-30.
THE CHALLENGE OF THE BAD MAN 471
itself is unlikely to be of much significance. What might be more ef-
fective (if indeed there is any educative benefit to be gained here at
all) is the magnitude of the sentence and the explanation given by
the sentencing judge as to why this was merited. Indeed, if this ar-
gument has any force, it is probably in the context of changing the
beliefs of those working within the criminal justice system. The crea-
tion of a new offence of domestic violence, for example, rather than
simply prosecuting acts of domestic violence as assault, might be one
way of communicating to criminal justice professionals that such in-
cidents should be taken seriously.76
This passage is intriguing. It suggests that offenders may be educated
about their legal obligations as a result of their interaction with criminal
justice officials and decision makersthose people who decide whether a
certain kind of conduct is caught in the net of a criminal statute, how vig-
orously it should be enforced, or what sort of sentence is appropriate for
breachesbut are unlikely to learn anything from the mere fact that a
criminal statute labels a certain kind of conduct as wrongful. They will
draw guidance, in other words, less from the offence label than from the
rules that influence legal officials as they decide whether and how to ar-
rest, prosecute, and convict citizens for criminal conduct. The clear sug-
gestion is that offenders are more like the bad man than the puzzled
man.77 This conclusion is buttressed by the fact that Chalmers and Lever-
ick were equally dismissive of the argument that the offence label in itself
could serve a deterrent effect. They remark:
There is little, if any, evidence that potential offenders are deterred
even by the severity of sentences, never mind the name of the of-
fence of which they might be convicted. The only factor that has been
shown to have even a marginal deterrent effect upon potential of-
fenders is the likelihood of being caught. As Ashworth himself has
noted in the context of robbery, many offenders lead chaotic lives
and are unlikely to deliberate rationally on either probable penalties
or offence names.78
76 Ibid at 229.
77 It may be that when writing this, Chalmers and Leverick were concerned only with the
educative or expressive function of the label at the time of punishment, and not its pow-
er when the actor decides what to do. I do not find this possibility terribly troubling,
since it is unclear how the label could be more educative or expressive at the time the
prospective offender decides upon her course of action than after she has been convict-
ed. Indeed, one would think that, if anything, the offender would be more receptive to
messages conveyed by the label than someone who had yet to be convicted for engaging
in the criminal conduct in question.
78 Chalmers & Leverick, supra note 2 at 230. Consider, by way of example, the public fu-
ror that has erupted in both Canada and the United Kingdom as a result of cases in
which a homeowner or shopkeeper has used force against an intruder or robber.
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Again, Chalmers and Leverick suggest that prospective offenders are
concerned less with the expression of wrongfulness conveyed by the of-
fence label than with the likelihood of enforcementthat is, with the
rules that govern exercises of official discretion. This is intriguing, not
least because, though Chalmers and Leverick speak in terms of offend-
ers and prospective offenders, their observations about the educative
and deterrence rationales do not obviously have less application when we
replace offenders with citizens.
There is, in Chalmers and Levericks assessment of the arguments
marshalled in favour of fair labelling, a striking split. They accept that of-
fence labels can help employers, the media, and members of the public as
they attempt to make sense of the nature and magnitude of an offenders
wrongful conduct. At the same time, they reject the view that offence la-
bels can serve an educative function for offenders. That is striking because
the prospective employer can be expected to have no more understanding
of the decision rules governing official discretion than the offender.
The difference can easily be explained. Offenders rely on decision rules
when deciding how to act because their primary concern is to avoid sanc-
tions, not to avoid wrongdoing as such. Employers and the media, by con-
trast, do not need to look to rules guiding discretion when trying to make
sense of what makes an offenders past criminal conduct wrongful. They
know that the applicable decision rules, whatever they are, permitted the
offender to be convicted for the offence in question. Knowledge of the spe-
cific content of those decision rules would only put employers and the me-
dia in a position where they could say why this offender was convicted
when another person who engaged in the targeted wrong was not (or
would not be). That sort of information might come in handy now and
again, as when media reports of a criminal conviction provoke members of
the public to worry that a particular criminal offence is over inclusive. But
if the aim is only to identify the sense in which the offenders conduct was
wrongfulto, again by way of example, distinguish dishonest acts from
violent onesthe fact that the offence label fails to distinguish sanctiona-
ble from sanctionless wrongs is of no moment.79
Chalmers and Leverick, then, reject the usefulness of offence labels
precisely because they do not give citizens sufficient notice of the manner
in which legal discretion will be exercised. Members of the public, una-
ware of the degree to which an offence label truly reflects the circum-
79 Of course, as Chalmers and Leverick implicitly recognize, it will be quite important for
the media to understand the content of decision rules when reporting that an individual
was acquitted of an offence, since the significance of an excuse-based defence is quite
different from that of a justification-based defence. Failure to appreciate the signifi-
cance of this distinction may well explain the phenomenon of quasi-justificatory drift.
THE CHALLENGE OF THE BAD MAN 473
stances under which the offence will be enforced, will simply opt not to
look to the offence label for guidance in the first place, preferring instead
to rely upon breakdowns of acoustic separation80 to provide the guidance
they seek. The message seems plain: offenders and potential offenders
care about the circumstances under which sanctions will be administered,
not about legislative expressions of wrongfulness as such. In this sense,
they resemble the bad man.
Whether or not we accept Chalmers and Levericks presupposition
that members of the public should be treated like bad men, it is interest-
ing to note how that suggestion affects the way we think about fair label-
ling problems. So long as we suppose that citizens look to the criminal
prohibition itself for guidance, it is possible to think that the label itself
serves an important role in informing them as to the nature of the wrong
it targets and the reasons why offenders deserve to be punished. But once
we deny that citizens find the declaration of wrongfulness a compelling
reason in itself for avoiding criminal behaviour, the label appears to serve
little or no educational function. The bad man is, of course, still concerned
about arbitrary detention and sanctions, but the mere fact that the legis-
lature has said that a course of action is wrongful does not lead him to
conclude that he deserves to be punished for engaging in it. To him, the
legislatures declaration means only that, when legal officials arrested
him and subjected him to fines or imprisonment, they acted within the
grant of authority conferred upon them. His concern, in other words, is
not with the arbitrariness of the legislature, but with the arbitrariness of
the officials administering its instructions. To learn anything about arbi-
trariness in that sense, the offender must, as Chalmers and Leverick sug-
gest, have some insight into the content of the decision rules police offic-
ers, prosecutors, and juries are meant to apply.
But this, in turn, means that the principle of fair labelling, to the ex-
tent it is animated by concerns about the offenders education, should be
directed not at the legislature crafting the offence prohibition, but at the
police officers, lawyers, trial judges, and (arguably) media outlets who
transmit the content of decision rules to the public at large. For our pur-
poses here, we can set aside the question of what these various actors do
or ought to do to make exercises of discretion appear less arbitrary to sus-
pects, defendants, and offenders. For our purposes, what matters is that
these exercises of discretion, and the constitutional, procedural, and pro-
fessional rules that guide them, are not tangential to a discussion of fair
labelling. Once we imagine a society of bad men, these rules go to its
core.
80 See the discussion of Dan-Cohen in Part VI below.
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VI. Dan-Cohen and the Brutality of Acoustic Separation
Husak, by situating the bad man at the heart of his analysis of over-
criminalization, shifted our attention away from duties on the legislature
and toward exercises of discretion by executive actors. Likewise,
Chalmers and Levericks discussion of the principle of fair labelling, and
particularly their discussion of its supposed educative function, effectively
invite us to think about arbitrariness in a new wayone that places an
emphasis on the decision rules guiding executive discretion rather than
the propriety of the label legislatively tacked onto the offence in question.
In this section, I want to make a further pointnamely, that the empha-
sis on the bad man also shines a light on rule-of-law concerns built into
Anglo-American criminal justice systems that might otherwise go unno-
ticed. To do that, I want to draw on Meir Dan-Cohens paper on acoustic
separation.81
The core insight of Hart, that the criminal law primarily lays down
rules for the guidance of citizens, and only secondarily lays down rules to
guide the decision making of legal officials (like police officers, prosecu-
tors, juries, and judges), animated Meir Dan-Cohens observation that
many rules in the criminal law do not speak to ordinary citizens at all.82
We can distinguish between decision rules and conduct rules. Conduct
rules are addressed to members of the public for the purpose of guiding
their behaviour.83 We might see prohibitions on robbery or theft as con-
duct rules: they advise citizens that it is wrongful to engage in robbery or
theft, and that these are courses of action to be avoided. Decision rules are
addressed to legal officials, and set out the conditions under which citi-
zens may be convicted of criminal offences, and whether and how they
should be punished.84 We might see rules requiring an acquittal where an
offence was committed under duress, or guidelines directing sentencing
judges to grant absolute discharges to people convicted of theft of goods
valued less than $5.00, as decision rules.
Dan-Cohen observes that conduct rules might fail to express the
wrongfulness of certain courses of actionor at any rate, might fail to ar-
ticulate it as forcefully as they otherwise wouldif the citizens they pur-
port to guide are also exposed to decision rules. A member of the public
who knows that theft under $5.00 will not be punished, or even prosecut-
81 Dan-Cohen, supra note 2.
82 Ibid. See also Nance, Internal Point of View, supra note 16 at 1289.
83 Dan-Cohen, supra note 2 at 626-34.
84 Ibid. We might speak just as well of guidance rules and enforcement rules: see Dale
A Nance, Guidance Rules and Enforcement Rules: A Better View of the Cathedral
(1997) 83:5 Va L Rev 837.
THE CHALLENGE OF THE BAD MAN 475
ed, may take that as a signal that it is a not-inappropriate course of ac-
tion, despite the terms of the criminal prohibition. A member of the public
aware of the defence of necessity may be too quick to conclude that a peril
is sufficiently dire, imminent, and unavoidable that she is justified or ex-
cused in committing a criminal offence to avert it. By contrast, someone
who knows only that theft has been criminalized may not assume that
theft under $5.00 is any less wrongful than any other kind of theft. Some-
one who knows nothing of the defence of necessity or the circumstances
under which it will be accepted in a courtroomthat is, who knows only
that a course of action has been declared wrongful by a criminal stat-
utewill hesitate to engage in that prohibited conduct unless she truly
has no option but to do so.
As the above suggests, Dan-Cohens argument rests on the supposition
that the state may want to authoritatively express the wrongfulness of a
particular kind of conduct, yet not want to punish all, some, or even any of
the persons who engage in it. There are different reasons why one may
not want to punish certain offences. We recognize excuses (or exemptions)
for the mentally ill for reasons of fairness. It may be thought wise not to
prosecute petty thefts because of the scarcity of resources. We may want
to encourage narrow interpretations of offence definitions to avoid, for ex-
ample, imprisoning people for private conduct that, though undesirable or
objectionable, strikes us as an inappropriate basis for criminal sanction.
Importantly, though, we may still think that the conduct in question is
wrongful, and that the state should use criminal statutes to guide citizens
away from it. It is, therefore, simply a mistake for citizens to seek guid-
ance from decision rules (or enforcement rules).85
Because the criminal law is best able to carry out its primary expres-
sive function if citizens are exposed only to conduct rules and not decision
rules, Dan-Cohen argues, members of the public are often not alerted to
judicial decisions interpreting terms of art in offence definitions, or clari-
fying the boundaries of defences.86 Indeed, he claims that courts some-
times refuse to recognize defences in contexts where acoustic separation
could not reliably be maintained. We might add that citizens have tradi-
tionally not been thought entitled to information about how charging de-
cisions are to be made.87
85 On this point, it is interesting to consider Jeremy Waldrons argument that state inter-
rogators are not entitled to know the specific point at which an interrogation amounts
to torture: see Waldron, supra note 25 at 1701-703. Consider also the thin ice principle
discussed in Andrew Ashworth, supra note 70 at 73-74; Husak, supra note 2 at 75.
86 Dan-Cohen, supra note 2 at 636-40, 646-51.
87 See R v Power, [1994] 1 SCR 601 at 626, 117 Nfld & PEIR 269 [Power cited to SCR]
(strongly suggesting that the Crown not publish a list of factors that it will consider
476 (2012) 58:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Although Dan-Cohen argues that various legal doctrines presupposed
the value of acoustic separation and, in a sense, prioritized the puzzled
mans experience of criminal prohibitions, he does not suggest that Anglo-
American societies are in fact populated by puzzled men. On the contra-
ry, he takes as given that many citizens look to criminal prohibitions
chiefly in order to predict when sanctions will be imposed. For this reason,
Dan-Cohen acknowledges that the idea of the criminal law articulating
one set of norms to citizens and another to legal officials raises troubling
rule-of-law issues. Indeed, he takes the phenomenon of acoustic separa-
tionthat is, of criminal laws strategy of duplicity and concealmentas
a symptom of laws inherent brutality.88 Whether or not citizens ought to
rely on defences when deciding how to act, or construe criminal prohibi-
tions in light of how judges ultimately will interpret them, it seems plain
that many members of the public will and do reason in precisely this way,
or at least would if they had more complete information about the content
of decision rules. For these people, the likelihood of enforcement is a rele-
vant consideration when deciding whether a criminal prohibition should
be obeyed. Insofar as they obey unenforced conduct norms only because
they have been misled into believing that violations will meet with sanc-
tions, Dan-Cohen suggests, it could be said that they have been coerced.
To be sure, Dan-Cohen claims that accusations of coercion and brutali-
ty should be taken with a grain of salt. He dwells on three points in par-
ticular. First, it is not obvious that people who engage in prohibited con-
duct expecting to rely on defenceslike, for example, duress and necessi-
tyare in fact entitled to rely on them at all. The defences of duress and
necessity exculpate because the defendant had, in a sense, no choice but
to engage in the conduct in question. If the accused was in a position to
consider the availability of defences, Dan-Cohen suggests, then her hand
was not truly forced and the defences are not genuinely available at all.
when deciding whether to exercise its discretion to charge). But see R (Purdy) v DPP,
[2009] UKHL 45, [2009] 4 All ER 1147 (holding the opposite with regard to prosecutori-
al discretion in cases of assisted suicide). The House of Lords suggestion in this case
that the Director of Public Prosecutions has an obligation to publish its charging guide-
lines so that a citizen can make an informed decision as to whether or not she should
commit a criminal offence seems to fly in the face of Harts understanding of criminal
laws normativity. We should, however, hesitate to read too much into the decision.
First, the Lords were clear that this obligation is not general but offence specific. Sec-
ond, the choice that Ms. Purdy was called upon to make was particularly stark: either
ask her husband to help her commit suicide abroad once she was truly unable to end
her own life, risking criminal prosecution for her husband in the process, or end her
own life without assistance but before she actually needed to do so. The Lords may have
implicitly decided that, however unreasonable it may be to think like the bad man in
most instances, it is at least somewhat reasonable to want to parse a criminal prohibi-
tion as finely as possible when the alternative is to end ones own life prematurely.
88 Dan-Cohen, supra note 2 at 673-77.
THE CHALLENGE OF THE BAD MAN 477
Second, although grave rule-of-law concerns arise when people are pun-
ished for conduct that they did not know was criminal, they do not arise
nearly to the same extent when people are deterred from engaging in con-
duct that is, in fact, not punishable according to the applicable decision
rules. Finally, the rule of law is first and foremost valuable insofar as it
ensures that citizens are guided in their behaviour. Citizens who respond
to conduct rules rather than decision rules have not received less guid-
ance. Indeed, we may think that they have, in a sense, received better
guidance as to how they should act than the person who considers both
conduct and decision rules.
But, again, these arguments were made, as it were, in mitigation
they did not affect Dan-Cohens view that the criminal law is inherently
brutal. There is, after all, only one reason for withholding information
about decision rules: to obtain the compliance of citizens who would oth-
erwise commit non-sanctionable offences.89 By definition, the strategy is
used to coax citizens who do not unreflectively accept the legislatures au-
thority to settle moral questions into outwardly acting as if they do.
Acoustic separation is used, in other words, to avoid having to engage citi-
zens in debate over the proper limits of the legislatures moral authority.
Rather than deal with its citizens as rational people amenable to persua-
sion, the legislature manipulates them into complying.90 To be clear, it
may be necessary for legislatures to adopt this kind of approachit is dif-
ficult to imagine a legislature getting anything done if it was constantly
required to defend its claim to authority. That, however, only underscores
Dan-Cohens suggestion that actual legal systems are coercive at their
core.
The deep connection between law and coercion also illustrates an im-
portant but rarely mentioned aspect of Harts discussion of legal orders.
By conceptually separating criminal prohibitions from sanctions, Hart
seems to suggest that legal orders are not inherently coercive. (This im-
pression is strengthened by the fact that Hart focused his attention on the
English and American legal systems, rather than other, more tumultuous
legal orders.)91 As we have seen, Hart rested his argument on the concep-
tual possibility of citizens treating criminal prohibitions as authoritative
89 C.f. Samuel W Buell, The Upside of Overbreadth (2008) 83:5 NYU L Rev 1491.
90 It is interesting to compare the idea of acoustic separation with Thaler and Sunsteins
strategies of libertarian paternalism: see Richard H Thaler & Cass R Sunstein, Nudge:
Improving Decisions About Health, Wealth, and Happiness (New Haven: Yale Universi-
ty Press, 2010) especially at 244-46 (discussing libertarian paternalism in relation to
Rawls publicity principle).
91 See AW Brian Simpson, Reflections on The Concept of Law (Oxford: Oxford University
Press, 2011) at 160.
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declarations of wrongfulness. In any actual legal order, though, we are
likely to find that at least some citizens do not think that way about crim-
inal offences.92 Because that is only a contingent fact about legal systems,
Hart did not need to confront it. But in the real world, lawmakers must
find strategies for securing the compliance of bad men. Those strategies,
as Dan-Cohen argues, will typically involve some measure of coercion.
Here, Chalmers and Levericks discussion of fair labelling is again in-
triguing. Like Dan-Cohen, they proceed on the basis that citizens will typ-
ically have little exposure to decision rules, and that their behaviour is
guided less by bare expressions of wrongfulness than by predictions con-
cerning whether and when sanctions will be administered for prohibited
conduct. They diverge, however, on the significance of acoustic separation.
Dan-Cohen anticipates that citizens, unaware of the gap between conduct
rules and decision rules, would err on the side of caution and assume that
legal officials could and would convict whenever the conduct rule was
breached. Chalmers and Leverick, in stark contrast, appear to anticipate
that citizens, unaware of the degree to which an offence label truly re-
flects the circumstances under which the offence will be enforced, will
simply opt not to look to the offence label for guidance in the first place,
preferring instead to rely upon breakdowns in acoustic separation to pro-
vide the guidance they seek. Assuming, if only for the sake of argument,
that acoustic separation is problematic (or symptomatic of brutality),
they hint that the issue can be resolved by executive practices that will
make exercises of discretion more transparent.
One can imagine at least two possible responses to this suggestion.
First, we might wonder where executive decision makers get the notional
authority to explain their decisions in this way. We might say that the
legislature has an obligation to impose (or at least allow) decision rules
that make executive exercises of discretion more public and transparent
that dispel the appearance of arbitrariness. This is just another way of
saying that legislatures cannot morally adopt a policy of acoustic separa-
tion. If that course is barred to them, however, Dan-Cohen suggests that
legislatures will simply devise other, perhaps more coercive strategies for
dealing with citizens who are willing to game the substantive criminal
law. So we will set this possibility aside as question-begging.
Second, Husaks proposed answer to the problem of overcriminaliza-
tion suggests a deep-seated resistance to the idea of limiting executive
discretion in the administration of criminal justice. Indeed, the Supreme
Court of Canada in Power expressly advised Crown prosecutors not to
92 Indeed, we saw toward the end of Part IV that Hart thought it appropriate for citizens
to have the attitude of the bad man with respect to certain laws and legal systems.
THE CHALLENGE OF THE BAD MAN 479
publicize the bases on which they decide whether or not to prosecute.93
For that reason, the rule-of-law problems identified by Husak may not
(practically speaking) be resolved by limiting executive discretion. For the
same reason, we may be inclined to think that the brutality of acoustic
separation is likewise intractable.
Conclusion
Harts introduction of the puzzled manand, with him, the idea of
normativityinto our thinking about the law was a watershed moment in
the philosophy of law and in our understanding of the criminal law in par-
ticular. As we have seen, however, Hart himself did not think that he was
making an empirical claim about the actual relationship between citizens
and criminal offences in any legal order, and it is far from clear that we
should try to understand all or even most criminal law doctrines and phe-
nomena by presupposing that real citizens regard offences as authorita-
tive declarations of moral wrongfulness. Indeed, we have seen that some
issues, like overcriminalization, can only be understood with the bad man
in mind. And once we premise the criminal laws power to guide citizens
on the enforcement of criminal offences, substantive criminal law theo-
rists seem committed to shifting their attention away from the legisla-
tures that craft criminal offences and courts that interpret them, and to-
ward the police officers, prosecutors, juries, media outlets, employers, and
others who decide when and what sanctions will flow from criminal con-
duct. This shift in focus, in turn, reveals systemic questions about Anglo-
American criminal justice systems that Harts analysis did not, and could
not, revealin particular, questions concerning the moral justifiability of
virtually untrammelled executive discretion.
To put the last point in another way, once we move the bad man from
the periphery to the centre, we seem forced to ask the sorts of questions
that are typically associated with thinkers in the public law context:94
What responsibility do police officers and prosecutors (among others) have
to justify their decisions? What sorts of justifications are adequate? If
their burden of justification is lower than that of other administrative de-
cision makers, is that because their decisions resemble those made in
emergency contexts, or must we look to some other rationale? To what
93 See Power, supra note 87 at 626; Kent Roach, Developments in Criminal Procedure:
The 1993-94 Term (1995) 6 Sup Ct L Rev (2d) 281 at 337-40.
94 This is not to make the reverse claim (i.e., that public law thinkers have failed to apply
their insights to the criminal sphere). DJ Galligan, for example, makes frequent refer-
ence to police officers in his Discretionary Powers: A Legal Study of Official Discretion
(Oxford: Clarendon Press, 1986).
480 (2012) 58:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
extent do police officers and prosecutors genuinely have an expertise that
justifies the deference shown to them?
Some contemporary thinkers may think it is about time criminal law
theory took greater notice of the issues and themes animating public law
debates.95 Others, like John Gardner, may regard administrative law as
still in its intellectual infancy and find suggestions that we yoke the two
together quite unwelcome.96 But recent work hints that the long-time
privileging of the puzzled man in criminal law thinking may have been
wrong-headed. The bad man is in ascendance.
95 See e.g. Malcolm Thorburn, Justifications, Powers, and Authority (2008) 117:6 Yale
LJ 1070.
96 See John Gardner, Justification Under Authority (2010) 23:1 Can JL & Jur 71 at 94.
