Part 1: Definitions of Vice, Crime, and Law
What is a Vice?
A vice is a bad or undesirable character trait. The opposite of a vice is a virtue, which is a good or desirable character trait. For example, honesty is a virtue and dishonesty is a vice. There are many vices. Some of the most commonly referred to vices include greed, anger, lust, envy, gluttony, pride, and sloth (laziness). Each of these is a character trait we find in people which is, on the whole, undesirable. By comparison we can list some virtues including loyalty, bravery, honesty, compassion, humility, generosity and temperance. The language of virtue and vice goes back at least to the ancient Greeks who, as we will see later, spent a great deal writing about them. Much of this language is also employed in a religious context where it is said that there are “seven deadly sins” or vices and “seven heavenly virtues.” Wherever our familiarity with virtues and vices comes from what is in general agreement is that vices are character traits that we want to avoid and virtues are character traits that we should want to promote or cultivate.
One confusion which should be addressed is that a vice is not an action. This confusion arises in our use of ordinary language. For instance, Bob might say “smoking is my biggest vice.” Yet, smoking is an action, not a character trait. Smoking may be a symptom of vice, but it is not itself a vice. So what would be the vice which leads Bob to the act of smoking? Most likely the vice is Bob's “weakness of will.” Bob's statement is an admission of a character flaw (weakness of will) which leads him to smoke even when he realizes he shouldn't. If we took away Bob's vice, then he would be able to resist the urge to smoke cigarettes.
In this course we will be looking at several issues including gambling, hate speech, pornography, and drug use. Each of these issues relates to vice as it is said to be vice which leads to each of these things. For instance, the vices of greed, anger, and lust lead to gambling, hate speech, and pornography. As we shall see, the perception that vice motivates these sorts of behaviors is, in large part, why these behaviors are such contentious legal issues.
What is Crime?
Technically a crime is a violation of criminal law. However, this definition doesn't offer us any explanation as to why a type of lawbreaking is considered criminal whereas other lawbreaking is not. Crimes range broadly from something as simple as traffic violations to actions as serious as murder. In Board of Trade v. Owen (1957) the court considered the definition of a crime to be:
“A crime is an unlawful act or default which is an offence against the public and renders the person guilty of the act or default liable to legal punishment.”
Though this is but one of many definitions of a crime, it does bring out two essential features of a crime. First, a crime is considered an “offense against the public” even if it only affects a single person. For example, suppose Jones assaults Smith, but Smith is willing to forgive Jones for his transgression. The state may still prosecute Jones for his criminal assault as if Jones had assaulted the state. Second, a crime is punished in some manner by the state. Criminal punishments range widely from fines to execution.
One of the central questions we will explore in this course is: “What ought to be a crime?” Should the state view Jones as a criminal even when Smith (the victim) does not? Should an act be considered a crime even if no one else is harmed? Should an act be considered a crime when everyone harmed by an action consented to partake in the action? These are the sorts of questions that will reappear throughout this course. Now that we have a basic idea what a crime is, we need to say something about the law itself.
What is Law?
This question is a bit harder to answer as there is serious disagreement about what the law is whereas there is general agreement upon what vice is. Students in a philosophy of law course might spend most of the semester on the question what is law. However, for our purposes, an understanding of two competing theories of law will allow us to come to a minimal understanding of what the law is. The two theories of law that we will mention are legal positivism and natural law.
Legal Positivism
Legal positivism views the law in terms of power. Law is a threat or command backed by force and issued by a person in authority. For example, the legal positivist would describe American tax filing laws with the statement: “Pay your taxes by April 15 th or else!” Something is law if and only if it has been “posited” correctly. In other words, law is an artificial human product. If a command backed by force is issued in the proper way, by a properly understood person of authority, then it is law, regardless of the content or any moral judgment about it. This does not preclude the existence of an immoral law; in fact, it allows it by holding a separation of law and morality. In short, the legal positivist says “the law is a command backed by force given in the proper way by a person with proper authority.” In America , this would mean that whatever a duly elected congress properly passes as a command to citizens is law.
There are two objections offered against the legal positivists account of what the law is:
Objection #1: Not all laws fit this model. How is contract law or me writing a will the result of commands backed by force? Who is making the command? What is the force for non-compliance? Positivism works well with criminal law, but law appears to do more than positivism allows.
Objection #2: Hitler was the sole legal authority in Germany ; therefore, every order he gave was lawful. The Nuremberg court said the defense “I was only following orders” is unacceptable. Wouldn't positivism have to say that Hitler's orders were in fact law, thus producing a legal duty to obey them? This is a consequence of legal positivism we should attempt to avoid.
Natural Law
Natural lawyers view the law in terms of morality. Understanding law requires an understanding of the nature of morality. The purpose of law is to enforce the core of morality, to encourage morality in citizens, to discourage immorality, and to promote the common good. A “law,” even if issued in the proper way, by a proper authority, is not a law if it conflicts with morality. Therefore, Hitler may have issued commands in the proper form backed by force, but when they conflict with morality, they were not laws. For example, Hitler's traffic code may have been law, but many other policies were not law.
There exists one serious objection to the natural lawyer's description of what the law is:
Objection #1: So what is the natural moral order? How do we know it? Is running through hot coals naked with friends in my own backyard while drinking (a moderate amount) of wine a moral violation? Is the natural moral order just the majority moral opinion? If so, what if the majority of citizens are Nazis? Clearly the natural lawyer owes us a complete theory of morality, which is itself a more contentious issue than the disagreements about law.
We are left with a quandary here between the legal positivist, who views law as entirely separate from morality, and the natural lawyer, who views law as entirely identical with morality. As neither theory is completely compelling, we ought to look for some third viewpoint. This third view should be generally tolerable to both naturalists and positivists, it should explain law, and it should explain the role of morality in the creation of law. So, what might the legal positivists and natural lawyers agree upon?