Table 2: Comparison between standard prohibited behaviours and two-sided prohibited behaviours
Type 1 prohibited behaviours (standard prohibited behaviours or crimes)	Type 2 prohibited behaviours ( two-sided prohibited behaviours or crimes)
Examples: Homicide, sexual and physical assault, theft, fraud, destruction of property	Examples: Drugs, gambling, prostitution, abortion, homosexuality, sodomy, vagrancy and begging, attempted suicide
(1) Deviance or conflictual interaction: this takes the form, whether direct or potential, of a conflict between two social actors or an infringement by one on the other.	(1) Deviance by exchange or personal relationship: it takes the form of a personal relationship between individuals or a fair, consensual and direct exchange of services or goods.
(2) Capacity of the law for discernment: the law may see a direct victim and distinguish that victim from the deviant.  (The legal enactment that may punish the deviant is not usually used to punish the victim).	(2) Incapacity of the law for discernment (or blindness of the law): the law may not see (or find) a direct victim and the enactment may punish human misery, lifestyle choices or morality in itself, or victims of their own behaviour.
(3) Relationship to someone else and unavoidably negative character of the act: the actor may be persuaded to acknowledge the negative consequences of his/her conduct.	(3) Self-referentiality: possibility that the act may be a matter of preference or “not necessarily negative” in itself.
(4) Limitation on natural liberty: the question of the rights or liberty of the deviants to engage in the prohibited action does not arise per se.	(4) Restriction of liberties imposed by the law: the issue of respect for the relative autonomy of deviants vis-à-vis the criminal law may arise.
(5) Weak cognitive dependence / component: whether or not there is a sound basis for the criminal prohibited behaviour does not depend on specific knowledge and is not directly dependent on such knowledge; in that sense, it is “self-evident” that there is a sound basis for the norm.	(5) Strong cognitive dependence / component: knowledge (or reasoning) whether or not there is a sound basis for the criminal prohibited behaviour is guaranteed by or depends directly on knowledge (or reasoning): it is “not self-evident” that there is a sound basis for the norm.
(6) Predominance of reactive formal intervention (after a “complaint”): victims file complaints.	(6) Predominance of proactive formal intervention: the justice system acts without receiving a complaint (at the initiative of formal agencies of social control).
(7) The criminal law as not producing effects that counteract the prohibition: the problems created by applying the criminal law may not compromise the norm prohibiting the behaviour itself.  Problems may be mitigated or avoided by changing our manner of reacting.	(7) The criminal law as producing effects that counteract the prohibition: the problems created by criminalizing the behaviour compromise the criminal law itself.  The act of creating a criminal law may be seen as counter to the stated goal of the prohibition, as being counter-productive or as being internally inconsistent in terms of values.  This may be referred to as an “error” or “aberration” in relation to the legislative policy.

 

  Criterion 1: “deviance by exchange” or personal relationship 

This criterion is taken directly from Schur (1965, p. 170). It is the key element in his definition of the concept of “victimless crime”.  We have abandoned that concept, but by using this criterion we have adopted his fundamental idea.  Broadly, Schur distinguishes between two situations: conflictual (interaction or) deviance and deviance by exchange.  In the first, the norm deals with a conflict between two parties; in the second, the norm deals with a consensual interaction, relations or relationship between two individuals.

 

In the case of a conflictual deviant behaviour, we can talk about infringing on part of someone else, and ultimately a problem of resolving conflict between two social actors, that is, between two parties: an assailant and a victim.  In the second case, on the other hand, we are dealing with a situation involving a direct, fair exchange (Schur, 1965, p. 170) between two persons.  Schur notes that this is a relationship involving a well-organized, fair exchange of goods or services – that are otherwise prohibited by law – between two parties.[16]  We will not misrepresent him if we include in this emotional or sexual personal relations between individuals, such as, for example, homosexual relations.[17]

 

Generally speaking, this criterion refers to direct, fair and well-organized personal or consensual relations between two parties.  In the case of the sale of drugs or sexual services, it is, properly speaking, an exchange of goods and services, respectively.  That means that there is no conflict between the parties; it is the norm that is external to the interaction that we use in order to talk about deviance and that lays the foundation for a potential second-level conflict, that is, a conflict with the justice system.

 

(a) The concept of “victim” in the criminal law

Note that the criminal law uses the word victim to have at least three meanings, each of which corresponds to a different level of abstraction.  Table 3 sets out those meanings in descending order, from the most abstract (level 3) to the most concrete (level 1):

 

Table 3: Three levels and three meanings of the concept of “victim” in the criminal law
3rd Level (most abstract)	Deviant vs. society:	The victim is society or the group’s morality
2nd Level (intermediate)	Deviant(s) vs. third party observers:	The victim is represented by the immediate entourage (family etc.), the neighbourhood or the nearby surrounding community
1st Level (most concrete)	Deviant vs. direct victim:	The victim means the person who is directly and immediately offended by a conduct prohibited by the law (in the event of death, the victim also includes that person’s family and friends)

 

At both the most technical and very heuristic level (3rd level), the only victim in the eyes of the criminal law is society, understood as an indivisible whole.  It is in that sense that the criminal law says “every crime is a crime against society”.  This is the modern version of the old legal saying that “every crime is a crime against the King”.[18]  This usage takes the following form: Deviant vs. Society.  In this case, a person who was deliberately killed by another person (or the family of the dead person) is not the victim, in the eyes of the criminal law: the victim is Society.  If there has been a theft, the person who has been stolen from has the status of witness.

 

            But also, at the other extreme, the criminal law uses the word “victim” in the everyday sense (1st level): the victim is distinguished from the perpetrator; the perpetrator has made a victim.  If your house has been burgled (not by you in order to collect the insurance), you are called the victim by the police, the courts, etc.  The law may allow you to tell your story to the court; you may be eligible for a crime victims compensation program; there may be a victims’ assistance service at your trial to explain to you what procedure to follow, etc.  This usage takes the following form: Deviant vs. (direct) Victim.

 

            And, even more vaguely and usually not found in norms, there is another meaning of the word “victim”.  It is used, in particular (but not exclusively), to refer to a nuisance situation that does not directly affect the parties involved, but rather affects their entourage or “third party observers”.  A typical example is soliciting on the street for the purpose of selling sexual services.  The neighbours may feel disturbed and there may even be economic losses resulting from a drop in real estate values.  In this case, it might be better to talk about nuisance (or economic loss, where applicable), to distinguish it from a wrongful act in the strict sense in conflictual direct relationships.  This usage takes the form: Deviant(s) / third party observers.

 

            We cannot observe prohibited behaviours using the three distinctions at the same time.  We can move from one to another, but each time we do that a part of the situation disappears from sight: if we observe from the Deviant vs. Society standpoint, we abandon the opportunity to observe whether or not there is a concrete, distinct or deviant victim that is not Society.  Conversely, if we observe from the Deviant vs. Victim standpoint, Society as a whole becomes invisible.  But there is a noteworthy difference between these two extreme levels.  Observation at the first level may lead us to conclude that there is no direct victim.  On the other hand, any behaviour that disturbs someone or breaks some law (including the civil law) may, in theory, be regarded as an offence against society.  This level of analysis requires that we exclude nothing, and that is why it is not used to discriminate between what should and what should not be dealt with by the criminal law.  One of the great legal thinkers of 19th century Germany correctly identified the problem that this level of abstraction presents, when he wrote: [TRANSLATION] “If contracts of sale are not performed, if loans are not repaid, Society is threatened just as if the public were killing or stealing from one another” (von Jhering, 1877, p. 319). In other words, the civil law also “protects” society.

 

(b) Crimes where there are no conflictual social interactions

 

Schur (1965) observed the conflict exclusively at the first level, and then said that some forms of deviance are characterized by a direct, fair exchange relationship between the parties.  He then noted a curious fact that often goes unnoticed, precisely because we move quickly from level 1 to level 3 without realizing the mental operation we are performing.  He saw that, at that level, there were “victimless crimes”, that is, crimes where there was no conflict and no direct harm between two parties.

 

For example, let us consider the prohibitions on trafficking in drugs.  This activity does not involve the same style of conflictual social relationship that we find in standard prohibited behaviours.  Here, we have a number of typical cases: a mere user, a user who resells, a user who traffics and a trafficker who does not use.  But in all these cases, the relationship between the parties is consensual at the time of the purchase and sale, and may be distinguished from the relationship between a thief and the victim of theft.  To visualize this, let us imagine for a moment that there is no prohibition on drugs.  In this case, we note that, from an economic standpoint, this activity cannot be distinguished from ordinary industrial and commercial activities: production, marketing, sale, investment of profits in the financial market, etc.  The action is the same as for producing cars, sausages, wine, cigarettes or firearms.

 

One of the great American sociologists, Robert Merton (1957, p.79), pointed out that “in strictly economic terms, there is no relevant difference between the provision of licit and of illicit goods and services”.[19]  If the consumer a victim of some other fraud on the part of the vendor (the car sold has a hidden defect, etc.), he or she cannot be seen as a victim; rather, the consumer is making a consensual choice.  Certainly, individuals’ choices may – in the longer or shorter term – jeopardize their health, affect the lives of the people around them, etc.  All of this may, in some cases, justify information programs, prevention programs, treatment programs and legal regulation programs.  But here again, those people are not the “victims” in the same sense as an individual who directly assaults, or kills, his or her victims.

 

Consumers who are looking for drugs does not feel “assaulted” by the vendor as they would feel if they were assaulted in the street by a person who pointed a revolver at them and demanded that they hand over their wallet.  The vendor offers, perhaps even insists, but does not coerce.  The “victim”, so to speak, participates willingly in the process that is the subject of the prohibition.

 

We shall disregard the error identified by Hunt (1993, p. 100) which is made by some criminologists: “crimes of the powerful” against financial institutions, or crimes such as tax evasion, are not, in Schur’s view, “victimless crimes”.  That is a complete alteration – although a different one – of the meaning of the concept.  At the first level, that relationship is neither fair nor a mere exchange relationship; rather, it is a relationship of expropriation or infringement.  “Diverting” money that belongs to someone else always produces a victim somewhere, so there is a victim at the first level, even if we do not know it (as in the case of a fraud between two individuals that goes unnoticed).

 

Criterion 2: incapacity of the law for discernment (or blindness of the law)

 

The second criterion that differentiates between the two kinds of prohibited behaviours relates to the other side of the preceding problem. Instead of stressing what happens in relation to the deviance or behaviour, we shall see, in this case, what happens in relation to the criminal law.

 

(a) Capacity of the criminal law for discernment

 

We shall first examine what happens with standard prohibited behaviours, and freely say that in those cases, the criminal law is capable of observing – in turn – the three levels of victims that we identified in Table 3: it can see that there is a direct victim of the action (level 1), or observe the conflict in relation to level two or three.

 

Note that in the purest or most pristine situations, the law has all the conditions that it needs in order to see clearly a direct victim and distinguish that victim from the deviant, using the actual definition of the crime (the enactment).  These pristine situations occur when the enactments (laws) in the criminal law, which create the crimes (e.g., in the case of homicide, sexual and physical assault, theft, fraud, wilful damage to property, etc.), urge the legal system to clearly see the difference between the perpetrator and the victim.  In short, they occur in all cases where the charge is capable of guaranteeing a radical separation between two independent actors, where one can be depicted as the perpetrator of the prohibited behaviour, and the other as the victim of that behaviour.  Thus a person who kills another person is not phenomenologically “included” in the person who is killed; a person who steals something is not included in the person from whom it is stolen; and so on.

 

Thus, if one person steals from another, the criminal justice system can discern, at the first level, that the person who has been stolen from is the “victim” and the person who stole is the perpetrator of the act, or the deviant.  These two social roles are both perfectly clear and distinct and external to the law itself, and recognized as separate in the law by the definition of theft – to the point that in this case the criminal justice system cannot make this kind of error: “punish the victim for being stolen from.”[20]  The enactment that creates the crime of theft and prohibits someone from stealing itself makes it possible to observe the conflictual deviance, because it separates out the perpetrator of the crime and leaves the victim aside.  Another example would be that a woman who is a victim of sexual assault may not be imprisoned for sexual assault, even though she may experience other problems along the way.  We shall come back to this.

 

(b) The example of a “grey area”

 

We should note that certain situations (which are not two-sided) fall into a grey area and in that case the separation between the perpetrator and the victim is not always pristine, and sometimes calls for special alertness so as not to be misled.  This happens in situations where the enactment (the charge) separates a phenomenological reality that is not as clear as the enactment seems to suggest.  We are thinking of the prohibited behaviour of “criminal negligence”, or of certain situations or behaviours that fall within the concept of “duty offences” proposed by the German legal thinker Claus Roxin (1970/2000, p.34).[21]  Consider a random situation that recently occurred in Canada.  A woman who was responsible for caring for children had a car accident that resulted in the death of several children, including one of her own.  There had been a violation of road safety rules, and the media announced that the legal system would be (on its own initiative) charging the “perpetrator” of the crime.  The problem is plain: the “criminal negligence” enactment (or an equivalent provision) makes it possible to name a perpetrator and to separate the perpetrator from the victim (in this case, the children).  But the situation was not pristine: the perpetrator of the crime was “included” in the result of her action, and she suffered from that action from all standpoints.  Not only was she in the car that crashed and a witness to the death of the children for whom she was caring, but she also lost a child.  This was when the community reacted against the (temporary) blindness of the legal system and prevented a charge from being laid.  A charge of that nature may be seen from outside the criminal justice system as an absurd and inconceivable decision, because the system is setting out to “over-penalize” a person who has already suffered the consequences of the act.  In these cases, we can say that the consequences themselves affirm the norm, because they comprise what the classical philosophers called sanction by reality.  Nonetheless, when seen from the standpoint of sentencing theory and some other related considerations, the charge is self-evident and can seems to be justified.  For all these cases, we must do more investigation to determine what is going on.[22]

 

From the theoretical standpoint we are adopting here, this situation does not correspond to the pristine or pure version of a standard prohibited behaviour.  According to that theoretical criterion of standard prohibited behaviours, the person who commits the criminal action is not the person – or one of the persons – who also suffers the consequences of the action.  We can also state this criterion more paradoxically and provocatively: in the pristine standard prohibited behaviours, the victim of a prohibited action is not charged because of the action itself.  The woman driving the car was also a victim of the accident which is, to all intents and purposes, defined by the law as criminal negligence.  The reason she may be charged is that the charge does not allow us to see her as also having been a victim.

 

(c) Aberration of the criminal law in the case of standard prohibited behaviour

 

Of course, even in the case of standard prohibited behaviours, the criminal law must also change levels and observe the victim at level three and say, for example, “the theft from X is ‘in reality’ (i.e. from the standpoint of the system) a crime against society”.  In that hypothesis, X – who was the victim – becomes a witness or a mere first-level victim who is superseded and overshadowed by a third-level victim (Society).  In the competition between level 1 and level 3 victims, the latter prevails, in theory, because carries more weight in the legal culture and the normative structure of the law.  For example, if the first victim wants to forgive, but the second victim (Society) does not, the crime will not be dealt with by mutual agreement.

 

            When the criminal justice system observes the phenomenal world through clouds (level 3), some problems may occur in terms of standard prohibited behaviours where there is a clear enactment – where the criminal justice system is, in theory, capable of plainly seeing and discerning the victim of the perpetrator of the act.  For example, we have seen, in Canada, a court sentence a woman who was a rape victim to a term of imprisonment for contempt of court, because she refused to testify in court against her assailant.  In that case, the court observed the rape from the Deviant vs. Society standpoint, and consequently lost sight of the phenomenal reality: it “did not see” that there was a concrete victim sitting on the witness bench.  It then acted “in good conscience” and, in the name of protecting the public, sent the rape victim to prison.

 

This becomes cognitively possible because the concept of “protection of society” produces, from a psychological and socio-psychological standpoint, a blind spot concerning the internal functioning of the system and the protection methods used.  To paraphrase George H. Mead (1917), the system does not clearly see what it is doing behind the walls that were built to protect: protection has become what is important.[23]  It is very difficult for the human mind to want, at the same time, to protect Society “at all costs” and to think about how that protection is achieved and at what cost.

 

(d) Incapacity of the criminal law for discernment (or blindness of the law) in the case of two-sided prohibited behaviour

 

            And now what about two-sided prohibited behaviours, those in which there is precisely, in phenomenal terms, no conflictual deviance?

 

            We will begin to answer this question with one of the clearest examples: a casual soft drug user who smokes a marijuana cigarette at home.  There is not a sociologist in the world, except one who is hallucinating, who is capable of observing any conflictual deviance in this case in phenomenal terms (criterion 1).  Neither, therefore, can the criminal justice system.  In this case, it cannot produce one of the two mirror effects: make things that are not there appear.  There is no victim who is independent of the perpetrator, in phenomenal terms (first level).  The legal system must therefore find another reason to justify intervening in a manner that may send this person to prison.

 

Certainly, there is still a last resort if we are looking for a victim in phenomenal terms.  We can use our imaginations, and project ourselves into the future to find the possibility of some kind of risk to the user himself or herself: the risk of becoming addicted; the risk that he or she will later become a hard drug user, and then an addict; the risk that he or she will bring up his or her children badly; the risk that he or she will become violent; etc.  But that artifice cannot be used to circumvent the second criterion, because the person who commits the action charged is also the person who suffers the consequences of that action.  In other words: the victim (to all intents and purposes) of the prohibited action (the joint smoker) is charged solely by reason of that action.[24]

 

In short, where drug use is controlled and causes no harm, there is only a perpetrator in relation to himself or herself.  That is, there is no direct and immediate victim, not even the individual himself or herself.  The most that it is, in some cases, is like engaging in risky sports.  In the worst cases, “perpetrator and victim” are one and the same person.  If the criminal law intervenes to deal with the user, it is punishing either a perpetrator who has no victim, or both the perpetrator and the victim as represented by the same individual. 

 

But protecting people from themselves, as laudable and justified as that may be, is still not enough to sentence someone to a (severe) term of imprisonment, let alone on the basis of hypothetical risks that do not, in large numbers of cases, ever materialize.  Treatment outside the criminal justice system and not controlled by that system (Baratta, 1990, pp. 169-170) would be another matter, even if it is still without sufficient justification in this case.  And the difficulty increases when we make a mental comparison between the risk of marijuana and the risks of using alcohol or tobacco, which are permitted drugs or substances, or when we make a comparison with other risky activities in modern life, including occupational and recreational activities (extreme sports, etc.).

 

(e) Role of abstraction in the undue justification of criminalization (a cognitive trap)

 

To justify criminalization, the criminal law then goes on to observe other things, at other levels of abstraction: precisely the place where our mind is more detached from empirical reality, to “see” another type of conflict, to see another type of problem, and avoid uncomfortable comparisons.  When the system cannot summon up a direct, actual victim in its mirror – as no one could, in these circumstances – it can only pivot and separate from the phenomenal surface.  And so it creates for itself a diversion effect, in both senses of the word: it moves toward other “goals” and other levels of abstraction in order to go and “see” somewhere else.  The goals in this case play a crucial (and negative) cognitive role, in that they change the type of reasoning used and provide another direction in which the mind can go.  We leave the realm of analytic reasoning (“reasons to understand or know”) and embark on a kind of consequentialist reasoning (“reasons to do”) which, in this case, we are often unskilled in or fail to examine properly.  Consider that the system then provides for itself a goal that has high value, at the second or third level.  For example, the highly valued goal of “protecting children”.  For obvious reasons, once it has that goal the system no longer sees what is going on in phenomenal terms, and finds it very difficult to see what it is doing.  It has gone somewhere else.  The law then becomes blind in practical and phenomenal terms.

 

The change of the “goal” and of the level of observation produces a cognitive trap for the criminal justice system.[25]  In the case we are examining, that trap results in our failing to consider the principal problem (drugs) because our mind is occupied with what is, in the circumstances, a secondary and even imaginary consideration.  That secondary consideration (“protecting children”) may even suggest to us that we must continue to make one mistake (in terms of solving the principal problem) in order to achieve the second goal!  As the mathematician Gabriel Stolzenberg points out (1988, p. 279), it is a characteristic of cognitive traps that they cannot be seen by someone in the trap for what it is.  Let us consider prostitution, for example.  Suppose that you believe that prostitution “in itself” – even between consenting adults in private and in whatever form it takes – causes harm to children, sex workers, etc.  This is not unlike a person who is convinced that all violence on television also harms children, journalists themselves, etc.  What then happens if you agree to keep prostitution illegal (to “protect children”), despite all the problems that doing so causes?  You forget to give serious consideration to the principal problem (should we be sending sex workers and their customers to prison?) and you become convinced that although it is a mistake to do so, and it is contrary to certain human rights, the mistake is justified and is necessary (the only method) in order to produce happiness in children.  That is a cognitive trap.

 

(f) The criminal law in relation to human misery and lifestyle choices

 

            Let us return to our question: what about enactments in respect of two-sided crimes?  Because those crimes have no direct victim in phenomenal terms, the criminal law does not clearly see whom it is punishing.  It then runs the risk of punishing human misery: the prostitute with a background fraught with misery, exploitation and violence, the drug addict who needs help rather than punishment, young (casual, habitual or dependent) users of various drugs (soft and hard), etc.  And, in phenomenal terms, it punishes precisely the young people who are protected, at the second or third level of abstraction, by the punishment.  The system has surpassed itself in the paradox it has constructed in portraying the drug addict: it punishes the victim of the victim’s own act.  To borrow the words of the Belgian criminologist Dan Kaminski (1990, p. 180), [TRANSLATION] “charging people for using narcotics makes a criminal of the drug addict”!  Because the system does not identify either the perpetrator or the victim, in empirical reality, the enactments in the criminal law criminalize and punish both at once.

 

            That is why, in deciding to criminalize and severely punish two-sided prohibited behaviours, the criminal justice system thereby agrees to run the serious risk of severely punishing  human misery, lifestyle options (these being sometimes the most tragic for individuals, as in the case of abortion) or sexual identity, and of punishing the victims of their own behaviour.  And it does this in the name of “morality itself” (Hart, 1963; Packer, 1968), of protection from an imaginary risk or protection of another legal goal or good that is valued at the third level of abstraction, that is, quite remote from empirical reality and with no direct observable relation with all the facets of the problem under consideration.

 

If, for example, the criminal law prohibits the sale of sexual services between consenting adults, it is not capable of distinguishing, as in the case of standard prohibited behaviours, between the perpetrator and the victim for the simple reason that both are the “perpetrators” of a consensual exchange.  Between them, there is no perpetrator or victim at the time of the exchange.  The nuisance problem that may arise from soliciting to sell sexual services on the street can be addressed by a special regulatory law.  It is improper – or in a sense quite different (second level) – to say that “the victims are the people in the vicinity”.  Certainly this does not in any way prevent the criminal law from prohibiting certain forms of exploitation of human misery, such as pressuring or forcing children into selling sexual services.  In that case, it is protecting the child from exploitation with a lower risk of simply punishing human misery.

 

The criminal law is quite aware that the perpetrator/victim relationship in the case of two-sided prohibited behaviours is not the same as the relationship it is accustomed to: it knows that it is dealing with a “victim” of something (an organized prostitution ring, an illegal drug market, etc.) and it defines the prohibited behaviours in such a way as to address the whole thing.  Nonetheless, the paradox is this: it knows that there is a victim of something, but at the same time it does not see the victim, or sees the victim too quickly for its attention to be caught.  When the criminal justice system has noticed that when it comes to the sale of sexual services it is criminalizing “exclusively” the seller and not the buyer, it has redressed this “inequality” by punishing both.[26]  By declaring war on “prostitution” as a whole (third level of abstraction), it appears to be both fairer and more justified.  The war on prostitution as a whole can also be seen as a goal to protect children (“reason for doing”).  It is only when it observes in the abstract, disregarding the relationship between the individuals (because it is not conflictual), that it can cross over into criminalizing the victim without appearing cruel, and without realizing it.  Paradoxically, however, that is the point at which it makes the most mistakes.[27]

 

Criterion 3: self-referentiality 

The third criterion for distinguishing between the two types of prohibited behaviours refers to the difficult problem of individual autonomy and the self-referential nature of certain prohibited behaviours.  We shall simply make a few comments that will provide an overview of this issue.

 

            In standard prohibited behaviours, despite the different ways of dealing with the situation and of self-persuasion, the act takes on – or may take on – a bilateral meaning, that is, for the perpetrator and the victim.  In addition, the problematic or harmful nature of the act to someone else is more likely not to pass entirely unnoticed by the person who commits the act than in the case of two-sided prohibited behaviours.

 

Certainly, an individual may assign preferences to illegal behaviours which, in his or her eyes, are more acceptable than others (tax fraud, etc.),[28] develop mental “neutralization mechanisms” (Matza, 1969) to justify his or her conduct, etc.  But in candid discourse, it is virtually impossible for the individual to avoid recognizing that he or she has (deliberately or not) caused harm to someone else.  The “social negativity” (Baratta, 1983) of the act is factual and immediate to the extent that the person who commits the act is able to see himself or herself as the immediate and proximate “cause” of the harm, regardless of the problem of acceptance of full subjective responsibility, particularly if the harm is not a contingent and remote risk, but the result of an action that the individual was trying to commit (intentional homicide, assault, theft).  Even in the legal depiction of an attempt, for example, a virtually inescapable bit of reality[29] leading to the harm has already started to materialize.

 

When we turn to two-sided prohibited behaviours, we cannot but recognize that this does not seem to happen in entirely the same manner.  The individual may see himself or herself as making a decision relating to the individual personally, to his or her private or professional life, and not be obliged to see that act as causing a problem for other people.   Depending on the circumstances – we are excluding suicide here – the individual may even claim that the act does him or her no more harm than other legal options available in social life (smoking tobacco, using alcohol, engaging in a risky sport in order to experience strong sensations, etc.). 

 

(a) Absence of malice toward someone else

 

We may even go so far as to say that malice in the relationship to someone else is not present – or cannot be inferred from the behaviour – and does not seem to be an immediate fact in the experience of the individual himself or herself.  It takes a good deal of imagination, not to say a touch of loss of contact with reality, to see smoking a joint while listening to music as an interference with someone else or a “crime against Society”.  The individual who commits the act is undoubtedly perfectly aware of the norm that prohibits the conduct.  But that is a different question: the individual knows that the act is prohibited, but that has nothing to do with any “malicious intent” in respect of anyone else, or even with recognition of any “immorality” in the act.  The individual cannot – with good reason – even accept a mistaken pedagogical message stating that this will destroy his or her health.[30]  There would be more reason to fear parachute jumping than smoking a joint, or even to fear smoking tobacco.  The norm may therefore seem to the individual to be entirely unreasonable, or not sufficiently reasonable to justify the scope and punitive form it takes.  Because there is no conflictual deviance, or obvious contempt for anyone else, or even necessarily for one’s self, the decision to commit the act may take on a strong self-referential dimension for the individual: it may be the individual’s way of balancing the individual’s own being with his or her existence.  The relationship to a large number of such behaviours then has a tendency to fall, de facto, into the realm of “lifestyle options that hurt no one else”, or that are less harmful to anyone else than other risks or problems of existence that every individual increasingly has to deal with.

 

(b) The limits of legal paternalism by the criminal law

 

For a majority of the situations that are criminalized by two-sided prohibited behaviours,  there is not necessarily any intention to do one’s self harm.  This was very shrewdly pointed out by a Belgian journalist, Philippe Toussaint (1983), who specializes in legal and judicial problems:[31]

[TRANSLATION] I have always and tragically remembered what was said one day, in an off the record way at a hearing, by an eminent magistrate in the prosecutor’s office during the trial of a number of drug users.  He leaned toward one of the accused and, rather as if he wanted to point out that one of his bootlaces had come undone, said:

- Psst!  Sir!  Sir!

The man raised his head, surprised, and the prosecutor said:

- You are going to die!

Precisely as if he were offering some information.

                The justification for punishment is then sufficient: it consists in protecting these unfortunates from themselves; at its most extreme, it is assistance to a person who is in danger of dying.

                And yet we are well aware that this is not true.  We are dealing with someone who absolutely does not want to die. … (Toussaint, 1983, p. 291; emphasis added).

 

Toussaint added that he is not sure that our duty to intervene in such cases is as clear as the duty that we have in the more extreme cases where we are dealing with a priest who is preparing to light himself on fire.  He then raises the difficult problem of the limits of legal paternalism and, by implication, the methods used (the criminal law and incarceration) to “protect” individuals from themselves.

 

In a book published in the early 1960s, before enough thought had been given to the drug problem, H. L. A. Hart, was undoubtedly a little too hasty to justify legal paternalism[32] in the criminal law.  In Hart’s defence, it must be said that this question was marginal to his study and that he was not specifically concerned, in it, with examining the limits of that justification and the (morally and legally) acceptable forms of allowing room for paternalism in the law.

 

Hart was not wrong to argue that at least a certain degree and certain form of paternalism in the law seems to be unavoidable, and legitimate, in order to protect individuals from themselves on some occasions.  That is a given.  For example, we cannot authorize the practice of assisted suicide in response to the slightest depression, when the individual says that he or she has lost interest in living.  Nor, wherever possible, are we going to allow people to kill themselves in the public square to express their support for a political cause.  As well, we may legitimately prohibit duelling and consensual physical assaults that take place outside the context of certain properly regulated sporting activities, etc. 

 

However, the method by which we intervene to protect individuals from themselves must not still not be the same.  We might think that the criminal law prohibits consensual physical assaults (duelling, fighting, etc.) because there is a violent relationship with someone else.  But the same is not true of individuals who wish to commit suicide, self-mutilate or simply use drugs to deal with life or enjoy themselves, without having any intention of doing themselves harm.  It must also be recalled that some illegal drugs do less harm than some legal drugs (such as alcohol and tobacco).  Intervention by the criminal law in those circumstances is even less justified and justifiable if it uses incarceration and, above all, long sentences.  In this case, the paradox reaches a paroxysm: the outside “protection” may cause the individual more harm than his or her own behaviour.

 

In addition to the problem of the limits of paternalism, there is the problem of the illogic in legislative policy, a point that has been vigorously argued by Caballero (1992, p.18): the criminal law has decriminalized attempted suicide, and except for exceptional situations (military justice, for example) no longer criminalizes self-mutilation.  And [TRANSLATION] “generally speaking, risk behaviours designed to produce sensations are tolerated by the law” (ibidem).  He goes on to say:

Although some behaviours are extremely dangerous (car racing, hang-gliding, bungee jumping, etc.), they are not prohibited, just as there is no prohibition on drinking alcohol, smoking tobacco and taking tranquilizers, etc.  Alcoholism, nicotine addiction and drug dependency cause about 100,000 deaths ever year in France.  (Caballero, 1992, pp. 18‑19).

 

We see the problem: how far can we go to protect individuals from themselves?  Can we prohibit individuals – by a criminal law – from doing themselves harm when engaging in an activity in which they are not trying and do not want to do themselves harm, but rather to do themselves good?  What about if a majority of the people who engage in these practices do not do themselves harm?  And what about if a large portion of them harm they may do themselves is more the result of prohibitionist policies that restrict individual and societal control over the quality of the product and the circulation of accurate information about its use?  Can we completely prohibit a practice – and punish all those who engage in it (whether or not they need to be protected from themselves) – because some individuals lose their self-control?  Should we, for example, prohibit taking the risk of driving on the roads because some individuals drive over the speed limit and kill themselves?  Should we completely prohibit taking the risk of skiing or swimming elsewhere than at supervised clubs and beaches because some people represent a danger to themselves?  And what then about alcohol use, etc.?

 

The need to accept a certain degree and form of legal paternalism is thus not a sufficient reason to automatically authorise the use of the criminal law.  The absence of any conflictual relationship, malice or intention to do harm, the possibility that the behaviour can be seen as ordinary management of one’s own existence, etc. tend to disqualify criminal intervention, and particularly the use of degrading ceremonies and punishments (Garfinkel, 1956):

The work of the denunciation effects the recasting of the objective character of the perceived other: The other person becomes in the eyes of his condemners literally a different and new person … .  The former identity stands as accidental: the new identity is the ‘basic reality’. What is now is what, “after all”, he was all along (Garfinkel, 1956, pp. 421-422).

 

While today we reject the use of the criminal law and incarceration in the case of attempted suicide, even though we accept legal paternalism, that paternalism cannot ever lead to punitive intervention against individuals who are not a danger to themselves in the same sense as individuals who actually intend to do themselves harm.  The excessive legal paternalism – which comes with no limits in terms of the appropriate methods – is too similar to totalitarian philosophies.[33]

 

As W. de Jong (1983: 283)[34] also pointed out, using an illegal drug, like doing illegal work, is not regarded by the heroin user as a barrier, even though heroin is a hard drug.  We can imagine the difficulty of seeing soft drug use as a “problem”. 

 

(c) The individual’s responsible autonomy

 

When an individual must make a decision concerning his or her existence, and the decision is by definition not an assault on himself or herself or anyone else, it is difficult for the individual to see and accept that the criminal justice system might, in certain situations, see the risk that he or she is taking (to avoid another) as a danger to everyone, including the individual.

 

It is, of course, up to the law to level the playing field, to establish conditions and impose certain limits.  It may even be desirable not to do with drugs what we have done with gambling.  In that case, we have gone from one extreme to another: from criminal offence to permission to engage in the highly publicized “active business” of lotteries and casinos.  Some experts have already come up with more ingenious methods, based on the idea of a “passive business”, [35] in which the quality and sale of the product would be controlled and advertising prohibited.

 

In a society that stresses the individuation process (Beck, 1986) and increasingly demands individual responsibility, people instead have to learn to be autonomous.  As Foerster wrote (1981, p. 67), autonomous individuals are those who “regulate their own regulation”.  He does add that [TRANSLATION] “autonomy involves responsibility: if I alone am to decide how I act, then I am responsible for my acts.”  Teaching and demanding responsibility is different from a sort of clairvoyant paternalism that determines a prior what is good for everyone and imposes severe punishment to enforce that vision.

 

Of course, there is nothing to prevent us from using the criminal law or some form of regulatory law to prohibit an aspect of the situation that may take a particularly problematic form, such as driving while intoxicated.  At the outside, we can prohibit certain conduct without using the criminal law, or imprisonment, to effect the prohibition.

 

(d) Individual, society and the principle of optimizing fundamental rights

 

As a final point, we would note, as did Charles Taylor (1985), that valuing responsible autonomy must not be confused with an atomist or individualist moral doctrine or policy.  By that, we mean a doctrine [TRANSLATION] “that attributes priority value to the human being as an end in relation to the communities to which he or she belongs” (Abbagnano, 1999, pp. 554-555). We must try in some way to find another method of observing both individual/society relationships and the fundamental rights that exist between them, a way that is not defined exclusively in the form of a confrontation or radical choice opposing individual vs. society.

 

One of the most unfortunate effects of the individual vs. society opposition is that it does not contribute to the development of a style of intervention: that is, the manner in which the legal system as a whole, and the criminal law in particular (style of procedure and types of sanctions), are used for intervening.  Two closely related problems are involved here.

 

The first is the tendency to place an absolute value on one of the principles (the principle of the protection of society) at the expense of the other (the principle of individual liberty adopted), instead of viewing the problem as a requirement for optimising the actualization of both basic principles.[36]  As Alexy (1986, chap. 3, I, 2), accurately noted, [TRANSLATION] “the principles are norms that require that something be done to the fullest extent possible. … Consequently, the principles are orders of optimization … .”  Accordingly:

It is easy to argue against the validity of absolute principles in a legal system that recognizes fundamental rights.  The principles may refer to collective goods or individual rights.  When a principle refers to collective goods and is absolute, the norms of fundamental rights cannot establish any legal limit.  Consequently, until the absolute principle is found, there can be no fundamental rights (Alexy, 1986, chap. 3, I, 7.2).

 

            It is important to properly understand the implications of Alexy’s argument: if, as in the case of drugs and the sale of sexual services, we are citing an absolute principle of “protection of society” to completely circumscribe and severely punish all conducts relating to those situations (see criterion 4), there are no more fundamental rights in that area.  From the legal standpoint, that means that the constitutional norm of fundamental rights has been violated because no limit has been placed on the erosion of the rights: in proper fundamental rights theory, the actualization of the two principles must be optimized – even when one of them is given ad hoc priority – and one of the extremes must not be completely obliterated as if it did not exist.  There is no democratic society that can justify doing that, as there is no democratic society that can justify accepting discrimination on the basis of race or sex, at least in theory.

 

As Alexy pointed out a little later (1986, chap. 3, III, 2.2.2.3),

The more the legal intervention affects elementary expressions of the liberty of human action, the more carefully we must weigh the reasons presented in favour of the basis for the intervention against the individual’s fundamental right of liberty.

 

The second problem lies in the virtually knee-jerk use of the criminal law, degrading “processual” ceremonies and incarceration because of the close and culturally overlapping “enemy of everyone” representation expressed by the criminal law in the 18th and 19th centuries (that persists today).

 

For instance, if we decide that Society “is right” to impose a limit, we cease to think more carefully or seriously about the form of legal intervention, or even the style of intervention, that is appropriate in the criminal law (what procedure, what sanction).  Punishment by imprisonment becomes automatic.  In other words, the criminal law loses its sense of boundaries, and even of any moral ideal relating to its own improvement (Pires, 2001).

 

We must instead construct what Taylor (1985) calls a “principle of belonging” that looks at the importance of individual rights through the importance of the community, and vice versa: each depends on the other.  We should even venture to say that society takes some sort of precedence, if, like Aristotle, we agree that the individual is a “social animal”, or, like the French sociologist Émile Durkheim, that society makes the individual, and not the other way around.  The responsible autonomy of the individual is then no longer confused with individual self-sufficiency.  But on the other side, if society takes precedence, in order for it not to become a form of totalitarianism, and for it to be able to foster the modern individuation process, that precedence must be seen as being for the purpose of creating and protecting a space for its members’ responsible autonomization: the creation of the responsible individual.  And it must not for any reason and in any case take the form of an absolute principle that would derail the rule of law.

 

As we can see, there are several representations of the potential conflict between individual and society, but some of those representations have now become outmoded and unacceptable in a proper theory of the law.  One of the oldest representations (18th century), and one of the most problematic, is the one that sees the legal world as divided by an odd papal bull, fashioned after the Treaty of Tordesillas.[37]  On the left side of the parallel, we find an area reserved for individual rights.  On the right side, we have the world of Society, which is completely protected by the navy of the criminal law, standing ready to move the border represented by the parallel absolutely, in the name of the safety of the Society.  We have to put an end to this kind of “cold war” between individual and society, which is fought with the criminal law and severe punishment.  The principle of belonging is a more subtle and delicate principle for both sides of the coin: it is a principle of taking care of other people, of “one’s self as another” (Ricoeur, 1990), and of the existence of each and every person.  We cannot move the line without seriously considering other people at the same time.

 

That is why the first concept of “defending society” that was expressed by the criminal law in the 18th and 19th centuries no longer makes sense in the context of a principle of belonging: we are no longer defending against each other.  We support the mutual obligation to take care of each other, rather than the right of self-defence.[38]  From that standpoint, the criminal law must once again change its identifying self-portrait: it must not be seen as still having to be used, and when it is used, it must not necessarily be used in its most punitive form (i.e., imprisonment).  It must both modify its methods of intervening and find another way to design the portion of the protection of the social relationship that may be assigned to it.

 

(e) The concept of risk: “rationality of the risk” (Luhmann) and “risk society” (Beck)

 

We shall conclude on this point with some parenthetical comments on the related problem of risk.  Today, we are learning, at our own expense, that there is no such thing as a non-risky decision.  That is one of the reasons why risk is not a sufficient condition to justify intervention by the criminal law.

 

It is a mistake to see the decision to smoke tobacco, or smoke a joint, as involving a risk of disease exclusively.  Not only does it also provide a degree of pleasure, but it may also enable the individual to avoid other even more certain risks (depression, boredom, etc.).  In one of his maxims, Cardinal Richelieu said, a bad thing that can happen only rarely must be presumed never to happen – especially if, in order to avoid it, one risks many other bad things that are inevitable and have much more serious consequences (quoted by Luhmann, 1993, p. 12).

 

From the etymological standpoint, the concept of risk is closely related to the concept of decision.  The word “risk” appeared in the transitional period from the late Middle Ages to the beginning of the modern era (Luhmann, 1993, p. 9) [TRANSLATION] “with the awareness that unanticipated [and undesirable] results may flow from our own activities or decisions” (Giddens, 1990: 30).[39]  We can say that [TRANSLATION] “risks relate to the harms that are possible – but have not yet materialized or are relatively improbable – that flow from a decision; that is, harms that may be brought about by that decision and that would not materialize if a different decision were made” (Luhmann, 1992/1997, p. 133; emphasis added).  Luhmann wrote that “we do not talk about risk unless the consequences may be attributed to the decisions” (ibidem). That led to the mistaken idea that it is possible to avoid all risks and achieve safety if we decide something else.  However, Luhmann goes on to say, the problem is that [TRANSLATION] “any decision may produce unintended consequences”; all decisions are therefore risky, although not in terms of the same consequences.  We can only decide based on the type, extent and probability of the harm (ibidem) that we will accept as a risk and as a danger, because “exposing one’s self to danger is a risk” (Luhmann, 1992/1997, p. 134).

 

First, we have a question of fact: we take risks every instant that we decide, whether or not we are aware of them.  If we consciously take the risks into consideration before acting, there is also a question of rationality (of the risk), or rational risk management.[40]  This happens when we represent certain negative contingent consequences of our decisions to ourselves, and we assume them, while trying to control the dangers that the decisions produce for us or for other people (“rational decision taking the risks into account”).  Here we see the relationship between the concepts of decision and risk.  Note that the risk that we are necessarily going to take necessarily means a certain (objective) danger for us.  Staying shut up in the house in order to avoid getting mugged will amount to an objective danger of boredom or a nervous breakdown.  Some of the risks that we take can also present as an objective danger for other people.[41]  If we agree to the plan to construct a nuclear plant in a community, there is an objective danger of an accident for the people in that community, and perhaps for others as well.  But not building it involves other risks, and may prevent us from securing certain benefits (more energy, more jobs, etc.).

 

The paradox is that our culture values the “risk to be taken” by decision-makers (“nothing ventured, nothing gained”, “the sky’s the limit”, etc.) and at the same time has developed a strong intolerance for danger caused by another person.[42]  But we cannot – and must not – think of using the criminal law to avoid risks: it can only assert and support certain normative expectations that are such as will assist in regulating conduct.

 

Three researchers at the University of Toronto (Lazarou, Pomeranz, Corey, 1998) have estimated that correctly prescribed legal medications kill, on average, 100,000 people per year in North America.  Although for methodological reasons that figure was cut back by one half or two thirds, it nonetheless illustrates the enormous losses of human life that go undetected by any monitoring system, including the legal system.  No one thinks that this danger should be avoided by prohibiting medical prescriptions – the risky decisions made by physicians – or denying the “right to use” medications.  Why?  Because we do not see how that solution could be preferable to the solution of taking risks responsibly.  Knowing that this problem exists, we will try to find other solutions, such as better quality control for the products, etc.  Nor (fortunately) do we consider assigning criminal responsibility to physicians for taking the risk of writing a correct prescription, knowing that even correctly prescribed medications can cause death.

 

            We often observe the world with the risk / safety distinction in mind.  But we generally know that there is no such thing as absolute safety (Luhmann, 1993, p. 20 et 28). There are other ways of observing that seem to better reflect things, having regard to the increasing complexity of our world.  To get that alternative view, safety and benefits are assumed and sought in any decision made, but they comprise more than a backdrop.  No decision will produce safety (and secure certain benefits) without risk, and it is by taking risks that we avoid certain dangers (while creating others).  In that sense, the concept of risk contrasts, rather, with the concept of danger (Luhmann, 1993, p. 21).

 

We can say that we also often observe the world with the “risk / danger” distinction in mind.  Note that we cannot think risk and danger at the same time and that these two ways of seeing do not produce the same effects on us.  When we think “danger”, our decision-making universe shrinks, because we have a tendency to stop and withdraw from action.  On the other hand, when we think “risk”, our field of action broadens and our margin of decision-making freedom expands.  We have a tendency to “distance ourselves” from unwanted results, and to decide on the basis of our estimate of our ability to control the risks (whether that estimate is entirely imaginary, or based on the usually accepted parameters).  One of the advantages of observing the world with the risk / danger distinction in mind rather than the risk / safety distinction is that it becomes absolutely clear to us that we cannot avoid risks when we are deciding in a particular way (Luhmann, 1993, p. 28). We can then take the drama out of the risks and better understand the complexity of other people’s decisions (which does not mean that we must necessarily accept them).

 

            This way of reasoning (risk / danger) is distinct from simple consequentialist reasoning based on the costs and benefits of a final result (final cost / benefit).  Consider, for example, extreme sports.  If the athlete thought in terms of classical consequentialist reasoning (cost / benefit of the possible final result), he or she would not set off on an objectively dangerous ski slope, because a few minutes of pleasure do not compensate for death or serious injury.  If, on the other hand, the athlete reasons in terms of risk / danger, his or her margin of “freedom” expands, because he or she will not stop when faced with the mere possibility of death or accident; the athlete will assess his or her skills, chances and desire, or not, to do it.  If the athlete sees the slope as a danger to him or her, the tendency will be not to do it; otherwise, the athlete will take his or her chances.  Risk reasoning offers different individuals more flexibility: where one will stop, the other will go ahead.  If the individual puts the emphasis on the risk, he or she will tend to forget the dangers; if, on the contrary, the individual puts the emphasis on the danger, he or she will forget the benefits that the risky decision might produce (Luhmann, 1993, p. 24). Of course, this applies to the decisions to smoke tobacco or a soft drug, to use alcohol or eat more or less fatty food, etc.  If we do not understand this, we have a tendency to see those decisions – like the decision to participate in a risky sport – as purely irrational, when, on the contrary, they are made within the framework of the dominant reasoning of our time: we live in a risk-oriented society (Luhmann, 1993, p. 28).

 

            Although the word “risk” started to become widespread in the 16th century, Ulrich Beck (1986)[43] was right to reserve the concept of “risk society” to refer to a “developmental phase of modern society”.  He said that this new phase came about in two stages.  The first stage began after the 1950s, with the establishment of the post-war “military-industrial” complex; the second began after the 1970s (taking Germany as the empirical reference point), with public discourse focusing on the (new) risks.  We could say that risk reasoning is the older form.  We tend to regard it as having become the dominant way of thinking as early as the second half of the 19th century.  Starting at that point, we can speak of a “risk-oriented society” in the sense used by Luhmann, but there was undoubtedly a major qualitative leap after the 1960s and 70s.  In other words, we can say that the scale of “risk reasoning” (Luhmann) changed with the advent of the “risk society” (Beck).

 

In order to better see the difference between these forms of thinking for action (final consequentialist / risk) we must note the following.  In risk reasoning, we are, in the relevant cases, making two assessments: one prior to and one subsequent to the harm, where harm occurs (Luhmann, 1992/1997, p.134).  In the subsequent assessment, we review our initial decision to see whether, despite the harm, the risks accepted were reasonable or not.  If we determine that they were reasonable, we regret the harm but we do not regret the decision to accept it.  We considered, in advance, the possibility that the unwanted result would occur and we maintain the conviction that this possibility was minimal or controllable.  So the risk seems, from the outset, to be a contingency, and the materialization of the danger appears as an unfortunate event that does not cast doubt on the rational decision to undertake the action.  We can tell ourselves and others that at the time we made that decision, we did indeed take into account the undesirable effect, and we weighed it carefully.  The decision was and is still “good”, despite the materialization of the “bad contingency”.  Thus an accident in a nuclear plant built after a risk calculation does not necessarily cast doubt on the decision, in the view of the people who made it.  Someone who sees the decision from the outside may regard the construction of the plant as an unacceptable danger, but while the decision-makers regret the result as bad luck, they do not regret their decision.  On the other hand, if our retroactive assessment of the decision is that we determine it to have been “risky” or “too risky”, we may experience what is called, in administration, “postdecisional regret” (Luhmann, 1992/1997, p. 134).

 

From a cultural standpoint, Luhmann seems to say that we have moved from a society that places the emphasis on danger to a society that places the emphasis on risk.  In other words, there has been a shift from a “fatalistic” society with a worldview based on predetermination, fate, and on reasoning that does not expand our field of action, to a society in which risk reasoning is becoming ever more prevalent.  We could add that in the 18th and 19th centuries we saw the dominance of reasoning that focused on the value assigned to final consequences as the criterion for rational decision-making in some areas of cultural life, and risk reasoning came to be particularly valued after the 1960s.  Table 4 summarizes these two ways of observing risk and the world.

Criterion 4: (fundamental) entrenched liberties 

There is another important criterion that divides the waters between standard prohibited behaviours and two-sided prohibited behaviours.  It relates to the concept of liberty as an entrenched (and not merely protected) legal good. 

Let us first – perhaps somewhat brutally – visualize this difference.  When someone steals something, the person cannot claim any “constitutional right” to the freedom to steal, even gently and in moderation.  Such a claim would quickly be rejected as absurd.  And it would be even more absurd to imagine a scenario in which an individual came before the court to demand that it order her neighbour to leave her house key in the lock so that the petitioner could exercise some sort of “freedom to steal” as guaranteed by the Charters.  But in societies that have fundamental rights, that kind of argument is not absurd when it comes to two-sided prohibited behaviours.  It is not difficult to imagine a person asking the court to recognize his or her entrenched liberty under the Charters to smoke a joint at home, the right to perform or obtain an abortion, etc.  So what is going on between these two groups of prohibited behaviours?  Why would this seem absurd in one case, and not the other? 

Given how difficult it is to express this idea, we are going to introduce an image to get to the heart of the question, but it must not be taken entirely literally.  Let us say, to begin with, that theft, homicide, fraud, wilful destruction of property, etc., neither take root in nor grow out of a kind of liberty that is entrenched or established by the law, but rather are, so to speak, a sort of flip side of rights; these behaviours are prohibited by a law.  Imagine two “layers of law” superimposed on each other.  In the first layer, you have a right and a corresponding prohibited behaviour.  For example, the right to property and (among many other things) the prohibition on stealing.  These would form the first layer.  Then, you have a second layer where you grant a right of a slightly different type, because it has the status of fundamental rights.  Those liberties and rights are more likely to have to negotiate their position and scope with other rights conferred on other individuals or on the state itself.  For example, the liberty to enjoy privacy and to control one’s own body, the liberty to do anything that does not harm someone else, etc.  In this second later, certain liberties are corresponding “rights/liberties”, that correspond to at least a certain obligation, to all intents and purposes, on the part of the state not to interfere or to interfere as little as possible.[44]  It is to those “rights/liberties”, in the strongest sense of the term, that we are referring when we talk about entrenched liberties. 

Why should this image not be taken too literally?  Because, for example, we can see the right to property as a limitation on the exercise of the right to come and go, or the right to take possession of something that belongs to no one.  In this respect, there is always another right that relates to each right (in complex societies such as ours).  But this fact in no way cancels out the theoretical and empirical value of the distinction.  We do not see a gang of thieves (or professional hit-men) creating a credible charter of rights for themselves, or going before the courts, while sex workers have created just such a charter and two-sided prohibited behaviours are often challenged in the courts based on entrenched rights and liberties.  We are therefore touching on something fundamental here. 

In the case of standard prohibited behaviours, we can say, as the early philosophers did, that the norm introduces a limit on individuals’ natural liberty, that is, on a liberty such as would exist in a hypothetical “state of nature” or in an imaginary society “without law” (which, empirically, does not exist).  For example, in such a society, there would have been no norm prohibiting killing or stealing.  Those norms then appear as a limit on the natural freedom to act.  The image that is of interest to us here is that of a law that is created in a land without law, a no man’s land.  The law does not restrict any prior right, because there are as yet no rights: it limits what Kant would call the “wild freedom” to act.[45]  The norm “do not steal” does not limit some entrenched liberty to steal, but rather protects the entrenched right to have property.  In the classical depiction, the law prohibiting theft simply limits the wild freedom (which would pre-date the law, which would institute “real freedom” from the standpoint of the law: legal freedom).[46]   

On the other hand, in the context of two-sided prohibited behaviours, we are dealing with a restriction on a liberty that is entrenched by fundamental rights, that is, a liberty that is established as such by the legal system itself and that may engender societal debate.  We then get the following questions: should we use the criminal law to limit those (two-sided) rights, or should we simply, where necessary and within clear limits, use another form of law?  And if criminal intervention is accepted, should we allow the use of imprisonment for behaviour the legal value of which is, at least in theory, recognized as such? 

For the moment, we need only point out that two-sided prohibited behaviours present a much more serious problem in terms of the limitation of liberty than do standard prohibited behaviours.  In this case, we are touching on a liberty that is loudly proclaimed by the Charters and that is the strong product of a modern democratic system of law.  We can ask whether the law that limits that entrenched liberty should not be used more sparingly, and be less punitive.[47]

Criterion 5: the strong cognitive dependence / component 

Before we make more systematic observations, we will start with an initial, rougher approximation to clarify this criterion.  

When we consider the question of drugs, we find a host of ultra-specialized pharmacological studies trying to determine the real harmfulness of substances and comparing their effects with the effects of other substances (the effect of alcohol or cigarettes, for example, with the effect of marijuana).  We also see a tendency to consider and address the overall problem of drugs as if all things were equal, and not to recognize cognitively that there are very diverse internal situations within this problem.  And we see quite a lot of stereotypes which relate to, among other things, the nature of the individuals who supposedly “take drugs”, the relationship between crime and drugs, etc. ^[48] 

Something similar happens when it comes to prostitution.  It is impossible to justify punishing the sex trade criminally if we refer exclusively to what sex workers and their customers do.  What occurs between the parties is a consensual deviance, not a conflictual deviance: the “harm” that some people try to see in it does not stem directly from the social interaction or relationship, as in the case of theft or assault.  We also observe quite a lot of social stereotypes that relate not only to sex workers or to prostitution itself, but also to the “reasons” to continue putting both sex workers and their customers in prison.[49] 

One last example.  When we start to look at certain situations that are criminalized as possibly arising from a “disease” or falling within the purview of the health system, we often develop a less punitive approach to the situation.  This has been observed for a long time in relation to abortion, drugs, suicide, etc. (Schur, 1965, pp. 178-179). As well, as beggars and vagrants [TRANSLATION] “have shifted into the sphere of assistance”, and have “gradually – but definitely – left the sphere of punishment” (Damon, 2002, p. 126).  That means that informed or serious knowledge of the phenomenon (among other things) may change our attitude not only to the criminal law, but also to an entirely different form of coercive legal intervention.  

If we now turn to standard prohibited behaviours, this situation, in which knowledge seems to play a critical role in providing a basis for, or radically altering, how we position ourselves in relation to criminalization of the behaviour by the actual law (or in relation to the overall legitimacy of the criminal intervention) seems not to exist.  And when it exists, it does not present in entirely the same way.  

Let us first take the case of homicide.  We do not see many studies comparing one form of killing with another in order to determine which of the two is the most harmful for the victim and which produces no harm.  Certainly there are studies that, for example, compare deaths from accidents on the job with deaths by standard criminal homicide.  Those studies show that the first form causes more losses than the second.  They show that the losses are, on some occasions, due to failure by employers to comply with safety standards.  They also indicate that the criminal justice system is replaced by other forms of legal intervention and compensation, excluding the use of the crime of criminal negligence.  But those studies do not support decriminalizing standard homicide, or contend that homicide is not harmful or is in the nature of an “individual choice” that must be respected.  

There are undoubtedly a set of stereotypes about “serial murderers”, etc.  They affect how we position ourselves in relation to these cases, and how we think of the sentences.  If we see these murderers as “sick”, we are also likely to give them psychiatric treatment.  But that in no way affects the fact that the nature of the deviance (killing) continues to be seen as wrongdoing and as a clearly negative or deplorable situation.  And the legitimacy of legal intervention to deal with this situation is also clear, even if it is to authorize forcible confinement in a psychiatric hospital for a long period. 

The depiction of theft (or fraud) is different from homicide because, first, the nature of the damage is qualitatively different and, second, it may be broken down into situations that range from a virtually insignificant wrongdoing to much more significant cases.  It is then easy to support social regulation by mutual agreement, or purely spontaneous resolutions, in certain cases where that is possible (return the merchandise, give the merchant a sum of money in a shoplifting case, etc.)  We may also, in some situations, want to implement another form of less “stigmatized” legal regulation than the criminal court (for example, a small claims court, etc.).  And we may even want to amend the punishments provided in the Criminal Code so that, in a large number of cases, the use of imprisonment is prohibited or made particularly difficult.[50]  But we still think that this behaviour is unacceptable and aggravating, even in its minor manifestations.  It is undoubtedly easier to accept our children smoking tobacco or drinking alcohol – even though this may disturb us – than to see them engaging in small insignificant thefts here and there.  We see in theft at least a form of incivility to which we should react, one way or another, and even if the style of the reaction changes.  When we are dealing with theft, we always want to affirm the normative expectation that “you don’t do that”.

 

We would therefore think it ridiculous to propose that the “occupation of shoplifting” be regulated, for example.  But note that we would not find it ridiculous or absurd – in any event, not in the same sense of the word – to propose to make prostitution an acceptable and regulated occupation.[51]  And we see no particularly compelling reasons to go and ask someone to study whether theft is harmful to one’s health, or regrettable, or harmful in terms of social relationships.  We are quite able to see that – despite all its differences from homicide – theft is still very different from two-sided prohibited behaviours from the standpoint of its relationship to knowledge.

 

In short, in standard prohibited behaviours, as is commonly said, “we do not ask science to tell us whether the sky is blue”.  In other words, we do not call on knowledge to tell us whether harm has been done or whether there is a conflict between two parties, and the development of credible knowledge is less likely to involve the actual content of the norm, that is, the moral message that this kind of norm expresses.  Certainly knowledge may question and ultimately cast doubt on the social and institutional management of a norm that has moral content (standard prohibited behaviour), and even the type of normative regulation chosen (criminal law / another form of regulation).  It is precisely this point in respect of which a dividing line is drawn to separate standard prohibited behaviours from prohibited behaviours (and certain other prohibited behaviours that are not two-sided but are also heavily dependent on the real or mistaken knowledge that we have about them).

 

(a) The role of cognitive mistakes in the bases of some criminal laws

 

We shall now make some more systematic observations.  In his analysis of prohibited behaviours relating to drugs, homosexuality and abortion, Schur (1965) made a very astute empirical observation.  He said that something abnormal occurs in connection with these situations (which we are calling two-sided prohibited behaviours and which he conceptualized as “victimless crimes”).  Unfortunately, he did not place enough value on that observation from a theoretical standpoint.[52]  We are going to try to do this here – in an exploratory and provisional way – still using Schur’s starting point, which is “key” in getting an overall understanding of the problem.  In a sense, it was his starting point that we introduced and developed in our own words in the introduction to this criterion.  

Schur (1965, p. 175) presented this empirical observation in the negative, as we observe it directly in the situations he studied: these three cases of prohibited behaviours, he wrote, are based at least on crucial [cognitive] mistakes as to the nature of the deviant behaviour.[53]  Schur had no difficulty recognizing that stereotyped ideas are certainly not the only support for existing reactions to these problems, but he added that the predominance of mistaken ideas is staggering, and it is particularly interesting to note that in the three cases information about the relatively harmless aspects of the deviance has not received wide attention. (ibidem).  

In order to move this empirical observation gradually to the level of a theoretical statement, we will keep it, for the moment, in its negative formulation, but change it to the following: there do seem to be prohibited behaviours for which criminalization (creation of a criminal law) depends or is based on crucial mistakes as to the actual nature of the deviance.

 

(b) Three theoretical statements of the basis of criminal laws 

What happens in the case of certain two-sided prohibited behaviours (and probably also in the case of other norms that depend on knowledge)?  Is it possible that some behavioural norms have – or may have – a kind of particular dependence on a bad or good rational, informed or scientific knowledge in order to retain their status as criminal prohibited behaviours? And if so, how is it expressed? 

We are going to break our hypothesis down into three separate theoretical statements.  For the moment – and for the purposes of this paper – we are going to limit the validity of those statements entirely to the interior of the legal system of western societies, starting in the second half of the 18th century:

1. Some behavioural norms (homicide, theft, etc.) have a weak cognitive dependence or do not need a strong cognitive (rational, informed) component (even where it seems to exist) to provide a sound basis for the creation of a criminal prohibited behaviour.  That is the case for homicide, sexual and physical assault, theft, fraud, wilful destruction of property, etc. (pure or pristine standard prohibited behaviours).  The fact that these prohibited behaviours are rooted in conflictual relationships (stabilized by the social system) is sufficient to make them less dependent on knowledge when it comes time to criminalize them.  To depict them, we may say that the roots of the sound basis for these prohibited behaviours are found in the conflictual deviance in relation to concrete social relationships.  Those “roots” are, so to speak, “pointing downward”.
2. Other behavioural norms are fundamentally dependent on a strong cognitive (rational, informed) component – whether mistaken or true – in order to be selected and retained as criminal prohibited behaviours that result in deviants being severely punished.  The fate of the sound basis for, or justification for criminalizing, these behaviours, and for applying heavy sentences, depends on a rational or informed knowledge relating to the “reasons or purposes for laying charges” and depends heavily on it.  A change in or challenge to the knowledge is a sufficient condition to fundamental undermine the sound basis of the norm and justify either repealing it or using other less punitive forms of legal regulation.  In one sense, the concrete social relationships between individuals do not need to change in order for this to occur.  To depict this, we can say that the roots of these prohibited behaviours are found in “serious” knowledge,[54] in terms of the relevant knowledge (cultural level).  Those roots are, so to speak, “pointing upward”.
3. Two-sided prohibited behaviours are, as a general rule, behavioural standards with a strong cognitive dependence or component (drugs, gambling, prostitution, homosexuality, sodomy, vagrancy and begging).  However, keep in mind that there are behavioural norms with a strong cognitive dependence that are not two-sided prohibited behaviours as they have been characterized here[55] and that there may be two-sided prohibited behaviours that do not necessarily have a strong cognitive dependence (such as abortion).

 

Table 5 illustrates the reversal of direction of the bases for standard prohibited behaviours and two-sided prohibited behaviours.

 

This theoretical criterion is fundamental.  First, it indicates the presence of two different kinds of bases in the behavioural norms (in the criminal law): norms that are based on – or have as their sound basis – a conflictual interaction, and norms that do not involve this type of interaction and instead are based on the state of serious knowledge (strong cognitive dependency).  This result is based on and similar to the one obtained by Hart (1963), but extends its theoretical reach.  The basis of certain norms in criminal law is not provided (or taken away) solely by pure morality, but also by other sorts of knowledge (religious, scientific, etc.).  Second, this criterion may suggest that there are two kinds of behavioural norms: those whose origin and internal validity, and the length of time they last, are heavily dependent on the state of knowledge regardless of the concrete social interactions between individuals, and those in which all of this depends more on concrete social interactions and the way we think about the regulation of the conflicts observed. The durability and stability of the norms would then vary because of their type of basis.

 

(c) The two extremes of criminalized prohibited behaviours

 

We would recall that this criterion, involving a theoretical distinction, is, as such, independent of two-sided crimes, even though it helps in identifying them empirically.  However, the two groups of prohibited behaviours – standard and two-sided – are still the two extremes of the continuum.  Table 6 represents the theoretical hypothesis of the demarcation between two sorts of behavioural norms, based on the role played by knowledge and the hypothesis of the creation of the two radically different sample cases.  The rectangle with the question marks indicates the place where norms or situations that fall into the grey area are, that is, the ones that are neither standard nor two-sided.  Of course, for this purpose, the continuum hypothesis must be maintained.  The oblique dotted arrow from weak cognitive norms to two-sided prohibited behaviours shows that in exceptional cases, a two-sided prohibited behaviour may come to have a norm with a weak or weaker cognitive component.

 

(d) The process of creating a criminal law, decriminalization and reform of the criminal style

 

Generally, and to date, in the process of creating a criminal law, no attention is given to the differences that there may be in terms of the soundness of the bases of behavioural norms.  Accordingly, the two broad types of prohibited behaviours (standard and two-sided) may present, at the beginning of a legislative criminalization process (creation of a criminal law) as if they were obvious and of the same nature.  We then do not see that some norms are more fragile than others.  That is, we cannot see that some proposals for the creation of a criminal law do not – as in the case of standard prohibited behaviours – meet the minimum requirements for criminalizing behaviour.  Two-sided situations do not prima facie lend themselves to the criminal law, let alone to the use of incarceration. 

 

On the other hand, we must keep in mind that there is a wide variety of options when we are considering decriminalizing an action that does not meet the necessary conditions for criminalization.  The following is a general outline of the options for decriminalization and for reforming the style of intervention by the criminal law:[56]

 

(1) We could, for example, completely eliminate the normative character we had assigned to a situation, a behaviour, or certain aspects of a situation, that is, accept the situation from now on as a cognitive expectation (“there are people who do this and people who do that”).  Certainly, there is nothing to prevent anyone from having pedagogical or personal preferences about certain choices.  We can provide advice, make recommendations, give out information, etc.

 

(2) We can also retain the norm as a mere moral norm for ourselves.  For example, an individual may decide: “it is wrong to have an abortion, but it is not appropriate to criminalize abortion for this reason or that reason.”  Here, the behavioural norm (or some aspects of the situation) is removed from the legal system but not from the moral system.  Parents do not need a criminal code to rear their children, something we too often forget.  And health professionals do not need one either to treat or assist their patients.  This does not mean that we do not need the legal system itself to regulate their professional practice in some respects.

 

(3) We can also retain the norm in the legal system, but choose another legal sub-system (not the criminal law) to assert it.  For example, the civil law or a special coercive or administrative law under which imprisonment was not available, and with different procedural rules, could be used.  We would then change the legal status of the norm, as well as the manner in which it was imposed.  That happens when we have learned something new or previously unknown concerning the nature of the deviance or the functioning and social costs of the criminal justice system.  In those cases, our earlier way of asserting the norm no longer seems to us to be justified, acceptable or consistent with other human and moral values that we hold dear.

 

(4) We may want to keep the norm (or the regulation of certain aspects of the problem) in the criminal justice subsystem, but change the way in which the criminal law deals with the problem.  In that scenario, what will happen is not decriminalization, but internal reform of the criminal law.  In other words, we want to stay with the criminal law, but change the way in which it intervenes.  We can then change the criminal procedure or the available sanctions, or create separate courts (as we have done for young people) to intervene in a clearly different manner (with another philosophy).  We can also simply eliminate the use of imprisonment (at least for certain cases).

 

            The important point to remember is that all two-sided prohibited behaviours to which this criterion applies exhibit certain specific problems.  (i) They all have a more precarious, more ideological or more fragile endogenous basis because they are not rooted in a concrete, conflictual deviance and because the norms are not sufficiently detached from certain forms of (purely moral or religious) knowledge or are not sufficiently unaffected by knowledge of facts.  (ii) They are therefore more subject to a process of selection from the available knowledge and to the actual value of the knowledge that we select or that is available to us in respect of them at a particular point in time.  That means that a critical and serious examination of the knowledge is of crucial importance.  (iii) They are, to all intents and purposes, more polemical and subject to public debate at a particular point in time, and more likely to be based on major cultural or cognitive misapprehensions.  All of that means that in a democratic society characterized by a process of responsible individuation, criminalizing these behaviours is always surprising and adventurous, particularly if incarceration, with high maximum sentences, is allowed.  We should consider our options carefully before taking this route (or when we come to rethink the matter).

 

(e) The question of consensus

 

            To conclude our remarks on this criterion, note that the fundamental distinction here is between the dependence and independence of the norms in relation to certain specific knowledge, and not between consensus and dissent (or “dissensus”).  We might say, doubtless exaggerating somewhat, that the distinction is between a “stand-alone norm” and a norm that is heavily dependent on our adoption of some specific knowledge.

 

From a theoretical standpoint (and “reasons to know”), the consensus / “dissensus” distinction is a mere ancillary and contingent criterion: a sort of surface criterion.  Why?  Because when we are in a “period of consensus” and we share that consensus, we cannot observe the endogenous fragility of the behavioural norms that have a strong cognitive dependence or component using this distinction.  The “dissensus” may not exist at a particular point, or it may e precarious and marginal, or strong but ignored or even rejected by the political or legal systems.  That greatly limits the theoretical efficacy of the criterion: the consensus / “dissensus” distinction does not allow us to see the problem with the norms until after there is “dissensus”, and there again everything will depend on how we assess it or whether or not we take it seriously.

 

“Dissensus” takes more time to become apparent and to organize, as well as a lot of energy in terms of social mobilization.  It is also highly dependent on the capacity of the opposition forces to “break down or break through stereotypes” and the false knowledge that is taken as true.  It must also be accepted by the social subsystem that controls the regulation of the problem, or by more than one subsystem at once (for example, the political and legal systems).  “Dissensus” may make the problem visible, motivate change, etc., but it does not pinpoint the theoretical and factual source of the problem.  On the other hand, using the conflictual deviance / serious knowledge distinction, we can identify, from the standpoint of knowledge, the fragility of the basis for the norm, even if we share the belief expressed in the knowledge that supports the norm.  And we can anticipate that the transformation of the knowledge may call the behavioural norm into question.  The significant benefit of this is that it provides an advance invitation to greater wisdom in the legal or social regulation proposed.  It is better to anticipate catastrophes when it comes to violating fundamental rights using the criminal law and imprisonment.[57]  That is why we place less weight on consensus than it is generally given.

 

Criterion 6: proactive formal intervention

 

In referring to “victimless crimes”, Schur (1965, p. 171) clearly identified an empirical peculiarity of those crimes that applies to two-sided prohibited behaviours. That peculiarity, which is also of tremendous theoretical and pragmatic significance, is the predominantly proactive aspect in the functioning of the criminal justice system.

 

What does this mean?  We know today that a large majority of “standard crimes” that come to the attention of the police and provide crime statistics information are reported by way of complaints.[58]  Only a very small number of standard prohibited behaviours are detected in flagrante delicto or by an unreported proactive prior investigation by an individual in the “public” social role or by an agency that is not directly involved in enforcing the law (some cases of corruption that are investigated de officio by special police squads, etc.).  On the other hand, a majority of two-sided crimes (drugs, prostitution, abortion, vagrancy, etc.) are detected at the initiative of the police or local criminal policy programs.

 

For “victimless” crimes, properly so-called or so regarded by those who commit them, the police have do their own work.  Peter Conrad and Joseph Schneider (1980, p. 120) used the concept of “crime without a complaint” to refer more specifically and unequivocally to this characteristic.  In the case of two-sided crimes, if the authorities want to catch the perpetrators, they must act on their own initiative: they must go fishing, or wait for the rare cases when a third party complains (as happens with street prostitution).  Drug users and their suppliers, sex workers with their customers, beggars who cause disturbance only by their actual presence and who aren’t looking for a room in a prison to spend the winter, women whose doctors perform their abortions – none of these people contribute significantly to the compilation of criminal statistics by filing complaints. 

 

In the case of certain administrative prohibited behaviours, or certain specific kinds of proceedings, proactive action is therefore a necessity and generally produces more positive effects than the problems or counter-indications.  Consider, for example, highway traffic patrols or environmental protection against polluting activities.  Proactive action may also be very important in relation to certain proceedings that fall into the category of standard prohibited behaviours, as in the case of smuggling, certain underground corruption activities, a nation’s internal security, etc.  But in the case of two-sided crimes, proactive action takes on another meaning and produces a set of disturbing problems in the functioning of the system itself.  There is a strong risk of cost/benefit relationship becoming reversed in this case.  From the standpoint of public policy, we must then carefully ask whether the type of intervention we are engaged in, in these cases, justifies the damage and social costs it also causes.

 

Nonetheless, we should apply the “proactive action” criterion in a broad sense, to include political pressure on the national or international scene, the creation of specialized enforcement agencies to deal with these “prohibited behaviours without complaints”, etc.  This would seem to be particularly important if we are to discern the scope of the thing in the matter of drugs.  This kind of “proactive action” by the political system in relation to a crime without a complaint or a direct victim seems to be likely to have some novel effects on the criminal justice system.

 

(a) The theoretical meaning of proactive action for two-sided prohibited behaviours

 

What is the theoretical and sociological meaning of proactive action in relation to two-sided crimes?  It plainly illustrates the fact that there is no direct conflictual deviance between the perpetrator of the act and a victim: the proactive nature of the formal control mechanism functions, in these cases, as a sort of indirect empirical indicator of the absence of any perception of conflictual deviance between the people directly involved.  No victim, no complaint.  This sixth criterion for double-sided crimes strengthens (by another route) the first criterion for these prohibited behaviours.

 

Of course, this indicator does not tell us the same thing about all prohibited behaviours.  In corruption cases (standard prohibited behaviour), for example, as we noted earlier, proactive action by the police often simply makes up for the fact the ignorance of the direct victim, who does not see that he or she has been outwitted.  But in the case of two-sided prohibited behaviours, this indicator tells us that the exchanges between people do not result in a perception of victimization.    The theoretical value of the indicator depends on the subject to which it relates.

 

Nor does this mean that there are never complaints in the case of double-sided crimes.  We all know that some complaints do get made in these cases.  However, they often come from a third party (a neighbour, a family member, an eye-witness, etc.) and sometimes reflect a degree of human misery, or people’s lack of resources or even a disconcerting naivety in relation to the least harmful way of solving a problem.  One example would be the kind of tragic story in which a desperate parent (generally from a disadvantaged background), acting in all goodwill, calls the police to solve his or her child’s drug problem.  A lot of us would never have thought of doing that, and this perhaps indicates that there is indeed a serious problem with intervention by the criminal law intervenes (at least in its current form).

 

(b) Some social costs of two-sided prohibited behaviours for the justice system and society

 

Some studies in the social sciences have stressed the fact that proactive action relating to certain two-sided crimes (drugs, gambling, prostitution) produces a number of perverse effects in the functioning of the legal system itself, and even in other social subsystems.  Three negative effects that relate to the system itself are given particular attention: the problem of corruption, the problem of forms of police intervention that border on the illegal (Baratta, 1990, p.167; Hulsman and Ransbeek, 1983, p. 275) and the problem of sentencing by the courts and its effects on the penitentiary system.  We would also like to draw attention to a fourth aspect which is less pointed out less directly, but which emerges in scattered form from empirical research done to assess drug law enforcement policies: a kind of legal inequality that is actively produced by random and variable expressions of political will.  We will briefly address these four points.

 

Schur (1965, p. 171) suggests:

Another apparent consequence of privacy and lack of a complainant (combined with public ambivalence about the law) is the invitation to police corruption.

 

This effect, police corruption, may be observed empirically, to widely varying degrees, in a number of western countries.  Sometimes it may spread like wildfire through the business world, the courts and elected politicians.  In addition, there is the concern prompted by the new police powers, which focus specifically on drug law enforcement,[59] which in turn justifies the new powers.

 

That is not all: pressure for severe punishment of some two-sided prohibited behaviours may destabilize the criminal justice system, both in terms of policies on when charges will be laid and sentencing and on the cognitive level (theories, legal justifications, assessment and decision-making criteria, etc.).  Here we are referring to a kind of subtle distortion, a loss of quality in the professional practice of the law, and a loss of rigour in legal reasoning that is very difficult to assess and demonstrate.  These cognitive problems may also arise elsewhere in the system among other actors who, at various levels, must then invent all kinds of justifications in order to accommodate to situations that are logically untenable.  For example, we have seen a huge rise in the severity of sentences since the 1970s, and that is in part attributed to the extreme pressure for disproportionate punishment for drug offences and the fact that severity has become commonplace, or that this punishment has had a domino effect on the sentences handed down for other offences.[60]  We expect that a judge who starts to increase sentences for drugs would also think about raising sentences for other offences.  And the legal good of “liberty” has begun to be eroded.  As Charras (2002, p. 106) recently observed, if we look at statutory maximum sentences, [TRANSLATION] “in the western world, there is virtually nothing other than terrorism, treason and first-degree murder that is punished more severely”.

 

As a final point, another problem with two-sided crimes is that they are the source of social inequality that is actively produced by the proactive policies implemented by both the political system and the criminal justice system.  What do we mean by this?

 

The legal system and the political system must necessarily interface at a number of points.  Those interfaces take concrete form, first, in the criminal policy guidelines given to the police by way of directives that come from one government department or another, depending on the political organization of the country in question.  The police also have sufficient autonomy (which is a positive thing in itself) to adopt their own policies.  And second, the political system may try to control the legal system by allocating resources, thereby creating one program or another, targeted more or less appropriately in different cases.

 

The problem of two-sided prohibited behaviours is both that they are the most sensitive to these law enforcement policies, since enforcement depends largely on proactive action by the system, and that they are where enforcement is most likely to (proactively) penalize, or, conversely, relieve, human misery.  A policy that the executive crafts “wisely” will then create “good legal inequality” in the sense of moderation (as compared to times or places where no such policy existed): it enables a government to suspend criminal intervention that produces pointless suffering, or to create alternative intervention programs that are less – or more – punitive, to deal with a particular problem or for the benefit of a particular group of individuals.  On the other hand, a “zero tolerance” policy, or “cleaning up the city”, often results in the legal system (with very little capacity for resistance) being induced to engage in the active production of a new “bad legal inequality”, one that is likely to have the worst effects on the least harmful prohibited behaviours, and the ones most closely associated with human misery.

 

As a final point, from the standpoint of reforming law and practice, empirical studies have repeatedly shown that without a clear new legislative policy, exhortations to law enforcement institutions to use their discretion not only produce striking differences in how things are dealt with, but most importantly have insecure and unstable results (Charras, 2002, p. 109).

 

Criterion 7: the criminal law as producing effects that counteract the prohibition

 

Here, we will consider the last criterion for distinguishing these types of prohibited behaviours; it is not easy to formulate, and it is still being studied.  We must therefore proceed with caution, having regard to the incomplete and exploratory nature of this distinction.

 

To assist in understanding it, let us suppose that we are considering using the criminal law to prohibit a behaviour.  The question that the legislature must ask is then this: “Is there a risk that using the criminal law to prohibit this behaviour will create social problems no matter how the law is enforced?”  We may then have two situations, in empirical terms.  In the first, the norm that we want to impose on other people and on ourselves will get the green light prima facie.  That means that the problematic effects that this behavioural norm may create will depend mainly on the norms that apply in respect of procedure, punishment, etc.; in short, the way in which we react to enforcement of the law.[61]  In the second situation, the norm that we want to create will be facing a yellow light.  That means that we anticipate that it might, by itself, create problematic effects that cannot be remedied using procedure, sentencing or enforcement methods alone: the norm is an integral part of the problem.

 

Table 7, which will be explained in more detail later, illustrates these two situations.  It shows that the enforcement of any criminal law creates problems, but that in the type 2 situation, those problems concern or relate more to the actual existence of the prohibition.  In the latter hypothesis, the effects produced by criminalization of the action will place the idea of creating a criminal law norm to regulate this behaviour squarely in issue.[62]  At least two broad types of problematic effects may occur here: they may be counter-productive, that is, criminalization may counteract the goal of more effective, more rational, more human and less expensive control of the behaviour; they may produce a contradiction in terms of values, including for the legal system itself.  In this case, criminalization creates new empirical situations that result in the system producing effects that it was not predisposed to create, effects in terms of increasing human misery, exacerbating a social situation that already disadvantaged a group of individuals, etc.  Of course it is not necessary in this case that criminalization create the new situation out of whole cloth: it is enough that it institutionalize a problematic social situation.  These negative effects must nonetheless arise directly from the criminalization as a whole (from the existence of the behavioural standard in the criminal law and from the action by the system) and not merely from the form in which the norm is enforced.