A Social Trust Theory of Criminal Law, Part I

Posted on Categories Criminal Law & Process, Public

Ours is a society of strangers.  Every day, we are likely to encounter dozens of unfamiliar faces, even if only fleetingly through the windshield of a car. We purchase our life’s necessities from people who are typically no more than bare acquaintances. Through the media, we are constantly exposed to exotic voices and personalities. We are even unlikely to know really well all of our neighbors and coworkers.  What is it they always say about the serial killers?  “He was such a nice, quiet neighbor.”

It sometimes seems a wonder our society does not disintegrate altogether.  After all, it is not an easy or natural thing for strangers to live together harmoniously.  

For most of human history, people have lived in much smaller, more intimate societies, bound together by familial relationships. Encounters in the wild with people from outside the kinship group were apt to prove fatal. Quickly distinguishing members of one’s own tribe from strangers might be a life or death matter. Not surprisingly, the human brain seems highly adapted to making these distinctions. As child psychologist Alison Gopnik observes in her fascinating book, The Philosophical Baby (2009), “Very young children already classify their fellow human beings into groups.  By the time they are three, and quite possibly even in infancy, children recognize that people can be divided into different races, genders, and even language groups.  And these young children already show preferences, both explicit and implicit, for the people they think are most like them.” (218)

Given such natural human tendencies, the modern phenomenon of large, culturally and ethnically diverse nation-states seems anomalous. Powerful, deep-rooted centrifugal forces constantly threaten to tear such societies apart. The horrific experiences of Rwanda and Bosnia provide recent illustrations of diverse societies abruptly breaking apart along ethnic lines. Yet, thankfully, such experiences remain unusual. The modern nation-state has evidently developed some reasonably effective mechanisms that create centripetal forces to counterbalance the centrifugal. Criminal law is one.

It is an interesting question whether the game is worth the candle.  Perhaps human beings would, on the whole, be better off living in small, isolated, kinship-based communities.  Jean-Jacques Rousseau is hardly the only great thinker to suggest that the move from a simple to a complex society may create many more losers than winners.  Yet, we have grown accustomed to the many benefits of living in large, diverse societies.  Specialization and division of labor make possible the extraordinary, accelerating material progress of human civilization.  Useful new ideas and inventions spread with stunning rapidity across the globe.  Certain kinds of human freedom are enabled by societies like ours in which there are many different models of the good life available, in which there is an almost limitless diversity of subcultural groups to join, in which bad reputations and failed relationships can be shed with ease of an old suit, and in which an individual may live as anonymously as he or she wishes.  To abandon such features of our modern, diverse society would be profoundly wrenching, to say the least.

So, we must find a way to make our society work — not only to avoid the violence and chaos that are always a threat when members of so many different “tribes” live in such close proximity to one another, but also to try to maximize the material and other potential benefits of our large, diverse society.  What is needed, in a word, is trust.

Consider a simple illustration.  I am mercifully freed from the burdens of growing my own food by the knowledge that I can simply walk three blocks to a grocery store to purchase whatever I want to eat. But consider all of the layers of trust that entails:

  • I trust that I will not be run down along the way by a careless motorist.
  • I trust that I will not be abducted by a ransom-seeking kidnapper, stabbed by a sadistic psychopath, or robbed by a gun-toting predator.
  • I trust that my house will not be burgled while I am away.
  • I trust that what is sold to me as food is not poisonous.
  • I trust that when I use my credit card to complete the purchase my identity will not be stolen by hackers.

The list could go on and on. The point is that it takes a lot of trust for people to come out of our homes to participate in the economic, civic, and cultural life of our society. It is the job of the criminal-justice system to help build that trust — to promote confidence that when we open ourselves and our families up to contact with strangers, when we engage with the wider world outside our kin group, we will not suffer grievous losses.

This is not to say that the criminal-justice system is the only, or even the most effective, trust-building institution.  Churches, schools, families, and business organizations have parts to play, as do other government agencies besides those in the criminal-justice area.  Still, to judge by its global ubiquity, the criminal-justice system also seems a necessary part of the picture.

In any event, there are essentially five overlapping mechanisms by which the criminal-justice system builds social trust.

First, the system promises to impose some sort of hard treatment — punishment — on individuals who harm us. This promise creates reassurance and builds trust to the extent we believe that those who might wish to harm us will be deterred by the threat of punishment.

Second, the system promises to identify those who are particularly prone to harm us and to mitigate the threat they pose, either through incapacitation or rehabilitation.

Third, to the extent the system provides a credible mechanism for fairly resolving social conflict, the system diminishes the threat of private reprisals. For instance, I’d be much less likely to get behind the wheel of my car if I feared that any minor fender-bender might get me shot. Fortunately, if I am involved in an accident, I trust that everyone else involved will leave it to the legal system to sort out who is at fault and that any resulting penalties will be imposed by a neutral person in a much calmer setting than the immediate aftermath of the collision.

Fourth, the system provides reassurance that our moral values — our expectations about how people ought to behave — are widely shared, notwithstanding the evidence offered by individual instances of misconduct. We are constantly drawing inferences about the threat level we face from the observations we make about the social world around us. When we see or hear about one person harming another without any seeming justification, we may be prone to draw the inference that the world is full of malicious or dangerously unpredictable people and that deterrent threats and incapacitation are the only protection we have. Such an inference would be quite damaging to trust, for deterrence and incapacitation are obviously rather limited in what they can accomplish (more about this in a later post). It is important, then, that individual instances of bad behavior be seen as idiosyncratic and that people have confidence that others with whom they interact can be counted on to share a robust set of internalized moral values — values that will shape conduct even in the absence of a fear of getting caught.  The criminal law — in both its content and its implementation — provides powerful evidence of society’s moral values. The criminal-justice system therefore seems capable of providing reassurance of a comforting moral order in society.

Fifth, and finally, the system offers restitution and restoration to the victims of crime.  “Restitution” here implies money, and the promise of that sort of compensation may indeed be of some value.  However, the concept of “restoration,” though less tangible, is possibly far more important, encompassing the symbolic reaffirmation of the victim’s dignity and status in society and perhaps sometimes even the healing of relationships damaged by crime.

Harmful misconduct undermines social trust, at least at the level of the individual victim and sometimes much more broadly.  The proper administration of punishment in response to such misconduct has the potential to restore trust.  However, excessive or misdirected punishment can actually be counterproductive, diminishing rather than enhancing social trust.  Certain limiting principles in criminal law, to be explored further in my next post, can play an important role in minimizing the risk that the criminal-justice system will do more harm than good.

One thought on “A Social Trust Theory of Criminal Law, Part I”

  1. I agree that criminal law does serve the purpose of allowing for a system of trust in society. Without it, well, like you said, we would be much worse off. However, I think it is also essential that the justice system protect me from false claims. An innocent until proven guilty system. Otherwise I think we end up with the same kind of problems as not having the justice system at all.

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