Public Wrongs and the Criminal Law

1. The idea that crimes are public wrongs is a well-established one within the field of law. Its role in English Law was explicitly affirmed by Blackstone in his Commentaries on the Laws of England. Recently, the idea of ‘public wrongs’ has also gained prominence among those working on the normative issues in criminalization, most notably in the works by Duff and Marshall. I have no intention to argue against this well-established idea. I do think that crimes are public wrongs, but a lot hinges on what we mean by ‘pubic wrongs’. This paper is an attempt to explore the concepts that come into play when thinking about what constitutes public wrongs, and the role that these concepts ought to play. In particular, I shall argue ‘public wrongs’ should not be understood merely as wrongs that properly concern the public, but more specifically as those which the state, as the public, ought to punish. This paper involves contrasting criminal law with the civil law of torts. Of course, tort law does not exhaust all the different areas of non-criminal laws in our common law systems; and no doubt it would also be fruitful to contrast with these other areas of law. Indeed, I believe some of the claims that I shall be making about tort law also apply to other areas of civil law, e.g. contracts; and I shall make this explicit in the paper when that is the case. Nevertheless, contrasting with tort law is sufficient for the purpose of establishing the above contention; and I shall therefore leave the contrast with other areas of non-criminal law for another occasion. I shall argue for the above contention by establishing the following two claims: (a) we should not understand ‘public wrongs’ merely as wrongs that properly concern the public. This is because if that is the case, then not just criminal law, but also tort law, should both be understood as being concerned with public wrongs; and (b) criminal law should be understood as primarily concerned with responding to, by way of punishment, wrongs that properly concern the public; while tort law should be understood as being primarily concerned with responding to such wrongs by way of compensation. Section 2 defends claim (a), while claim (b) is discussed in sections 3 and 4. Section 5 then concludes the paper by drawing the two claims together in relation to the above contention; and briefly discusses what follows from it.