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Published online by Cambridge University Press: 25 February 2009
It is neither possible, nor desirable, to have a system of dealing with criminals that does away with norms. But Lady Wootton sometimes talks as if it is possible and desirable to do away with norms. And she claims that in her pragmatic system norms have been done away with. She believes her pragmatic system of dealing with criminals is, unlike our present system, scientific. There are at least two respects (though Lady Wootton does not seem to distinguish these two respects) in which she seems to be claiming that her system is scientific, unlike the present system. Firstly, she seems to think that her system is scientific in the sense of being a workable system; she believes that in her system, leaving aside the moral and other limitations that she mentions, the last word ‘is always with the statistician’. Under the present system, on the other hand, she argues, we are asked to answer questions—such as ‘could he have helped what he did?’—which are inherently insoluble. (We shall see in Section 2 how far Lady Wootton is justified in saying this.)
page 245 note 1 Social Science and Social Pathology (London, 1959), p. 252.Google Scholar
page 245 note 2 Ibid., p. 338.
page 246 note 1 Social Science and Social Pathology, p. 252.
page 247 note 1 Social Science and Social Pathology, p. 339.
page 248 note 1 Ibid., p. 339.
page 249 note 1 Listener, Sept. 24, 1959, p. 482. Italics hers.
page 250 note 1 Social Science and Social Pathology, p. 339.
page 250 note 2 Law Quarterly Review, 1960, p. 239.
page 251 note 1 Law Quarterly Review, 1960, p. 232.
page 251 note 2 Ibid., p. 232.
page 251 note 3 Ibid., pp. 236–7.
page 251 note 4 Ibid., p. 232. Italics mine.
page 252 note 1 Social Science and Social Pathology, p. 229. See also Haksar, V.: ‘The Responsibility of Mental Defectives’, Philosophy 1963, p. 61.Google Scholar
page 252 note 2 Law Quarterly Review, 1960, p. 228.
page 252 note 3 Social Science and Social Pathology, p. 249.
page 253 note 1 Model Penal Code (Philadelphia: The American Law Institute, 1956), Tentative Draft, No. 4, Appendix C.Google Scholar
page 253 note 2 We do not here include under ‘workability’, the ease with which the public will allow such a system to work. Of course, the system of tossing the coin to decide the fate of criminals is not at all workable, in the sense that the public will never allow it to work. But there is another sense in which the system of tossing the coin to decide the fate of criminals is very easy to apply. It is in this sense that Lady Wootton would claim that her system is more workable than the present system.
page 254 note 1 Social Science and Social Pathology, p. 252.
page 254 note 2 Crime and the Criminal Law (1963), p. 97.
page 255 note 1 Ibid., p. 97.
page 255 note 2 In those cases where a qualification ought to be made merely out of deference to popular values, it follows that these popular values are really just popular prejudices.
page 256 note 1 Social Science and Social Pathology, pp. 335–6.
page 256 note 2 Social Science and Social Pathology, p. 253.
page 258 note 1 Ibid., p. 253.
page 259 note 1 Ibid., p. 254. Italics mine.
page 259 note 2 Ibid., p. 253. Italics mine.
page 260 note 1 Of course, we shall also, in order to find out which are the best criteria to employ, have to take into account the effects of the employment of the criteria on the crime rate.
page 260 note 2 ‘As matters now stand, some “jails”…are less restrictive and punitive and more therapeutic than are some “hospitals”.…Szasz. Col. Law Review (1958), 197, note 21.
page 261 note 1 Ibid., p. 253.
page 261 note 2 It is worth remembering that how easy a system is to work depends not just upon how clear the meanings of the terms employed by the system are, but also on how much evidence is available for operating the system. Thus even though terms such as crime prevention are relatively clear, it is sometimes very difficult to find out (as Lady Wootton herself admits) what are the best means of preventing crime. Lady Wootton's solution to this difficulty seems to be to concentrate on those means towards crime prevention which have been shown to be effective. (See Crime and the Criminal Law, 1963, p. 101.)
But ceteris paribus, if the meanings of the terms employed by a system are relatively clear, then even if all the relevant evidence is not available, at least the scientists know what kind of evidence to look for. But in a system where the meaning of terms is not clear, the scientists find it more difficult to know what kind of evidence to look for.
page 262 note 1 But, of course, how workable a system is is one, but not the only, consideration to be taken into account. Another important consideration is what are the values that are promoted by our system, and what are the values that are promoted by operating the new system. (For similar reasons it is not decisive to argue that because the M'Naghten rules were more workable than the Homicide Act, therefore the M'Naghten rules were better.)
page 264 note 1 A surgeon who operates on a person may foresee the possibility that the person may die if the operation is unsuccessful; yet he may be justified in taking the risk in the hope of curing the patient. Suppose that the chances that the patient should die were 1 in 1,000, yet the risk may be justified if the patient is very ill and if there is a very good chance that the operation will cure him. Now take another case where a person is out shooting birds, but knows that the chances of killing a man are 1 in 1,000; here he will not be justified in taking the risk.
In deciding whether one is justified in taking a certain degree of risk, one needs to balance the danger, not only against the possible benefits that may accrue to the man who is in danger, but also the benefits that accrue to society from the taking of the risk. Thus driving cars entails a certain risk to the lives and health of pedestrians; yet this risk is justified because driving cars is supposed to have considerable social utility. Yet, if it did not fulfil this social need, the same degree of risk to the lives and health of the people would not be justified.