Academic journal article Journal of Criminal Law and Criminology

Foreword: Terrorism and Utilitarianism: Lessons from, and for, Criminal Law

Academic journal article Journal of Criminal Law and Criminology

Foreword: Terrorism and Utilitarianism: Lessons from, and for, Criminal Law

Article excerpt


Punishment is violent, but its violence has a purpose. Terrorism, too, is purposeful violence. My purpose in this essay is to make this strange comparison instructive. Some terrorists defend their taking of human lives by arguing that it is for the greater good. Social utility is probably the most influential justification of punishment. My thesis is that in both cases, instrumentalist justifications are usually--but not always--immoral.

I write as a citizen of a country that not only practices instrumentalist violence, (1) but that also has been victimized by it--in spectacular fashion. On September 11, 2001, as the whole world knows, terrorists attacked the United States of America. They hijacked four planes, and guided three of those planes into American landmarks: the World Trade Center and the Pentagon. The fourth plane crashed in Pennsylvania. (2) Approximately 3,000 people were killed, and many thousands more were injured. (3) Nineteen men, thought to be terrorists, were among the dead. (4)

In this foreword I examine what the criminal law can teach us about terrorism, and what terrorism can teach us about the criminal law. Both terrorism and the harsh punishment for crimes favored by American criminal justice are premised on a construct of cost--benefit analysis that, while (arguably) efficient, is immoral. Both terrorism and excessive punishment can be justified by instrumentalism, but neither should be.

For the record, my comparison of terrorism and American criminal justice does not mean that I think that they are equally bad. Terrorism is worse. There are, however, an extraordinary number of people in the United States who are being punished disproportionately to their just desert. They are punished for social, not individual, reasons. This is especially true of the hundreds of thousands of Americans who are imprisoned for drug offenses. (5) When we remember that punishment is when "the Government ... intentionally inflicts pain," (6) we understand that the state is deliberately hurting people to achieve some end. This is not as bad as what terrorists do, but the difference is one of degree, not kind.

My argument proceeds in three parts. In Part I, I define terrorism and examine it from instrumentalist and moral perspectives. Along the way to making the case that terrorism is usually immoral, I discuss instances in which it is not. I argue, for example, that violence is morally justified to defeat genocide or slavery. Indeed, many contemporary definitions of "terrorism" would include slave rebellions, though many now think of those terrorists as heroes. Part II examines the concept of moral standing, to explain why and how it matters whether we practice what we preach about violence and morality. In Part III, I criticize the heavy reliance of our criminal justice system on utilitarianism. I make the same moral critique of most forms of utilitarian punishment that I make of most types of terrorism. I conclude by imagining how American criminal justice would be improved if punishment were not used as a means to an end.


Terrorism, according to the Federal Bureau of Investigation, is "the unlawful use of force or violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives." (7) Terrorism is the way that non-soldiers engage in war. (8) Among the differences between terrorism and traditional war are that traditional wars are sometimes "legal" and terrorism is illegal, and that the perpetrators and the intended victims of terrorism are often civilians, (9) whereas in traditional war the intended victims are soldiers.

Why do people engage in terrorism? Terrorists are not stupid. (10) They are purposeful. (11) The violence of terrorism, like the violence of punishment, is expressive. …

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