Academic journal article Law & Society Review

The Ex Ante Function of the Criminal Law

Academic journal article Law & Society Review

The Ex Ante Function of the Criminal Law

Article excerpt

Criminal legal codes draw clear lines between permissible and illegal conduct, and the criminal justice system counts on people knowing these lines and governing their conduct accordingly. This is the "ex ante" function of the law; lines are drawn, and because citizens fear punishments or believe in the moral validity of the legal codes they do not cross these lines. But do people in fact know the lines that legal codes draw? The fact that several states have adopted laws that deviate from other state laws enables a field experiment to address this question. Residents (N = 203) of states (Wisconsin, Texas, North Dakota, and South Dakota) that had adopted a minority position on some aspect of criminal law reported the relevant law of their state to be no different than did citizens of "majoritarian" states. Path analyses using structural equation modeling suggest that people make guesses about what their state law holds by extrapolating from their personal view of whether or not the act in question ought to be criminalized.

A legal code in a complex society is designed to have several functions. First, it is designed to announce beforehand the rules by which citizens must conduct themselves, on pain of criminal punishment. Second, if a person violates one of these rules of conduct, the criminal law must determine whether the violator is to be held criminally liable. Third, another part of its adjudicatory function, where liability is imposed the law must determine the general range, or "grade," of punishment to be imposed.

It is the first function that is of interest to us here, the socalled ex ante function of the criminal law. The code announces in advance what actions count as criminal; thus the citizenry can use the announcement to guide their actions to avoid criminal conduct. The law, in other words, draws "bright lines" between allowable and unallowable conduct, and those lines enable the citizens to regulate their conduct so they do not break the laws. To use a familiar metaphor, the criminal law specifies what sorts of actions are "out of bounds," and the penalties for those actions, so the players will "stay in bounds." The criminal justice system relies on people knowing the law and knowing where the boundaries for their conduct lie. Ignorance does not excuse unlawful conduct, a fact summarized in the phrase "ignorance of the law is no excuse." Such a rule is defended as a useful means of creating an incentive for citizens to learn the law.

Citizens need to know these codes if these laws are to function successfully in an ex ante mode. If, for instance, the code requires that a person who is aware of the location of a felon report that location to the police, people need to know that the code requires such conduct. If the code requires that a person help another person whose life is in danger, then for the code to guide the behavior of the potential rescuer, he or she has to be aware that the code requires that helping action.

We have argued elsewhere (Robinson & Darley 1995) that to produce law-abiding behavior it is important for the citizens to agree that the code drafters generally got things morally right, but that is a somewhat separable issue. The purpose of this study is primarily to test the first construction; that is, to determine whether people are aware of the lines drawn by legal codes in the United States. Do people know what the law says?

Obviously, it is important to specify what kinds of laws we are talking about. There are many possibilities. As John Coffee (1991:193), a leading legal commentator, points out, "[T]he dominant development in substantive federal criminal law over the last decade has been the disappearance of any clearly definable line between civil and criminal law." This statement means that many actions that do not fit the prototype of a criminal action have, for a number of reasons, been criminalized in order that they may be assigned the penalties that are only available within the criminal justice system. …

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