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Course: Wireless Philosophy > Unit 8
Lesson 3: What should we criminalize: threats to the common good?What should we criminalize: threats to the common good?
In this wireless philosophy video, Barry Lam (Vassar College, Hi-Phi Nation podcast) investigates the idea that the criminal law should be designed to best harness its potential to promote the common good.
View our punishment learning module and other videos in this series here: https://www.wi-phi.com/modules/punishment/. Created by Gaurav Vazirani.
Video transcript
(music) Hi, I’m Barry Lam, associate professor
of philosophy at Vassar College, and the producer of Hi-Phi Nation, a show about philosophy
that turns stories into ideas. In this video, we’ll consider the
idea that a primary justification for criminal law is its great
potential to serve the common good. Let me tell you the story of America
when the car was just invented. It was one of the most gruesome
times for accidental deaths. There weren’t any laws about who could
drive, how fast, or where you could drive. Thousands upon thousands
of pedestrians were killed, 60% of them children
between the ages of 2 and 9. Cars quickly became the most
dangerous and deadly man-made thing humans would encounter in everyday
life, and they still are to this day. And yet, traffic accidents and
deaths have steeply declined since the automobile was invented, even as
more people drive farther distances. Partly, this is because
cars have gotten safer. But it’s also due to the proliferation
of laws that turned driving and parking into some of the most
highly organized human activities. Many traffic laws are criminal laws, and police officers in America have the right
to arrest people for any traffic infraction, even the smallest ones,
like not wearing a seatbelt. I’m telling you this because there’s
no better example of governments using criminalization as a solution to
social problems than in traffic laws. It's in everyone’s interest that automobile
transportation runs smoothly and safely. But when you’re late for work, it’s in your
interest to break the rules of the road: to drive as fast as you
can, run red lights, use the emergency lane to get
around traffic, and so on. Though each of us may be personally better
off by driving however is most convenient for us at the time, we’d be much worse
off collectively if everyone did that. This is called a collective action problem. Once you know how to spot
them, you’ll see them everywhere. If everyone obeys
traffic laws, we all benefit. But if everyone but me obeys
traffic laws, I can get the benefits of everyone else’s compliance
while still driving however I like. Somebody who takes
advantage of other people’s compliance with the
rules is a free rider. Free riders make things
worse for the rest of us. For example, someone using the
emergency lane because they don’t want to sit in traffic might block an
ambulance speeding to a real emergency. But often, free riders don’t have any
measurable impact on the common good. Think about the speed limit. One important reason
for setting the US national speed limit at 55 miles
per hour is environmental: if all cars and trucks limit their speed to
55, this would maximize fuel efficiency, limiting the amount of oil burned
and greenhouse gases emitted. But if everyone drove 55, and
you were a single trucker driving 70, you’d make a lot more deliveries
in a week -- and a lot more money. And you wouldn’t be exacerbating the
environmental problems in any significant way. The problem is: there’s
never only one free rider. As soon as other truckers saw you
enjoying the benefits of driving 70, they’d start to feel like suckers,
and decide to drive faster too. Eventually, everyone would be looking out for themselves -- and then everyone
would be worse off, because of the environmental damage
the speed limit was introduced to mitigate. The criminal law is a
powerful tool in solving the collective action problem
posed by free riders. Criminal penalties can be specifically
designed to counteract the benefits of driving over 70, thereby changing
what’s in a driver’s best interest. Without the threat of punishment, the trucker has little incentive
to obey the speed limit. But with the threat of punishment, she’ll
have a much stronger reason not to speed. This kind of rationale can
also justify criminalizing activities that have no
harmful effects in themselves. For example, we all benefit if everyone
agrees to drive on one side of the road. But which side: right or left? Neither
one is better. We just have to decide. And once the decision is made, we need
to ensure everyone follows the same rules. Criminalizing disobedience is
a very effective way to do this. If criminalization can be justified as a
solution to collective action problems like this one, maybe it can be justified as a
way of solving all sorts of social problems. Many social problems
stem from individuals acting in ways that go against
the collective interest. Criminalizing these actions makes them much less tempting for people. Now, these actions incur the risk of punishment -- which can be anything from
monetary fines, like a traffic ticket, to constrictions of liberty, like a
license suspension or even imprisonment. Drug use, for example, is often
seen as a contributor to social problems like unemployment,
child neglect, and criminal behavior. We all have an interest in solving
these problems, and criminalizing drug-related activities might make
a significant impact in that direction. Criminalizing drug possession creates a
powerful disincentive for would-be drug users. Perhaps even more significantly,
criminalizing activities associated with drug production and distribution
encourages people to stay out of the business, even if the
financial rewards are tempting. And since the state enacts
these laws openly and publicly, every violation and violator is
broadcast to the world at large. This creates more awareness of the
rules, and more compliance with them. This view of criminalization
is what legal theorist Jonathan Simon calls
“governing through crime.” And it’s attractive -- so attractive that it’s
become the dominant approach to criminalization
in America today. On the other hand, some argue that
this approach to solving social problems is why America has the
largest prison population, and the highest per-capita
incarceration rate on the planet. This creates plenty of
social problems of its own. Is governing through
crime worth this cost? What do you think? (music)