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The drama of guilt is enacted upon a wider stage than that set by law. Betraying a friend, lying subtly to oneself, or perhaps even telling an injurious truth to another are among the many types of conduct that may give rise to some guilt—but not necessarily to legal guilt. The subject of this article is legal guilt. But because this legal concept is arguably weighted with moral significance, the relationship between it and moral guilt is also addressed.
The concept of legal guilt has a circumscribed role, not only within life but within the law itself. Judgments of guilt are neither to be identified with, nor implied by, judgments of invalidity or judgments of civil liability. A marriage or a will may be found invalid; this implies nothing about one’s guilt in failing to satisfy the conditions required for a valid marriage or will. A judgment in a civil action in favor of a plaintiff and against a defendant does not by itself, even if the defendant has been found to be at fault, imply anything about the defendant’s guilt. The legal concept of guilt is restricted to the criminal law, and it is within this area of law that verdicts of guilt are rendered. Consideration of this practice of rendering verdicts is essential if one is to grasp the nature of legal guilt.
The Verdict of Guilt
The verdicts of guilty and not guilty are legally significant acts that are embedded in a complex rule-defined practice in which charges are leveled, hearings held, and judgments rendered. What is a verdict? As distinguished from the factual assumptions underlying it, a verdict is not a statement of fact that one is or is not guilty as charged. Verdicts themselves are neither true nor false, but valid or invalid. If challenged, they may be ‘‘set aside,’’ but not because they are false. It is an essential characteristic of verdicts that they make things happen rather than state what is so. If a verdict is valid a person becomes, by virtue of that fact, either guilty or not guilty before the law. This concept of legal guilt is referred to here as ‘‘legally operative guilt.’’
A number of issues related to the practice of rendering verdicts of guilt will be considered. First, what conditions must be satisfied if a verdict is to be valid? Second, what does it mean to be guilty in the legally operative sense? Third, what presuppositions underlie the legal practice of rendering verdicts of guilt? Fourth, what functions are served by this legal practice? Finally, is there a concept of legal guilt different from that of legally operative guilt, and if so, how are the different concepts related?
Validity Conditions for Verdicts
There is a common understanding as to what communicative behavior in what settings constitutes a verdict. Thus, for example, persons without legal authority may state their opinions about a defendant’s guilt or reach moral judgments upon the matter, but without legal authority they cannot render legal verdicts. Only when a verdict has been rendered can its validity or invalidity be considered. Verdicts must be in compliance with rules that define the conditions to be satisfied if they are to be legally operative. These rules regulate such matters as the form and substance of the verdict, the conditions in which it is arrived at, and the setting in which it is delivered. Thus, a verdict may be set aside because of uncertainty in its formulation, as when it is unclear which of two defendants charged with an offense has been found guilty; because it has been announced in the absence of the defendant; because of misconduct by those charged with rendering it; or because of a lack of evidence to support it.
The Meaning of Legally Operative Guilt
What does it mean to be guilty before the law in the legally operative sense? The verdict itself is a formal pronouncement of condemnation by an authoritative social organ. In being declared guilty, one is branded. One’s status is thereby transformed into that of the legally condemned. Being thus branded, one is set apart from others and placed in a condition that requires correction. Guilt, by its very nature, calls for something to be done. Further, being legally guilty in the operative sense implies that the guilty person is properly subject to punishment. Any legal practice restricted to establishing one’s liability to make reparations or restitution, or restricted to providing compensation, would differ fundamentally from the legal practice of determining guilt. None of these alternative practices necessarily implies either condemnation or the idea of conduct causing injury to society, and thus of owing society something.
Presuppositions of The Practice
A number of background conditions are presupposed by a legal practice embodying the concept of guilt. These are conditions whose presence makes intelligible the practice and whose absence would reasonably cause doubt about the existence of this particular practice.
First, a verdict of guilt presupposes the belief that there is a condition of guilt logically independent of the verdict. There are facts to be determined, and they relate, of course, to a person’s being in fact guilty—what shall be referred to as ‘‘factual legal guilt.’’ As a corollary, it is also presupposed that those charged with rendering verdicts will reflect on the evidence presented to them relating to the criminal charge and will not resort to such arbitrary devices for determining guilt as flipping coins.
Second, a verdict of guilt presupposes that the person adjudged guilty is the same person charged with having committed the offense. There would be an oddity, for example, in rendering a verdict against a person who at the time of conviction, because of severe amnesia, was believed to lack any sense of continuity with the person claimed to have committed the offense. Again, society could conceivably penalize close relatives of escaped felons in order to deter escapes, but in such a practice, verdicts of guilt would not be rendered against the unfortunate relatives. Liability to suffer penalties is not equivalent to being judged guilty.
Third, the practice presupposes that individuals adjudged guilty have the capacity to comprehend the significance of the verdict and of the punishment prescribed. Verdicts have a communicative function, and among the persons addressed are those convicted of crime. Verdicts would lose their point if they were addressed to individuals who did not comprehend their significance as condemnatory and who were at a loss to understand why suffering was to be imposed upon them.
A fourth consideration, connected with this last point, is more speculative: perhaps a general commitment throughout society to the norms established by law, to the values they support, and to the legitimacy of the practice that has been established is necessary in order to determine violations and guilt. Without these elements the legal practice of finding guilt would be transformed into one in which individuals with power merely enforced their will upon others. In such circumstances the normative basis of the practice would crumble, condemnation would inevitably fall upon deaf ears, and punishment would become merely a matter of making another suffer.
Finally, the social practice embodying guilt presupposes beliefs in an established order of things, in an imbalance to that order caused by wrongdoing, in the undesirability of alienation, and in the possibility of restoration. Unlike the concepts of pollution or shame, for example, the concept of guilt arises in a world in which people conceive of guilty wrongdoing as disrupting a valued order of things. This produces instability and sets the guilty person apart from others, but nevertheless also creates a situation that may be righted by sacrificial or punitive responses. Punishment, although it has other explanations as well, in this conception is a mode of righting imbalances through exaction of a debt owed by the guilty to society. The debt, once exacted, brings about rejoinder. Given this conception, the person branded as guilty is so branded because he has set himself apart by wrongdoing. ‘‘Guilt’’ then adheres to the guilty like a stain and weighs like a burden, and punishment serves both to purify and relieve. Punishment as a response to guilt is thus freighted with symbolic significance, and major shifts in how it is conceived would imply transformation in the legal practice of which it and guilt are now a part.
Functions Served By The Practice of Rendering Verdicts of Guilt
Practices come into existence and persist for a variety of reasons. They may also, once in existence, serve interests that were not factors leading to their genesis. The universal fascination with crime and punishment strongly suggests that deep emotional needs may be gratified by the legal practice of rendering verdicts of guilt. It seems clear that these needs are better served by the drama of a public trial and conviction than by the growing phenomenon of the plea bargain.
Determinations of guilt and the infliction of punishment upon the guilty convey as nothing else can that there are indeed norms in effect in society and that they are to be taken seriously. Guilt determinations allay anxiety through reassurance that one’s social world is orderly and not chaotic: it is a structured space in which not everything is permitted, where there are limits to conduct, and where retribution may be expected if these limits are breached. The practice also provides reinforcement for one’s hope that in this world one is not merely a helpless victim, for guilt is founded upon the idea that individuals are responsible for what they do. Moreover, judging persons to be legally guilty permits a societally approved deflection of aggressive impulses. Punishment, like war, may allow for aggression without our suffering guilt as a consequence.
Finally, life outside the law, when issues of guilt and innocence arise, is filled with complexity, ambiguity, and irresolution. It is a virtue of law to make matters neater than they are outside the law, and to make smooth the rough edges of human interaction. The law presents a drama in which one is either guilty or not guilty and in which the guilty meet with their just deserts. Real life is, of course, quite different, but the law with its relative definiteness and its institutionalized means of retribution at least partially satisfies our longing for an ideal world.
Legally Operative Guilt and Factual Legal Guilt
Some might argue that legally operative guilt is the entire substance of the concept of legal guilt, for, after all, what is more closely connected with legal guilt than liability to punishment? On the other hand, jurors are asked to consider whether a person is in fact guilty before they reach a verdict of guilt. What sometimes justifies setting aside a verdict is a judgment that the evidence of guilt—factual legal guilt—is insufficient to justify the verdict. This seems to establish that we possess a concept of legal guilt that is logically independent of a verdict of guilt, for it is a concept that guides those charged with reaching a verdict. Thus, it would seem wise to acknowledge the presence of two legal concepts of guilt and to address oneself to their relationship.
Factual Legal Guilt
We have seen that the norms governing the practice of rendering verdicts require that those charged with the responsibility consider the evidence relevant to factual legal guilt. In our own system of criminal law a verdict of guilt is to be returned only if it is believed beyond a reasonable doubt that the defendant is indeed guilty. Although the verdict is not a statement of fact, it presupposes beliefs about the facts. This brings us to a consideration of the nature of factual legal guilt. When is a person guilty in this sense?
First, conduct is normally a prerequisite for legal guilt. This means that a person must actually commit a certain act. It is not enough for him to merely think of doing it, nor is it enough for him simply to have a status of a certain kind, such as being a member of a certain race. Second, the conduct must normally be conscious. Individuals are not guilty for what they do while asleep. Third, there must be legal wrongdoing. Even the most egregious moral wrong does not occasion legal guilt unless the wrong is also a legal one. Fourth, one must have the capacity to appreciate the significance of the norms applicable to one. Animals and infants, for example, do not have the ability to experience guilt. Finally, it is normally a prerequisite for legal guilt that there be conscious fault or culpability with respect to wrongdoing, that is, there must be a ‘‘guilty mind’’ (mens rea). Whatever defeats one’s fair opportunity to behave otherwise than he did— typically some reasonable ignorance of fact or limitation on his freedom of action—may excuse him.
These conditions are common to most legal systems. But how do they relate to the concept of legal guilt? Are there limitations on what legal systems can do with regard to specifying conditions for guilt? Here there are logical and, arguably, moral constraints on legal practice. The law could, imaginably, impose penalties upon individuals merely because of their race. In such a case, however, it would be odd to describe the defendant as having been found guilty. Some of the above criteria, then, may be essentially connected with the concept of legal guilt, in that failure to satisfy them would imply that the concept had no application.
The connection that factual legal guilt has with our moral conceptions of guilt is less clear: moral fault is not essential for legal guilt. Nevertheless, there may be a connection between legal guilt and moral fault that is more than merely accidental. As discussed above, the legal practice of rendering verdicts of guilt has special significance. Individuals who are guilty are viewed as justifiably condemned and as having set themselves apart from the community by disregarding its basic values. To this extent, a number of the conditions for being morally guilty—among them conditions related to a fair opportunity to behave otherwise than one did—are presuppositions of legal guilt as well. On this view, a system that allowed generally for a finding of guilt in conflict with certain moral constraints would be one that used existing institutions of the criminal law in a way fundamentally at odds with certain of its basic presuppositions. Prevention and social control would replace crime and punishment as these are now understood. Even today, when legal doctrine permits conviction of those without fault, it seems that something on the order of a lie is being perpetrated. This is because such convictions create the false impression that the guilty are insufficiently committed to the community’s norms, whereas in the case of those not proved to be at fault this has not been established.
Moral and Legal Guilt
How are these concepts related beyond what has been suggested above? There can, of course, be moral guilt without legal guilt, legal guilt without moral guilt, and a range of instances in which the two overlap. Earlier, there were listed a number of examples of what might occasion moral guilt without legal guilt. To this list might be added those cases where compliance with evil laws creates moral guilt. Since it is sometimes morally right to violate an iniquitous law, it follows that there may be legal guilt without moral guilt. From a consideration of crimes such as murder, where generally those factually guilty are morally guilty as well, it is evident that the two overlap.
Moral and legal guilt may differ significantly. There is no concept in morality comparable to legally operative guilt; one is never morally guilty merely by virtue of being judged as such. Moral guilt is always factual guilt. Further, the law may specify in a relatively arbitrary way the norms that regulate conduct and the circumstances under which violation of these norms incurs guilt. But for moral guilt the norms and the conditions to be satisfied for incurring guilt are entirely immune from deliberate human modification.
Moreover, legal guilt is restricted to those situations in which a wrong is done to society. It is not enough that someone’s personal rights have been violated. For the most part, however, moral wrongs that establish guilt arise in situations where another’s rights have been violated; the guilt is not necessarily done to the society that conceives itself as threatened by the conduct. Thus, those in a position to condemn or forgive are those whose rights have been violated, and not some party that stands in an institutionally defined relationship to the wronged party.
Further, in being morally guilty there is no implication of being justifiably liable to punishment. There may be entitlement to criticize and to be resentful or indignant, but in a variety of situations where moral guilt arises, either the wrong done is not appropriately viewed as punishable, or the relationship (for example, between friends) is in no way seen as righted by punishment. What is essential for restoration in the moral sphere is such emotions and attitudes as guilt, contrition, and repentance. In addition, the objects of moral guilt differ from those generally of concern to the law. Maxims such as ‘‘the law aims at a minimum; morality at a maximum’’ and ‘‘the law is concerned with external conduct; morality with internal conduct’’ draw attention to the different emphases of law and morality. Finally, moral guilt may remain forever in doubt once all the facts are in. Moral reflection allows for the judgment that a person is and yet is not guilty; this depends on one’s perspective, which is not precisely defined by any authoritative pronouncement. Thus, there is no need for moral reflection ever to come to rest.
The Sense of Guilt
What is the sense of guilt, and how is it related, if at all, to law? Guilt is a human sentiment that manifests itself in our inhibition from doing what we believe to be wrong and in our feeling guilty when we do what we believe to be wrong. Thus, it operates both in a forward- and a backward-looking manner. In this respect it resembles conscience, which ‘‘doth make cowards of us all’’ and which, when we disobey its dictates, makes us conscience-stricken. Guilt is the feeling most closely connected with wrongdoing, taking as its object belief in wrongdoing. What, more precisely, is it to feel guilt?
A person who feels guilt holds certain beliefs and is disposed to feel and act in certain specific ways. First, one is attached to avoiding wrong, and the mere fact that one has done wrong causes a feeling of pain. Second, just as there is a special satisfaction connected with thinking of oneself as the creator of what is valuable, so there is a special dissatisfaction that derives from the realization that one has been responsible for wrongdoing. This is partly because one sees oneself as a destroyer of value. Third, in feeling guilt one turns on oneself the criticism and hostility that, if another had acted in the same way, would have been directed at that person. Fourth, there is a sense of unease caused by one’s feeling alienated from those to whom one is attached. Finally, the sense of unpleasantness associated with guilt is connected with carrying a burden from which one longs to be relieved. One feels obliged to confess, to make amends, to repair, and to restore. A further sense of unpleasantness is caused by one’s resistance to do these things, owing to fear and perhaps pride, and the unease experienced until they are done.
How, if at all, is the human disposition to feel guilt related to the legal practice, described above? Individuals are often adjudged guilty and do not feel guilt. They may believe themselves innocent of the charge; they may believe that, although legally wrong, what they did was morally obligatory; or they may not have the requisite degree of internalization with regard to the law generally or to a particular law. Although all this is possible and no doubt even common, vulnerability to the feeling of guilt may be connected with the legal practice embodying the concept of guilt. For, as has been claimed, among the practice’s presuppositions is a general acceptance of the authority of society’s norms and of the institutions applying them. This seems to imply that individuals generally are liable, when violating the norms, to having their sense of guilt activated. If it were otherwise, condemnation and punishment would no longer have the significance that they do.
The Future of Guilt
From Ezekiel we learn:
—–The soul that sins shall die. The son shall not suffer for the iniquity of the father, nor the father suffer for the iniquity of the son; the righteousness of the righteous shall be upon himself, and the wickedness of the wicked shall be upon himself [18:20].
These words mark a dramatic change in prior practices related to guilt; it was individualized. With Christianity another dramatic change slowly came about: the inner life of the moral agent assumed an importance it earlier did not have. Our own age may now be witness to a drama of equal significance. Through a confluence of factors—philosophical determinism, the development of the behavioral sciences, the ideology of sickness and therapy, and utilitarianism—the very foundations of the concept of legal guilt have been placed in question.
The assault on guilt has moved along a number of parallel fronts. There are those who claim that the presuppositions upon which guilt depends are not in fact valid. Here one encounters either metaphysical lines of argument, or more empirically grounded theories asserting the existence of causative factors in every case that should exempt the wrongdoer from blame. This line of argumentation is evident in the modern tendency to see antisocial conduct as a matter for therapy, not punishment. Moreover, even if one were to acknowledge the reality of the conditions required for the appropriate application of the concept of guilt, it is sometimes claimed that we cannot have reasonable grounds for believing that these conditions are ever present. Skepticism of this kind may incline its adherents to urge foregoing concern with culpability at the time of the offense charged. Attention should focus rather upon what was in fact done—something observable—and, once this is determined, one should then concentrate on what would be the best disposition of the responsible party, given that party’s condition at the time of trial. The orientation is almost entirely toward the future and away from the past.
Finally, some are prepared to say that the conditions for guilt are valid, that we can know them, and yet that it is a mistake to continue the practice. Guilt and punishment are viewed by some as fundamentally irrational modes of viewing human conduct—relics from a superstitious past in which suffering is seen as magically erasing evil. From this perspective it is never a former evil that justifies infliction of present pain, only a future good to be realized.
These, then, are some of the strains of discontent with guilt. It is not always evident from a particular critique precisely what the implications are for customary ways of proceeding. For example, philosophical determinists do not customarily urge abandoning the criminal law. It remains unclear, too, whether the law, an institution intertwined so closely with our moral way of looking at things, could be fundamentally changed without a corresponding transformation in moral conceptions and in such moral feelings as guilt and indignation. Nonetheless, the above critiques may gradually modify morality as we have known it, and guilt may conceivably appear as strange to future generations as the world against which Ezekiel was rebelling appears to us.
Powerful assaults have been mounted upon guilt and punishment. They have not gone unanswered, and have in fact mobilized tenacious defenses of customary ways of thinking about human beings. Few ages in history have spoken to the issue of human responsibility with the power and force of our own. Some have insisted that humans are basically free, that they often choose their own enslavement, and that by taking their past wrongs seriously they can redeem themselves. For those of this persuasion the law, with all its imperfections, embodies recognition of the truth of human responsibility and daily reenacts the drama of human waywardness, of wrongdoing, and of its being righted.
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