Aristotle, Injustice and Criminality: Could the Antiquity be of Contemporary Relevance?
Injustice, translated from adikia, identifies a ‘wide concept’ in Greek; it encompasses not only crime, but also civil wrongs such as tort or breach of contract. Its conceptual breadth, however, has not rendered it incapable of succinct definition: thus, says Aristotle, ‘let injustice be voluntary illegal harm’. ‘Voluntary actions’, he expounds, ‘are those done with knowledge and not under duress’. This definition is thus conceptually straightforward: a man must be both ‘knowing and willing’ in connexion with his act to perpetrate injustice. However, the respect shown by our modern law for this primary logic is not absolute. It is suggested that the law relating to the non-fatal offences criminalises conduct which, on the Aristotelian model, produces no injustice, and on the authority of which model the law can claim no legitimate domain in the activity of consenting individuals. As such, the Aristotelian model of injustice and criminality is relevant insofar as it could prove a figurative springboard towards achieving a criminal law that legitimately censures only that harmful activity which constitutes a wrong.
An exemplar for divergence from Aristotelian logic, it is submitted, is the contemporary law on consent, and specifically that relative to the non-fatal offences. A powerful statement from our current law in this area is the seminal case of R v Brown; in that case, the House of Lords circumscribed the freedom of an agent to consent to the infliction of violence upon him by another. The efficacy of such a consent was limited to a sparse set of circumstances, from which sado-masochism, to which Brown directly related, was decisively excluded. If it may be accepted that the criminal law’s legitimate province is the prevention of, or retribution for, moral wrongs, the conclusion in Brown is a natural consequence of the court’s conflation of harm with wrong; ‘the infliction of pain is an evil thing’, Lord Templeman opined, confirming the over-inclusive approach of the majority. Aristotle, however, reiterating his elementary logic, propounds that ‘to be wronged is to suffer unjust treatment from a voluntary agent’; thus, it may be extrapolated that whilst each wrong may involve a harm, not every instance of harm necessarily entails a wrong. Joel Feinberg provides a crisp explanation of this rationale: given that ‘it is necessary that the injured party be damaged … as an act of will’, and that voluntary acts are those done with knowledge ‘of all the relevant circumstances including the fact that the action is contrary to the wishes of the person acted upon’, it is ‘impossible’ for a person to be wronged by harm to which he consents. Such reasoning would involve the proposition of expressing a wish to being treated against one’s wishes; a logical paradox. Thus, insofar as an agent is conscious of the other’s consent to harm, no injustice is produced thereby; the principal criterion of voluntariness, requiring knowledge, is absent. As such, it may convincingly be argued that the criminal law has no legitimate ground for interference in the private affairs of consenting individuals; such affairs raise only ‘questions of private morality’ and therefore ‘the standards by which [such questions] fall to be judged are not those of the criminal law’. However, it may be responded that, transcending the singular experience of any individual in secreted activity, injustice bears an immanent ‘social-moral aspect’ that obliges ‘members of a group who accept common norms of justice [in this case, the judges, as part of ‘civilised’ society] … to protect these norms and respond to their violations’. Even if it can be accepted that the majority judgment was correct, therefore, to the extent that it protected those norms common to society en masse in 1994, the behaviour censured in Brown would unlikely offend ‘the basic moral intuitions of the community’ in 2017. ‘Time and public mores have moved on since 1994’, and indeed Aristotle himself resolves that a law, or precedent, that continues to prevail, but whose raison d’être does not, ‘must’ be ‘fought’ against. Whether or not Brown is such a precedent is very much a moot point, but as long as it remains binding House of Lords authority, a more liberal theory of consent inspired by Aristotelian logic is difficult to countenance. Distancing itself from Brown, this logic could serve to model a contemporary law that is more sensitive to the moral distinction between harm and wrong.
Professor Lawson-Tancred underscores that an exact understanding of injustice requires an appreciation of the ‘forces which drive men to break the law’. Indeed, on the Aristotelian model, an inquiry into criminality necessarily involves an assessment of the purpose of the accused in connexion with his act, ‘for it is in purpose that baseness and criminality lie, and the names for such things indicate their purposiveness, such as violence and theft’. That is to say, absent an attendant purpose that breeds the baseness of an act, an act may not properly be criminal; cases of ‘secret taking’ materialise into crime ‘only’ if the act of appropriation is purposed to prejudice the owner and enhance the appropriator. That the taking would be ‘secret’ indicates dishonesty (a technical criterion for theft as the offence currently exists), but, in the Aristotelian view, this proves insufficient of itself to render an act ‘criminal’. Thus, it follows that a defendant who, for instance, ‘appropriates’ property which he believes, in misapprehension, to be abandoned, is not governed by some such purpose as Aristotle censures; a man cannot act to the detriment of nonentity, purposively or otherwise. The contemporary law governing theft, however, concerned with the protection of proprietary rights, adopts a very different analysis: irrespective of the purpose underlying the appropriation of owned property, where it is ‘dishonest’ and intended to be permanent, the criminal law must intervene. Where the contemporary understanding of criminality differs from the Aristotelian, thus, whether it be of a theft or a non-fatal offence, is chiefly in the terms in which it operates: it offers a ‘technical’ view of criminality, whose terms of reference are ‘technical’ fault elements. As Alan Norrie contends, whilst the criminal law is engaged in a process of moral judgment for wrongs committed, the law’s descriptivist or factual, indeed positivist approach to ‘intention’ is ‘inadequate to capture real moral distinctions’. The practical result for judges is therefore ‘a language that is inept to their moral needs’, such that the important ‘moral distinctions [that] criminal judgment needs’ as between the case of ‘secret taking’ and the case of veritable theft are impossible to define.
In conclusion, though ancient Aristotle may be, relevant yet is his logic for the reevaluation of current conceptions of injustice and criminality. Our modern law, illustrated by reference to the law governing the non-fatal offences, consent, and theft, is incapable of making fundamental moral distinctions when inferring criminality from an act. Appellations such as ‘thief’ risk being morally over-inclusive where the law excludes purpose from its inquiry; and a harm may be denounced as a moral wrong despite a consent. If the Aristotelian view might contemplate a legal system more sensitive to these considerations, then our contemporary law should reconceptualise injustice and criminality in line with Aristotle’s primary logic: ‘I came to the Greeks early, and I found answers in them’.
 Aristotle, The Art of Rhetoric (HC Lawson-Tancred tr, 1st edn, Penguin Group 1991) 111
 n1, on page 126
  1 A.C. 212 (HL)
 See, for example, Michael Moore, Placing Blame: A General Theory of the Criminal Law (OUP 2010) 107, who remarks on ’the retributive principle that criminals should be punished because and only because of the wrongs they have culpably done’
 n5, on page 237 (Lord Templeman)
 Joel Feinberg, The Moral Limits of the Criminal Law: Harm to Others Vol 1 (OUP 1984) 115
 n5, at 273 (Lord Mustill)
 Janice Steil, Bruce Tuchman, Morton Deutsch, ‘An Exploratory Study of the Meanings of Injustice and Frustration’ (2001) 4(3) Personality and Social Psychology Bulletin 393, 394
 n7, ‘cruelty is uncivilised’ (Lord Templeman)
 Ibid, at 393
 Walter Sinnott-Armstrong and Ken Levy, ‘Insanity Defenses’ in John Deigh and David Dolinko (eds), The Oxford Handbook of Philosophy of Criminal Law (OUP 2011) 318
 Peter Murphy, ‘Flogging Live Complainants and Dead Horses: We May No Longer Need to be in Bondage to Brown‘  CLR 758, 760
 n1, on page 131
 In his introduction to the section on Litigation in the Art of Rhetoric
 A person commits theft, according to s.1(1) of the Theft Act 1968, if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it
 See, for example, R (Ricketts) v Basildon Magistrates Court  EWHC 2358 (Admin), where the defendant who ‘silently took’ bags of garments that he believed to be abandoned was assigned the moral label ‘thief’, despite his having no such purpose in connexion with the act from which the moral content of this label could be derived
 Supra n6
 Alan Norrie, ‘After Woollin’  CLR 532, 543
 Ibid, at 544
 n22, on page 541