Tuesday, November 30, 2004

The Joy of Jurisprudence

Yes, jurisprudence can be useful. Consider the problem mentioned in these blogs on Wednesday November 17, 2004 of whether a person who intends to return a drug to its owner has possession of it for supply: R v Adams 20/10/04, Miller J, HC Wellington CRI 2004-091-341.

Is returning a drug to its owner the offence of “supply” of that drug? How do we decide whether conduct should be an offence when the statutory definition is ambiguous?

We might consult the website of the Oxford Professor of Jurisprudence. Indeed, we did.
Consequently, some ideas emerge from our mental fog, although these may or may not be what Professor Gardner intended.

How do we feel about a person who returns a drug to its owner? Has he done wrong? If we cannot really say that we consider his act wrong, then we should conclude that he has committed no offence.

We may, however, feel that he has done some wrong. How much wrong? Not as much as a person who supplies a drug to a stranger. Why not? Because in returning the drug to its owner, he has not given any new power over the drug to anyone, as the owner had the power to demand it back anyway. So he is not as bad as he could be. There is a “residual” sort of wrong about what he did. There has been a conflict of reasons about why supplying drugs is wrong. On the one hand, supply of a drug to another person increases the amount of access to the drug, and that is harmful. On the other hand, if it is returned to its owner, there is no increase in access; there could even be said to be a decrease in access as the minder of the drug no longer has it. Yet the owner has it, and that is wrong. Looked at this way, the person who returns the drug to its owner has a defence. The offence has occurred but as far as the law is concerned the defence, that the supply was to the owner, prevents criminal responsibility attaching to the supplier.

A third alternative is that we may feel that he has done wrong, and this wrong is not of a merely residual kind. It is a full-blown sort of wrong. In this case returning the drug to its owner is not a defence.

That seems so simple that we may wonder whether we are really doing jurisprudence.

Another sort of analysis is available if we consider the offence of possession of the drug for the purpose of supply. Again, the intention is to return it to its owner. If returning the drug to its owner is a defence to a charge of supplying the drug, possession for the purpose of supply is what might be called a “fault-anticipating wrong”. The wrong is, in expanded terms, possession of the drug for the purpose of supplying it to someone who does not already own it. The fault that is anticipated in this formulation of the charge is the supply to a non-owner. There are two basic wrongs here: possession of the drug, and supply of it to a non-owner. The combination of these basic wrongs creates a “parasitic” or “further” wrong, namely possession of a drug for supply to a non-owner. The feature of the “fault-anticipating wrong” that makes it different from basic wrongs is that the defence, that the intention was to supply the drug to an owner, is actually a negation of the offence itself, instead of being a separate matter that excludes liability.

So what?

Well, the point is to clarify the relationship between wrongdoing and fault. Basic offences, the usual kind, involve wrongdoing but not, if a successful defence is available, fault in its fullest sense. There has, in such cases, been an offence, there has been wrongdoing, but because there is has also been a defence, there has not been enough fault to attract criminal liability. But the other kind of offences, fault-anticipating wrongs, do not, if a successful defence is available, involve wrongdoing. There is, in such cases, no offence, no wrongdoing, and no fault.

Working out these implications of the choices concerning whether returning a drug to its owner is supply, should help decide whether this conduct is wrongdoing.

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