Dr Gay Morgan1
1Te Piringa, Faculty Of Law, U of Waikato, Hamilton, New Zealand
Biography:
Gay Morgan graduated in Physics from the U of Colorado. She joined the Peace Corps & spent 11 years in Africa, first teaching physics & math, then working on public infrastructure & community projects. She noticed how critical legal systems were to life chances. She then earned her law degrees. She worked with Appellate Defenders, providing appellate representation for indigent defendants and then with the U.S. Court of Appeals, Eighth Circuit before joining Te Piringa. These experiences are central to her research interests in public (constitutional and administrative) law and in jurisprudence or the philosophy of law.
This paper questions the impact on the collective and individual’s conception of criminality itself as something which both can and should be avoided as ‘bad’ or ‘wrongful’ when a legal system criminalises conduct which no human being, but for moral luck, can avoid committing. The idea that some harmful conduct may require a form of restitution but not criminalisation is reflected in the gradual differentiation of tort and crime, one holds people responsible for inadvertent or careless harmful conduct, serving as deterrence; the other punishes people for intentionally committing wrongful and harmful conduct, serving as both retribution and deterrence. The paper considers the current incoherence in the system of deterrence and retribution that has evolved in New Zealand after the ACC reforms to the tort of personal injury. NZ's overall system of deterrence of harmful conduct now fails to consistently differentiate between simply holding people responsible for a harm and punishing people for a harm, with the result that some inadvertently harmful conduct results in a required apology and other inadvertenty harmful conduct results in a criminal conviction. Criminalising simple human fallibility alone arguably undermines the ‘wrongness’ of criminality, much less doing so in an inconsistent manner. Criminalising simply being human arguably undermines the legitimacy and deterrent function of criminal law – as criminality no longer depends on conscious ‘bad’ action, but on simple moral luck. It further questions whether follow ons are insidious undermining of the 'self' & of the legitimacy of the legal system.