Criminal Law

Legal Conventions and Criminal Law

Substantive criminal law consists of more than statutes and formal common law.


Thank you to the Volokh Conspiracy for allowing me to guest blog this week about my article The Modern Common Law of Crime.

Let me start off with a question: Can the Queen of England, against the wishes of her government, veto a bill that passes both houses of parliament? To pose the question immediately invites a charge of equivocation. What do I mean by "can"?

As a matter of formal law, she could. No governmental official has the legal power to force the Queen to sign a bill that passes parliament. If she decided to withhold the royal assent from a bill, that bill would not be law, and no British court or other legal institution would recognize it as such.

But, of course, the Queen cannot actually veto a bill against the wishes of her government. Her veto would create a constitutional crisis that would imperil the monarchy. The Queen knows this, and she recognizes that the act would widely be viewed as illegitimate and unconstitutional. As a result, despite what formal law allows, the Queen lacks the effective power to refuse the royal assent on legislation that passes parliament.

The requirement that the Queen sign a bill is a type of legal convention. A "convention" is a kind of rule that is (1) not statutory or written law; (2) nor unwritten law enforceable within the courts or other legal institutions (i.e., it is not common law); but (3) is generally accepted as binding on legal actors; and (4) is enforceable against legal actors through indirect methods such as political pressure. Conventions are not merely exercises of discretion. As Adrian Vermeule explains in his article Conventions in Court, a legal convention must "rest[] on a sense of normative obligation." The Queen provides the royal assent to all bills because that is her duty under the British constitution, not because she thinks withholding her assent would be a bad idea.

British constitutional conventions may be the easiest and most visible legal conventions. But legal conventions exist throughout the American legal system, too. For example, by convention (and sometimes by state law), Presidential electors must vote for the candidates for whom they pledged and, before the adoption of the Twenty-Second Amendment, convention had limited the president to two terms in office. Adrian Vermeule, Keith Whittington, and others have written about these conventions, especially as they affect the organization of the federal government and other constitutional arrangements.

Today, two accounts are generally given of modern American criminal law. The first—the one often told by judges—is that criminal law is statutory and legislatures are supreme. Federal common law crimes do not exist, and state common law crimes have largely been abolished. Judges frequently proclaim in strong language that the definitions of crimes rest wholly with the legislature. The second—the one often told by academics—is that prosecutors determine the criminal law. This story, like the first, begins with legislative supremacy, but it ends with democratic dysfunction and delegation of power. Legislatures exercise their power over criminal law by passing broad, vague, and overlapping laws. They do a poor job of repealing ineffective and obsolete laws. Federal crimes largely duplicate state crimes. Virtually everyone commits some offense, nearly every day. Because criminal law is broader than any prosecutor could enforce, legislatures have, in practice, delegated prosecutors with near-plenary power over the criminal justice system.

In my paper The Modern Common Law of Crime, I provide a third account, arguing that American criminal law has become heavily a conventional law. That is, much of our criminal law consists of unwritten common-law-like norms that are widely acknowledged and generally respected but lack the status of formal law recognized by the legal system. These conventions act as a necessary supplement to statutory criminal law.

For example, as a matter of formal statutory law, Wisconsin declares adultery to be a felony, federal law punishes off-duty law enforcement officers who bring firearms within 1,000 feet of a school with up to five years in prison, and speed limits on many interstates are 55 miles per hour. But that is not the real law, and everyone knows it. Adultery is not prosecuted in Wisconsin, federal prosecutors do not indict off-duty police officers for carrying their weapons, and the true speed limit on most roads is about 10 to 15 miles per hour over the posted limit.

These conventions are followed from a sense of obligation and with recognition that some form of non-legal sanction may result if they are not followed. Just like, for example, the Queen cannot (really) veto a bill, Wisconsin district attorneys cannot really prosecute adultery because of the non-legal sanctions they would face if they tried, regardless of their personal beliefs about whether adultery should be criminalized.

Over the next week, I will discuss criminal law conventions in more depth. The topics will include a more detailed account of the existence and characteristics of criminal law conventions, a defense of their legitimacy, a descriptive account of the institutional arrangements that produce them, and a discussion of how legislatures and courts should respond to a criminal law that consists heavily of norms that rely primarily on nonlegal sanctions for their enforcement.

NEXT: Prof. Robert Leider (George Mason) Guest-Blogging About "The Modern Common Law of Crime"

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  1. Unlike the Queen’s illusory power to make law, the power to enforce the law as written is generally available to American law enforcement officials. We even have a phrase, “pretext stop”, to refer to the practice of enforcing the written law instead of the unwritten law.

    1. Not generally, no. They have to invent the pretext, thus acknowledging that their super powers are limited.

      In fact, I’d say you have proved his point.

      1. It’s not inventing the pretext, it’s finding an applicable law that you wouldn’t have bothered with but for the real reason you want to make the stop. If a pretext is wholly invented, it’s thrown out. There has to be an actual legal reason for the stop — like following a car you want to stop because you think they’re drug dealers until they commit some minor traffic violation that you ordinarily wouldn’t stop someone for.

  2. This looks really interesting, and I hope we get to a post about the problem of how hard it is to hold bad prosecutors accountable.

  3. For those unaware, the British constitutional crisis you describe was recently dramatized as a stage play and subsequently a movie called “King Charles III”, where the new king refuses royal assent on a bill regulating the press. Interesting conflict premise, because the king is morally correct while also imperiling democratic legitimacy by violating convention and defying his prime minister.

  4. The first thing I thought of while reading the Queen’s dilemma was the nuts who claim warrants as invalid if their name is IN ALL CAPS, or the court room is illegitimate if the flag had gold fringes, or that the income tax is illegal because one of the states ratified a version of the (16th?) amendment with a misplaced comma.

    No matter how technically correct any of these may be, no judge will ever acknowledge them. He’d be overruled in a heartbeat, possibly impeached.

    1. No, he’d be overruled and impeached because not only are they not technically correct, but loony.

  5. If she decided to withhold the royal assent from a bill, that bill would not be law, and no British court or other legal institution would recognize it as such.

    This was the absolute orthodoxy until 2019. But now it is much more doubtful. In 2019, the British Prime Minister, Boris Johnson, advised the Queen to prorogue (ie suspend the sitting of) Parliament. She duly did, and Parliament was prorogued.

    Various people went to court and the Supreme Court, unanimously, ruled that the Prime Minister did not have a sufficiently good reason for advising the Queen to prorogue Parliament. And that consequently his advice should have been ignored. And that consequently the Queen’s prorogation was void ab initio. Parliament had never been prorogued.

    The details are not very important, but the consequences are pretty stunning. A court can actually void the Queen’s official act, on the basis of the court’s disagreement with the Prime Minister’s advice. This is much more nuclear than simply granting an injunction restraining the PM from giving advice the court disapproves of. Or issuing an order of mandamus, requiring the PM to give advice that the court insists on (such as opening Parliament up again.)

    So there is now precedent that a UK court can void an official act of the Queen. It’s a very short step then to issue her with an order of mandamus, requiring her to consent to an Act of Parliament.

    1. The last British monarch to refuse Parliament was Queen Anne who in 1708 vetoed the Scottish Militia Bill on the advice of her ministers, but there has been a lot of weakening of prerogatives and strengthening of constitutional principles since then so it probably isn’t a very reliable precedent to go by.
      More recent thinking is that there is a technical difference between acts like proroguing Parliament or elevating new peers, and the act of assenting to bills. The first are actions taken as Queen-in-Council, exercising her remaining power to rule by decree. She is advised in these by her Privy Council (hence the -in-Council), which is to say the Prime Minister, and they are effected by Orders in Council, for example the Order in Council that prorogued that session of Parliament two years ago. The Supreme Court decision in that case was that the PM’s advice shut down Parliament for 8 weeks instead of the usual 5 days, with no justification, and it was unconstitutional for him to frustrate Parliament in that way.
      Royal assent though is an act of the Queen-in-Parliament, and in these she follows Parliament’s advice – its passing of the bill – and does not take advice from the PM. Because of that difference, precedents limiting the PM’s power to direct Orders in Council wouldn’t be relevant.

  6. I’ve heard anti-trust laws brought as a good example of this type of thing. Very vague and discretionary. I don’t know if it has the same conventions as speed limits, which are very clear-cut, but there are supposedly pretty solid unwritten laws behind the actual laws.
    Disclaimer: I know almost nothing about anti-trust.

  7. It might be interesting to think about how this theory of criminal law intersects with the “categorical test” that determines whether a particular crime is a “crime involving moral turpitude” for immigration/removal purposes or constitutes a “crime of violence” for purposes of certain federal sentencing enhancements.

    The “categorical test” says that a state-law crime is covered by the federal definitions only if every imaginable instance of violating the state-law crime would also fall within the federal definition. This gives rise to bizarre litigation by felons who argue that their crime of conviction was not a “crime of violence” because the state-law offense *could* be committed non-violently (e.g., committing state-law assault by poison) — even though their own offense conduct was unquestionably violent.

    Many critics would prefer for the “categorical approach” to be thrown out altogether. But if that’s not going to happen, then perhaps it should be limited to “conventional” examples of the state-law crime.

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