What is a crime?

Oxford Journal of Legal Studies

Volumn 27, Issue 4, 2007, Pages 609-632

  Lamond, Grant ^a  

^a BALLIOL COLLEGE   (United Kingdom)

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[No Author keywords available]

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EID: 36849044556     PISSN: 01436503     EISSN: 14643820     Source Type: Journal    
DOI: 10.1093/ojls/gqm018     Document Type: Article

References (74)

1. E.g. G. Williams, 'The Definition of Crime' (1955) Current Legal Problems 107, at 130,
2. A. Simester and G. Sullivan, Criminal Law: Theory and Doctrine (Oxford: Oxford University Press, 3rd edn, 2007), at 3-4.
3. See G. Williams, above n 1 and D. Ormerod, Smith and Hogan Criminal Law (Oxford: Oxford University Press, 11th edn, 2005), Ch. 2, especially 9-10, 16-17. On the procedural aspects of criminal law,
4. see also A. Ashworth, 'Is the Criminal Law a Lost Cause?' (2000) 116 LQR 225, at 230-2.
5. For a recent overview, see L. Zedner, Criminal Justice (Oxford: Oxford University Press, 2004) Ch. 2
6. and for doctrinal accounts particularly sensitive to these issues, see A. Ashworth, Principles of Criminal Law (Oxford: Oxford University Press, 5th edn, 2005), 1-6 and Simester and Sullivan, above n 1 at 1-5.
7. See, e.g. A. Brudner, The Unity of the Common Law (Berkeley: University of California Press, 1995), Ch. 5.
8. The English crime of unlawful and dangerous act manslaughter, for instance, requires the defendant to have killed another while doing something that was both criminal and dangerous (in the sense that it created the risk of some harm), but the death of the victim need not have been foreseen by the defendant nor foreseeable by a reasonable person: Newbury [1977] AG 500 (HL).
9. The arguments in this article neither justify nor rule out the legitimacy of constructive liability in cases of fault-based crime.
10. See e.g. B v DPP [2000] 2 AC 428 (HL).
11. There are a handful of exceptions: See D. Ormerod, above n 2, at 140-1.
12. Most markedly in English law with the offence of manslaughter by gross negligence, which requires the jury to ask whether the negligence resulting in death was 'so bad in all the circumstances as to amount to a criminal act': Adomako [1995] 1 AC 171, at 187 (HL).
13. On the idea of 'family resemblance' see L. Wittgenstein, Philosophical Investigations (Oxford: Basil Blackwell, 3rd edn, 1967), at 65-66
14. and R.J. Fogelin, Wittgenstein, (London: Routledge & Kegan Paul, 2nd edn, 1987), at 133-8.
15. R. Nozick, Anarchy, State, and Utopia (Oxford: Basil Blackwell, 1974), at 65-71.
16. L. Becker, 'Criminal Attempts and the Theory of the Law of Crimes' (1974) 3 Philosophy & Public Affairs 262, at 273.
17. Ibid at 274.
18. Ibid at 275.
19. Of course, as a psychological phenomenon this is not always true: What characterizes phobias is the irrational basis (or degree) of the aversion. But I take it that there are good reasons for being fearful of (some) crimes.
20. S.E. Marshall and R.A. Duff, 'Criminalization and Sharing Wrongs' (1998) 11 Canadian Journal of Law and Jurisprudence 7, at 20-1.
21. In his later work, Duff's position seems somewhat different: (a) that the wrong is shared by the community because it is a wrong against the victim as a member of the community (Punishment, Communication, and Community (Oxford: Oxford University Press, 2001) at 60-4
22. and (b) that the proposal is not meant to provide a criterion for which wrongs are public ones, but is simply saying that those wrongs that are apt for public condenmation are public wrongs: S 6, 'Theories of Criminal Law', The Stanford Encyclopedia of Philosophy (Winter 2002 Edition), E.N. Zalta (ed.), http://plato.stanford.edu/archives/ win2002/entries/criminal-law/.
23. Marshall and Duff, above n 16, at 19.
24. Ibid at 20.
25. Nor are the values constitutive in the sense that they are regarded as important because they make the community the type of community that it is. See for some arguments along these lines P. Nicholson, 'Hegel on Crime' (1982) 3 History of Political Thought 103
26. and J. Hampton, 'Mens rea' in E.F. Paul et al. (eds), Crime, Culpability, and Remedy (Oxford: Basil Blackwell, 1990).
27. Although there are Hegelian roots to this view, Hegel's own account of crime is different: See G.W.F. Hegel, Elements of the Philosophy of Right [A.W. Wood (ed.), Cambridge: Cambridge University Press, 1991], ss 90-104, 218-229,
28. and for a modern interpretation of the common law in Hegelian terms: Brudner, above n 4, Ch. 5.
29. Note T. Honoré 'Real Laws' in his Making Law Bind (Oxford: Oxford University Press, 1987), at 76-7: Typical criminal statutes do not prohibit murder, theft, etc., but simply lay down the punishment for their commission, and sometimes provide an authoritative definition of their elements. The underlying assumption seems to be that it is unnecessary to state that these actions are wrong.
30. Of course, the victim (where there is one) also has a special interest in the defendant being held to account for their wrongdoing, and will have a grievance if (for inappropriate reasons) this fails to occur. See, for example, the Code for Crown Prosecutors (England and Wales), s 6.
31. In the case of private prosecutions in England and Wales, the community exercises a supervisory jurisdiction through the power to take over and discontinue a prosecution that is not in the public interest: Prosecution of Offences Act 1985, s 6(2). Permitting private prosecutions may be justified as a fail-safe device against the fallibility of prosecuting bodies, so long as these prosecutions are subject to such a supervisory jurisdiction.
32. On the connections between censure and punishment, see e.g. R.A. Duff, Trials and Punishments (Cambridge: Cambridge University Press, 1986), Ch. 2
33. and A. von Hirsch, Censure and Sanctions (Oxford: Oxford University Press, 1993), especially Ch. 2.
34. One important type of excuse arises where the wrongdoer was unaware of the existence of the duty or the risk of its violation, and it is not the case that their ignorance was itself blameworthy.
35. See e.g. M. Bayles' proposal for a character view of culpability in 'Character, Purpose, and Criminal Responsibility' (1982) 1 Law and Philosophy 5.
36. For a critique of tying culpability to vice see R. A. Duff, 'Virtue, Vice and Criminal Liability' (2002) 6 Buffalo Criminal Law Review 147.
37. See above nn 11-14.
38. On specification, see Finnis, Natural Law and Natural Rights (Oxford: Oxford University Press, 1980), at 284-6.
39. Alexander has argued that the central forms of mens rea display a unitary vice, viz. insufficient concern for the interests of others, and that all involve imposing an unjustified risk of harm on others: 'Insufficient concern: A Unified Conception of Criminal Culpability' (2000) 88 California Law Review 931. The account in the text turns this central claim inside on-the disrespect necessary for punishment can be manifested in a variety of ways, and no form of mens rea necessarily displays it in every context.
40. Victor Tadros has also argued that criminal responsibility depends upon actions that manifest 'moral vices', i.e. actions that display an insufficient concern for the interests of others, Criminal Responsibility (Oxford: Oxford University Press, 2005), Ch. 3.
41. Secton 1(1) Criminal Damage Act 1971 (Eng.).
42. See e.g. Alexander, above n 30, at 949-53 and M. Moore 'Choice, Character, and Excuse' in E.F. Paul et al. (eds) Crime, Culpability, and Remedy (Oxford: Basil Blackwell, 1990) cf. Moore's later views in Placing Blame (Oxford: Oxford University Press, 1997) Ch. 9 and 588-92.
43. There is a second important objection to negligence based on the use of an objective standard of care that some people are incapable of meeting. But negligence can be made relative to the capacities of the wrongdoer, and it is this case that is the most relevant. See e.g. H.L.A. Hart's defence of negligence as culpable where the defendant fails to do what the reasonable person would have done despite having the mental and physical capacities at the time to do so-'Negligence, Mens Rea, and Criminal Responsibility' Punishment and Responsibility (Oxford: Oxford University Press, 1968) -
44. A.P. Simester's alternative in terms of whether the defendant failed to do what they could reasonably have done given their mental and physical capacities: 'Can Negligence be Culpable?' in J. Horder (ed.), Oxford Essays in Jurisprudence: Fourth Series (Oxford: Oxford University Press, 2000).
45. See, in particular, R.A. Duff's work on 'practical indifference' in recklessness, e.g. Intention, Agency and Criminal Liability (Oxford: Basil Blackwell, 1990), Ch. 7.
46. See also J. Horder, 'Gross Negligence and Criminal Culpability' (1997) 47 University of Toronto Law Journal 495, at 500-9.
47. See e.g. clause 2 of the draft bill 'Involuntary Manslaughter' in Legislating the Criminal Code: Iuvoluntary Manslaughter (Law Commission Report 237, 1996).
48. In the context of homicide, see the interesting discussion of reckless indifference in A New Homicide Act for England and Wales? (Law Commission Consultation Paper 177, 2005), §§3.149-3.170. On recklessness,
49. see also V. Tadros 'Recklessness and the Duty to Take Care' in S. Shute and A.P. Simester (eds) Criminal Law Theory: Doctrines of the General Part (Oxford: Oxford University Press, 2002).
50. See, e.g. R v G [2003] UKHL 50, [41].
51. In addition, it has a residual authority over those who commit wrongs against its members, even when this occurs outside its territory, if there is no more appropriate body willing to take such action. (There is also a further question of the existence of 'universal jurisdiction' over certain crimes like piracy and genocide, even when it takes place outside the state's territory and none of its members are involved as either victims or wrongdoers. The better view is probably that the world community has jurisdiction over these wrongs, because they merit condemnation in the name of the world community, but that for practical reasons this jurisdiction is delegated to national states in order to ensure that these crimes are punished.)
52. The scope of the state's proper role in community life is, of course, a controversial question in political philosophy that this article does not attempt to address.
53. A. Duff, 'Theories of Criminal Law' The Stanford Encyclopedia of Philosophy (Winter 2002 edn), E.N. Zalta (ed.), http://plato.stanford.edu/archives/win2002/entries/criminal-law/s 6.
54. Such as the 'harm principle', i.e. the principle that only harms (or perhaps harms to others) should be coercively restrained. For some sceptical evaluations of this limiting role of the harm principle, see J. Stanton-Ife, 'The Limits of Law' The Stanford Encyclopedia of Philosophy (Spring 2006 edn), E.N. Zalta (ed.), http://plato.stanford.edu/archives/spr2006/entries/law-limits/
55. and L. Alexander, 'The Philosophy of Criminal Law' in J. Coleman and S. Shapiro (eds), The Oxford Handbook of Jurisprudence and Legal Philosophy (Oxford: Oxford University Press, 2002), at 851-64.
56. J. Waldron, 'A Right to do Wrong' in his Liberal Rights (Cambridge: Cambridge University Press, 1993).
57. If there was a general right to liberty this would have a more systematic effect on criminalization, e.g. by creating a threshold against wrongs being punished. For a defence of such a right see M. Moore, Placing Blame, Ch. 18.
58. See also, D. Husak's argument that there is a right not to be punished in 'The Criminal Law as Last Resort' (2004) 24 Oxford Journal of Legal Studies 207, at 232-5.
59. Among non-rights-based arguments, the most prominent is one advanced by Raz over the value of personal autonomy. According to Raz all coercion infringes personal autonomy, and the only justification for such infringement by the state is the promotion of autonomy (the agent's or others') itself: The Morality of Freedom (Oxford: Oxford University Press, 1986), at 412-20. But this only follows if there are no situations in which it can be more important to secure conformity to a vaine other than autonomy than to avoid the use of coercion. A more limited general presumption against punishment could, however, be based on his argument, viz., that wrongs may only be punished where this is worth the invasion of personal autonomy. Depending upon the importance of personal autonomy, this could set quite a high threshold.
60. Likewise, it would be inadequate for some wrongs to be condemned by some body or person other than the community as a whole.
61. A useful summary of a wider range of these problems can be found in M. Moore, Placing Blame above n 32 at 663-5. And even if a crime is created, there is still the question in each case of whether charges should be brought.
62. There may be special circumstances, however, where these concerns may be allayed.
63. It is also difficult fairly to present a jury with the idea of a personalized standard of negligence.
64. There are other ways in which moral considerations are altered in being translated into legal doctrine. The most obvious in the case of crime is the lack of a general defence of mistake of law. And nothing said here touches on the question of the appropriate standards and burdens of proof for different types of crime.
65. For an account of personal autonomy along these lines see Raz, above n 44, Ch. 14.
66. See, for instance, 'rape of a child under 13' (s 5 Sexual Offences Act 2003, England and Wales) which does not require any mens rea as to the victim's age (nor lack of consent for the actus reus).
67. See e.g. A.P. Simester, 'Is Strict Liability Always Wrong?' in A.P. Simester (ed.), Appraising Strict Liability (Oxford: Oxford University Press, 2005), especially at 25-33. For further discussions of strict liability see the other essays in the Appraising Strict Liabilty volume.
68. E.g. motoring offences, health and safety and food standards.
69. Arguably some are also intrinsically valuable because they enable members of the community to co-operate in ways that serve the good of the community as a whole: Participation in such schemes realises a form of social solidarity which is itself intrinsically valuable.
70. It is a mistake then to think that matters dealt with by 'regulatory offences' are not apt for the criminal law: It is simply that the conduct must be shown to merit punishment.
71. So it does not follow Devlin's approach (P. Devlin, The Enforcement of Morals (Oxford: Oxford University Press, 1965), especially Ch. 1).
72. For an alternative legal moralist approach to criminal law see Moore Placing Blame above n 32.
73. It is an open question whether the invocation of the harm principle would radically alter this picture, even if that principle could be successfully defended.
74. See J. Feinberg, 'The Expressive Function of Punishment' in his Doing and Deserving (Princeton: Princeton University Press, 1970), especially at 95-8.