Crimes, Harms, and Wrongs

On the Principles of Criminalisation

A P Simester, Andreas von Hirsch

• Publisher: Hart Publishing
• Year: 2011
• ISBN:
  9781847317773
• Edition: 1
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

When should we make use of the criminal law? Crimes, Harms, and Wrongs offers a philosophical analysis of the nature and ethical limits of criminalisation. The authors explore the scope of harm-based prohibitions, proscriptions of offensive behaviour, and 'paternalistic' prohibitions aimed at preventing self-harm, developing guiding principles for these various grounds of state prohibition. Both authors have written extensively in the field. They have produced an integrated, accessible, philosophically-sophisticated account that will be of great interest to legal academics, philosophers, and advanced students alike.
'this elegant, closely argued and convincing book is of great value and can be expected to be of lasting influence.' James Chalmers
'Crimes, Harms, and Wrongs... is a welcome addition to this field, and should clarify the reader's thinking on a breathtakingly broad range of issues.... This is an important book, and [its] consideration of not only Anglo-American theory and law, but also German legal doctrines and writings on criminalisation, should ensure that this debate reaches new heights in the future.' Findlay Stark
'the result of [the authors'] many decades of thought and writing on this fundamental subject is an integrated, accessible, philosophically sophisticated discussion of this subject.' Justice Gilles Renaud
'A.P. Simester and Andreas von Hirsch present an informed and systematic account of the principles that, in their view, should structure decisions about what to criminalize, and when.' Vincent Chiao
'an outstanding work, original in many respects and meticulous in its arguments. It represents the greatest advance on this subject since Feinberg's four volumes... an outstanding contribution to the re-invigorated criminalization debate.' Andrew Ashworth
'important, original, interesting, and often ingenious. Unlike some recent competitive books it has the virtue of making sound arguments. And like everything else the authors have written, it is a joy to read …This is an absolutely wonderful book.' Douglas Husak

Part I

Criminalisation and Wrongdoing

1

The Nature of Criminalisation

OUR CONCERN IN this book is with what to criminalise: with the moral question, when should the criminal law be deployed to regulate the behaviour of citizens? In what follows, especially Parts II through IV, much of our argument will build upon, refine, and in some places depart from the analysis by Joel Feinberg in his great work, The Moral Limits of the Criminal Law. In particular, we investigate the approaches that the criminal law ought to adopt regarding harm, offence, and paternalism. We shall argue that, on occasion, each can serve as a legitimate ground of criminal intervention, but only once certain normative distinctions are observed. Those distinctions underpin some powerful constraints upon the reach of the criminal law, constraints that go beyond those set out in the existing literature.

We begin, however, with a more general inquiry. The proper scope of the criminal law depends, in part, upon its nature and function. In order to know when to criminalise, we need first to think about what it means to do so.

Broadly speaking, we can divide the operation of the substantive criminal law into three stages. First, the state ‘criminalises’ certain activities by setting out, hopefully in advance and in clear terms, a catalogue of specified actions or omissions that are prohibited, together with ranges of sanctions for violations. Secondly, at trial, it convicts persons who are proved to have contravened those prohibitions. Finally, it imposes sentence upon those it convicts, a sentence that is drawn from a specified range of permissible sanctions.

In so far as this sketch goes, it seems uncontroversial. Indeed, much the same can be said of other branches of law. Torts are broadly articulated in advance, their commission followed by courtroom verdicts and sanctions. What, then, marks out the criminal law?

That question may be answered in different ways. One very common approach is to think of the criminal law by reference to its system of sanctions. On this view, the criminal law becomes a field sui generis—a special body of law that is distinctively motivated by its concern with the imposition of sanctions as punishment. Other bodies of law might occasionally punish, e.g. through exemplary damages, but they do so only incidentally, and then perhaps only for the kinds of conduct that might appropriately be criminalised. It is a short move from that line of thinking to retributivism: the criminal law exists in order to punish people for their culpable misconduct.

For a retributivist such as Michael Moore,¹ the question what to criminalise is secondary to the question, what to punish? Prima facie, one should criminalise, and punish, whenever there is a culpable wrong, and not otherwise.² An asymmetry between what is criminalised and what is punishable will no doubt open up in practice; but it does so on a different plane, for rule of law (‘legality’) reasons,³ or for pragmatic reasons,⁴ or perhaps owing to various rights-based exceptions.⁵ On that view, the primary task when ascertaining the scope of criminalisation is to identify when conduct is morally wrongful.

At the other end of the spectrum, some writers see the criminal law as just another state regulatory tool, one that happens to involve fines and imprisonment rather than injunctions and damages. To them, there is no fundamental distinction between crimes and other branches of law that impose sanctions. The difference is one of degree: the criminal law exists to visit punishments such as imprisonment or fines in situations where other forms of disincentive make for an insufficient deterrent.⁶ The point of punishment then becomes, like other forms of sanction, to foster compliance by creating strong prudential reasons for abiding by the law; and we should criminalise especially when other forms of regulation are ineffective to achieve that end. Beyond that immediate purpose, the ultimate aims of criminal law are no different from those of the civil law; which, although themselves disputed, generally involve the co-ordination and regulation of behaviour so as to facilitate the well-being of community members.

The truth is, we think, somewhere in between. The criminal law is a regulatory tool for influencing behaviour, and in some respects no more than that; but it is a special kind of tool. The essential distinction between criminal and civil law lies in the social significance of the former—in the way criminal laws, convictions, and sanctions are understood. The criminal law has a communicative function which the civil law does not. It speaks with a distinctively moral voice, one that the civil law lacks.

We may observe this in all three stages of operation. The act of criminalisation itself constitutes a declaration that designated conduct is, so far as the state is concerned, wrongful and should not be done. Ex post, the conviction and the punishment also express disapprobation. D is labelled as a particular sort of criminal (a ‘murderer’, ‘fraudster’, etc.), a labelling that conveys a public declaration of culpable wrongdoing. Recognition of the significance of convictions can be seen in disclosure requirements of applications for a visa, or for admission to practise as a lawyer, which call for information about prior convictions but not about lost civil lawsuits. The very labelling of a defendant as ‘criminal’ imports all the resonance and social meaning of that term—quite different from publicly calling her a ‘tortfeasor’(!) This is one reason why it is intelligible to have a conviction accompanied by discharge without punishment.⁷ Punishment, in turn, is imposed with censure as an integral aspect. It responds to the fact that the defendant has done something wrong. Indeed, quite apart from deterrence considerations, the level of sentence is one way in which a court proclaims the wrongfulness of the defendant’s actions and the gravity of the wrong.

Yet the crime-preventive aspect of the criminal law, and of its sanctions, is also significant. There is certainly evidence that the criminal law has some deterrent effect.⁸ The criminal law does not ask: ‘Do not assault others, please.’ It tells: ‘Do not assault others, or else.…’ The threat is straightforwardly coercive. And this generates a puzzle. Is the preventive effect incidental, as a retributivist might argue, or is it part of the point of the criminal law? Are the sanctions imposed purely because deserved, or are they intended to help influence the behaviour of citizens, notably of those who would not otherwise be inclined to conform to the law’s requirements?

We think the latter; that deterrence is part of the point. At the same time, it is easy to see why writers have questioned whether a deterrent motivation is compatible with the morally-loaded, desert-based sanctioning system that, in our view, is rightly also characteristic of the criminal law. How can a system of culpability-driven sanctions be reconciled with deterrence?

1.1 THE ACT OF CRIMINALISATION

Hybrid accounts exist already in the literature,⁹ though they seem to us unsuccessful. A difficulty is that they focus on justifying the criminal law as an ex post, punishing institution.¹⁰ Seen purely in isolation, as a response to instances of wrongdoing, the imposition of a punitive sanction cannot (save contingently) discharge both deterrence and desert motivations at the same time. Unless both goals happen to converge on the same quantum of penalty, one must corrupt the other. Systematically, conflict is inevitable. So, unless we are prepared to give up on one of those two goals, we should abandon the attempt to justify punishment on a purely ex post basis.

Instead, let us start earlier: with the act of criminalisation. This is a complex, public, and coercive act, one that articulates both deterrence and desert ex ante. To criminalise an action is both to declare that the action should not be done and to deploy desert-based sanctions as supplementary reasons not to do it. More fully, by criminalising the activity of

ing,^* the state declares that

ing is morally wrongful; it instructs citizens not to

; it warns them that, if they

, they are liable to be convicted and punished within specified ranges (the levels of which signal the seriousness with which

ing is regarded); and, further, the state undertakes that, on proof of D’s

ing, it will impose an appropriate measure of punishment, within the specified range, that reflects the blameworthiness of D’s conduct.

Clearly, this act is coercive. The warning is no mere advice but a threat, in as much as it communicates an intention to inflict unwelcome consequences upon D, conditional upon D’s

ing; moreover the consequences will be inflicted not just if but because D

s, and because they are unwelcome.¹¹ Typically, moreover, the threat is made in order to give D reason not to

; that deterrent element does not arise just incidentally. (Indeed, even if a particular state’s motivation were purely retributivist, the coercive effect of criminalisation would still call for justification—whether aimed at or not.)

However, actionscan be coercive in different ways. Various forms of (‘non-rational’) coercion operate through bypassing the subject’s rational capacities: for example, by simple physical restraint; or through a technique of psychological compulsion, such as the state’s use of the rat against Winston Smith in Orwell’s 1984. Imprisonment, itself, is non-rationally coercive. But the type of coercion involved in criminalisation is what we might term rational coercion. Rational coercion operates via, and appeals to, the subject’s responsible agency; it offers her reasons for action, reasons that she may choose to ignore. It does not make the decision for her.¹²

a. An Archetype

Clearly, it is possible for the state to take coercive measures of the form we have outlined above. The very possibility of such a regulatory tool is sufficient to raise normative questions about its use and limitations, many of which are addressed in this book. But we think the account of criminalisation we have stated is more than a possible form of legal coercion. It is an archetype: as well as being a paradigm or standard account of what is done when the state enacts a criminal law, it is also a point of reference. It is an ideal type, at the normative heart of criminal law.

Conceived of as a paradigm, we think our account describes the structure of core, traditional acts of criminalisation, the declarations made (and subsequent punishments inflicted) in the context of offences such as murder, rape, theft, and the like; and it is the association of criminal law with such offences that tends to underpin the moral resonance of the criminal law in the public mind. But as a paradigm, our model is not always followed. Much punishment in England is explicitly preventative, involving terms of imprisonment that are disproportionate to the circumstances of the offence.¹³ And, notoriously, many English and American criminal prohibitions impose ...

Table of contents

• Cover
• Title
• Copyright
• Preface
• Acknowledgements
• Contents
• Abbreviations
• Table of Cases
• Table of Legislation
• Part I: Criminalisation and Wrongdoing
• Part II: Harm
• Part III: Offence
• Part IV: Paternalism
• Part V: Drawing Back from Criminal Law
• Index