Crimes, Harms, and Wrongs: On the Principles of Criminalisation (review)

In Crimes, Harms, and Wrongs, Andrew Simester and Andreas von Hirsch smoothly weave several previously published papers into an account of the principles that should govern the decision to criminalize behaviour. They ask, ‘[W]hen should the criminal law be deployed to regulate the behaviour of citizens?’ (3). Given that that the criminal law speaks in ‘a distinctively moral voice’ (4), condemning people for their conduct, and that the liberal state is an instrument for advancing ‘the welfare of its subjects’ (30), they argue that the criminal sanction should be used with restraint. There are at least four conditions that should be met for conduct to be criminalized: the conduct is (morally) wrongful (23), the conduct causes harm (36ff), the harms the conduct causes can be properly attributed to the offender (59–61), and criminalization is the best legal device for dealing with those harms (189). There is virtually no discussion of familiar problems of criminal law doctrine, such as the role of fault requirements, the interpretation of criminal statutes, the difference between offences and defences, or the relationship between substantive criminal law and rights-protecting instruments such as bills of rights or international conventions (compare 134–5). Instead, the authors’ focus is relentlessly legislative: when should the legislature choose to criminalize conduct rather than using some other mode of regulation (or none at all)?

The success of an approach to criminalization that takes both wrongfulness and harmfulness seriously as constraints depends not only on the plausibility of the theorist’s conceptions of wrong and harm but also on a commitment to keeping those conceptions distinct. Each constraint is supposed to limit what would otherwise be the excessive demands of the other; if they are not kept distinct, a harm-based account tends to collapse into a wrong-based account, or vice versa, and there turns out to be no limit, after all, on the imperialism of one principle. That is why Joel Feinberg relies so heavily on the notion of wrongful harm in spelling out the implications of his version of the harm principle,¹ and why Simester and von Hirsch themselves resist the claim that wronging someone should be considered harmful per se (50). Simester and von Hirsch’s conception of wrongful conduct includes both conduct that is morally wrong independently of the law, such as murder, and conduct that is neutral pre-legally but becomes morally wrongful in light of the morally legitimate demands of the law, such as driving on the wrong side of the road (22–9). Their core conception of harm is ‘the impairment of a person’s opportunities to engage in valued activities and relationships, and to pursue self-chosen goals’ (38). These conceptions are attractive for a liberal account of criminal law; Simester and von Hirsch try to avoid legal moralism by insisting that nothing can be criminalized solely because of its wrongfulness, and they try to restrain the harm principle by employing a conception of harm sufficiently robust to prevent criminalization on the basis of minor, remote, or excessively subjective harms (see e.g. 47–8). The operation of these constraints is illustrated by the most persuasive chapters in the book, which lay out their account of the criminalization of offensive wrongdoing. Conduct is offensive in their sense if, in an objective sense, it ‘treats others with a gross lack of consideration or respect’ (107), and offensive conduct is wrongful because it is a violation of our (pre-legal) duty to ‘treat each other with due consideration and respect’ (100). But, they argue, mere offensiveness is not enough for criminalization. The offensive conduct must also be shown to cause harm in the appropriate sense. So it is not enough that offensive conduct causes affront to another; there must be real psychological harm or other damage to the offended person’s quality of life. A degree of incivility, falling short of conduct that causes this kind of harm, is part of...