Abstract
Criminalisation theory is enjoying a renaissance: important monographs have been published (e.g. Husak, 2007); the topic is receiving attention in general accounts of the criminal law (e.g. Duff, 2007: ch 6); and an AHRC-funded project looking at the limits of the criminal law is beginning to bear fruit (Duff et al., 2010, 2011). Simester and von Hirsch’s Crimes, Harms and Wrongs – combining previously published work with new material – is a welcome addition to this field, and should clarify the reader’s thinking on a breathtakingly broad range of issues. For reasons of space, this review cannot do justice to the rich analysis in the book’s 12 chapters, which are split into five parts. This is an important book, and one that should appeal to advanced students and academics with an interest in the proper extent of the criminal law.
Part one introduces the authors’ project. Chapter 1 presents a ‘sketch’ of Simester and von Hirsch’s thinking on a range of issues, including the purposes of the criminal law and punishment. This overview is brief, and assumes background knowledge on the part of the reader (a point returned to at the end of this review). It is helpful, nevertheless, to have clear indications of the context in which the authors’ argument sits. This positioning is furthered by Chapter 2’s consideration of wrongdoing. One of Simester and von Hirsch’s core arguments in this book is that, for conduct to be criminalised legitimately, it must involve (moral) wrongdoing (p. 20). Chapter 2 explores the idea of wrongfulness and its relationship with criminalisation. The contention is not (paceextreme legal moralism) that all wrongdoing may be criminalised, but rather that wrongfulness is a necessary condition for such state action (pp. 21–22). Despite this, wrongdoing is not sufficient, in itself, to make criminalisation legitimate. There must be an extra ingredient to the defendant’s conduct: and (where the causing of offence is not in issue) this will be harm (p. 29).
Part two of the book thus moves to analyse the ‘Harm Principle’, with particular reference to Feinberg’s monumental, four-volume work on criminalisation (Feinberg, 1987–1990). Chapter 3 separates out three different senses of harm and explores how the question of whether a criminal prohibition is justified varies depending on the type of setback to the interests of others that certain conduct causes. Importantly, Simester and von Hirsch think that all three forms of harm are, at different points, appropriate bases for criminalising wrongful behaviour, which means that a focus on direct attacks to interests (‘direct/primary harm-doing’) is too narrow (p. 50).
Chapter 4 accordingly considers remote harms (e.g. the consequential harms brought about by, but not immediately involved in, wrongdoing). Simester and von Hirsch introduce what they call the ‘extended harm analysis’ to deal with such cases. Central to this analysis is the question of how far a citizen can legitimately be expected to guard against a certain harm resulting from her conduct (p. 62). In order to protect the liberty of citizens to an acceptable level, the state must adhere to a principle of ‘fair imputation’; a context-dependent estimation of the duties owed to others. This is an overtly political question (p. 68), designed to curtail the area over which the criminal law might legitimately be employed in cases of remote harm doing.
The idea of imputation – which connects well the notion of criminal responsibility to that of criminalisation – is developed further in Chapter 5, which moves to consider various forms of remote harm-doing. There is not space to explore the treatment of this issue here, but it must be noted that Simester and von Hirsch’s approach to this topic is noteworthy for its clarity and its excellent use of recent writings on the theory of criminal responsibility and liability.
This structured approach is maintained in part three of the book, which moves beyond the ‘Harm Principle’ to consider the ‘Offence Principle’. Chapter 6 begins by explaining how, to be criminalised legitimately, offensive conduct must involve wrongdoing. For Simester and von Hirsch, Feinberg underplays this aspect of offence, allowing him to sanction the criminalisation of an overbroad range of conduct which offends popular sensibilities. There must also be ‘valid normative reasons’ which demonstrate why the conduct might be legitimately objected to and dealt with through the criminal law (p. 96). This valid normative reason must – the authors explain – relate to the respect shown by one citizen to others (pp. 97–100). It is only where offensive conduct demonstrates insufficient consideration and respect for another person that it may justifiably be criminalised.
Often, where conduct manifests disrespect for others, it will not only cause offence but also set back a person’s interests. In Chapter 7, Simester and von Hirsch thus ask whether the ‘Harm Principle’ could criminalise offensive conduct where necessary. They answer negatively, arguing that there are distinctions between the structure of the two principles, and this necessitates keeping them both alive in a workable theory of criminalisation. What becomes clear is that there is, nevertheless, significant overlap between the two principles, and – at times – Simester and von Hirsch come close to collapsing the distinction that they are keen to maintain.
This becomes even clearer when – in Chapter 8 – the authors set out some mediating principles which would constrain the ‘Offence Principle’, reducing the number of cases where the ‘Harm Principle’ could not also be called upon to justify a criminal prohibition. Again, this chapter presents a useful schematic of these limiting principles, exploring their theoretical bases and venturing some examples. The treatment tends, however, to be very short. It might, for instance, have been beneficial to have heard more about Simester and von Hirsch’s thoughts on some important issues, such as the public/private divide (which is discussed in only four pages of the book (pp. 132–134 and 190–192)).
Having dealt with the Harm and Offence Principles, part four of Crimes, Harms and Wrongsconcerns paternalistic prohibitions. In Chapter 9, the authors come close to denying that direct paternalistic interventions (i.e. prohibitions which tell the actornot to do something – e.g. drive without a seatbelt) should ever employ the criminal law. This is because of the core censuring function of the criminal law: even if a self-regarding choice might be ‘wrong’ in a moral sense, it is unlikely to be the type of wrong that merits the social disavowal attendant upon conviction. To allow some degree of flexibility in their account, Simester and von Hirsch nevertheless posit that ‘[a]t least sometimes, however, criminal law may be the best option, especially in minor regulatory contexts. It is not ruled out entirely’ (p. 165). A similar conclusion is reached in Chapter 10’s consideration of indirect paternalistic prohibitions, which remove choices from actors (e.g. mandating that cars are manufactured to have airbags means that car purchasers cannot choose to buy a cheaper car without an airbag). After a detailed analysis of killing requests by those who wish to die, the authors conclude that ‘there are no universal answers’ to questions about paternalistic prohibitions (p. 186).
The need for careful analysis of individual cases is furthered by the imposition – in part five of the book – of yet further constraints on criminalisation, which exist to combat the very real problem of ‘overcriminalisation’. Chapter 11’s ‘mediating considerations and constraints’ to the analysis of the Harm and Offence Principles, including those based on concerns such as privacy, fair warning and practical constraints, are again perhaps dealt with too briefly.
The book’s twelfth and final chapter considers two-step criminalisation – that is, the process by which civil orders can be granted and then backed up by criminal sanctions. The classic UK example is the Anti-Social Behaviour Order (ASBO). Chapter 12’s analysis of this topic is particularly interesting, and the authors’ objections to such orders stem clearly from the theory developed in earlier parts of the book. This gives the book a feeling of coherence that is often lacking from texts based significantly on previously published work.
In summary, this book is remarkable for its careful analytical structure, even if the consequences of this analysis are sometimes not followed through as much as the reader might like. The authors consistently and conscientiously draw distinctions which aid in the understanding of complex areas. Although some readers will disagree with the lines drawn by Simester and von Hirsch (and particularly whether the criminalisation question can ever be as clear-cut as one might suspect from reading this book – see e.g. Tadros (2011)), the clarity of this text ensures that such disputes will be focused readily.
It should, nevertheless, be noted that newcomers to this area will find this book challenging. Much of Crimes, Harms and Wrongsengages with previous work on criminalisation, and readers who are less familiar with this literature might find Simester and von Hirsch’s summaries too quick. This rarely impacts upon the substantive argument which the authors seek to make, but those who are coming fresh to this area might benefit from conducting some background reading to ensure that they can appreciate the nuance of Simester and von Hirsch’s argument.
Those familiar with criminalisation theory already will definitely find this a rewarding and engaging book, which – through its structured and analytical approach – ought to provoke much thought and discussion. The book’s 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.