What is a Crime?

GRANT LAMOND

I. INTRODUCTION
 Doctrinal analysis - the most discerning feature of criminal law from other
branches of law is the distinctive way in which criminal proceedings differ from
civil proceedings (Adjectival distinction)
o Classification of a proceeding into a criminal proceeding is determined
based on the types of bodies having jurisdiction over the matte, the manner
in which the proceeding can be commenced, the rules of evidence and the
type of outcome.
 Criminological analysis - criminologists give the social dimension in answering
the question “What is a crime?”
o Conviction of a criminal does not take place simply because they breached
a legal prohibition – it takes place because they committed a crime and
were found guilty of the charge against them.
o This approach explains the social significance of liability.
 The author deviates from both these approaches and instead takes a philosophical
approach to understanding the nature of crime.

II. FAULT-BASED CRIMES AND STRICT LIABILITY OFFENCES

 There is a need to distinguish between fault-based crimes and strict liability
offences in order to understand their role in criminal law.
 The author says that there are two objections to the idea that fault-based crimes
are distinct and separate forms of criminal liability.
1. Offences are generally classifiable on one of the two ends of the
spectrum.
 Fault-based crimes – they are wrongs that the state is responsible
for punishing (they merit punishment from the state)
 Strict-liability offences – crimes where the actus reus of the
offence lacks the corresponding requirement for mens rea
(constructive liability)
  Criminal liability seems to lie along a spectrum – from fault-based
crimes with full mens rea to the narrow sense of strict liability
where there is no mens rea.
2. Making fault-based crimes the paradigm of criminal liability.
 This is because the law itself regards mens rea as the default
condition for criminal liability.
 It is also due to the sociological perspective on crime – the idea of
censure associated with conviction makes more sense when applied
to crimes with mens rea rather than just offences of strict liability
like failing to submit tax returns or getting a parking ticket - it is
crimes of mens rea that fit the society’s conception of criminality.

III. METHODOLOGY
 There needs to be a certain methodology for approaching crimes based on fault –
the doctrinal approach is one such methodology.
 Doctrinal account – seeks to determine a test that will capture the existing
distinction between criminal and civil proceedings in a particular jurisdiction.
 The author suggests the philosophical approach – distinct from doctrinal
because:
o Not concerned with the introduction of a test to classify proceedings as
criminal or civil.
o Focused on the settled cases of crimes in contemporary law – seeks to
analyse the type of conduct that is labelled “criminal” and not the fact that
the legislature has the power to make anything a crime.
o Different criteria for success – how satisfactorily the theory covers settled
instances of crime – the overall fit, and not an exact fit, between the theory
and the settled instances of crime is needed.
o The theory also provides an intelligible rationale for the settled instances
of crime – there has to be a view about the general characteristics of the
settled instances (eg: crimes involve morally wrongful conduct) – the
theory should be able to provide a rationale that makes sense of the
features of our current understanding of crimes and explain their
significance in a legal manner.
  Though there may be further sub-divisions within the class of crime, the fact
remains that fault-based crimes do have a significant internal unity.

IV. CRIMES AS PUBLIC WRONGS

 The conception of crime is that the community is affected by the crime in such a
way that it is not by civil law wrongs – the public interest goes beyond that of
the individuals affected.
 Two common notions:
o Interests affected – distinct harm to the community involved in criminal
wrongdoing
o Wrong done by the crime – it is a wrong against the community as well as
against the individual victim.
 The author says that both these approaches are mistaken – though crimes are
public wrongs in the sense that the community is responsible for punishing
the crime, it is not necessarily a wrong against the public.
 The Harm approach
o Nozick – harm extends beyond the immediate victim to all of those who
view themselves as potential victims of the crime.
 An injury caused by an intentional attack causes widespread fear
in the community.
o Becker – crimes cause social volatility – the potential for destructive
disturbance of fundamental social structures.
 Individual instances of promise-breaking do not produce socially
volatile responses in our culture whereas instances of intentionally
harming another does.
o The author’s objection to the above theories:
 The claim of the above authors is that crimes of mens rea have the
effects of inducing fear and social volatility.
 However, the author says that there are many crimes which do
not have this effect and many activities that are not crimes
which do have such an effect.
  This is because of the assumption that fear and volatility are
reactive emotions based on the reason they have for such
apprehension of fear – however, in actuality, it is not the crime
that causes fear, but the perceived risk of people becoming
victims of crime that causes fear.
 Thus, it is the perceived rate of crime that generates fear and not
crime itself.
 The Public Wrongs approach:
o Marshall and Duff
 The wrong done to the victim is a wrong done to the public at
large.
 For a crime to have such an effect, the community has to associate
and identify themselves with the victim and view the attack on the
victim as an attack on the group as a whole – it is claimed that the
values attacked by crime are constitutive of the community’s
identity.
o Crimes as violations of the law’s authority
 The defendant places their own will above that of the community
and punishment is the response necessary to vindicate the authority
of the community.
 Criminalization is not to be approached in terms of the violation of
the law but rather, fault-based crimes are first and foremost moral
wrongs – they are wrong because they are in violation of moral
norms and not legal norms.
 Though crime is often viewed as a public wrong against the victim, the actual
focus of criminal law should be on the type of wrong committed by the defendant
and not who the victim was.
 In criminal law, the proceedings are initiated by the community and the individual
has no role in discontinuing or compromising the proceeding.
 Thus, a crime is not a wrong against the community in the sense that it belongs to
the community, but rather the community is charged with determining whether it
is in the public interest or not.
V. CRIME AND PUNISHMENT
 Thus, crimes as public wrongs are wrongs that the community is responsible for
punishing.
 What wrongs merit punishment?
o Punishment presupposes blameworthy conduct.
o Conduct that is blameworthy:
1. Conduct is wrongful.
2. Wrongdoer is a responsible agent who acts without either
justification or excuse.
o Some wrongful acts are not serious enough for punishment – what makes a
crime serious enough for punishment is the type of blameworthy conduct that
displays a disrespect for the value that has been violated – they show an
unwillingness to be guided by the value in the appropriate way.
o Character should not be a relevant factor in determining whether a person is
eligible for punishment – though people may generally show aversiveness to
following the laid down values, the relevant factor is that they were
unwilling to be guided by the value on this particular occasion.
o Thus, there needs to be demonstrated unwillingness to be guided by the value
in order to find the key to punishable wrongs.
 Distinction between violation of duty and disrespect for a value
o Duties are grounded in values but what breaches of duty show a disrespect for
the underlying value depends on the context – this is why mens rea is
important in ascertaining crimes.
o Negligence does not necessarily show a disrespect for the value but overlooks
the question as to why the wrongdoer made such an omission.
o In negligence, since the why of the wrongdoer’s action is not looked into, even
those cases were there is no disrespect by the wrongdoer are included.
o This same understanding applies to recklessness as well – legally, the taking
of risk is only reckless when it is unjustified to act in that way – further, there
is disrespect only if the defendant acts even upon knowing that the risk is
unjustifiable.
 o Ultimately, in deciding punishment, there is a large range of punishments and
even for a grave wrong, there is the question of whether there are extenuating
circumstances which could act against the punishing of the defendant.
 What wrongs merit state punishment?
o Punishment is not limited to the state – but when it happens in other realms of
society, it occurs in social institutions which are responsible for their members
and their members’ actions.
o When it comes to the state, any serious violation of a value that the state is
responsible for supporting is a candidate for criminal punishment.
o The question is as to whether state punishment extends to every value it may
support – there are some values the state is required to support and then some
that it is at liberty to support – this is a flawed argument because there is
nothing stopping the state from punishing serious violations of a value that it
chooses to support.
o The correct argument, according to the author, is that there are some values
which may not be supported by the state using coercive means – different
examples of the same which act as limitations to state punishment:
 If one has a right to do something then that may include the right to do
it even when it would be wrong to do so (freedom of speech)
 Personal values which are not the business of those who are strangers
to the parties involved
o State punishment is only to be imposed for the violation of important values –
because the punishment is imposed in the name of the whole community and
not merely in the name of some institution of society.
 Because the defendant is being held accountable for the violation in the
face of the whole community, the punishment must not be a
disproportionate response to the gravity of the wrongdoing.
 It also has to be considered whether the criminalization will do more
harm than good.
 Further, because of the possibility of the failure of legal processes, the
state punishment must be worth the price of the wrongful convictions
that will inevitably flow from criminalization.
 o It is because of the above reasons that negligence and inadvertent recklessness
being a basis for criminal liability needs to be reconsidered (there is a higher
possibility of wrongful convictions because the court does not look into why
the defendant did no take proper precautions but ends up tending to look at
their unsavoury character traits)
 Thus, crimes are a subset of the wrongs that generally merit punishment – the larger
class is composed of the blameworthy wrongs that manifest a disrespect for the value
supported by the state but the state is only concerned with graver cases of such
wrongdoing.
VI. THE RELATIONSHIP BETWEEN CRIMES AND STRICT LIABILITY OFFENCES
 Does the understanding that crime involves seriously blameworthy action meriting
punishment shed any light on the relationship between fault-based crime and strict
liability offences?
 Strict liability is generally used for pragmatic purposes – cost-effectiveness,
administrative convenience or difficulties of obtaining proof.
O The present understanding of crime helps us understand the possible place
of strict liability in a system of laws.
 The difference between criminal and civil liability is the different ways in which
they promote their interests:
O Civil law – protects private interests by determining the circumstances in
which one party is liable to another for the infringement of those interests.
O Criminal law – does this by censuring conduct that manifests a disrespect
of the interests and protect public interests by serving to maintain the
integrity and viability of public institutions and practices.
 The gap in the above approach is that public and private interests are protected
only when there is an infringement of the same – conduct that simply increases the
risk of such violation without it being seriously blameworthy is not covered –
strict liability can fill this gap.
o Regulate certain forms of conduct.
o Provide for penalties in the case of breach.
 Because strict liability is instrumentally valuable to society (as they promote other
interests and values), conduct which demonstrates a disrespect for such regulatory
schemes can themselves merit punishment.
 Thus, the role of strict liability is complementary to the civil law and crime –
does not justify the current use of strict liability which is beyond its role, but it
lays out the ideal role for strict liability in a system of laws.