The nature of crime: A synthesis, following the three perspectives offered in the grammar of criminal law

Abstract

I Introduction the chapter on criminal theory in his recently published Grammar of Criminal Law, George Fletcher distinguishes three foci for thinking about why conduct qualifies as crime: violating duty, causing harm, and infringing norm. (1) According to Fletcher, A criminal might engage in any of the three types of violation.... problem is, which type of the three violations lie at the core of our thinking about defining conduct as criminal? [37]. Fletcher believes that it is task for the theorist ... to consider whether synthesis or resolution of these divergent approaches is possible [42-43]. Fletcher does not himself, however, offer such synthesis. this essay I take up the challenge and offer synthesis of the three different perspectives. My main argument is that should lie at the core of our thinking about defining conduct as criminal. However, within criminal law be understood as carrying different meaning from the one attached to it by Fletcher in this context. alternative meaning of criminal offered in this essay will enable us to synthesize the three perspectives suggested by Fletcher. According to the synthetic approach I suggest, the other two foci--violating duty and infringing norm--should not be regarded as providing alternative theories to the harm-based theory of crime; rather, they be regarded as providing further restrictions on the scope of crimes on harm. Given the importance of the term in my argument, clarification is needed. meaning of has been elaborated in discussions of the principle. (2) this essay, however, I limit myself to the basic meaning of in the criminal law--a meaning that does not elucidate the main controversial issues involved in applying the principle to the criminal law. Moreover, since this essay focuses on Fletcher's Grammar of Criminal Law, my suggestion for an understanding of criminal relies on distinctions that Fletcher offers in the book. II Three Perspectives on Crime Offered by Fletcher 1. Crimes on violation of duty are based on the inherent wrong of transgressing against one's duty. transgression can occur without impact on the interests of others [38]. such cases, [i]mmorality per se can become the object of state [39]. Examples are the crime of treason and the European offense of failure to rescue. 2. In harm-based system of criminal law, the essential condition for punishment is that an action caused harm [41]. The centrality of ... requires response to the concrete victim and the irreversible tragedy that may have occurred [40]. 3. According to a norm-based theory of crime ... the starting point for analyzing criminal wrongdoing is not simply 'causing harm' but 'causing under particular circumstances' [42]. Harm resulting from acceptable risks, such as causing death in the normal course of driving, does not violate the norm [41]. III Basic Meaning of Criminal Harm meaning of criminal is connected with the principle, theoretical paradigm that aims at limiting the power of the liberal state. As first formulated by John Stuart Mill, The only purpose for which power can be rightfully exercised over any member of civilized community, against his will, is to prevent to others. (3) Applying the principle to the criminal law requires that we define the nature of the whose prevention may justifiably be achieved by criminalization. As shown above, according to Fletcher the principle requires that crime be limited to cases in which to concrete victim has been caused. We need, therefore, additional theories of crime for cases in which has not been caused (a duty-based theory) and for cases in which causing is acceptable/justified (a norm-based theory). …