The nature of crime: a synthesis, following the three perspectives offered in The Grammar of Criminal Law.(SYMPOSIUM)

I Introduction

In the chapter on criminal theory in his recently published The Grammar of Criminal Law, George Fletcher distinguishes three "different foci for thinking about why conduct qualifies as crime": violating a duty, causing harm, and infringing a norm. (1) According to Fletcher, "A criminal might engage in any of the three types of violation.... The problem is, which type of the three violations should lie at the core of our thinking about defining conduct as criminal?" [37]. Fletcher believes that it is a "task for the theorist ... to consider whether a synthesis or resolution of these divergent approaches is possible" [42-43]. Fletcher does not himself, however, offer such a synthesis.

In this essay I take up the challenge and offer a synthesis of the three different perspectives. My main argument is that harm "should lie at the core of our thinking about defining conduct as criminal." However, harm within criminal law should be understood as carrying a different meaning from the one attached to it by Fletcher in this context. The alternative meaning of criminal harm 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 a duty and infringing a norm--should not be regarded as providing alternative theories to the harm-based theory of crime; rather, they should be regarded as providing further restrictions on the scope of crimes based on harm.

Given the importance of the term "harm" in my argument, a clarification is needed. The meaning of "harm" has been elaborated in discussions of the "harm principle." (2) In this essay, however, I limit myself to the basic meaning of harm in the criminal law--a meaning that does not elucidate the main controversial issues involved in applying the harm principle to the criminal law. Moreover, since this essay focuses on Fletcher's Grammar of Criminal Law, my suggestion for an understanding of criminal harm relies on distinctions that Fletcher offers in the book.

II Three Perspectives on Crime Offered by Fletcher

1. Crimes based on violation of a duty are "based on the inherent wrong of transgressing against one's duty. The transgression can occur without impact on the interests of others" [38]. In such cases, "[i]mmorality per se can become the object of state punishment" [39]. Examples are the crime of treason and the European offense of failure to rescue.

2. "In a harm-based system of criminal law, the essential condition for punishment is that an action caused harm" [41]. "The centrality of harm ... requires a response to the concrete victim and the irreversible tragedy that may have occurred" [40].