Type 1, “Crimes, Harms, and Wrongs”
Simester and von Hirsch argue that something must possess the feature of wrongfulness before it can be criminalized in their writing, “Crimes, Harms, and Wrongs”.
The authors assert that the criminal law declares actions illegal and create punishments for violators of the law. When something that is not wrongful is criminalized, it weakens “the association of criminal laws with culpable wrongdoing,” (Simester and von Hirsch 20). Simester and von Hirsch then distinguish two reasons that an action can be wrongful. The first is harmfulness. The weakness of this view, they claim, is that focusing on harmfulness subtracts from the intended focus on wrongfulness. The second reason an action can be wrongful is because it begins a harmful act. An action does not have to directly create immediate harm in order to be wrongful, such as perjury. Perjury is wrong independent of their direct harms (Simester and von Hirsch 21).
Simister and von Hirsh then dig into three theses that help the reader discern wrongfulness and immorality. First is the Insufficiency Thesis, which states “that φing is wrongful is insufficient to justify its criminalisation” (Simester and von Hirsch 22). Simester and von Hirsch expose a key weakness of this thesis: there are other factors to consider about criminalizing an action than wrongness alone. Then they explain the Necessity Thesis, which states that wrongfulness of an action is necessary to justify criminalizing said action (Simester and von Hirsch 22). They address weaknesses of the Necesity Thesis by giving examples of regulatory offenses, which are not prelegally wrong, meaning that the passing of prohibitory legislation causes an act to be wrong. Regulatory offenses, or malum prohibitum, can be based off of justifiable reasons that do not rely on pre-existing wrongfulness, such as driving on the wrong side of the road, which becomes wrongful by authorities deeming it wrongful. Thus, the Necessity Thesis falls short of explaining why an action should be criminalized. Lastly, they detail the Non-qualifying Thesis, which states that “φing is wrongful is insufficient to establish even a pro tanto ground for its criminalisation” (Simester and von Hirsch 22). They defend the final thesis, the Non-qualifying thesis as the best approach because harm constraints essentially provide a criteria that an action must satisfy before it can be considered for criminalization.
While it is tempting to discuss rightful criminalization through the lens of United States constitutional law, the authors urge us in the conclusion, to discuss what conduct should be criminalized by law. I found this note to be particular helpful for me, as I am taking Constitutional Law concurrently with this course, and it seems that Con Law always seems to creep into my thought processes about criminalization!
Simester, A P, and Andreas Von Hirsch. “Crimes, Harms, and Wrongs : On the Principles of Criminalisation.” 2011, doi:10.5040/9781472560964.
