Abstract
AP Simester and Andreas von Hirsch, Crime, Harms and Wrongs: On the Principles of Criminalisation, Hart: Oxford and Portland, OR, 2011, 258 pp.: 9781841139401
This is a work of normative criminal law theory concerned with the extent to which a liberal state may justifiably criminalise its citizens’ conduct. It explicitly sets out to refine and extend Joel Feinberg’s arguments in his four-volume work The Moral Limits of the Criminal Law, and positions itself firmly in the liberal tradition of John Stuart Mill and HLA Hart, who debated these issues in the mid-19th and mid-20th centuries respectively.
What is interesting about the book from a criminological point of view is how the focus of the debate has changed. From Mill onwards, it was largely a debate about sex, drugs and guns. Simester and von Hirsch do tackle these subjects, but the main target of their critique of contemporary liberal-democratic law is its growing intolerance of ‘incivilities’ (including, for example, the wearing of gang-related clothing in New Zealand). The main opponent they have in their sights is not the old-fashioned legal moralist, who wants to prohibit harmless or fully consensual conduct on the grounds that it is simply wrong, but rather the exponent of ‘broken windows’ theories and that great legal innovation of Britain’s last Labour government, the ASBO (anti-social behaviour order).
Simester and von Hirsch present their case with admirable clarity and succinctness, and, if one is willing to grant them a starting point which simply ignores fundamental questions about the legitimacy of criminal law in general (including the question von Hirsch himself once posed of how a just system of punishment is possible in an unjust society), it is mostly very cogent. But because the debate about the enforcement of sexual morals is not their primary interest, what they do say about it seems distinctly thin in places. The worst example is their treatment of pornography. The UK, the country they write most about, has recently criminalised ‘possession of extreme pornographic images’ (Criminal Justice and Immigration Act 2008, s. 63), and one might have expected this to be one of the main test cases for their theory of criminalisation. In fact, however, they ignore not only the legislation but some four decades of feminist debate about the subject.
Pornography which ‘is wholly segregated from public view’ should not be criminalised, according to Simester and von Hirsch, because ‘since offence is a communicative wrong, there is no offensive wrong – no wrong to another’ (p.129). This is a fair enough point in its particular context – a criticism of Feinberg’s discussion of ‘avoidable’ offensive conduct – but what the authors fail to address is the possibility that some pornography might constitute a communicative wrong to women or children by reason of what it says about them, not what it says to them. They do address a related point with regard to racist speech (pp.115–116) – that it wrongs its victims by encouraging ‘third parties’ to regard them as less than full members if society. But this still makes the case for criminalisation depend upon a direct insult to a black victim, whereas English law criminalises ‘incitement to racial hatred’ regardless of whether it is addressed to an all-white audience. Simester and von Hirsch want to restrict the criminalisation of ‘remote harms’, that is harms done by someone other than the perpetrator of the prohibited act – to harms that are ‘endorsed’ by the perpetrator and related to the intrinsic wrongfulness of her act. Thus they argue that the relation between racist insults and racist behaviour is close, justifying criminalisation, whereas that between minor incivilities and neighbourhood decline, even it were empirically demonstrated, is not. The difficulty with some pornography is that while it does not explicitly encourage violence against women it does encourage fantasising about it – which is very different from doing it, but also different from the imaginative suspension of judgement encouraged by literary fiction (cf. p.82). I don’t wish to argue here in favour of criminalising any particular kind of porn, but merely to hint at a type of case for criminalisation that seems to elude the authors’ analysis.
This point does not detract from the force of the authors’ argument with respect to what they call ‘TSPs’ – two step prohibitions. These are orders such as ASBOs which are made in civil proceedings but which prohibit the defendant from certain conduct on pain of criminal sanctions. The act which the defendant is found to have committed may be a non-criminal ‘incivility’ – such as, in one case, making inconvenient and distressing suicide attempts – or it may be criminal conduct which would be difficult to prove in a criminal court. The order typically criminalises conduct which would otherwise be lawful, such as entering a particular area, or (in the attempted suicide case) jumping into any waterway. Such orders, the authors rightly argue, are objectionable both because they impose orders that are comparable to criminal punishments (combining restrictions of liberty with moral censure) without the ordinary safeguards of criminal procedure, and because they delegate the power to criminalise to courts acting at the instance of local government officials or the police. these orders also abandon even that ‘majestic equality’ famously derided by Anatole France, by which rich and poor alike are forbidden to sleep under bridges, beg in the streets, or steal bread. Now the law can ban individual poor people from sleeping under bridges or begging – a majestically unequal legacy of Britain’s 13 years of ostensibly social-democratic rule.
University of Hull, UK