<p>Criminalisation scholarship has burgeoned over recent years. Perhaps because of, rather than in spite of, the ever increasing body of literature on the topic, this elegant, closely argued and convincing book is of great value and can be expected to be of lasting influence.</p>
<p>The authors explain at the outset that their aim is to “build on, refine, and in some places depart from” (3) the analysis of Joel Feinberg in <italic>The Moral Limits of the Criminal Law</italic>. It is unsurprising, therefore, that much of the analysis is concerned with the prevention of harm as a basis for criminalisation, but before that the authors advance the argument that wrongfulness is a necessary element of criminalisation. The Necessity Thesis (22), as they term it, holds that an act must be wrong in order to justify its criminalisation – but this does not mean that wrongfulness in itself justifies criminalisation. Something more is required.</p>
<p>Before turning to what that something more might be, it may be observed that one difficulty faced by any scholarship on criminalisation is the vast, and seemingly ever-expanding, scope of the criminal law. As legislators use the criminal law to address an ever-greater number of regulatory challenges, what does criminalisation theory have to say about the thousands of offences created as a result? One temptation is to say that such offences are not, or at least should not be, criminal law in any proper sense, and to regret the lack in common law systems of a category of regulatory or administrative violation akin to the German <italic>Ordnungswidrigkeiten</italic> or French <italic>contraventions</italic>.</p>
<p>Simester and von Hirsch do indeed lament the lack of a distinction between “true” and “regulatory” criminal law (7), but they do not seek to use its absence as a get out clause which might justify a failure to grapple with the propriety of <italic>mala prohibita</italic> criminalisation. If something is not wrong in itself, how can criminalisation be justified? Here, the authors’ focus on wrongfulness assists in answering the question. The answer, they argue, is that once the law recognises an act as wrong – provided it does so for good reasons – a breach of the criminal law can properly be regarded as a wrong (25). If the state is justified, for example, in setting rules such as speed limits for driving, then at that point it becomes wrong to breach those rules, even if the breach is not wrongful independent of the law. The question is instead whether the rule-setting can be justified, as it might be...</p>
