Wrongs and Reasons
| Author | A. P. Simester |
| Published date | 01 July 2009 |
| DOI | http://doi.org/10.1111/j.1468-2230.2009.00762.x |
| Date | 01 July 2009 |
REVIEWARTICLE
Wrongs and Reasons
A. P. Sime ster
n
John Gardner, O¡ences and Defences: Selected Essays in the Philosophy of
Criminal Law,Oxford:Oxford University Press,20 07, xiv þ288 pp, pb d21.99.
Editions of an author’s unrevised collected essays frequently have value only for
the sake of their convenience, all the more so when eccentric selection criteria
1
result in the omission of arguably the best of them.
2
Still, O¡ences and Defences is
signi¢cant as atapestry, or perhaps a kaleidoscope, of Gardner’s theory of wrongs,
reasons,and the criminal law. Each essay is superbly written. Reading them is the
opposite of everyday academic experience. Instead of a struggle to ¢nish, suc-
ceeded mercifully by instant amnesia, they can be read quickly ^ yet one mulls
the details for days. In the course of this sometimes bravura display, Gardner
knocks over all sorts of straw men, and even some made of brick.The false Kan-
tians and,occasionally, Kant himself. All are shownup.The essays arepacked with
valuable insights and boast an impressive range of reference. Because it is a collec-
tion, however, it is frequently a challenge. Quite apart from whether one agrees
with him, it is an exerciseto construc t Gardner’s view, to get clear precisely what he
does think about wrongs and reasons. As his ‘Reply to Critics’ demonstrates, the
risk of misinterpretation abounds. Once those misunderstandings are cleared up,
much of Gardner’s analysis is persuasive. But not all.
INDIVIDUATING WRONGS
A core concern that runs through much of the book is the argument for a more
nuanced understanding of wrongs. Gardner is right to emphasise that not all
wrongs are harm-based.This was one lesson of the O¡ence Principle, which jus-
ti¢es the criminalisation of conduct on the basis of its expressive character rather
than its consequences.
3
But much more serious wrongs are sometimes like this
too. Rape, for example, is a wrong indepe ndently of any harm that it undoubt-
edly, even typically, causes. The di¡erence from ‘result crimes’ such as murder is
that, in rape, the harm is not the source of the wrong. As Gardner and Shute argue
(Ch 1, ‘The Wrongness of Rape’), rape is a profound wrong whatever harm it
n
Professorof Law, NationalUniversity of Singapore and Fellow,Wolfson College, University of Cam-
bridge. I’m very gratefulto the many friends who helped to check over the argumentat short notice:
Dori Kimel, Grant Lamond, Antje du Bois-Pedain, Paul Roberts, Bob Sullivan, Franc oisTanguay-
Renaud,a ndJohn Tasioulas.
1 ‘The main cr iterion of selection was personal a¡ection’ (vii).
2 J. Gardner,‘Wrongs and Faults’ in A.P. Simester (ed), Appraising Strict Liability (Oxford: Oxford
University Press,2005) 51.
3 Cf A. P.Simester and A. von Hirsch,‘Rethinking the O¡ense Principle’ (2002) 8 LegalTheory 269.
r2009 The Author.Journal Compilation r200 9 The Modern LawReview Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2009) 72(4) 648^668
causes.This is not to suggest that harm is unnecessary to justify the criminalisa-
tion of such wrongs. That rape is (also) harmful is an important element of the
case for legislative prohibition: the wrong of rape is not criminalised merely
because it is o¡ensive, or immoral. Rather, the harmfulness of rape can take var-
ious forms and is not conceptually or de¢nitionally characteristic of rape. So,
although harm is part of the justi¢cation of the criminalisation of rape, the crime
itself requires no consequences.
Other wrongs may be dependent upon the manner in which one acts. Obtain-
ing a thing by stealth is not the same wrong, for example, as obtaining it by
deception (36^37). Both forms of obtaining may be dishonest, but the means of
the obtaining are crucially di¡erent, su⁄ciently so as to warrant their distinctive
criminalisation. Still other wrongsdepend uponthe motive with which one acts,
as when a warningbecomes a threat only if communicated with a certain kind of
motive. (More on this later.)
These points may nowadays have become familiar,but no-one has done more
than Gardner to bring themto our attention, or to show how the nature of each
particular wrong can shape the mens rea and defence elements embedded in its
criminalisation.
4
He rightly resists the urge to reduce the speci¢cation of crimes
to a standard package, wherein the actusreus speci¢es some harm-to-be-avoided
and the mens rea sets a generic fault standard; or even to a hierarchy of serious-
ness, since wrongs may be incommensurable even if they generate similar
harms.
5
Even so, re¢ned moral distinctions do not always make for good criminal law.
Hopefully, few would argue forgeneric o¡ences of, say,‘harming another’ or ‘mis-
conduct with respect to property’, and Gardner is right to thi nk thatt he lawshould
preserve manyof the existing distinctions that it draws according to the manner in
or motive with which similar harms are in£icted. These distinctions often re£ect
meaningful di¡erences in the public mind between forms of wrongdoing. But
not always. Sometimes, individuation can be too ¢ne-grained. One can’t help feel-
ing a lingering doubtwhether this is true of Gardner’s claim, in the context of sec-
tion 20 of the O¡ences Against the Person Act1861, that ‘the fact that one in£icted
harm rather than merely causing it can be, likewise, a matter of intrinsic moral sig-
ni¢cance.’ (36) Indeed: but is the signi¢cance su⁄cient to warrant the de¢nitional
problems that it generates?
6
Excessivelydetailed o¡e nces risk clogging the trial pro-
cess with unmeritorious technical argument, and obfuscating the moral clarity of
the law’s communications. At least in the context of non-specialist activities like
o¡ences against the person, people need to know the law’s requirements in gist
and not precisely. Gardner thinks this too (44^45). As such, meaning may be better
conveyed through publicly-shared moral distinctions that are broadly rather than
narrowly signi¢cant; at least, provided those broader distinctions communicate an
adequately nuanced statement of the prohibited wrongdoing.
4 See, eg, 27 & 151^153.
5 ‘There is no general formula for wrongdoing’ (246). See, especially, ch 2,‘Rationality and the Rule
of Law in O¡ences Against the Person’.
6 Consider, eg, the facts of DPP vK[1990] 1 Al l ER 331, in which D secreted acid i n a hair dryer,
causingV to be burned when he used it.Wasthe harm‘in£icted’? Whatif the acid merely dripped or
oozed ontoV?
A. P. Simester
649
r2009 The Author.Journal Compilation r200 9 The Modern LawReview Limited.
(2009) 72(4) 6 48^668
To continue reading
Request your trial