Oxford Journal of Legal Studies, Vol. 27, No. 4 (2007), pp. 609–632 doi:10.1093/ojls/gqm018 Published Advance Access November 4, 2007 What is a Crime? GRANT LAMOND* Abstract—This article presents a philosophical account of the nature of crime. It argues that the criminal law contains both fault-based crimes and strict liability offences, and that these two represent different paradigms of liability. It goes on to argue that the gist of fault-based crimes lies in their being public wrongs, not (as is often thought) because they wrong the public, but because the public is responsible for punishing them, i.e. because they merit state punishment. What makes wrongs deserving of punishment is that they are seriously blameworthy, inasmuch as they evince a disrespect for the values violated. But they only merit state punishment when they violate important values, not simply due to the well- known pragmatic considerations against the use of the criminal law, but to the intrinsic expressive force of criminal conviction. Finally, the analysis of fault-based crimes points to a role for strict liability in regulating actions that are not seriously blameworthy but do increase the risk of values being damaged. 1. Introduction There are many answers to the question ‘what is a crime?’ To a practising lawyer, a crime is anything prohibited under the criminal law—the criminal law being that branch of law dealing with state punishment. Yet, as many legal commentators point out, 1 not all state punishments are part of the criminal law—civil penalties and civil contempt of court are just two examples. A more accurate test of the scope of the criminal law lies in its adjectival incidents, i.e. in the distinctive ways in which criminal proceedings differ from civil proceedings. Briefly put, a legal prohibition is a criminal prohibition when it is subject to criminal proceedings. What characterizes proceedings as criminal are such things as the type of bodies having jurisdiction over the matter (the Crown Court, magistrates courts), the manner in which the proceeding can be commenced (charge, information), the rules of evidence employed (standard of * Balliol College, Oxford. I would like to thank the participants in seminars at Oxford University and Birmingham University for discussion of this topic, especially John Gardner, Jeremy Horder and Stephen Shute. I would also like to thank the University of Sydney where I delivered an earlier version of this article while a Parsons Visitor in the Faculty of Law. I have also benefited from the comments by an anonymous reviewer from this journal. I am particularly grateful to Andrew Ashworth and John Stanton-Ife for their incisive comments on an earlier draft of this article. 1 E.g. G. Williams, ‘The Definition of Crime’ (1955) Current Legal Problems 107, at 130, A. Simester and G. Sullivan, Criminal Law: Theory and Doctrine (Oxford: Oxford University Press, 3rd edn, 2007), at 3–4. ß The Author 2007. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oxfordjournals.org Downloaded from https://academic.oup.com/ojls/article-abstract/27/4/609/1459997 by University of Oxford - Bodleian Library user on 14 August 2018