What is Fundamental in Criminal Law?

Abstract

This lengthy, masterful monograph follows Simester’s previous joint book with Andreas von Hirsch. Crimes, Harms, and Wrongs focussed on the activities states should criminalize. Resisting “unified, grand theory,” it argued that criminal activities must combine two features: First, they must be wrongful. Second, they must be related to harm—activities need not be directly harmful, but their prohibition must prevent significant harm. Like the previous book, Fundamentals of Criminal Law holds that law is a “multi-function tool” (3). Criminal law prevents wrongs and harms; it communicates the gravity of these wrongs; it interrogates and tries suspects; it labels the guilty and imposes penalties on them. As the previous book stressed, criminal law has a distinctively moral aspect. “Whether in preventive or punitive mode, the criminal law speaks with a moral voice” (4). Those convicted are subject to “official moral condemnation” (7). But this point is logically secondary. Above all, criminal law issues moral prohibitions (72). In other words, Simester’s general approach has three features. It is instrumentalist—criminal law should be understood in terms of the functions it serves. It is pluralistic—there is no overarching function or unified theory. Not least, it claims to be deontological—the prohibition, condemnation and punishment of serious wrongs represent important functions in their own right (9). Given the previous work, Fundamentals of Criminal Law assumes that states should criminalize some activities, and instead focusses on the conditions which someone must meet, to merit the condemnation and sanctions associated with criminal conviction. The book thus concerns what legal theorists call “the general part” of criminal law—its “broad structure of responsibility, culpability, and wrongdoing” (11). This structure is