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SPRING 2003



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Defining Criminal Behavior: What is a Crime?

What makes something a crime is difficult to define for a variety of reasons, not the least of which is the difficulty we face offering a definition of anything, even something as simple (as apparently simple) as a chair or a dog. Ideally, a definition ought to identify a set of necessary and sufficient conditions that serve to pick out only those things which the definition is purportedly intended to capture. So a definition of "dog" ought to pick out only dogs, not (say) all dogs except Pekinese or all dogs plus a few cats. We tend to think children are not very good at this sort of thing (Question: {What is a dog?" Answer: "Is furry, goes woof, sometimes bites") but that as children grow older they get better and better at defining things. Grade school teachers or at least a goodly bunch of them are in the habit of asking their students to "define their terms," and such a request for definition usually comes at the outset, that is, the teacher wishes the student to define his or her terms before he or she launches into a discussion of something or other. Definitions are meant, in this respect, to carve out a subject matter, to mark off a territory within which the ensuing discussion supposedly will take place, etc. But if - as most studies show - adults are not much better than children at this sort of thing and if experiments suggest that words may not have defintions, at least not in the sense described above, the difficulty we face defining crime may be a relfection of a more general disability rather than any particular trouble we might have with the notion of crime itself.

What's Wrong with Definitions??

Take "chair," for an example. How about "has four legs and a back"? But what about "bean-bag chairs"? And what about dogs? Dogs have four legs and a back. So we have not got very far; we haven't even been able to distinguish chairs from cats and dogs. How about "something to sit on"? But so is a bench and a bucket seat. Our difficulty arises in part from our desire to find what is common to all chairs and to have that criterion or set of criteria be true of chairs and only chairs, but there may be no such criterion or set of criteria. Take the concept, for another example, of a "game." Put the games of chess and checkers next to one another. It is not difficult to find certain features that they have in common. But now put next to checkers, the game of jacks, and next to jacks, solitaire, and next to solitaire, baseball, etc. Wiitgenstein proposed that there may indeed be "family resemblances" between various games, but that there may be no one feature which runs through the whole lot of them, like a good piece of rope or hemp which is made up of many overlapping strands or fibers but no single strand or fiber runs through the entire length.

Defining a Word and Findng One's Way About Town

Understanding what makes something a crime may be more like familiarizing oneself with a part of town with which one is not yet familiar than it is matter of coming up with a set of necessary and sufficient conditions to pick out things of only that kind. Someone newly arrived in a neighborhood may wonder where to buy milk and so wonder where to find the local shop. What he needs is a good set of directions, not a definition of "local" shop. Finding the local shop is more a matter of knowing its relation to where one lives than knowing what all local shops have in common. Much the same might be said about the criminal law. Knowing what makes something a crime is more a matter of understanding its relation to other things that one values and believes than it is a matter of identifying a set of features that all crimes have in common. To understand what makes something a crime it is necessary to understand the role it plays within the legal system and its relation to other key moves that get made within the system, such as the mounting of a defense. It is impossible to understand what makes something a crime without simultaneously understanding what constitutes an acceptable defense. In this respect understanding what makes something a crime is more like familiarizing oneself with a set of relationships than coming up with a set of criteria.

This way of thinking about the understanding of a concept such as the concept of crime should come as somewhat of a relief given the fact that it is difficult to explain even in the most general terms what constitutes a crime. To say, for instance and, one might suppose, simply, that a crime involves at the very least a "bad" act coupled with a "guilty" or culpable state of mind fails to capture a whole host of crimes. What about strict criminal liability? There is a class of crimes that are punishable even if they were unintended, inadvertent, unforeseeable, and practically impossible to prevent. So much for intent and a "guilty" state of mind. There is, therefore, a class of crimes where no intent or "guilty" state of mind is required. And then there are "omissions" which by their very nature are not "acts," but "failures to act." And yet omissions can also be crimes. To complicate the search for a definition further, the set of somethings we call "crimes" changes; it is neither fixed nor "given." Crimes stemming from products liability, for instance, is fairly new to the law. Before the Industrial Revolution the phrase "Let the buyer beware" summarized the law's attitude to product related injuries. And criminal attempts, are also a fairly recent invention (within the last two centuries). This fact about our law and the catalogue of crimes makes the comparison of understanding what constitutes a crime and familiarizing oneself with an area of a city all the more apt.

Crime, Punishment and Defense?

In the light of this comparison we can see that the notion of a crime is inextricably bound up with certain activities and practices. I have already mentioned the activity of defending oneself. Equally important to understanding a crime is the practice of punishment. Crimes are those offenses which the community as a whole seeks to prevent or prohibit and laws are sometimes preceded by a preamble which states what kind of conduct a particular law is aiming to prevent. But the community also recognizes that conduct it aims to prevent may sometimes be justified. So, for example, the community forbids killing another person, but it is prepared to accept the defense that the killing was in self-defense. If so, killing someone may turn out not to be a crime at all. What constitutes a crime is bound up with what constitutes an acceptable defense and what makes a defense acceptable is inextricably linked to what conduct the community will punish, i.e., to what judges and juries will do. Criminal liability is linked to liability to punishment, and liability to punishment is linked to the acceptability of the defense. In defending oneself, one might offer either a justification or an excuse.






Prepared: February 4, 2003 - 5:02:29 PM
Edited and Updated, February 5, 2003


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