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The nature of crime: a synthesis, following the three perspectives offered in The Grammar of Criminal Law.

I Introduction

In the chapter on criminal theory in his recently published The Grammar of Criminal Law, George Fletcher distinguishes three "different foci for thinking about why conduct qualifies as crime": violating a duty, causing harm, and infringing a norm. (1) According to Fletcher, "A criminal might engage in any of the three types of violation.... The problem is, which type of the three violations should lie at the core of our thinking about defining conduct as criminal?" [37]. Fletcher believes that it is a "task for the theorist ... to consider whether a synthesis or resolution of these divergent approaches is possible" [42-43]. Fletcher does not himself, however, offer such a synthesis.

In this essay I take up the challenge and offer a synthesis of the three different perspectives. My main argument is that harm "should lie at the core of our thinking about defining conduct as criminal." However, harm within criminal law should be understood as carrying a different meaning from the one attached to it by Fletcher in this context. The alternative meaning of criminal harm offered in this essay will enable us to synthesize the three perspectives suggested by Fletcher. According to the synthetic approach I suggest, the other two foci--violating a duty and infringing a norm--should not be regarded as providing alternative theories to the harm-based theory of crime; rather, they should be regarded as providing further restrictions on the scope of crimes based on harm.

Given the importance of the term "harm" in my argument, a clarification is needed. The meaning of "harm" has been elaborated in discussions of the "harm principle." (2) In this essay, however, I limit myself to the basic meaning of harm in the criminal law--a meaning that does not elucidate the main controversial issues involved in applying the harm principle to the criminal law. Moreover, since this essay focuses on Fletcher's Grammar of Criminal Law, my suggestion for an understanding of criminal harm relies on distinctions that Fletcher offers in the book.

II Three Perspectives on Crime Offered by Fletcher

1. Crimes based on violation of a duty are "based on the inherent wrong of transgressing against one's duty. The transgression can occur without impact on the interests of others" [38]. In such cases, "[i]mmorality per se can become the object of state punishment" [39]. Examples are the crime of treason and the European offense of failure to rescue.

2. "In a harm-based system of criminal law, the essential condition for punishment is that an action caused harm" [41]. "The centrality of harm ... requires a response to the concrete victim and the irreversible tragedy that may have occurred" [40].

3. According to "a norm-based theory of crime ... the starting point for analyzing criminal wrongdoing is not simply 'causing harm' but 'causing harm under particular circumstances'" [42]. Harm resulting from acceptable risks, such as causing death in the normal course of driving, does not violate the "norm" [41].

III The Basic Meaning of Criminal Harm

The meaning of criminal harm is connected with the harm principle, a theoretical paradigm that aims at limiting the power of the liberal state. As first formulated by John Stuart Mill, "The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others." (3) Applying the harm principle to the criminal law requires that we define the nature of the harm whose prevention may justifiably be achieved by criminalization.

As shown above, according to Fletcher the harm principle requires that crime be limited to cases in which harm to a concrete victim has been caused. We need, therefore, additional theories of crime for cases in which harm has not been caused (a duty-based theory) and for cases in which causing harm is acceptable/justified (a norm-based theory). However, when dealing with justice in punishment, Fletcher argues against focusing on harm that has been caused to a concrete victim. He writes,

Even if we subscribe to the importance of harm in defining crime, and harm means harm to a victim, justice nonetheless requires abstraction from the particular victim. In a homicide case, the issue at stake is the value of life in general, not the life of the particular decedent [260-61, emphasis added].

I argue below that the distinction between abstract values such as "life in general" and the concrete victim should play a different role: the "abstraction from the particular victim" derives from the theory of criminal harm employed in defining crime; and the plight of the concrete victim should be taken into account in determining the gravity of the punishment, at least when its justification is based on retributive considerations.

Harm in the criminal law is not identical with injury to a material object. In crimes such as kidnapping, the liberty of the person who was kidnapped is harmed even when the person kidnapped has not suffered any physical injury. In other crimes, such as rape, the extent of physical injury is deemed less significant than the harm to the autonomy and dignity of the victim. (4) The detachment of harm from physical injury has led to the use of terms such as "the loss of value" (5) and "setback to interests" (6) in defining criminal harm.

In order to characterize the social values or interests whose violation should form the core of crime, (7) allow me to use the distinction between criminal law and tort law that Fletcher refers to [261]. The distinction is usually described as one between public and private wrongs. Tort law, which aims at compensating an injured person for injuries caused to her, focuses on "private wrongs"; criminal law, aimed at punishing the offender for her wrongful conduct, focuses on "public wrongs." (8) Crimes are considered "public wrongs" because their commission endangers basic social values whose preservation is required in order to prevent harm to individuals and to ensure coexistence within organized society. Such protected values include human life, bodily integrity, ownership over property, and the like. (9) The threat to these values that stems from criminal behavior undermines the preservation of legal order required to ensure a public sense of security.

The nature of criminal harm as endangering "social values" is mentioned by Fletcher in another context--in Chapter One when he describes the "Four Systems for Thinking about Offenses." According to Fletcher, the "Quadripartite System" [47-48], as developed in communist literature, included, inter alia, "the notion of the 'object' of the offense" which refers to "some social harm" [48]. In such systems, "for conduct to be 'unlawful' it had to be 'socially dangerous'--that is, it had to threaten a specific legally protected interest such as life or property" [48, emphasis added]. Although Fletcher attributes the notion of the object of crime as social harm to communist literature, he believes that "this way of thinking coincides with the liberal theory of John Stuart Mill that the state may intervene to punish conduct only when it threatens harm to others" [48, emphasis added].

It should be noted that in this context Fletcher does not limit the harm principle to conduct that causes harm to a concrete victim (as he did when describing the three perspectives of crime), but extends it to conduct that threatens harm. (10) Conduct is to be regarded as threatening harm if it endangers legally protected interests, or threatens legally protected social values.

Causing harm to a concrete victim is neither a necessary nor a sufficient condition for conduct that threatens the social values protected by the criminal law. An attempt to murder threatens the value of human life even when the life of no concrete victim is lost:

I attack another's life by acting with the intention of killing her, in a way that in fact directly threatens her life.... Attacks are essentially, not merely potentially, harmful. (11)

On the other hand, to take an example used by Fletcher, causing death in the normal course of driving does not constitute an attack upon the value of human life; it does not threaten the social value of human life legally protected by the criminal law, despite the fact that a human life is lost. (12)

In the following sections I shall refer to the other two perspectives on crime offered by Fletcher, and shall show that in modern criminal law these should be regarded as further restricting the scope of crimes based on harm, rather than as providing alternative theories to the harm-based theory of crime.

IV The Role of Duty

According to Fletcher, "crimes based on the violation of duty dispense with the necessity of an impact on others. Immorality per se can become the object of state punishment" [39]. I argue that crimes based on the violation of a duty do not necessarily enforce morality as such. I examine the two examples offered by Fletcher--the European offense of failure to rescue, and the offense of treason--to show that these crimes do not exceed the liberal limitation on the power of the state to punish only to prevent harm.

(1) Failure to rescue

The European offense of failure to rescue (13) belongs to the group of crimes in which criminal liability is imposed for omissions. Liability for an omission does indeed require the violation of a duty to act. However, the requirement of a duty to act is not an alternative to the requirement of criminal harm. Rather, imposing the duty aims at preventing criminal harm. The assumption underlying the additional requirement of duty in cases of omission is that there are good reasons for distinguishing between acts that cause harm to a legally protected interest and failure to rescue such an interest from a dangerous situation. (14) These reasons are based mainly on the claims that a positive duty to rescue from harm interferes with liberty more seriously than the negative duty not to harm, and that there is a difference between causing harm and allowing harm to occur.

A duty to act in order to prevent harm is usually justified by reference to the existence of a specific relationship either to the person endangered (as in the duty of parents to take care of their children's health) or to the source of the danger (as in the duty of care imposed on the possessors of dangerous objects). Violating a duty to act based on such a specific relationship may result in the attribution of liability for the harm that has not been prevented. (15) In this context, there is no difference between intentionally causing death (by administering poison) and intentionally violating a specific duty to prevent death (as when a parent intentionally refrains from administering a necessary medicine to her child).

On the other hand, Good Samaritan laws that impose a duty upon bystanders to come to the aid of endangered persons (or, to use Fletcher's terminology, "the European crime of failing to rescue someone endangered by an accident") require special and stronger justifications. The underlying assumption is that Good Samaritan duties infringe liberty more significantly. The bystander who arrives at the scene is required to drop everything in order to rescue another person from imminent danger. The act of rescue may come at the worst possible time. Therefore, it is not surprising that Good Samaritan duties are found less frequently in legal systems influenced by libertarian political theory than in communitarian systems. (16)

The causal connection to the harm that has not been prevented by the Bad Samaritan is also more problematic. Even if we hold that acts that cause harm and omissions that allow harm to occur can be said to be causally connected to harm, (17) there are practical difficulties in applying the various causal tests to omissions. In most cases the application of the "but for" causation test to acts that create a danger of harm leads to clear conclusions, whereas applying it to omissions is more ambiguous. Thus, when V burned to death or drowned at sea, there is no doubt that A, who set the fire or pushed V overboard, was a necessary (but for) cause of the death. By contrast, it cannot be clearly determined whether V would have survived had B (the Bad Samaritan) called the fire department or jumped overboard to rescue V. The firefighters could have arrived too late or might have been unable to rescue V from the fire and B's efforts might have been unsuccessful in saving V from drowning.

In addition, a problem of selection arises in Good Samaritan situations in which several people are involved, either as those who need to be rescued or as those who are able to rescue them. Would a Good Samaritan who chose to rescue only one person be considered the cause of the death of another on the grounds that had he chosen to rescue that other, her life would have been saved? Are we willing to evaluate the Good Samaritan's choice in this way? Will all persons at the scene be regarded as the cause of death in cases in which none of them rescues a person whose life is endangered? In this context, it is important to note that the issue does not concern who should be held criminally liable for the separate offense of failing to rescue, but rather who can be regarded as a cause and therefore may be held liable for the death of those who have not been rescued (that is, for homicide).

The above considerations explain why Good Samaritan legal duties are more limited than moral duties to aid others in distress. Good Samaritan legal duties are restricted to preventing harm to those important social values that are protected by the criminal law: these values include human life and bodily integrity, but, significantly, not property. Good Samaritan legal duties apply only when these values are in concrete and imminent danger and in situations in which an easy rescue is possible--no one is obliged to put herself at risk in order to rescue another. Finally, the penalty for breaching these duties is relatively light. (18)

Because of the difficulty of establishing a causal connection to the harm that has not been prevented, the occurrence of a harmful result is not a necessary condition for imposing criminal liability for breach of a Good Samaritan legal duty. The Bad Samaritan who has violated the duty is not held liable for the harm she could have prevented; and such liability is imposed even when the person whose life was at risk was rescued by another person. However, contrary to Fletcher, it does not follow that Good Samaritan legal duties enforce morality per se. The breach of Good Samaritan legal duties does involve criminal harm in the sense of danger to the value of human life stemming from the indifference of those who did not bother to take any steps toward rescuing a person whose life was in imminent danger. In this context it is important to note that even Mill was of the opinion that the harm principle permits us to coerce an individual "to perform certain acts of individual beneficence, such as saving a fellow's creature's life." (19)

To understand the significance of the "social harm" that Good Samaritan legal duties aim to prevent, consider the 1964 case of Catherine Genovese, one that led to a change of attitude in several U.S. states. (20) Genovese was brutally assaulted on the street near her home in Queens, New York. Thirty-eight people heard her screams; some even witnessed the attack from the windows of their apartments. Yet, although the attack continued for more than half an hour, not one person called the police while Genovese was murdered. Following that case, several U.S. states came to the conclusion that if they were to guarantee protection of human life and other important social values, witnesses to crimes needed to be shaken out of their indifference and required to take steps to prevent harm to such values. Several states enacted laws requiring that witnesses to a felony immediately notify the police. (21) The purpose of the notification duty was to rescue victims of a felony from being harmed by the completion of the felony. A few states did not make do with notification and enacted a duty to take reasonable steps to save other persons from severe and immediate danger, whether the danger stemmed from a crime or from other event (Good Samaritan legal duties). (22)

(2) Treason

According to Fletcher, treason in the U.S. can be committed only by U.S. citizens [210] because "treason is a crime based primarily not on the causation of harm to the king or the State, but on violation of a duty of loyalty. The wrong lies in the breach. There is no victim of the crime in the usual sense. Treason, then, comes closer to being a crime based exclusively on moral considerations than those that seek to prevent harm and preserve public order" [209].

It is true that treason does not aim directly at protecting individuals from harm. Treason belongs to the various offenses that aim at protecting public interests such as the existence of the state (the case with treason), its security (the case with espionage), and the proper functioning of its basic institutions--the duly constituted government (the case with sedition), the administration of justice (the case with perjury), and the civil service (the case with bribery). There is no immediately identifiable victim in these offenses, all of which exist, in one form or other, in liberal states. However, these offenses are critical if the state is to fulfill its duty of protecting individuals from harm, of preserving legal order, and of providing a sense of public security. Does treason have a special status in this regard?

Fletcher argues that the origin of treason lies in "[t]he feudal relationship between the state and its citizens ... based on the exchange of protection for loyalty" [210]. In his 2004 paper, "Ambivalence about Treason," Fletcher examines whether the modern offense of treason can be adapted to "liberal principles." (23) In his view, the liberalizing of treason would base the crime on "the idea that the state is entitled to protect ... its existence by threatening and applying the criminal law." (24) Fletcher, however, doubts whether this basis is sound:

States have no inherent moral justification for their continued existence. They might be dictatorial, oppressive regimes. Why then should they be able to claim their own criminal law and their power to punish as legitimate instruments of self-preservation? (25)

We should remember that we are talking about liberal principles that derive from a political theory of the liberal state. The justification for the use of the criminal law to preserve the existence of a liberal state is to enable such a state to stick to these principles and to avoid being taken over by "dictatorial, oppressive regimes." The self-preservation of the liberal state enables it to fulfill its duties toward individuals. Why, then, limit treason to situations in which a "loyal relationship" exists, as various common-law legal systems do? (26)

The U.S. offense of treason, discussed by Fletcher, is defined as follows:

Any person owing allegiance to the United States who levies war against the United States or adheres to its enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason, and will suffer death, or will be imprisoned not less than five years and fined but not less than $10,000, and will be incapable of holding any office under the United States. (27)

The offense requires one to take a stand in the conflict between the U.S and its enemies, and to refrain from "strengthen[ing] the enemy of the United States and ... weaken[ing] the power of the United States to resist or attack its enemies." (28) The offense involves a conflict of loyalties, and the underlying assumption is that only those who owe "allegiance" to the U.S. can fairly be required to prevent waging war against the U.S or aiding its enemy. The loyalty owed in this context can indeed be based on the "exchange of protection for loyalty," as Fletcher claims [210]. In this context, however, the duty of loyalty should not necessarily be restricted to "citizens." A resident alien who, while living in the state, is protected by its criminal law, can also fairly be expected to be loyal to the state, and to avoid fighting for or aiding the enemy as long as he lives in the state. Indeed, in one treason case in the U.S. it was held that:

An alien, whilst domiciled in the United States, owes a local and temporary allegiance, which continues during the period of his residence, and he is amenable to the laws of the United States prescribing punishment for treason and for giving aid and comfort to rebellion. (29)

The stronger bond of citizenship might be required for extraterritorial applications of the offense of treason. Fighting for the enemy or aiding the enemy often takes place outside the territory of the state. To retain the power of the state to fight its enemy, the offense of treason is usually of extraterritorial scope. When the offense is committed outside the territory of the U.S., treason can be committed only by an American citizen. (30)

Fletcher further supports his conclusion that treason is a crime based on the breach of a duty rather than on harm by examining the meaning of "adherence" that is included in the U.S. definition of treason:

Adherence [to its enemy] concurs in the heart and exemplifies the way in which a morality of duty lends itself to violation without harmful consequences [38].

It should however be noted that "adherence" to the enemy is not a sufficient condition for treason as defined in U.S. law and as interpreted by the U.S. Federal Court:

"Treason" consists of two elements, namely, adherence to the enemy, and rendering him aid and comfort, and, hence, a citizen intellectually or emotionally may favor the enemy and harbor sympathies for convictions disloyal to policy or interests of the United States but so long as he commits no act of aid and comfort to the enemy there is no treason, and a citizen may take actions which aid and comfort the enemy, but if there is no adherence to the enemy in that, and there is no intent to betray, there is no treason. (31)

From the foregoing analysis it follows that treason, like other crimes that protect "public interests," is based on "criminal harm"; the commission of treason threatens the state's existence. However, unlike other offenses that aim to prevent a threat to the existence of the state (such as espionage, damaging armed forces, etc.), various legal systems further restrict the offense of treason by inserting a duty of allegiance. Nevertheless, as in the case of the Bad Samaritan, the breach of the duty of allegiance is not an alternative to the criminal harm, but rather an additional limit on the scope of the offense threatening harm.

V Norm

According to Fletcher, "a norm-based theory of crime" asserts "the significance of the 'contextualized norm' over 'causing harm per se'" [42]. "[T]he starting point for analyzing criminal wrongdoing is not simply 'causing harm' but 'causing harm under particular circumstances'" [42].

Do we need an additional theory of crime to conclude that causing harm per se is not sufficient for criminal wrongdoing? Is there not a consensus that even in a harm-based theory of crime, additional factors are required for criminal wrongdoing--factors such as the mental attitude that influences the nature of the wrong (positing that there is a difference between intentionally and negligently causing harm), (32) and the lack of various justifications that negate wrongdoing (positing that killing under self-defense is justified, and not wrong).

Indeed, Fletcher is himself aware that "logical differences" relevant to criminal theory "are subsumed in the question of whether a violation of the relevant norm has occurred" [42].

The "norm-based theory of crime" stands in sharp contrast to Fletcher's preference for the German structure of criminal offenses, (33) according to which one should distinguish three stages in analyzing an offense: definition, wrongdoing, and culpability/accountability [51]. In another section of the book, Fletcher does in fact apply this distinction to the example of harm that does not violate a "norm" because it has resulted from acceptable risks, such as causing death in the normal course of driving [325-29]. In that section, Fletcher stresses the importance of distinguishing between the normative assessment of a risk as "substantial and unjustified" (34) and the culpability of the actor in creating the risk. A similar distinction can be found in the definitions of both recklessness and negligence in the Model Penal Code. (35) However, those definitions treat recklessness and negligence as kinds of culpability; whereas, according to Fletcher, the normative assessment of the risk, which requires a cost-benefit analysis, belongs to wrongdoing that is distinct from culpability [327-28]. It would be impossible to maintain all these distinctions under "a norm-based theory" of crime.

I would like to use the notion of a "norm" to express a different idea. In the previous sections of this paper, I have suggested that crime should be based on harm, and that the requirement of a duty (for example, the duty to act in Bad Samaritan offenses and the duty of loyalty in the offense of treason) should be regarded as further restricting the scope of crimes based on harm, rather than as providing alternatives to crimes based on harm. Similarly, the notion of "norm" should be seen as providing yet another restriction on crimes based on harm, a restriction deriving from the residual nature of criminal law. Because of its intrusive nature--depriving offenders of basic liberties and stigmatizing them--the criminal law ought to be used only as a last resort. (36) Even when all the conditions required for a crime are met--for example, negligently causing harm to property by creating a substantial and unjustified risk--the availability of other less intrusive means, such as administrative measures and civil sanctions, should be examined. The requirement of violating a criminal norm should further restrict crimes based on harm to cases in which the choice of a criminal norm over alternative measures is justified.

NOTES

[I would like to thank Noa Zakin for her useful research assistance.]

(1) George P. Fletcher, The Grammar of Criminal Law: American, Comparative, and International, vol. 1: Foundations (New York: Oxford University Press, 2007), 21. [Bracketed page numbers in the text and notes refer to this volume.]

(2) See, for example, Joel Feinberg, Harm to Others (New York: Oxford University Press, 1984), 31-64; Joseph Raz, "Autonomy, Toleration, and the Harm Principle," in Issues in Contemporary Legal Philosophy: The Influence of H. L. A. Hart, ed. Ruth Gavison (Oxford, UK: Clarendon, 1987), 313-33; John Kleinig, "Crime and the Concept of Harm," American Philosophical Quarterly 15 (1978): 27-36; Richard E. Epstein, "The Harm Principle--And How It Grew," University of Toronto Law Journal 45 (1995): 369-417; Bernard E. Harcourt, "The Collapse of the Harm Principle," Journal of Criminal Law & Criminology 90 (1999): 109-94; and Donald A. Dripps, "The Liberal Critique of the Harm Principle," Criminal Justice Ethics, 17 (Summer/Fall, 1998): 3-18. See also note 3 below.

(3) John Stuart Mill, On Liberty and Other Essays, ed. John Gray (Oxford, UK: Oxford University Press, 1991), 13 (emphasis added).

(4) See Jerome Hall, General Principles of Criminal Law, 2nd ed. (Indianapolis: Bobbs-Merrill, 1960), 217.

(5) Id.

(6) Feinberg, Harm to Others, 31-64.

(7) It is a matter of controversy as to which of the interests that are infringed should be included in the notion of "harm." See references at note 2. For the purposes of this essay, there is no need to delve into this controversy.

(8) In addition to Fletcher [261], see the discussion in Hall, General Principles of Criminal Law, 240-46.

(9) In a similar spirit Fletcher concludes that:

Because crime is considered a public as well as a private wrong, victims must be understood as representatives of the public as a whole ... the particular harm must be seen as an instantiation of a general wrong defined by violation of a norm designed to protect a certain legal interest in the abstract [261, emphasis added].

(10) Later on in the book, while discussing international criminal law [106-111], Fletcher reverts to the narrower meaning of harm:

[T]he definitions of crimes such as genocide and war crimes apply to conduct that falls short of causing actual harm. For example, the [Rome] statute counts as a war crime 'taking hostages,' or 'declaring that no quarter will be given.' In these cases there may be a risk of harm, but no injury to the person need accrue. The relevant standard defining liability is not harm but generally accepted norms in conduct of warfare. [109, (emphasis added)]

Let me note that in this context Fletcher further limits the notion of criminal harm to physical injury to the person (as in tort), rather than harm (even actual harm) to the legally protected interests/values of that person. Thus, for example, contrary to Fletcher's claim, the crime of "taking hostages" is based on an actual harm to the liberty of the hostage.

(11) Antony Duff, Criminal Attempts (Oxford, UK: Clarendon Press, 1996), 365-64. See also the discussion of this issue in Hall, General Principles of Criminal Law, 217-19.

(12) One can reach the same conclusion by including in the definition of criminal harm the link to "wrongfulness." See, for example, the discussion of the normative sense of harm as "wrongful set-back to interests" in Feinberg, Harm to Others, 34-35. According to Hall, "penal harm must be defined in relation to conduct expressing mentes reae," General Principles of Criminal Law, 217.

(13) This offense also exists in some non-European legal systems, such as in Israel (see, Thou Shall Not Stand Idly by the Blood of thy Neighbor Law, 1998, 1998 S.H. 245) and in the laws of a few U.S. states (see notes 21-22).

(14) For elaboration of these reasons, see Feinberg, Harm to Others, 126-86; James M. Ratcliffe, ed., The Good Samaritan and the Law (Garden City, NY, Anchor Books, 1966); Alexander M. Smith and Michael Menlow, eds., The Duty to Rescue: Jurisprudence of Aid (Aldershot: Dartmouth Publishing Group 1993); Robert Lipkin, "Beyond Good Samaritans and Moral Monsters: An Individualistic Justification for the Duty to Rescue," UCLA Law Review 31 (1983): 252-93; and Steven J. Heyman, "Foundations of the Duty to Rescue," Vanderbilt Law Review 47 (1994): 673-755.

(15) When discussing loyalty, Fletcher observes that "relationships become relevant in grounding duties to rescue--where the duty is directed to avoiding the impending harm rather than merely to taking steps toward a rescue. These are cases in which the person who breaches the duty can be made liable in the event that the endangered person dies" [213].

(16) According to Fletcher, libertarians can find support in Kant's "definition of law which entrenches a maximum freedom of all. This freedom includes the right to act immorally, which would include presumably the right to ... ignore others in distress.... Communitarianism also finds a comfortable niche in Kant's thinking. His moral theory, in sharp contrast to his theory of law, leads to strong duties of solidarity, including the duty to respect the humanity of others and the duty to rescue others in distress" [206].

(17) For an elaborate discussion of this issue, see Feinberg, Harm to Others, 165-69, 171-81.

(18) Under sec. 323C of the German Criminal Code, 1975, and sec. 95 of the Austrian Criminal Code, 1975, the maximum penalty is one year's imprisonment.

(19) Mill, On Liberty, 38.

(20) The case is elaborately discussed in A. M. Rosenthal, Thirty-Eight Witnesses: The Kitty Genovese Case (Berkeley: University of California Press, 1964).

(21) Florida: Fla. Stat. Ann.,sec. 794.027 (1984); Massachusetts: Mass. Gen. Laws Ann., c. 268 sec. 40 (1983); Pennsylvania: Pa. H. B., 1114(1983); Rhode Island: R. I. Gen. Laws, secs. 11.37.31-11.37.34 (1983); Ohio: Ohio Rev. Code Ann., sec. 291.22(A) (1974); Washington: Wash. Rev. Code Ann., sec. 9.69.100 (1970). Elsewhere I have elaborated on the legal duty to notify of a crime and its relation to the Good Samaritan legal duty--see Miriam Gur-Arye, "A Failure to Prevent Crime--Should It Be Criminal?"Criminal Justice Ethics 20 (Summer/Fall, 2001): 3-30.

(22) Vermont: 12 Vt. Sta. Ann., sec. 519 (1967); Minnesota: Minn. Sta. Ann., sec. 604.A.01 (Originally enacted as sec. 604.05, 1971); Rhode Island: R. I. Gen. Laws, sec. 11.56.1 (1984).

(23) George P. Fletcher, "Ambivalence about Treason," North Carolina Law Review 82 (2004): 1623-25.

(24) Id., 1624.

(25) Id.

(26) See, for example, sec. 73 of the New Zealand Crimes Act, 1961, which restricts treason to "Every one owing allegiance to Her Majesty the Queen in right of New Zealand." On the other hand, according to sec. 46 of the Canadian Criminal Code, 1892, treason applies to everyone who commits treason in Canada. In Israel, the various offenses of treason can be committed by "any person" (see secs. 97-100, Israeli Penal Law, 1977). There is one exception: sec. 101 of the Israeli Penal Law states that the offense of "service in enemy forces" is restricted to "an Israeli national or any other person who owes allegiance to the State of Israel by reason that he is liable to defense service under the Defense Service Law (Consolidated Version) 1959, or that he served in the State Service." See also note 30 below.

(27) U.S. Code Title 18, sec. 2381 [emphasis added]). It should be noted that contrary to Fletcher's claim [210], the U.S. Constitution does not limit treason to loyal relations. U.S. Constitution, art. 3, sec. 3, cl. 1. The limitation was introduced by the federal statute cited above.

(28) Tomoya Kawakita v. U.S., 190 F.2d 506 (C.A.9. Cal., 1951).

(29) Carlisle v. U.S., 83 U.S. 147 (1872).

(30) Tomoya Kawakita. In the Canadian Criminal Code, sec. 46, the offense of treason applies to acts committed outside Canada by "a Canadian citizen or a person who owes allegiance to Her Majesty in right of Canada." Similarly, in Israel, when the various offenses of treason are committed outside the territory of Israel, a limitation of loyal relations is introduced:

A person shall not bear criminal responsibility for ... [treason] committed abroad if at the time of committing it he was not an Israeli national or resident of Israel or a person owing allegiance to the State of Israel because he was in the State Service or for any other reason. Israeli Penal Law, sec. 131 (1977).

(31) Gillars v. U.S., 182 F.2d 962 (C.A.D.C., 1950).

(32) For the view that the mental element of crime is part of the criminal wrongdoing, see Albin Eser, "Justification and Excuse: A Key Issue in the Concept of Crime," in Justification and Excuse, Comparative Perspectives, ed. Albin Eser and George Fletcher, (New York: Transnational Juris Publications, 1987), 41-44; Hall, General Principles of Criminal Law, 217. Fletcher, on the other hand, treats the mental element as part of "culpability," which is a different dimension from wrongdoing [327-28]. However, in his Rethinking Criminal Law, Fletcher is of the opinion that "there are good reasons for regarding the actor's intent as an element bearing on wrongdoing, and specifically on the definition of the offense." Fletcher, Rethinking Criminal Law (Boston: Little, Brown, 1978), 695.

(33) Described by Fletcher under the title "The Tripartite System" [49-55].

(34) This way of characterizing the risk is based on the definitions of reckless and negligence under the Model Penal Code. See Model Penal Code, secs. 2.02 (c): Recklessly, and 2.02 (d): Negligently.

(35) Id.

(36) The use of the criminal law as a last resort is sometimes discussed under "the minimalist principle." See: Andrew Ashworth, Principles of Criminal Law, 4th ed. (New York: Oxford University Press, 2003), 32-37; Shlomit Wallerstein, "Criminalizing Remote Harm and the Case of Anti-Democratic Activity," Cardozo Law Review 28 (2007): 2704-05.

Miriam Gur-Arye is the Judge Basil Wunsh Professor of Criminal Law and the Vice Rector at The Hebrew University of Jerusalem, Israel.
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Title Annotation:SYMPOSIUM
Author:Gur-Arye, Miriam
Publication:Criminal Justice Ethics
Date:Jan 1, 2008
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