Center for Law and Philosophy
The most difficult questions are foundational. It is no surprise then that one of the most puzzling questions in criminal law frames the whole inquiry: what is the nature of crime? Positivists dispose of the question easily. If the law is whatever the legislature and courts say it is, then crime is whatever these authoritative agencies designate as crime. The question becomes more interesting, however, if we regard crime as a prepositive concept, a concept that exists logically prior to the positive law. It is not that conduct is criminal because the legislature speaks; rather the legislature speaks because conduct is criminal.1
In the literature of criminal theory, particularly in West Germany, there are two schools of thought about the nature of crime in the prepositive sense. One theory holds that crime consists of an assault on a protected legal interest.2 The assault might yield harm, as in homicide, rape, and arson. Or it might merely threaten harm, as in cases of attempts and conspiracy. The other theory seeks to reduce all criminal conduct to a breach of duty.3 The latter accounts for the traditional offenses inflicting harm and sweeps up other acts, such as victimless offenses, that threaten no apparent danger to a protected legal interest. Of course, neither of these approaches to crime amounts to much unless we have a way of determining what is a "protected legal interest" and what is a "duty." Positivists might co-opt these theories by treating the positive law as conclusive on which interests should be protected and which duties should not be breached. These competing theories represent a challenge to the positivist conception of crime only if the range of protected interests and relevant duties logically precedes the positive law.
Prepositive theories of crime are substantive in that they assert what crime really is. A substantive theory of crime might cover either more or less than the acts the legislature formally designates as criminal. In his symposium article4 and in a prior article,5Professor Klevorick proposes an alternative substantive theory about the nature of crime. He claims that crime consists in acting contrary to society's "transaction structure."'6 This is an intriguing claim. Although there are many other aspects of Klevorick's work on crime, I should like to concentrate on this point. Is the transaction theory of crime as good or better than the alternative views expressed in the traditional literature?
It is important to be clear about the methodological status of the argument that crime consists in acting contrary to "society's transaction structure." Economists distinguish between positive and normative analyses of legal phenomena, and to our possible confusion, they use "positive" differently from philosophers. The transaction theory is nonpositive in the philosophical sense, for it seeks to do more than describe the range of acts that legislatures brand as criminal. Yet the argument is positive in the economic sense, for it seeks to give us an account of what crime really is, not to recommend changes in the enacted (positive) law. If the (economically) positive account is correct, then it must account for a large part of the data that constitute the phenomenon "criminal law." It need not account for all of the data; we may assume that the legislature might call some acts "criminal" that are not indeed criminal. The most that a theory of crime need do is explain the range of acts that we regard as characteristically or paradigmatically criminal. 7
There are in fact three distinct theories of crime that might fit under the general label "an offense to society's transaction structure." The first and narrowest theory holds that a crime occurs only when an individual seizes for himself something (an entitlement) that he could have bargained for. The purpose of punishment is to induce him to change the means by which he acquires the desired entitlement. He should enter into negotiations with the bearer of the entitlement and offer sufficient consideration to induce a voluntary transfer. The rationale for requiring him to bargain is that only if the transaction is consensual can we say that the transfer is "efficient" as a Pareto-superior move.8 Both parties stand to gain by the transfer; otherwise, they would not consent. The crimes that most neatly fit this conception are trespass to land and theft.9
A second and broader theory encompasses all acts that fall outside the range of permissible transactions. This view of crime encompasses transactions that are different not only in form from those that are permissible, but in substance as well. The narrower theory requires that for every crime there be a consensual alternative. The broader theory holds in addition that there are some voluntary transactions in which the offender may not engage. The rationale for punishment under the broader theory is not always to induce the offender to change the form of his acquiring the desired entitlement, but in some cases to abandon that desire altogether.
Both of these theories are to be contrasted with an allocative theory of crime, which invokes hypothetical transactions in order to determine the ownership of the entitlement in question. The allocative theory might explain certain institutions of the criminal law, such as the defense of lesser evils. Yet the more challenging theories are those that explain crime as the violation of an actual, not a hypothetical, transaction structure. With some license, I shall use Klevorick's position as a springboard for assessing the narrow theory, which claims more and therefore poses a more interesting alternative to more conventional views about the nature of crime. Klevorick also criticizes the narrow transaction theory;10 my critique goes further by exploring a number of ways in which the narrow theory offers an inadequate explanation of the criminal law. In conclusion, I shall discuss the allocative theory and its relationship to the narrow transaction theory.
George P. Fletcher,
A Transaction Theory of Crime?,
Colum. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1073