A Transaction Theory of Crime?

George P. Fletcher, Columbia Law School

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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.' 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.