In colloquial speech the terms ‘crime’ and ‘criminal’ have a use which, though connected to the strictly legal notion of criminality, goes well beyond it. It is a way of indicating a serious condemnation of an activity or action. Similarly, when people say of something “There ought to be a law against it,’ they are not necessarily speaking literally, though they might be. Nonetheless, even when they are speaking colloquially and figuratively in using this expression, it is clear that the ‘law’ here is the criminal law and not the civil law. The sense that ‘something ought to be done’ expressed in these usages reflects the idea that there is a kind of wrong which demands a collective response rather than just an individual one. The figurative, colloquial use trades, of course, on the literal one. However, pace Devlin, it requires more than a general feeling of outrage to characterise just what kinds of wrongs are appropriately categorised as crimes. The enduring debates concerning the distinction between crime and tort bear witness to the fact that such a characterisation is far from easy.
These academic debates can be situated against the background of wider philosophical discussions about the relationship between the individual and the collective, the private and the public, and the way in which these pairs of concepts map onto one another. We might agree with George Fletcher that “Blackstone had a point in identifying crimes as public wrongs and torts as private wrongs”: the criminal law should deal with those kinds of wrong which are matters of public concern, and which therefore require a collective response from the whole community; wrongs which are, by contrast, properly the concern only of the private or individual victim should be dealt with under the civil law. What is far less clear, however, is how we should characterise that distinction.