In this article, I comment on Simester and von Hirsch’s theory of criminalization and discuss general principles of criminalization. After some brief comments on punishment theories and the role of moral wrongdoing, I examine main lines of contemporary criminalization theories which tend to focus on the issues of harm, offense, paternalism and side-constraints. One of the points of disagreement with Simester and von Hirsch concerns the role of the harm principle. I rely on a straightforward normative concept of “rights of (...) others,” not in the sense of rights granted in positive law but in the sense of rights which are to be justified in political philosophy. With a rights-centered rather than a harm-centered approach, a prima facie reason for criminalization is the violation of others’ rights. It is unnecessary to develop a separate category of “offense to others,” and paternalistic interventions can be criticized straightforwardly because rights can be waived. (shrink)

Philosophical writing about the legal practice of punishment has traditionally focused on two central questions: what (if anything) justifies the practice of tr.

Courts and commentators do not differentiate between defendants who perpetrate crimes by means of inanimate weapons or trained animals and those who perpetrate crimes by means of other human beings used as innocent agents. I argue that this widely accepted comparability is grossly insensitive to the violation of the human dignity of the person whom the perpetrator has turned into an instrument to an offence. Identifying the innocent agent as a possible second victim of the offence alongside the intended victim (...) raises several issues of both morality and law. First, the question of moral pertinence: do the scenarios that the law recognises as cases of innocent agency involve a violation of the dignity of the innocent agent? Second, the question of criminalisation: is it appropriate to invoke criminal law to protect the dignity of the innocent agent? Third, the question of the protected interest: assuming that both the dignity of the innocent agent and their autonomy are compromised, which of these violations is graver? I argue that there is a strong connection between the doctrine of innocent agency and the violation of the dignity of the innocent agent; that the violation of the innocent agent’s dignity is severe enough to warrant criminalisation and that this is simple enough to enforce; and that the injury to the innocent agent’s dignity is more significant than the injury to their autonomy. The operative proposal of this article is that the law should recognise perpetration by means of innocent agents as an aggravated mode of commission or an aggravating factor in punishment. (shrink)