Current International Criminal Law suffers from at least four theoretical shortcomings regarding its ‘concept and meaning’, ‘ius puniendi’, ‘overall function’ and ‘purposes of punishment’. These issues are intimately interrelated; in particular, any reflection upon the last two issues without having first clarified the ius puniendi would not make sense. As argued elsewhere, in an initial contribution towards a consistent theory of ICL, the ius puniendi can be inferred from a combination of the incipient supranationality of the value-based world order and (...) the world citizens’ fundamental human rights predicated upon a Kantian concept of human dignity. On this basis, it is now possible to examine the overall function of ICL. Given the fact that ICL has not yet achieved the status of an autonomous discipline, the inquiry must start with a discussion of national theories of criminalisation. The article focuses on the two most important theories of criminalisation, namely the theories of protection of Rechtsgüter and the prevention of harm. Next, it examines whether and how these national theories can be transferred to ICL. (shrink)

Imagine a citizen (call her Ellen) engages in conduct the state says is a crime, for example, money laundering. Imagine too that the state of which Ellen is a citizen has decided to make money laundering a crime. Does the state wrong Ellen when it punishes her for money laundering? It depends on what you think about the authority of the criminal law. Most criminal law scholars would probably say that the criminal law as such has no authority. Whatever authority (...) is has depends on how well it adheres to the demands of morality inasmuch as morality is the only authority we have. Thus if morality says that money laundering should not be a crime then the state wrongs Ellen when it punishes her. But if the criminal law as such does have authority, and if in the exercise of its authority the state has decided to make money laundering a crime, then the state does Ellen no wrong when it punishes her. (shrink)

For too long, criminal law scholars overlooked immigration-based offences. Claims that these offences are not ‘true crimes’ or are a ‘mere camouflage’ to pursue non-criminal law aims deflect attention from questions concerning the limits of criminalization and leave unchallenged contradictions at the heart of criminal law theory. My purpose in this paper is to examine these offences through some of the basic tenets of criminal law. I argue that the predominant forms of liability for the most often used immigration offences (...) are, at least in principle, controversial and depart from what is often presented as the paradigm in criminal law. Above all, immigration offences are objectionable because they fall short in fulfilling the harm principle and, given that criminal punishment as used against immigration offenders is often a secondary, ancillary sanction to deportation, they license excessive imposition of pain. (shrink)

In their excellent monograph, Crimes, Harms and Wrongs, Andrew Simester and Andreas von Hirsch argue for an account of legitimate criminalisation based on wrongfulness, the Harm Principle and the Offence Principle, while they reject an independent anti-paternalism principle. To put it at its simplest my aim in the present paper is to examine the relationship between ‘the harms’ and ‘the wrongs’ of the authors’ title. I begin by comparing the authors’ version of the Harm and Offence Principle with some other (...) influential accounts. After examining the role wrongfulness plays in their work, I ask what there is left for their Harm and Offence Principles to do. In the light of the understanding and foundations of the Harm and Offence Principles proposed by the authors, I suggest that the answer is little or nothing. The wrongfulness constraint the authors place on their Offence Principle comes close to swallowing it up entirely. Furthermore the part of their Offence Principle that is not thus swallowed by wrongfulness leaves the account with a commitment that is probably best dropped. As far as their Harm Principle is concerned I suggest that the authors’ account of ‘harm’ is so broad that it lacks the resources to distinguish harm-based reasons from wrongfulness- or immorality-based reasons in any principled way. Among other things, I ask in this context, first, whether one can be harmed as one’s character deteriorates and, secondly, whether one is harmed by virtue of the serious wrong one does to another. What really drives the authors’ account of legitimate criminalisation, I believe, is wrongfulness together with an important, amorphous set of potential defeating conditions. They themselves accept such a picture so far as paternalism is concerned. I conclude that their account, which I think has considerable force, would lose little of any significance were their Harm and Offence Principles simply excised. More generally I suspect that a strong role for wrongfulness in an account of legitimate criminalisation is likely to put into serious question the plausibility of an independent principled role for harm and offence. (shrink)

States are not only claiming the right to grant or deny entry to their territories but also enforcing this right against non-citizens in ways that cause significant harm to these individuals. In this article, I argue that endorsing the presumptive right to restrict immigration does not settle the question of when or how it may permissibly inflict harm on individuals to enforce this right. I examine three distinct justifications for causing harm to individuals. First, the justification of defensive harm holds (...) that harming individuals is morally permissible when they pose an unjustified threat to others. Second, the justification of protecting property states that harming individuals is morally permissible when they pose an unjustified threat to others’ property interests. Third, I consider the state punishment justification, which maintains that harming individuals is morally permissible when punishment is an appropriate response to their previous conduct. I conclude that any immigration enforcement measure that involves lethal force or the infliction of severe bodily harm is morally impermissible, whether it is used to defend the state or its property. Moreover, criminal sanctions for immigration violations are difficult to justify. (shrink)

This paper considers the justifiability of criminalising anti-social behaviour through two-step prohibitions such as the Anti-Social Behaviour Order (ASBO). The UK government has recently proposed to abolish and replace the ASBO; however, the proposed new orders would retain many of its most controversial features. The paper begins by criticising the definition of anti-social behaviour employed in both the current legislation and the new proposals. This definition is objectionable because it makes criminalisation contingent upon the irrational judgements of (putative) victims, and (...) its often modest preventive benefits come at a high cost to citizens’ liberty and autonomy. The paper then goes on to propose a new definition of anti-social behaviour that would meet these objections: that is, as a course of conduct that causes others to experience serious and justifiable anxiety about the safety of their local community. Whilst this definition identifies a serious form of wrongdoing, its precise scope is inevitably uncertain. The paper thus concludes that we have good reason to use two-step prohibitions such as the ASBO to regulate such conduct, so as to enable the use of the criminal law against it whilst minimising possible concerns of legality arising from the proposed definition’s uncertain scope. (shrink)