I argue that sports clubs should be punished for bad behaviour by their fans in a way that affects the club’s sporting success: for example, we are justified in imposing points deductions and competition disqualifications on the basis of racist chanting. This is despite a worry that punishing clubs in such a way is unfair because it targets the sports team rather than the fans who misbehaved. I argue that this belies a misunderstanding of the nature of sports clubs and (...) of the nature of sporting success. Further, I argue that fans should want to be held responsible in such a way because it vindicates the significant role that they play in the life of their club. (shrink)

La distinction entre les crimes qui impliquent un mal en soi et les crimes qui sont mauvais parce que la loi les désigne ainsi a longtemps intrigué les théoriciens. Le présent article soutient que cette distinction, bien qu’elle touche une différence réelle, est fondée sur une erreur. Cette erreur est commise tant par ceux qui considèrent le mal moral comme une condition nécessaire de la criminalité que par ceux qui croient que le simple fait de rendre une chose illégale suffit (...) à la rendre criminelle. Aucune de ces positions n’est correcte. Plutôt, ce qui rend un acte criminel, c’est le fait que cet acte implique la violation d’une loi qui a été justifiée en termes de «raison publique». (shrink)

After distinguishing different species of Legal Moralism I outline and defend a modest, positive Legal Moralism, according to which we have good reason to criminalize some type of conduct if it constitutes a public wrong. Some of the central elements of the argument will be: the need to remember that the criminal law is a political, not a moral practice, and therefore that in asking what kinds of conduct we have good reason to criminalize, we must begin not with the (...) entire realm of wrongdoing, but with conduct falling within the public realm of our civic life; the need to look at the different processes of criminalization, and to ask what kinds of consideration can properly figure in those processes; the need to attend to the relationship, and the essential differences, between criminal law and other modes of legal regulation. (shrink)

This paper is concerned with the tensions that arise when one juxtaposes one important liberal understanding of the nature and use of state power in circumstances of pluralism and (broadly) retributive accounts of punishment. The argument is that there are aspects of the liberal theory that seem to be in tension with aspects of retributive punishment, and that these tensions are difficult to avoid because of the attractiveness of precisely those features of each account. However, a proper understanding of both (...) liberalism and retributive punishment allows us to dissolve some of the tensions whilst also bringing each position into sharper relief. The paper begins by introducing the liberal position and outlining the apparent tensions that may arise with retributive punishment. In so doing, there is also a brief discussion of how this debate relates to the more familiar dispute between legal moralists and their opponents. The paper then proceeds by considering each of the areas of tension in turn. (shrink)

Some claim that criminalisation is morally permissible only when the conduct criminalised is morally wrong. This claim can be disambiguated into at least three principles which differ according to whether, and how, wrongness is dependent on details of the law: the strong constraint, the moderate constraint, and the weak constraint. In this paper I argue that the weak wrongness constraint is preferable to the strong and moderate constraints. That is, we should prefer the view that conduct criminalised must be morally (...) wrong, but qualifying wrongness can depend on criminalising the conduct first. Further, I will show that my arguments in support of the weak wrongness constraint have wider implications. Favouring the weak wrongness constraint implies that condemning wrongs cannot be the only legitimate reason in favour of criminalisation. Those who think condemnation can justify criminalisation should be pluralists. (shrink)

If conduct must be wrongful in order to be justifiably criminalised, how should its wrongfulness be established? I examine a conception of wrongfulness put forward by A. P. Simester, which makes wrongfulness turn on whether the reasons favouring the performance of an action are, all things considered, defeated by the reasons against its performance. I argue that such a view can only generate appropriate substantive constraints in the context of criminalisation if it can distinguish between the sorts of reasons that (...) a verdict of wrongfulness, as a concept distinct from stupidity or selfishness, should attend to, and the sorts of reasons it should leave out. Assuming that this conception of wrongfulness should operate as a constraint on criminalisation in a liberal-democratic state, the only reasons it should include are other-regarding reasons. What matters is whether the agent commits an other-regarding wrong. This conception of wrongfulness helps us further to resolve fundamental questions concerning mala prohibita and the legitimate reach of any duty to obey the law. (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)

Orthodox thought holds that criminalisation should be subject to a wrongness constraint: that is, that conduct may be criminalised only if it is wrongful. This article argues that this principle is false, at least as it is usually understood. On the one hand, the wrongness constraint seems to rest on solid foundations. To criminalise conduct is to facilitate its condemnation and punishment; to coerce citizens against it; and to portray it as wrongful. All of these actions are presumptively impermissible when (...) the conduct that they target is not wrongful. On the other hand, the article argues that the wrongness constraint is nevertheless unsound. Although it is presumptively impermissible to criminalise non-wrongful conduct, this might yet be permissible, given sufficient countervailing reasons. Moreover, there are realistic cases – specifically, some cases of over-inclusive criminalisation – in which such countervailing reasons exist. (shrink)

Journal Name: SATS Issue: Ahead of print.