Contemporary theories of criminalisation address, with varying emphasis, themes concerning the harmfulness and the wrongfulness of the conduct. In his article for the present issue, Antony Duff relies chiefly on notions of wrongfulness as the basis for his proposed criminalisation doctrines; whereas in their 2011 volume on criminalisation, Andrew Simester and Andreas von Hirsch invoke both wrongfulness and harmfulness as prerequisites for prohibiting conduct. The present article assesses the comparative merits of these approaches, and argues in favour of the latter, (...) two-element perspective. In this article, the author puts forward a number of reasons suggesting why the two-element approach is preferable. These reasons include, firstly, an inductive argument—that the kinds of wrongful conduct for which criminalisation seems a plausible response are those that include an element of harm or risk of harm. Secondly, a defining role for the state is one of resource-protection: of safeguarding the means and resources through which citizens can live good lives. Thus the concept of citizens’ living resources—and the related conception of harm—should be made a constitutive and explicit element of criminalisation theory, rather than subsuming resource-protection under a general rubric of wrongfulness. Thirdly, a two-element approach provides reciprocal limiting principles concerning the scope of criminalisation. One can, for example, employ wrongfulness requirements to limit the criminalisation of conduct that has remote harmful consequences; and, conversely, use a harmfulness requirement as means for restricting the criminalisation of wrongful acts. (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)

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)

Gordon's emphasizes that the process of prosecution is crucial to the idea of crime. One who commits a public wrong is properly called to public account for it, and the criminal trial constitutes such a public calling to account. The state is the proper prosecutor of crimes: since a crime is ‘our’ wrong, rather than only the victim's wrong, it is appropriate that we should prosecute it, collectively. The case is not simply V the victim, or P the plaintiff, against (...) D the defendant. It is brought, as the Americans properly have it, by ‘the People’, or by ‘the Commonwealth’, against the defendant. This is a useful way in which to think about crimes and criminalisation. This chapter tries to develop this conception of public wrongs a little further, which also involves complicating it more than a little. It works from a version of liberal communitarianism that rejects the metaphysical version of the individualist's ‘unencumbered self’; but the account sketched here should be compatible with all but the most radically individualist kinds of liberal theory. (shrink)

I want to enquire into the relationship between the normative claims of a society and the normative stances of its members. I shall develop a contractarian perspective, as the only one available to persons who may neither expect nor require their fellows to share their own orientation to values and norms. Although I only touch on these matters here, I hope to contribute to an interpretation of the clauses on the establishment and exercise of religion in the First Amendment to (...) the United States constitution, and to suggest guidelines for determining rights and duties in becoming and being a parent. More generally, I offer answers to certain questions about how social practices and institutions may be justified in a democratic society. (shrink)

My own mode of discussing Douglas Husak's excellent new book, Overcriminalization,1 is by comparing the theory that book defends—what Husak calls “minimalism”—with a theory with which I am already...

When writing Overcriminalization, I entertained a fantasy about the reaction my book might produce. I hoped that philosophers would not merely criticize my shortcomings but would join me to produce...

Nigel Walker’s first principle of criminalization declares that ‘Prohibitions should not be included in the criminal law for the sole purpose of ensuring that breaches of them are visited with retributive punishment’. I argue that we should reject this principle, for ‘mala prohibita’ as well as for ‘mala in se’: conduct should be criminalized in order to ensure (as far as we reasonably can) that those who engage in it receive retributive punishment. In the course of the argument, I show (...) why we should not see the criminal law as consisting in ‘prohibitions’; I explain different species of mala prohibita, and show how their commission does involve genuine wrongdoing; and I show the importance of distinguishing the question of regulation from that of sanction. (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)

This paper responds to Antje du-Bois Pedain’s discussion of the wrongfulness constraint on the criminal law. Du-Bois Pedain argues that the constraint is best interpreted as stating that φing is legitimately criminalised only if φing is wrongful for other-regarding reasons. We take issue with du-Bois Pedain’s arguments. In our view, it is neither a necessary nor sufficient condition of legitimate criminalisation that φing is wrongful in du-Bois Pedain’s sense. Rather, it is a necessary condition of legitimate criminalisation that φing is (...) what we call bare wrongful —that is, that the reasons in favour of φing are defeated by the reasons against. Though du-Bois Pedain is critical of this view, we argue that her criticisms do not convince. (shrink)

There are currently more than 2,000,000 inmates in jails and prisons in the United States, or about 1 person in every 138 of the population (to say nothing of the large number on probation and on p...