Abstract
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.
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Notes
How deontological reasoning can be catered for in this setting, is a question I address briefly in Part III.1. below.
I thank Andrew Simester for putting me right on this point.
See Greenspan (2010) for an interesting attempt to make space for morally significant choices between permitted options within a reasons-based conception of practical rationality.
Compare Greenspan’s (2010) suggestion that we should “[reverse] our normal way of talking about reasons by treating … reasons counting against action … as primary” (p. 187) so as to make space for moral choice.
This point is argued strongly by Slote (2005), but I think it is shared by many others outside the sentimentalist camp. The converse seems to me equally true: that there could be an important difference between doing what is best for me, and doing what is (morally) right—even for me. See Bloomfield (2008) for sustained discussion.
It goes without saying that a liberal-democratic legislator is as fallible as any other legislator when it comes to assessing the consequences of human conduct and of regulatory intervention. I merely claim that her general outlook will be focused on creating the sort of regulatory environment where people, secure in their basic needs, can freely pursue their own conception of the good. This to my mind suggests a broadly utilitarian concern with a non-judgmental maximisation of happiness/satisfaction as the general regulatory objective.
I should clarify that I do not include the “internal sanction” of a bad conscience in this notion but only the sanctioning responses of others. Liability to sanctions is broadly understood as liability to being called to account for my behaviour by others and to being treated by them as appropriately subject to a range of social reactions that demonstrate their moral disapproval of me in light of my past conduct.
To this extent, I agree with Husak (2008, p. 89) that any plausible theory of punishment must constrain the substantive criminal law—but it does not follow (for me, and perhaps not for Husak either) that a theory of punishment will have to provide the main constraints on criminal legislation. It is perfectly possible that the idea of conduct being appropriately subject to “external” sanctions can deliver, both an important component of a theory of wrongfulness, and be significant for a theory of punishment.
Note that, in my usage, there is no difference between conduct being “wrongful”, and conduct being “wrong”.
I am paraphrasing and interpreting Audi here, and the definitions of C1, C2 and C3-wrongs are my own (although I view them as picking up on distinctions Audi makes in his paper).
Note that I do not necessarily agree with Darwall’s conceptual claim that morality is irreducibly second-personal. Nor do I need to defend this claim. All I need for my purposes is to accept that some moral reasons do indeed have the structure identified by Darwall, and that these are the reasons on which a determination of the wrongfulness of behaviour in the regulatory context must concentrate.
My meta-ethical sympathies lie with Larmore (2010), who does “not believe that we should try to settle, in a general way, which of these two basic principles of moral reasoning, consequentialist or deontological, defines the single correct theory of morality” (p. 25) but accept the validity of both. To my mind, there are yet more plausible substantive moralities that generate important and valid other-regarding reasons. The incorporation of these reasons into my model does not, however, depend on this meta-ethical stance. I could defend the choice to take account of any other-regarding reasons recognised by a plausible substantive morality as a reasonable response to the political fact of moral pluralism—in other words, as a matter not of meta-ethics but of substantive political ethics.
Note that, for this reason, the category of C2-wrongs is particularly apt at recognising, as wrongs, certain kinds of conduct performed with the valid consent of the affected party. Such conduct, for many theorists, lies (as indirectly paternalistic) beyond the legitimate attention of the criminal law. The conception of wrongfulness developed here, by contrast, offers a basis for understanding why non-rights-violating conduct may well be subject to legitimate penal constraints even in a framework that accepts the wrongfulness constraint.
Husak (2008) writes: “A person’s act is not wrongful because it tokens a type that is wrongful when performed by the majority of agents. Only personal wrongdoing can render persons eligible for punishment.” (p. 111, emphasis original).
Husak (2008) does allow for some limited over-inclusiveness when, in respect of rules aimed at risk-prevention, the epistemically privileged (who knew for sure that their conduct was risk-free) cannot be easily distinguished from the merely epistemically fortuitous (who did not know and could not have known that their rule-violation did not create the feared risk).
Think, for example, of the “ungovernability campaign” instigated by opponents of apartheid in South Africa in the 1980s.
Those who want some historical evidence of this claim may compare the Constitution of the German regional state, Hesse, of 1946 (stating that all citizens have the right, and the duty, to resist unjust authority) to the Federal German Constitution of 1949, into which a right to resist activities that undermine the constitutional order was introduced in 1968.
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Acknowledgments
I thank Antony Duff and Andreas von Hirsch for inviting me to participate in their workshop on criminalisation at the IVR conference in Frankfurt, 2011, where I presented an earlier version of this paper. I have greatly benefited from the discussion and from the suggestions made by my commentator, Massimo Renzo. I am also grateful to Andreas von Hirsch, A.P. Simester and Antony Duff for detailed and engaging comments on my draft. In its revised form, this paper forms part of a larger project on “Paternalism and its limits: the analysis of two-party interactions in morality and law” for which I have been awarded a British Academy/Leverhulme Senior Research Fellowship in 2012. The support of the foundation is hereby gratefully acknowledged.
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du Bois-Pedain, A. The Wrongfulness Constraint in Criminalisation. Criminal Law, Philosophy 8, 149–169 (2014). https://doi.org/10.1007/s11572-012-9186-5
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DOI: https://doi.org/10.1007/s11572-012-9186-5