Rethinking the Wrongness Constraint on Criminalisation

Law and Philosophy 36 (6):615-649 (2017)
  Copy   BIBTEX

Abstract

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.

Links

PhilArchive



    Upload a copy of this work     Papers currently archived: 74,174

External links

Setup an account with your affiliations in order to access resources via your University's proxy server

Through your library

Similar books and articles

Wrongfulness and Prohibitions.J. R. Edwards & A. P. Simester - 2014 - Criminal Law and Philosophy 8 (1):171-186.
The Wrongfulness Constraint in Criminalisation.Antje du Bois-Pedain - 2014 - Criminal Law and Philosophy 8 (1):149-169.
The Wrongfulness Constraint in Criminalisation.Antje Bois-Pedain - 2014 - Criminal Law and Philosophy 8 (1):149-169.
Harm and Wrongdoing in Criminalisation Theory.Andreas von Hirsch - 2014 - Criminal Law and Philosophy 8 (1):245-256.
Why Coercion is Wrong When It’s Wrong.Benjamin Sachs - 2013 - Australasian Journal of Philosophy 91 (1):63 - 82.
Moral Status and the Wrongness of Paternalism.David Birks - 2014 - Social Theory and Practice 40 (3):483-498.
Rethinking Procreation: Why It Matters Why We Have Children.Mianna Lotz - 2011 - Journal of Applied Philosophy 28 (2):105-121.
Blameworthiness and Wrongness.Andrew C. Khoury - 2011 - Journal of Value Inquiry 45 (2):135-146.
Wrongness and Reasons.Ulrike Heuer - 2010 - Ethical Theory and Moral Practice 13 (2):137 - 152.
What is the Harm Principle For?John Stanton-Ife - 2016 - Criminal Law and Philosophy 10 (2):329-353.

Analytics

Added to PP
2017-03-17

Downloads
13 (#759,612)

6 months
1 (#413,740)

Historical graph of downloads
How can I increase my downloads?

References found in this work

The Expressive Function of Punishment.Joel Feinberg - 1965 - The Monist 49 (3):397-423.
Towards a Modest Legal Moralism.R. A. Duff - 2014 - Criminal Law and Philosophy 8 (1):217-235.
Punishment as Language.Igor Primoratz - 1989 - Philosophy 64 (248):187 - 205.
Wrongness and Criminalization.V. Tadros - 2012 - In Marmor Andrei (ed.), The Routledge Companion to Philosophy of Law. Routledge. pp. 157--173.

View all 10 references / Add more references