Against 'prohibitions' (first round)


Authors
Luís Duarte D'Almeida
University of Edinburgh
Abstract
The distinction between 'conduct norms' and 'sanction norms' is widely assumed to be an essential tool for any correct understanding of criminal responsibility. Conduct norms (often also called 'primary') are referred to with the language of 'prohibitions', and it is normally accepted that a crime is by definition a 'prohibited' human behaviour, in the sense that it is always an infraction of a 'conduct norm'. I mean to discuss and criticize this rather consensual assumption. Modern criminal codes don't usually incorporate a catalogue of prohibitions, but this is considered to be of no consequence when it comes to discuss whether the law prohibits those behaviours whose performance may lead to the application of a criminal sanction: there is no question that sanction norms may be properly read out of the special parts of our criminal codes, and from a sanction norm it is always possible to infer the correspondent prohibition. Or so the current understanding goes. I shall first try to make some sense of this common idea, which I call the inference thesis. I will then proceed to show why it is wrong. The inference thesis is necessarily committed to an understanding of conduct norms as prescriptive norms addressed to citizens, and the relevant notion of a prescriptive norm has to be characterized in some detail. Having done so, I will argue that such a prescriptive understanding of 'conduct norms' is incompatible with several aspects common to most modern systems of criminal law and unquestionably essential to the concept of a crime.
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