Abstract
A standard view about criminal law distinguishes between two kinds of offenses, “mala in se” and “mala prohibita.” This view also corresponds to a distinction between two bases for criminalization: certain acts should be criminalized because they are moral wrongs; other acts may be criminalized for the sake of promoting overall welfare. This paper aims to show two things: first, that allowing for criminalization for the sake of promoting welfare renders the category of wrongfulness crimes largely redundant. Second, and more importantly, accepting welfare as a legitimate ground for criminalization implies a certain view about legitimate state action, which makes criminalization for wrongfulness more difficult to justify. If I am right, the view that keeps the two categories of criminalization as largely separate is untenable. I conclude with some remarks about the advantages of welfare (and not wrongfulness) as the basis for criminalization.
This is a preview of subscription content, log in via an institution to check access.
Similar content being viewed by others
Notes
Cf. R. A. Duff, “Towards a Modest Legal Moralism,” 8 Criminal Law and Philosophy (2014) 217, 219.
For relevant discussions, see Malcolm Thorburn, “Criminal Law as Public Law,” in R. A. Duff & Stuart Green (eds.), Philosophical Foundations of Criminal Law (Oxford: Oxford University Press, 2011) 21; Vincent Chiao, “What Is Criminal Law for?” 35 Law and Philosophy (2016) 137.
For studies supporting the claim that people tend to treat direct harm as more serious than a similar but less direct harm, see Joshua Greene et al., “Pushing Moral Buttons: The Interaction Between Personal Force and Moral Intention in Moral Judgment,” 111 Cognition (2009) 364; Fiery Cushman, Liane Young, & Marc Hauser, “The Role of Conscious Reasoning and Intuition in Moral Judgment: Testing Three Principles of Harm,” 17 Psychological Science (2006) 1082.
There is evidence supporting correlation between low welfare and high levels of crime. See Steven Pinker, The Better Angels of Our Nature: Why Violence Has Declined (London: Penguin, 2011) ch. 3. Whether crime is a cause of low welfare is more difficult to establish. The idea, though, is familiar, and goes back at least to Thomas Hobbes. Without a sovereign, he said, crime will be rampant, leading to life that is “solitary, poor, nasty, brutish, and short.”
The analysis in the text treats attitudes to illegitimacy as exogenous, but I recognize that this may not be the case.
Duff, for example, writes: “It would be absurd to deny that instrumentalist considerations are relevant to criminalization: attention to the likely effects of criminalizing (or of not criminalizing), and of this or that particular mode of criminalization, is crucial to final decisions about whether, and how, to criminalize.” Duff, supra note 1, at 226. Duff does not say much about how such “instrumentalist” considerations should be weighed in criminalization decisions, but he does explicitly say that they “should not figure in the initial stages of deliberations.” Ibid. The right question to ask in these stages, he says, is whether criminal law is an “intrinsically apt” response to a certain acts.
See Ronald Dworkin, Taking Rights Seriously, rev. ed. (Cambridge: Harvard University Press, 1978) 205, 234, 277. Though particularly associated with Dworkin, this idea was accepted and developed by others as well. See, for example, Philip Pettit, “The Consequentialist Can Recognise Rights,” 38 Philosophical Quarterly (1988) 42, 45.
That, incidentally, seems to be Dworkin’s view. See Ronald Dworkin, A Matter of Principle (Cambridge: Harvard University Press, 1985) 73–74.
See Alon Harel, “The Duty to Criminalize,” 34 Law and Philosophy (2015) 1, 1, 2.
Ibid. at 16.
Ibid. at 7.
Interestingly, in the past Harel has argued that less than perfect enforcement of crime could be justified for welfare reasons. See Alon Harel & Uzi Segal, “Criminal Law and Behavioral Law and Economics: Observations on the Neglected Role of Uncertainty in Deterring Crime,” 1 American Law and Economics Review (1999) 276.
Cf. Vincent Chiao, “Discretion and Domination in Criminal Procedure: Reflections on Pettit,” 15 Politics, Philosophy and Economics (2016) 92, 97–101.
See, for example, Douglas Husak, “Malum Prohibitum and Retributivism,” in The Philosophy of Criminal Law: Selected Essays (Oxford: Oxford University Press, 2010) 410. Strictly, Husak is concerned in this essay with explaining the compatibility of retributivism and regulatory offenses, but many of his concerns are transferable to the question of criminalization.
See generally Chiao, supra note 2.
Cf. James Q. Whitman, “A Plea against Retributivism,” 7 Buffalo Criminal Law Review (2003) 85, 94–95. Whitman focuses on retributive punishment, but, again, I believe his arguments are transferable to criminalization.
See Andrew Blankstein & Richard Winton, “More than 1,500 California Jail Inmates Are Released Early,” Los Angeles Times (Feb. 11, 2010), available at http://articles.latimes.com/2010/feb/11/local/la-me-early-release11-2010feb11. The results of this natural experiment are, so far, encouraging. See Charis E. Kubrin, Carroll Seron, & Joan Petersilia, “Releasing Low-Level Offenders Did Not Unleash a Crime Wave in California,” Washington Post (Mar. 16, 2016), available at https://www.washingtonpost.com/opinions/releasing-low-level-offenders-did-not-unleash-a-crime-wave-in-california/2016/03/17/7d376adc-e4b5-11e5-a6f3-21ccdbc5f74e_story.html.
See, e.g., Nova Scotia’s Interior Designers Act, s. 37.
See Thorburn, supra note 2, at 29–31.
Acknowledgements
Many of the thoughts here were shaped in conversations with Vincent Chiao, many of whose ideas have surely made it into this essay without proper acknowledgement. He also gave me some very helpful comments on the penultimate draft of the essay. In addition, I received many interesting comments and questions on an earlier draft of the essay presented at the criminalization conference that is the basis for this volume. Two comments I received on that occasion deserve special mention, because I have not been able to give them adequate response in the text of this essay. Alan Brudner was the commentator on the paper presented at the conference. I have not been able to give his remarks their due here. His comments, naturally enough, are based on his views on criminal law, as developed in various writings. They deserve more attention that I can give them here, and hope to do so at some other time. The second is an important question raised by one of the conference’s organizers. Neha Jain asked about the relevance of my arguments to criminalization in the international context. This is an powerful challenge, for international criminal law seems to fit what I call criminalization for wrongfulness more than criminalization for welfare. Does this fact undermine my account? An easy reply is that my account is limited to domestic criminal law, but it is plainly too easy. The longer answer will have to situate international criminal law within a larger account of international law as a product of international politics. That is undoubtedly an incomplete reply to this question, but it is all I can provide right now.
Author information
Authors and Affiliations
Corresponding author
Additional information
This paper is part of the symposium organized by François Tanguay Renaud and Neha Jain on criminalization.
Rights and permissions
About this article
Cite this article
Priel, D. Criminalization, Legitimacy, and Welfare. Criminal Law, Philosophy 12, 657–676 (2018). https://doi.org/10.1007/s11572-017-9451-8
Published:
Issue Date:
DOI: https://doi.org/10.1007/s11572-017-9451-8