The aim of this paper is to argue that the utilitarian principle of criminalization (UPC) is sounder than its poor reputation suggests. The paper begins by describing three possible answers to the research question: To what extent should the consequences of criminalization matter morally in a theory of criminalization? Hereafter I explain why I shall discuss only two of these answers. Then follows a detailed and critical specification of UPC. Furthermore, I will argue why criticisms of UPC made by philosophers such as Douglas Husak and Victor Tadros in their recent work are far from convincing. Finally, I will present a positive reason for accepting UPC as a principle of criminalization, namely: that UPC is consistent with what I call the Counterproductive Criminalization Principle, while non-consequentialist theories of criminalization are not.
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By ‘a theory of criminalization’ I mean a theory, that gives us a justified answer to the following normative question: By which moral principle(s) P should criminalization decisions be guided?
When I write ‘C’ for conduct in what follows, I mean type of conduct C, but for stylistic reasons I stay with the shorter description, because the criminal law is all types of conduct not tokens of conduct.
It is standard practice to divide non-consequentialism into absolutist or moderate versions. In absolutist versions we are never allowed to violate a moral constraint, M, no matter how good the consequences would be. In moderate versions we are allowed to violate M, but only if the consequences are significantly good.
If the criminalization of C in the latter examples amounts to a violation of a moral constraint, M, absolutist versions of non-consequentialism could in this case reach the same implausible verdict as anti-consequentialism, namely that the consequences of criminalizing C ought not to matter in our evaluation of whether C ought to be criminalized. However, these two moral theories are different, and they can therefore be used to evaluate certain situations differently. The reason for this is that absolutists, unlike anti-consequentialists, are usually taken to adopt a theory according to which we have a pro tanto reason to promote the best consequences (see e.g. Kagan 1998, pp. 16–17). So, if the criminalization of C will lead to World War III, and criminalizing C does not violate a moral constraint, M, then an absolutist non-consequentialist would accept that the consequences of criminalizing C ought to matter in a normative evaluation of whether C ought to be criminalized.
However, there exist a few and recent publications that speak in favor of consequentialists’ theories of criminalization. They are Chiao (2016), Fried (2012) and Priel (2018). Compared to these three very valuable articles, this article deals explicitly with UPC and more importantly tries to defend UPC against recent criticism which is not addressed by the aforementioned articles.
I prefer the term ‘well-being’ to ‘utility’. For what counts as utility could cover everything—from autonomy, desert and dignity, to justice, and tennis balls—and not just the well-being characteristically enjoyed by sentient beings. The broad scope given by the word ‘utility’, however, makes Husak’s statement of utilitarianism look more like a description of consequentialism.
By 'morally right to criminalize conduct C' I here mean that it is morally obligatory for the state to criminalize C.
This one-eyed focus on discussions of a utilitarian justification of punishment instead of also focusing on a utilitarian justification of criminalization has, at least two explanations. First, you may start out by rejecting a utilitarian justification of punishment and infer from this that a utilitarian justification of criminalization is wrong too. Secondly, some philosophers just state their utilitarian justification of criminalization and take it for granted that the goal of criminalization is to promote well-being in society. This happens, for example, in the work of Simester and Sullivan (2000, 21): ‘… it is retributivism which resolves who will be punished and how much punishment will be meted … to be sure, utilitarianism is given the task of determining which conduct should be punished’.
One of the few exceptions of a scholar who explicitly engages in critical discussion of a utilitarian principle of criminalization is Husak (2008, Chapter 4, sec. II).
On the prevailing interpretation of Hart’s philosophy of law, he may also approve of a view in which we accept one theory for the justification of punishment (retributivism) and another theory for the justification of criminalization (utilitarianism). For this interpretation, see e.g. Husak (2008, p. 192). However, this may be incorrect, as nothing I have seen in Hart’s writing rules out the idea that his retributivist justification for state punishment can be combined with the idea that punishment is an instrument to maximize the total amount of well-being. Rachels (2007) is an example of a philosopher who, without mentioning Hart, favors using the known principles of retributivism (e.g. not punishing innocents, proportionality between crime and punishment, same punishment for same crime) as instruments to maximize the total amount of well-being in society.
See the last quotation of Footnote 8.
Utilitarians and retributivists could easily be in favor of making the criminal law public. Utilitarians because secret laws would not deter people from committing crimes, and retributivists could argue that in order for an responsible offender to be punished the offender should know or ought to know that he had done something morally wrong and one effective way to convey that, would be by means of the criminal law.
I am skeptical, because our moral intuitions may differ according to the many different possible circumstances, depending on, for example, culture, nationality, gender, information level, smell and hand wash. See e.g. Doris and Plakias (2008), Haidt and Bjorklund (2008), Zamzow and Nichols (2009) for these factors. These observations raise the question of whose intuitions we should trust, and when we should accept them as support for a moral view. History has shown us that many of our intuitions about women and people of color proved to be immoral.
For an excellent elaboration and critical discussion of deontological arguments in favor of the view that deontology does not permit minimizing the number of violations of moral constraints M through the act of one violation of M, see Lippert-Rasmussen (1999). This also holds for thredshold deontology, as they would not morally accept that it is right to violate a moral constraint M in order to decrease the number of M-violations with two. So, deontologists who believe in thresholds can argue that if the violation of M can decrease the number of M-violations with three they could accept the first M-violation. However, not if the decrease in M-violations amounts to two—for otherwise their theory would collapse into consequentialism.
The version of the harm principle that Tadros here takes under discussion is the following: It is wrong to criminalize some conduct v if criminalizing v does not prevent harm on aggregate (Tadros 2011, p. 51). Furthermore, Tadros argues that this version of the harm principle can only be plausible if consequentialism is true.
When Tadros writes ‘prohibition’ I take him to mean ‘criminalization’, as the whole subject of his article is on theories of criminalization.
This and the other case named A Life for Headaches is inspired by Norcross (1997).
Philosophers who try to defend utilitarianism from the objection here posed by Tadros (and others e.g. Scanlon 1998, p. 235) include Norcross (1997) Bykvist (2010) and Schönherr (2018). Norcross presents a critical discussion of eight contenders for the morally relevant difference between A Life for Headaches and Lives for Driving. He concludes that none of these can justify the conclusion that the former is wrong and the latter right.
Chinese water torture involves slowly dripping water on to a person’s forehead.
UPC will always be consistent with CCP if ‘morally wrong’ in the specification of C is defined by the maximization of well-being. If the criminalization of C (which is morally wrong because C does not maximize well-being) results in C being more common, this will clearly not maximize well-being.
The exact meaning of the notion ‘clearly morally wrong’ is, of course, vague. However, to make my point in what follows it is enough to hold that e.g. excessive drinking, organized crime, murder, rape, and the death of women in illegal abortion clinics are usually morally wrong. If you still think this is too vague, let C be whatever is wrong according to your favorite moral theory.
For a study showing that the criminalization of drug use among pregnant women leads to more pregnant women using drugs because the criminalization and stigmatization prevent them from seeking help from health care personnel, see Farr (1995).
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I would like to thank Kasper Lippert-Rasmussen, Jesper Ryberg, Frej Klem Thomsen, Victor Tardros, Göran Duus-Otterström, Sune Lægaard, Rune Klingenberg Hansen, Søren Sofus Wichman and two anonymous reviewers for very valuable comments to earlier versions of this paper.
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Petersen, T.S. A Soft Defense of a Utilitarian Principle of Criminalization. Res Publica 26, 123–141 (2020). https://doi.org/10.1007/s11158-019-09426-3
- Criminalization theory
- Utilitarian theory of criminalization
- Douglas Husak
- Victor Tadros