I Would Do Anything for Law (and That’s a Problem): Criminalization, Value, and Motives
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It is widely accepted that (1) criminalization creates a prudential reason to refrain from the criminalized conduct in order to avoid punishment, and (2) prudence is the wrong reason to refrain from wrongdoing. According to Michael S. Moore, these facts should lead us to conclude that the criminalization of wrongful conduct corrupts motives by making some who would otherwise have refrained from wrongdoing for the right reason, refrain from wrongdoing only out of prudence. This paper argues that (1) and (2) provide no reason to believe that criminalization corrupts motives, but should instead lead us to conclude that the criminalization of wrongful conduct obscures motives by making it harder to identify those who refrain from wrongdoing for the right reason. The paper then goes on to argue that the badness of obscuring motives is a pro tanto reason against criminalizing wrongdoing.
KeywordsAutonomy Michael S. Moore Limits of the law Value of motives
I am grateful to Andreas Albertsen, Thomas Ferretti, Siba Harb, Søren Flinch Midtgaard, Tim Meijers, Lasse Nielsen, Victor Tadros, Rasmus Uhrenfeldt, and Danielle Zwarthoed for useful comments. Special thanks to David Vestergaard Axelsen, Amneris Chaparro, Kasper Lippert-Rasmussen, and an anonymous reviewer for extensive and very useful written comments. I am also grateful to Jill Flohil for her very thorough and helpful editorial work.