Criminal Law and Penal Law: The Wrongness Constraint and a Complementary Forfeiture Model


Antony Duff’s The Realm of Criminal Law offers an appealing moral reconstruction of the criminal law. I agree that the criminal law should be understood to predicate punishment upon sufficient proof that the defendant has committed a public wrong for which she is being held to account and censured. But the criminal law is not only about censoring people for public wrongs; it must serve other purposes as well, such as preventing people from committing serious crimes and more generally from violating reasonable regulations. These purposes, and perhaps retributive justice, require the criminal law also to mete out harsh treatment, but only insofar as such treatments are proportional to the culpable wrong committed. The problem for the criminal law is that many mala prohibita crimes consist of a minor wrong but also call for a relatively severe punishment. To accommodate that mismatch, it is necessary to complement the criminal law, as Duff and I conceive of it, with what I call “penal law.” Penal law relies on forfeiture to explain why hard treatment is permissible. The forfeiture must be fair, and it comes with its own proportionality limits. But those limits are not as strict as the limits implicit in the criminal law. It allows for penalties that are harsher than the punishments that could justifiably be meted out for many mala prohibita offenses. One and the same act can count as a crime and a penal infraction, and one and the same criminal justice system can and should handle both crimes and the penal infractions. It is, I think, only in that way that we can accommodate both the need to prevent public wrongdoing and the distinct importance of holding people accountable for the commission of public wrongs.

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  1. 1.

    All pages in parentheses are to The Realm of Criminal Law (Oxford: Oxford University Press, 2018).

  2. 2.

    Importantly, what Duff offers is a normative argument, not an appeal to a “definitional stop.” See H.L.A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law, 2nd edition (Oxford: Oxford University Press, 2008): p. 5.

  3. 3.

    Duff’s use of “quasi-crime” is different from the use in U.S. law, according to which “one can loosely group quasi-criminality into two major categories. The first, where use of the term originated, involves proceedings characterized by adjunctive criminal prosecution, either real or threatened [e.g., civil forfeiture in association with criminal activity]. The second lacks any corresponding criminal charges but presents nonetheless significant infringement of personal freedoms, often accompanied by reputational stigma [e.g., loss of license to practice law].” John Kip Cornwell, “The Quasi-Criminality Revolution,” UMKC L. Rev. 85 (2017): 311–341, p. 313.

  4. 4.

    Victor Tadros offers what he takes to be a counter example to the strong wrongfulness constraint in “Punishment without Liability,” in Wrongs and Crimes (Oxford: Oxford University Press, 2016): p. 330. In his example, the criminalization of gun ownership reduces the defensive reason to have a gun, making it all-things-considered wrong to have a gun. Duff cannot respond to this by saying that it must be the regulation of gun ownership that reduces the defensive reason and undercuts the moral case to own a gun; the success of the regulation might depend on it being a crime to violate it. Nonetheless, I think Duff should be basically unbothered by the example. If it shows that Duff has to allow in some cases of a weak wrongness constraint, in which criminalization cements the conditions of its own legitimacy, so be it. (The weak wrongness constraint holds that it is permissible to criminalize conduct as long as it is in fact wrongful to perform it once it has been criminalized.) From here on I refer only to the “wrongfulness constraint.”

  5. 5.

    It is also not like the German concept of Ordnungswidrigkeitenrecht, which applies to non-criminal infractions of regulations. (16).

  6. 6.

    MPC, § 1.04(5).

  7. 7.

    Larry Alexander, in “The Doomsday Machine: Proportionality, Punishment and Prevention,” The Monist 63 (1980): 199–227, offers a precursor to the view I articulate here. But he sees the prospects for harsh treatment based on forfeiture as essentially unlimited, except by the requirements of fair notice and a wrongful act. See ibid, p. 213. I think he overlooks ways in which forfeiture is limited by its own principle of proportionality. See section V below.

  8. 8.

    This is in accord with Doug Husak’s statement: “The very purpose of a response must be to deprive and to stigmatize before it qualifies as punishment.” “Does the State Have a Monopoly to Punish Crime,” in Chad Flanders and Zachary Hoskins (eds.), The New Philosophy of Criminal Law (London: Rowman and Littlefield, 2016): p. 98.

  9. 9.

    I now think that what I once described as forfeiture of the right to be presumed law abiding is better located in penal law than criminal law. See Alec Walen, “A Punitive Precondition for Preventive Detention: Lost Status as an Element of a Just Punishment,” San Diego Law Review 48 (2011): 1229–1272.

  10. 10.

    Duff himself “leaves open the possibility than an emergency might force us to abandon or pervert [the criminal law] and ‘criminalize’ some type of non-wrongful conduct.” (261 n. 117) The same would be true for using censure when criminal law does not apply but the penal law does.

  11. 11.

    Duff discusses a wide range of other mala prohibita offenses, and I will discuss some other ones as well in section V.

  12. 12.

    Andrew Cornford, “Rethinking the Wrongness Constraint on Criminalisation,” Law and Philosophy 36 (2017): 615–649; and Tadros, “Punishment without Liability.”

  13. 13.

    As Duff notes, this is not exactly a malum prohibitum crime (64); it is a malum in se crime with an malum prohibitum boundary.

  14. 14.

    Duff makes this point. (319 n.164).

  15. 15.

    “Rethinking the Wrongness Constraint on Criminalisation,” p. 640.

  16. 16.

    Ibid, pp. 640–41.

  17. 17.

    I put aside any discussion of the Second Amendment, as it is clear to me that no reasonable constitution would bar the reasonable regulation of gun ownership.

  18. 18.

    I discuss a variation on the sex-with-a-minor case, in section VI below, in which there is a strong moral reason for the defendant to have sex with a minor. But even in that case, I think it’s a stretch to say that the necessity defense would apply.

  19. 19.

    Tadros explores this argument in “Punishment without Liability,” pp. 333–336.

  20. 20.

    See Joshua Dressler, Understanding Criminal Law 7th ed. (New Providence, NJ: Lexis Nexis Press, 2015): p. 290.

  21. 21.

    I reject the idea of rightfully infringing rights and thereby wronging people (outside of extreme emergencies) in Alec Walen, The Mechanics of Claims and Permissible Killing in War (New York: Oxford University Press, 2019), esp. chapter 4.

  22. 22.

    Duff has a third argument as well, one which appeals to an idea we already saw: that “the legitimacy of deterrence depends on there already being sufficient, non-deterrent, normative reasons for us not to do what the law seeks to deter us from doing,” (23) The thought is that if one does not have sufficient moral reason to avoid doing what the criminal law seeks to deter, then the law’s use of deterring threats is unjust, like Austin’s proverbial coercive gunman. I respond to that argument at the end of section VI.

  23. 23.

    Tadros seems to miss this explanation for the duty; he sees the ground of the duty as nothing but the duty to avoid causing, directly or indirectly, the sorts of harms that a law aims to prevent.

  24. 24.

    Again, see footnote 10, there might be extreme circumstances that would justify condemnation of non-wrongful action. But this sort of misleading communication should not be a regular part of either the criminal law or penal law.

  25. 25.

    Duff is here quoting the Model Penal Code, § 2.12.

  26. 26.

    See Stuart Green, “Legal Moralism, Overinclusive Offenses, and the Problem of Wrongfulness Conflation,” Criminal Law and Philosophy (this issue).

  27. 27.

    Indeed, Duff mentions proportionality only in passing (and self-consciously so): “I will not engage in [a discussion of proportionality] here, save to note that some notion of proportionality is essential to the very idea of punishment, since punishment must be for an offence.” (38)

  28. 28.

    Hard treatment was more central to Duff in earlier work. For example, in Punishment, Communication, and Community (New York: Oxford University Press, 2001), p. 82, he endorsed this: “We should use hard treatment punishments of certain kinds because they can serve the communicative aims of punishment more adequately than can mere convictions or symbolic punishments.”

  29. 29.

    I have come to view negative retributivism as incoherent: if punishment is deserved, that provides a reason to punish.

  30. 30.

    Rights Forfeiture and Punishment (New York: Oxford University Press, 2017): p. 4.

  31. 31.

    This is not the only part of Wellman’s account with which I disagree. But I’ll limit myself here to pointing out one more disagreement. I reject his claim that forfeiture of a right functions like waiver of a right. Ibid, pp. 20–21. Waiver is directly tied to respect for autonomy and respect for autonomy can screen off appeal to the other substantive values in play. Forfeiture is less completely tied to autonomy; it is also tied to the fairness of holding that a right has been forfeited. The goods in the balance that sets when forfeiture may fairly be established are thus not screened off from a final determination of what may be done in the same way they are for waiver.

  32. 32.

    See John Oberdiek, Imposing Risk: A Normative Framework (New York: Oxford University Press, 2017), chapters 1 and 2 for a discussion of this and related problems.

  33. 33.

    United States v. Balint, 258 U.S. 250 (1922).

  34. 34.

    Ibid, p. 254.

  35. 35.

    See Stephen Schulhofer, “Harm and Punishment: A Critique of Emphasis on the Results of Conduct in the Criminal Law,” 122 U. Pa. L. Rev. 122 (1974): 1497–1607, p. 1587.

  36. 36.

    I defend this view of “threshold deontology” in The Mechanics of Claims and Permissible Killing in War, chapter 4, section 3.

  37. 37.

    This echoes his point about the justifiability of deterrence depending “on there already being sufficient, non-deterrent, normative reasons for us not to do what the law seeks to deter us from doing.” (23) I now return to that argument, as I said I would in note 22.

  38. 38.

    Jeff McMahan influentially pushes this notion of forfeiture of the right not to be killed, based on mere responsible choice, in Killing in War (New York: Oxford University Press, 2009). If the right not to be killed can be forfeited without wrongdoing, then surely the right not to be penalized can be forfeited without wrongdoing.

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Walen, A. Criminal Law and Penal Law: The Wrongness Constraint and a Complementary Forfeiture Model. Criminal Law, Philosophy 14, 431–446 (2020).

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  • Criminal law
  • Punishment
  • Penalty
  • Wrongness constraint
  • Forfeiture
  • Duff