Evaluating Wrongness Constraints on Criminalisation
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Evaluating Wrongness Constraints on Criminalisation Adam R. Pearce1 Accepted: 26 September 2020 © The Author(s) 2020
Abstract Some claim that criminalisation is morally permissible only when the conduct criminalised is morally wrong. This claim can be disambiguated into at least three principles which differ according to whether, and how, wrongness is dependent on details of the law: the strong constraint, the moderate constraint, and the weak constraint. In this paper I argue that the weak wrongness constraint is preferable to the strong and moderate constraints. That is, we should prefer the view that conduct criminalised must be morally wrong, but qualifying wrongness can depend on criminalising the conduct first. Further, I will show that my arguments in support of the weak wrongness constraint have wider implications. Favouring the weak wrongness constraint implies that condemning wrongs cannot be the only legitimate reason in favour of criminalisation. Those who think condemnation can justify criminalisation should be pluralists. Keywords Criminalisation · Wrongness constraint · R. A. Duff · Victor Tadros · Legal moralism The criminal justice system wields frightening state power. A criminal charge, let alone a conviction, can upend one’s life. This power naturally raises the question of when making people liable to the criminal justice system is morally permissible. In other words, when is criminalisation justified? One partial answer to that question is to endorse a wrongness constraint. A wrongness constraint on criminalisation specifies that it is a necessary condition of morally permissible criminalisation that the conduct criminalised is morally wrong.1 It is a negative principle of criminalisation. It does not, as a positive principle would, give reason for criminalisation; instead 1 All subsequent references to ‘permissibility’, ‘wrongness’ and ‘wrongs’ refer more precisely to moral permissibility, wrongness, and wrongs.
* Adam R. Pearce [email protected] 1
University of Reading, Reading, UK
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Vol.:(0123456789)
Criminal Law and Philosophy
it says that conduct cannot be criminalised, for any reason, if it is not wrong. In recent years the inclusion of a wrongness constraint in normative theories of criminalisation has been the subject of scrutiny with some authors rejecting the constraint entirely.2 In response, some defences of a wrongness constraint have remained ambiguous between importantly different variants of a wrongness constraint.3 And although Anthony Duff’s defence is attuned to different variants of a wrongness constraint, he defends only one variant consistent with his further views on criminalisation.4 Consequently, no comparative evaluation of three different wrongness constraints has been undertaken. The three variants—distinguished fully in section II—are: (i) the strong constraint, according to which permissibly criminalised conduct must be wrong independent of the details of the law (or, pre-legally wrong); (ii) the moderate constraint, according to which
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