Abstract
I will focus on Tadros’s general views about criminalization and how he contends philosophers should not think about it. Misguided approaches, according to Tadros, include attempts to identify principles that constrain the scope of the criminal law, as well as efforts to establish that given considerations constitute reasons for or against the use of the penal sanction. In what follows, I begin with a few general remarks about the connections between Tadros’s treatment of criminal justice and the real world. Next, I try to salvage the viability of the two approaches to criminalization he rejects. Finally, I turn a skeptical eye to what I take to be the most radical thesis in Wrongs and Crimes: the state should occasionally criminalize conduct that is not wrongful.
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Douglas Husak: Overcriminalization (Oxford: Oxford University Press, 2008).
I am now far less confident in the harm constraint, for example. See the difficulties discussed by James Edwards: “Harm Principles,” 20 Legal Theory 253 (2014).
Victor Tadros: The Ends of Harm (Oxford: Oxford University Press, 2011).
See Robert Apel and Daniel S. Nagin: “General Deterrence,” in Michael Tonry, ed.: The Oxford Handbook of Crime and Criminal Justice (Oxford: Oxford University Press (2011), p. 179.
Pew Research Center: America’s Complex Relationship with Guns,” (June 17, 2017). http://www.pewsocialtrends.org/2017/06/22/americas-complex-relationship-with-guns/.
His section on enforcement (pp. 55–56) discusses whether and under what conditions persons can be made to discharge the duties they incur through wrongdoing—not the real-world problems of resistance and discrimination I mention here.
I believe there is greater general interest in criminal justice reform than at any point in my lifetime. See, for example, Eric Luna, ed.: Academy for Justice, A Report on Scholarship and Criminal Justice Reform, (forthcoming, 2017). Legal philosophers should take advantage of this opportunity to contribute and shape criminal justice reform.
Joel Feinberg: Harm to Self (New York: Oxford University Press, 1986).
See, for example, Jessica Flannigan: Pharmaceutical Freedom: Why Patients Have a Right to Self-Medicate (New York: Oxford University Press, forthcoming).
See Douglas Husak: “Penal Paternalism,” in Christina Coons and Michael Weber, eds.: Paternalism: Theory and Practice (Cambridge University Press, 2013), p. 39.
In my experience, only those legal theorists who hold that the criminal law is not about morality, or bears only a distant connection to it, openly reject wrongfulness as a condition of justified criminalization and punishment. In Chapter 8, Tadros makes several telling criticisms of a family of views that hold “the primary function of the criminal law is not to respond to wrongdoing, but rather to stabilize public institutions with the ambition of developing and maintaining cooperation in complex modern societies” (135).
I make the controversial assumption that the norms governing punishment in the criminal law are moral norms.
J.R. Edwards and A.P. Simester: “Wrongfulness and Prohibitions,” 8 Criminal Law and Philosophy 171 (2014).
See Douglas Husak: “What Do Criminals Deserve?” in Kimberly Ferzan and Stephen Morse, eds.: Legal, Moral, and Metaphysical Truths: The Philosophy of Michael S. Moore (Oxford University Press, 2016), p. 49.
Gideon Rosen: “Culpability and Ignorance,” Proceedings of the Aristotelian Society (2002), 61, 82.
See James B. Jacobs: The Eternal Criminal Record (Cambridge: Harvard University Press, 2015).
The consequences can be profound when this power is withdrawn. For one example from the drug front, see http://www.nbcnews.com/news/us-news/police-searches-drop-dramatically-states-legalized-marijuana-n776146.
See Douglas Husak: “The Vast Scope of Preventive Harming,” (forthcoming).
See Susan Anne Dimock: “The Malum Phohibitum / Malum in se Distinction and the Wrongfulness Constraint on Criminalization,” 55 Dialogue: The Canadian Philosophical Review 1 (2016).
Model Penal Code, Sec. 302(1)(a).
Victor Tadros: Wrongness and Criminalization,” in Andrei Marmor: The Routledge Companion to Philosophy of Law (London: Routledge, 2012).
R.A. Duff: “Towards a Modest Legal Moralism,” 8 Criminal Law and Philosophy 217 (2014), esp. pp. 220–221.
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Douglas Husak: Distinguished Professor of Philosophy, Rutgers University. Thanks to Beth Valentine and Patrick Tomlin for helping me with earlier drafts of this paper.
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Husak, D. Wrongs, Crimes, and Criminalization. Criminal Law, Philosophy 13, 393–407 (2019). https://doi.org/10.1007/s11572-017-9453-6
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DOI: https://doi.org/10.1007/s11572-017-9453-6