Legal Moralism and Public Wrongs

This chapter provides a preliminary discussion of ‘legal moralism’. It distinguishes ‘negative’ from ‘positive’ legal moralism; it defends negative legal moralism (we may not criminalize conduct that is not wrongful prior to its criminalization), and shows why positive legal moralism (the wrongfulness of a type of conduct gives us reason to criminalize it) is attractive. It criticizes the most familiar form of positive legal moralism, according to which we have good reason to criminalize all morally wrongful conduct, as being implausibly over-expansive, and argues for a modest legal moralism according to which criminal law is concerned only with public wrongs. The idea of a public wrong is explained through a discussion of professional ethics, and an analogy between codes of professional ethics, dealing with wrongdoing that falls within a particular practice, and criminal law, as concerned with wrongdoing that falls within the distinctive practice of civic life—of a polity.

A Liberal Republic and its Criminal Law

This chapter puts some flesh on Chapter 4’s formal account of civil order, by sketching the civil order of a liberal republic, drawing on the republican tradition of political thought. We can then see the role that criminal law can play in such a polity: as an appropriate way of marking and responding to public wrongs, it helps to sustain, and constitute, the civil order. Its central role is to provide formal declarations of the central norms of that civil order, defining what kinds of conduct citizens are entitled to expect from each other (and from the polity); and to provide the process through which those accused of violating these norms are called to public account. On this account, criminal punishment is not the primary purpose of criminal law: but given the salience of punishment in our criminal law, something must be said about its role in a liberal republic.

Civil Order and the Public Realm

This chapter offers an account of the practice of civic life: of the ‘public realm’, within which criminal law operates as public law. ‘Civil order’, the normative ordering of the polity’s life, is central to this public realm: it is structured by the values through which a polity constitutes itself; it can be partly defined by a written constitution, but is also implicit in the polity’s institutions and practices. A conception of civil order depends on a normative distinction between the ‘public’ and the ‘private’: we must attend to different public–private distinctions. We must also attend to the preconditions of civil order: what kinds of shared understanding are necessary; what can be said to dissenters? Given a conception of a polity’s civil order, and its public realm, we can understand a ‘public wrong’ as a wrong that falls within that public realm, and violates that civil order.

Master Principles of Criminalization?

This chapter turns to criminalization, and the question whether we should seek a ‘master principle’ by which to guide criminalization deliberations. Different kinds of master principle are distinguished (positive/negative, responsive/preventive, pro tanto/categorical, thick/thin); familiar principles (notably harm principles) are criticized. A plausible master principle should be positive, pro tanto, at least partly preventive, and thin: it will leave most of the substantive normative work in deciding what to criminalize still to be done. A thin master principle emerges from the preceding chapters: we have good reason to criminalize a type of conduct if and only if it constitutes a public wrong; it constitutes a public wrong if and only if it violates the polity’s civil order. This leaves the questions of how the polity’s civil order is constituted, and what kinds of conduct violate it, to be decided; but it shows what kinds of argument are relevant to criminalization decisions.

Criminal Law

This chapter develops a conception of criminal law as a distinctive legal institution: it aims to identify, by a rationally reconstructive approach, normatively salient dimensions of systems of criminal law like our own. On this conception the central dimensions of criminal law are the substantive law, which consists in a set not of ‘prohibitions’, but of declarative definitions of those ‘public’ wrongs that are to be formally marked in this way; the criminal process and the criminal trial, through which those accused of committing such wrongs are called formally to answer to those accusations, and to answer for those wrongs if their guilt is proved; and criminal punishment. It also discusses the processes of criminalization; the distinction between formal and substantive criminalization; and the discretion that the formal law must leave to officials, and to lay citizens, in determining what kinds of conduct are actually treated as criminal.

Introduction

This introductory chapter provides the context for the book—the widely held belief that we face a crisis of (over)criminalization, and a criminal law that has become chaotic and unprincipled. One useful response to such a crisis is to articulate a normative theory of criminal law, which will help us to see what criminal law ought to be (and thus to identify more clearly the radical defects in our criminal law): that is what this book will do. The Introduction also comments on the book’s method—a process of rational reconstruction that begins from salient features of our existing practices, and aims to make normative sense of them. Finally, it sketches the aims and contents of the chapters to follow.

Criminalization and Civil Order

This chapter explains the ‘public wrongs’ criminalization principle. However, criminalization is one among various possible responses to public wrongs: so we must ask whether we have good reason to criminalize a public wrong rather than responding in another way. To illustrate the working of a ‘public wrongs’ principle, examples of three kinds of offence are discussed. First, ‘mala in se’, consisting in conduct supposedly wrongful prior to its legal regulation: the criminalization process here involves constructing a civic conception of the wrong. Second, different types of ‘malum prohibitum’ (consisting in conduct that might be wrongful only because legally prohibited) are discussed, to show how violations of pre-criminal regulations can constitute criminalizable wrongs. Third, ‘pre-emptive’ offences are discussed: they criminalize conduct only remotely connected to the mischief at which the law is aimed; it is important to see how far such offences can be justified—and subjected to principled constraint.

Citizenship and the Criminal Law

This chapter begins the task of explaining the distinctive practice of civic life, by looking at the identity of those who participate in it; it argues that citizens are the criminal law’s primary addressees. This requires a discussion of the normative basis on which the ambit and jurisdiction of domestic systems of criminal law are determined, and of the Territoriality Principle. It also requires an account of citizenship, as membership of a distinctive political practice, and of the terms in which the criminal law should address the citizens whose law it is supposed to be. This leads into a discussion of the status of those within a polity who are not formally citizens of the polity; of how the criminal law should address those who dissent from the law’s content, or deny its authority; and of Jakobs’ distinction between ‘criminal law for citizens’ (Bürgerstrafrecht) and ‘criminal law for enemies’ (Feindstrafrecht).