The Moral Prerequisites of the Criminal Law: Legal Moralism and the Problem of __Mala Prohibita__

Modern states criminalise many actions that intuitively do not seem morally wrong, particularly in the context of regulating complex industries or activities. Are mala prohibita offences of this kind fundamentally mistaken? Many criminal law scholars have thought so and argued that conduct must be morally wrong to be legitimately criminalised. This Element examines the longstanding debates about whether this idea is right, and what we would lose if we either abandoned the criminal law's close connection to morality or our use of the very useful tool of mala prohibita crimes. This Element argues that there are a range of promising arguments for reconciling mala prohibita offences with the wrongness constraint on criminalisation. Thus, it seeks to shed light on the aims of the criminal law and the moral prerequisites for legitimate criminalisation. Cover Title page Copyright page The Moral Prerequisites of the Criminal Law: Legal Moralism and the Problem of Mala Prohibita Contents 1 The Problem of Mala Prohibita 1.1 What Are Mala Prohibita? 1.1.1 Mala In Se versus Mala Prohibita 1.1.2 Distinguishing Mala Prohibita from Related Concepts 1.2 The Wrongness Constraint (and the View of the Criminal Law Underlying It) 1.2.1 Criminalisation in General 1.2.2 Negative Limits on Criminalisation 1.2.3 What Is the Wrongness Constraint, More Precisely? 1.2.4 What Motivates the Wrongness Constraint? 1.3 The Mala Prohibita Puzzle Revisited 1.4 Possible Solutions and Outline of the Element 2 Rejecting the Wrongness Constraint 2.1 Wrongness Constraint and the Nature and Function of the Criminal Law 2.2 An Argument for the Wrongness Constraint 2.2.1 Positive vs Negative Legal Moralism 2.2.2 An Argument from Punishment 2.2.3 A Better Argument for the Wrongness Constraint 2.2.4 Revisiting the Public Law Conception and Legal Moralism 2.3 Possible Criticisms 2.3.1 Presumptive Constraint and Mala Prohibita 2.3.2 Over-generalising the Fact that the Criminal Law Speaks in a Moral Voice 2.3.3 Is the Wrongness Constraint Redundant? 2.4 Conclusion 3 Reject Mala Prohibita? 3.1 What Would We Lose in Rejecting Mala Prohibita? 3.1.1 Benefits of Mala Prohibita 3.1.2 Alternatives to Mala Prohibita 3.2 How Widespread Is the Conflict Between Mala Prohibita and the Wrongness Constraint? 4 Mala Prohibita Really Are Wrongful 4.1 Three Traditional Theories 4.1.1 Consent 4.1.2 Fair Play 4.1.3 Rawls’ Natural Duty to Support Just Institutions 4.2 Moving beyond the Traditional Theories 4.2.1 Samaritanism: Combining Fair Play and Natural Duty 4.2.2 A Revised Hybrid View: Combining Fair Play with Rawlsian Natural Duty 4.2.3 Duff and Civic Responsibilities 4.3 Public Justifiability and the Wrongfulness of Mala Prohibita 4.4 Conclusion 5 Conclusion References Modern states criminalize many actions that intuitively do not seem morally wrong, particularly in the context of regulating complex industries or activities. Are mala prohibita offences of this kind fundamentally mistaken? Many criminal law scholars have thought so and argued that conduct must be morally wrong to be legitimately criminalised. This Element examines the longstanding debates about whether this idea is right, and what we would lose if we either abandoned the criminal law's close connection to morality or our use of the very useful tool of mala prohibita crimes. This Element argues that there are a range of promising arguments for reconciling mala prohibita offences with the wrongness constraint on criminalisation. Thus, it seeks to shed light on the aims of the criminal law and moral prerequisites for legitimate criminalization.