Abstract
The state has a duty to protect individuals from violations of their basic rights to life and liberty. But does the state have a duty to criminalize such violations? Further, if there is a duty on the part of the state to criminalize violations, should the duty be constitutionally entrenched? This paper argues that the answer to both questions is positive. The state has a duty not merely to effectively prevent violations of our rights to life and liberty, but also to criminalize such violations. Further, the duty to criminalize ought to be constitutionally entrenched. In the absence of criminal prohibitions on violations of the right to life and liberty individuals live ‘at the mercy’ of others. In the absence of a constitutional duty to criminalize, life and liberty of individuals is contingent upon the judgments and inclinations of the legislature. In both cases citizens’ rights are ‘at the mercy of others’. I also show that the decisions of the German Constitutional Court concerning abortion can be justified on such grounds.
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I wish to thank Arthur Ripstein, Miri Gur Arye and two anonymous referees for very important comments on previous drafts of this paper. I have also presented at a conference Criminalizing and Criminalized States organized by Francois Tanguay-Renault at Osgoode Hall Law School. I am grateful for the comments of the participants at this conference.
† Nagel, Thomas, ‘Personal Rights and Public Space’, Philosophy and Public Affairs 24 (2005): 83–107.
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Harel, A. The Duty to Criminalize*. Law and Philos 34, 1–22 (2015). https://doi.org/10.1007/s10982-014-9209-6
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DOI: https://doi.org/10.1007/s10982-014-9209-6