Abstract
In this chapter, I argue that the utilitarian principle of criminalization (UPC) is sounder than its poor reputation suggests. The chapter begins by describing three possible answers to the research question: to what extent should the consequences of criminalization matter morally in a theory of criminalization? I then explain why I propose to discuss only two of these answers. Following this, a detailed and critical specification (UPC) is presented. Further, I argue that criticisms of UPC associated with the recent work of philosophers like Douglas Husak and Victor Tadros are far from convincing. I end the chapter by developing a positive reason for accepting UPC as a principle of criminalization—namely, that UPC is consistent with what I call the ‘counterproductive criminalization principle’ (CCP) while non-consequentialist theories of criminalization are not necessarily so.
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Notes
- 1.
Bear in mind that by ‘a theory of criminalization’ I mean a theory that gives us a justified answer to the following normative question: by what moral principle(s) should criminalization decisions be guided?
- 2.
As we shall discuss in Sect. 6.3 moderate versions of a non-consequentialism can in some instances comply with CCP.
- 3.
Bare in mind when I write ‘C’ for conduct in what follows, I mean type of conduct C. Criminal laws apply to types of conduct, not tokens. See also Chap. 2, footnote 3.
- 4.
It is standard practice to divide non-consequentialism into absolutist or moderate (or-non-absolutists) versions. In absolutist versions, we are never allowed to violate a moral constraint M, no matter how good the consequences would be. In moderate versions we are allowed to violate M, but only if the consequences are significantly good. See, for example, Kagan (1998), p. 79; Lippert-Rasmussen (2005), p. 17 for this division.
- 5.
If the criminalization of C in the latter examples amounts to a violation of a moral constraint, M, absolutist versions of non-consequentialism could in this case reach the same implausible verdict as anti-consequentialism, namely, that the consequences of criminalizing C ought not to matter in our evaluation of whether C ought to be criminalized. However, these two moral theories are different, and they can therefore be used to evaluate certain situations differently. The reason for this is that absolutists, unlike anti-consequentialists, are usually taken to adopt a theory according to which we have a pro tanto reason to promote the best consequences (see e.g. Kagan 1998), pp. 16–17. Therefore, if the criminalization of C will lead to a civil war, and criminalizing C does not violate a moral constraint M, then an absolutist non-consequentialist would accept that the consequences of criminalizing C ought to matter in a normative evaluation of whether C ought to be criminalized.
- 6.
See e.g. Feinberg (1986), Moore (1997), Husak (2008) and Tadros (2013, 2016) for a critique of consequentialism used as a theory of criminalization. However, there are some recent publications speaking in favour of consequentialist theories of tort law and criminalization (criminal law): they include Chiao (2016), Fried (2012) and Priel (2018). In an effort to shift the discussion beyond these three very valuable articles, this chapter deals explicitly and primarily with UPC and, more importantly, seeks to defend UPC against recent criticism not touched upon by the three scholars just mentioned.
- 7.
By ‘morally right to criminalize conduct C’ I mean here that it is morally obligatory for the state to criminalize C. Furthermore, in what follows, I will, for stylistic reasons, leave out the words ‘in manner X’.
- 8.
Some philosophers, like Douglas Husak and Michael Moore, have argued in favour of what Edwards (2017) has called the punishment thesis, which is a thesis about the relationship between criminalization and punishment. The punishment thesis roughly claims that: when we want to identify the conditions under which it is permissible to criminalize, we must first identify the conditions under which it is permissible for the state to punish. For a critique of the punishment thesis, see Edwards (2017). In a consequentialist/utilitarian theory of criminalization, it is not obvious that the temporal or logical order in which the different consequences of criminalizing conduct C are calculated does matter. According to a utilitarian principle of criminalization, what matters is that the state should take into account all consequences when deciding which conduct the state ought to criminalize. Furthermore, one could here claim (thanks to Jesper Ryberg for this observation) that theories of criminalization are redundant to theories of punishment, as the latter would imply which kind of conduct should be criminalized: just criminalize those acts that we believe are permissible to punish. Nevertheless, there are reasons to be sceptical of this view. First, there could be, at least from a logical perspective, utilitarian reasons in favour of criminalizing a kind of conduct C even though doing C ought not to be punishable. Second, as already hinted at, there may also be consequences of criminalization that are not entailed by the consequences of punishment. For instance, the criminalization of a conduct C might not only send a signal about the punishment of C, but also a signal of what the state believes is morally right or wrong, like a kind of moral censure of certain kinds of conduct that is not only entailed in the mere punishment of doing conduct C. See Duff (2018), p. 8 for this latter claim. However, even if Ryberg is right, the defence of UPC in what follows can easily be translated into a defence of a utilitarian theory of punishment, so the arguments would still be philosophically valuable.
- 9.
Bentham (1781).
- 10.
Hart (1968). According to the prevailing interpretation of Hart’s philosophy of law, he may also approve of a view in which we accept one theory for the justification of punishment (retributivism) and another theory for the justification of criminalization (utilitarianism). For this interpretation, see e.g. Husak (2008), p. 192. However, this may be incorrect, as nothing I have seen in Hart’s writing rules out the idea that his retributivist justification for state punishment can be combined with the idea that punishment is an instrument to maximize the total amount of well-being. Rachels (2007) is an example of a philosopher who, without mentioning Hart, favours using the known principles of retributivism (e.g. not punishing innocents, proportionality between crime and punishment, same punishment for same crime) as instruments to maximize the total amount of well-being in society.
- 11.
Simester and Sullivan (2000).
- 12.
Ibid., p. 22.
- 13.
Andenaes (1966).
- 14.
UPC is also not subject to WEC, as it is a non-pluralistic principle of criminalization.
- 15.
McCloskey (1957).
- 16.
Husak (2008), pp. 192–193.
- 17.
Ibid. I take it for granted that criminalizing a person who does not exercise for 30 min at least four times per week would, according to Husak, violate constraints like ‘respect for autonomy’, ‘not treating a person as a mere means’ or ‘treat people as they deserve’.
- 18.
Utilitarians and retributivists could easily be in favour of making the criminal law public. Utilitarians could do so because secret laws would not deter people from committing crimes, and retributivists could argue that in order for a responsible offender to be punished, the offender should know or ought to know that he had done something morally wrong and one effective way to convey that would be by means of a publicly known criminal law.
- 19.
I am sceptical because our moral intuitions may differ according to the many different possible circumstances, depending on, for example, culture, nationality, gender, information level, and, well, smell and hand wash. See e.g. Doris and Plakias (2008), Haidt and Bjorklund (2008) and Zamzow and Nichols (2009) for how these different factors may influence our moral intuitions. These observations raise the question of whose intuitions we should trust, and when we should accept them as support for a moral view. History has shown us that many of our intuitions about, for example, women and people of color proved to be immoral. Furthermore, I and some of my colleagues, for instance, do not believe that it is counterintuitive, as we have seen in the original Mob case, to punish an innocent man (for, let us say, 1 year in prison), in order to save the lives of six other innocent individuals.
- 20.
- 21.
For an excellent elaboration and critical discussion of deontological arguments in favour of the view that deontologists should not always permit the number of violations of moral constraints M to be minimized through the act of one violation of M, see Lippert-Rasmussen (1999). This also holds for threshold deontologists, as they would not morally accept that it is right to violate a moral constraint M in order to decrease the number of M-violations with two. Therefore, threshold deontologists can argue that if the violation of M can decrease the number of M-violations with three, they could accept the first M-violation, but not if the decrease in M-violations amounts to two—otherwise, their theory would collapse into consequentialism.
- 22.
A procedure employed by, for example, John Rawls (1999). Rawls used the procedure to justify which principles should be satisfied in a just society. See also Harsanyi (1975), who has argued that the rational thing to do, contrary to Rawls’s idea that rights-based principles are what rational people would choose, would be to choose utilitarianism as your guiding principle for the construction of a just society.
- 23.
The same kind of reasoning could also be used in favour of defending utilitarianism against the objection raised by the Mob case.
- 24.
In discussing what I take to be counterintuitive implications of non-consequentialism, I have designed the case with World 1 and World 2 as favourably as possible for adherents of non-consequentialism (or deontology). Instead, I believe it would have been even more counterintuitive for more people if I had used other cases. For example, where it would be wrong, according to non-consequentialists, to punish an innocent person for 10 s in order to prevent six innocent persons from being killed, or where it would be wrong to kill one person in order to save all the lives of all children in the world.
- 25.
Bykvist (2010), p. 81.
- 26.
The version of the harm principle that Tadros here takes under discussion is the following: ‘It is wrong to criminalize some conduct v if criminalizing v does not prevent harm on aggregate.’ (Tadros 2011), p. 51. Furthermore, Tadros argues that this version of the harm principle can only be plausible if consequentialism is true.
- 27.
Tadros (2011), p. 52. When Tadros writes ‘prohibition’, I take him to mean ‘criminalization’, as the whole subject of his article is on principles of criminalization.
- 28.
Broome (2004), p. 58.
- 29.
I take it for granted that we accept the production and selling of children’s toys even though we know that we can expect that a few children will be choked while sucking on these toys. Moreover, one reason why we accept this will probably have to do with the observation that many children will benefit from playing with these toys.
- 30.
Philosophers who try to defend utilitarianism from the objection here posed by Tadros (and others, e.g. Scanlon 1998, p. 235) include e.g. Bykvist (2010) and Schönherr (2018). Norcross (1997) presents a critical discussion of eight contenders for the morally relevant difference between Lives for Driving and A Life for Headaches and. He concludes that none of these can justify the conclusion that the former is right and the latter wrong.
- 31.
Tadros (2011), p. 57.
- 32.
Tadros (2016), p. 56.
- 33.
Chinese water torture involves slowly dripping water onto a person’s forehead.
- 34.
Tadros (2011), pp. 52, 56.
- 35.
Tadros (2016), p. 103.
- 36.
UPC will always be consistent with CCP if ‘morally wrong’ in the specification of C is defined by the maximization of well-being. If the criminalization of conduct C (which is morally wrong because C does not maximize well-being) results in C being more common, this will clearly not maximize well-being.
- 37.
For a study showing that the criminalization of drug use among pregnant women leads to more pregnant women using drugs because criminalization and stigmatization prevent them from seeking help from health care staff, see Farr (1995).
- 38.
That versions of harm principles and offence principles, at the center of the discussion in Chaps. 2 and 3, are consistent with CCP should be obvious, as adherents of both types of principle would claim that the state should only criminalize kinds of conduct C that harm or at which people take offense, if we can thereby prevent or minimize that occurrence of C.
- 39.
As legal moralism is usually formulated in a context that makes it clear that it is not a branch of consequentialism, especially not of a utilitarian principle of criminalization, I take for granted that adherents of legal moralism are not consistent with CCP.
- 40.
See e.g. Duff (2018), p. 15.
- 41.
Priel (2018).
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Søbirk Petersen, T. (2020). A Soft Defence of a Utilitarian Principle of Criminalization. In: Why Criminalize?. Law and Philosophy Library, vol 134. Springer, Cham. https://doi.org/10.1007/978-3-030-34690-4_6
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