A tale of two theories.
My own mode of discussing Douglas Husak's excellent new book, Overcriminalization, (1) is by comparing the theory that book defends--what Husak calls "minimalism"--with a theory with which I am already familiar, namely, my own brand of legal moralism. (2) Both theories purport at least to be theories about the same thing: the proper aims and limits for criminal legislation in a liberal, democratic state. This topic is often called "the limits of the criminal law," which is indeed the subtitle for Husak's book.
My motives for discussing Overcriminalization by comparing it to my own theory are not entirely narcissistic--as in, "enough about me, let's talk about you, namely, what do you think about my theory?" I have two more legitimate motives for the contrastive technique animating this essay. The first stems from Husak's observation that legal moralism is the "most important rival" to his own minimalist theory . It may thus be a useful heuristic to understanding minimalism to contrast it to its closest real competition. Second, Husak regards his theory as being "vastly superior" to all other extant theories of criminal legislation, legal moralism included . Comparing Husak's theory to its closest competitor may allow us to gauge the extent of this vaunted vastness.
I shall do four things in the body of this essay. The first is to give some background for Husak's minimalist theory and for my own legal moralist theory. Both theories should be seen against a backdrop of two kinds of debates that for the past 150 years have preceded both of us on this topic. Second, I shall describe Moorean legal moralism and Husakian minimalism in terms of their essential tenets. Third, I shall highlight several of the many points on which the two theories agree. Fourth, I will then contrast the theories on the points on which they disagree, suggesting along the way why I (perhaps obtusely) refuse to see why minimalism is superior to legal moralism along each of these axes of disagreement.
Earlier Debates on the Proper Reach of Criminal Legislation
The proper reach of the criminal law has long engaged the interest of leading political philosophers and has not been the bailiwick of criminal law theoreticians alone. The Anglo-American debate began with the publication of John Stuart Mill's On Liberty in 1859, in which Mill defended his famous "harm principle." (3) The harm principle is both positive and negative. (4) Positively, it permits the use of the criminal law to prohibit behavior harmful to people other than the actor or those who consent to the behavior; negatively, it forbids the use of the criminal law to prohibit behavior that is merely offensive or that is popularly regarded as immoral, even if such behavior is not harmful to anyone, and it forbids the use of the criminal law to prohibit behavior that harms only the actor himself. Often unrecognized is that Mill pressed his harm principle into dual service: the principle both defines a sphere of action immune to state regulation, and it delineates the permissible aims of criminal legislation. (5) The first of these protects only some citizen actions from criminalization for any reason, whereas the second protects any citizen action from criminalization for only some reasons but not others.
Mill's most famous critic in the nineteenth century was England's foremost expositor of the criminal law, Sir James Fitzjames Stephen. (6) Stephen argued that any attempt to limit the state's power to criminalize behavior was illegitimate in a democracy in which the majority's right to rule included the right to decide which conduct it would not tolerate. Stephen buttressed this argument of political theory with a famous conceptual objection: no behavior is truly without its harmful effects on others, and so the harm principle can provide no limit on the subject matter of criminal legislation. (7)
This grand debate in political theory has continued into our own time, with Herbert Hart defending a version of Mill's view (8) and Lord Patrick Devlin echoing Stephen's majoritarian and socially conservative position. (9) It was in Joel Feinberg's magisterial four-volume study in the 1980s, however, that this great debate received its first truly comprehensive exposition. Feinberg adopted Mill's four-part taxonomy of permissible/impermissible aims of legislation, devoting one book to harms to others, (10) and three other books to, respectively, offense to others, (11) harms to self, (12) and immoral behavior that may harm no one. (13) Feinberg also (largely) adopted Mill's conclusion, finding criminalization to be justified only for behaviors harming people other than the actor (Feinberg's qualification being that, contra Mill, some merely offensive behaviors could also be prohibited). (14)
The most current form of this debate has altered the terms a bit. Those to the political left of Millian liberalism, (15) and those to the right, (16) share the common criticism that Mill mistook harms for wrongs. (17) The idea common to conservatives and left-liberals is that the issue of the morality of conduct being regulated cannot be bracketed in the way Mill's harm principle purports to do, so that the real question is whether behavior is morally wrong, not whether it harms others. This allows harmless wrongs to be prohibited while immunizing wrongless harms from prohibition. Properly revised, the harm principle becomes the wrong principle: a state should criminalize only what it is willing to punish, and it should be willing to punish only those who have done morally wrong actions. According to this view, the debate between liberals and conservatives about, say, the criminal prohibition of gay sex, should not be cast as a debate about whether it is proper to consider the moral status of such practices; quite the contrary, the rightly framed debate is about the moral rightness or wrongness of these practices, and nothing else.
In the 1960s another debate on the proper reach of the criminal law eschewed entirely the concerns of grand political theory that have so marked the Mill/Stephen, Hart/Devlin, and Raz/Sandel/Moore/George forms of the debate. This was the "overcriminalization" literature of Herbert Packer, (18) Norval Morris, (19) and Sanford Kadish. (20) This literature purported to prescind from the theoretical debates about the nature of a just state and focused instead on the practical realities of criminalizing behavior. The literature pointed out that criminalizing certain behaviors had a variety of costs that on many occasions might well stay society's hand. These costs included: (1) the actual enforcement costs attendant upon making conduct criminal, including the costs of incarceration, police, courts, etc.; (2) the costs to privacy of enforcing some sorts of crimes, such as sexual offenses or other acts typically done in private situations, the detection of which requires intrusive techniques; (3) the "crime tariff" made possible by artificially restricting suppliers (of goods or services for which there was an inelastic demand) to those willing to break the law, thus creating opportunities for the monopoly profits that could fund organized crime; (4) the disrespect for law engendered by criminalizing behaviors that are so ubiquitous that they cannot all be prosecuted; and (5) the discriminatory and arbitrary law enforcement practices made possible by law that will predictably be under-enforced (and thus selectively enforced). (21)
The thrust of this literature was to disapprove of criminalization of behaviors like prostitution, alcohol or drug use, deviant sexual practices, and the like. The target of this literature, in other words, was the criminalization of behaviors that were: (1) typically done in private, with no non-participant witnesses; (2) victimless, in the sense that no participant was other than a willing participant; (3) strongly motivated, so that even if criminalized much of the behavior would continue; and (4) widespread in the community, such that all practitioners of it simply could not be apprehended at any reasonable cost. For it is criminalizing behavior with these four characteristics that predictably generates the costs outlined above. (22)
It is a fair criticism of this "practical" literature that it could not entirely prescind from the grand debates in political theory that preceded (and succeeded) it. (23) For, after all, an accounting of costs cannot by itself stay the state's hand; also needed is some theory as to what the benefits might be of criminalizing these sorts of behaviors. (24) If these behaviors were seriously immoral, offensive, or harmful to the participants or others, one might well conclude they should be criminalized despite the high costs of doing so. And that judgment does depend on consideration of "grand theory," (25) such as why we punish anyone for anything.
That said, the "practical costs" literature is still pitched at a recognizably different level than is the literature of what I have been calling the "grand debate" in political philosophy. It also has a pretty straightforward consequentialist flavor to it, in contrast to the more deontological cast of Mill (26) and his descendents.
All of this raises the question of where we should place Husak's minimalist theory. Unsurprisingly he prefers to distinguish his theory from both the grand debates of political philosophy and the practical considerations of the criminal law theorists [59-61]. In this he is not entirely successful. Of the seven principles making up Husak's minimalist constraints, roughly half speak from some deep conception of political philosophy whereas the other half are cast in terms appealing to more practical criminal and constitutional lawyers. More specifically, when Husak limits criminalization by desert, wrongs, harms, and evils, he is presupposing some deep views about when it is just to punish; here he joins the political theorists, even if he does not make explicit many of his theoretical presuppositions. When Husak casts his limiting principles in terms of burdens of proof, substantial state interests directly advanced, and less restrictive alternatives, he is appealing to the more practical, more consequentialist modes of reasoning familiar to American criminal and constitutional lawyers.
A striking difference between Husak's minimalism and both of the earlier forms of the debate is the fixity of Husak's judgment that we have too much criminal law. (27) Unlike both literatures earlier summarized, Husak is convinced at the start that too many people are in jail and that one major reason for this is that our criminal law prohibits too many kinds of things. Whereas for earlier theorists, whether we have too much criminal law is an open question, one that can be answered only after one has laid out one's preferred theory of criminal law's proper limits. We could easily have too little criminal law according to some theories of its proper reach. It all depends on the content of the theory.
Not so for Husak. The burden of the long first chapter of his book is to convince his audience of the fact that we have too much criminal law. This conclusion is arrived at pre-theoretically, that is, without him having spelled out what the proper limits of the criminal law should be. Then Husak uses this fixed point as his Archimedian lever: he judges theories in part by whether they yield this already settled judgment.
This is different from the preceding debates, but this is not a difference entirely to the book's favor. If we simply have too much criminal law, then the complaint is no different from that of the Hapsburg emperor in the film, Amadeus, when he complained that there were too many notes in one of Mozart's compositions. Like the emperor, Husak (in his pre-theoretical certitude) should be indifferent as to which notes (laws) he gets rid of, just so long as a sufficient number of them are eliminated.
That surely is a difference no well-respected theorist such as Husak wants on reflection to affirm. Surely it matters a great deal to him which laws we get rid of, and surely such choices will be guided by the minimalist theory he lays out in the rest of the book. That we have too many criminal laws then becomes the conclusion of the book, not its premise.
What are the Two Theories?
In contrasting the two theories it will be helpful to have before us some description of their essential tenets. I will start with legal moralism.
Moorean Legal Moralism
Husak notes that my version of legal moralism is "deceptively simple," by which I take it he means that its bold relief elements are pretty straightforward while the qualifications get complicated . The bold relief elements consist of my theory of punishment and its prima facie implications for the theory of legislation. The theory is retributivist in its justification of punishment and punishment institutions: we justly punish because and only because offenders deserve to suffer for their culpable wrongdoings. Such a theory about the general justifying aim of the criminal law then implies a legal moralist theory of criminal legislation in the following two steps.
First, prima facie, all moral wrongs culpably done should be criminalized. This is partly because, for a retributivist, culpable wrongdoing merits punishment. But antecedent legislative prohibition of the wrongs to be punished follows from retributivism only when it is side-constrained by a principle of legality. The principle of legality requires that acts be legislatively prohibited by statutes ("no common law crimes") and that those statutes operate only prospectively, are non-contradictory, are clear and precise enough to be understood, are general in their application, and so forth. (28) Such a principle is justified by values extraneous to retributivism, values like fair notice, democracy, the separation of powers, liberty, and equality. (29) It is only with legality that retributivism yields the half of the legal moralist conclusion here discussed: because it is intrinsically good that culpable wrongdoers get their just deserts (retributivism), and because that good may permissibly be achieved only if wrongs are legislatively proscribed (legality), then prima facie all moral wrongs should be criminalized.
Second, only behaviors that are morally wrong should be criminalized. This again is partly because of retributivism, according to which desert limits punishment away from the non-deserving as much as it demands punishment of the deserving. If one has done nothing morally wrong (nor tried to, or risked doing so), then there is no desert and thus no retributive justification for punishment. Yet if bare legislative prohibition of an act could make that act wrong when it was not morally wrong antecedently, then retributivism alone could not justify the half of the legal moralist conclusion here at issue. Thus retributivism needs to be supplemented by the (badly named) "anarchical" principle that there is no duty to obey the law, not even prima facie. (30) If this is so, then legislative prohibition cannot make wrong what was not wrong before. And then the other half of the legal moralist principle follows from retributivism: only behaviors that are morally wrong independently of the law may be criminalized.
In these two steps the legal moralist theory of criminal legislation--that all and only morally wrongful behaviors should be criminalized--can be seen to follow from a retributivist theory of punishment. This is, as Husak recognizes, the "simple" part. What makes the simplicity "deceptive" are the limitations and qualifications to the legal moralist thesis . These are five in number.
First, there is the content of morality itself. According to a spare view of what it is that is morally obligatory on us not to do, legal moralism is quite constraining on a legislator. If morality does not condemn various sexual practices, use of various intoxicants, suicide, and so forth, then so may not the criminal law, according to the legal moralist principle. (31) As Husak notes, my own view of morality is quite spare : in general we have no duties to ourselves or to some god, nor do we have duties to others with respect to many of the items about which customary morality so fusses and fumes, such as sex.
Second, there is an epistemic limitation that a sensible legal moralist legislator would observe. (32) This comes from the recognition that if one can be right about morality's content, so also one can be wrong. Moral realism can thus make you humble as easily as it makes you intransigent, particularly on issues where other good, sincere, and intelligent people disagree with your own view of the matter. (33) A legal moralist legislator should have at least as much doubt about the correctness of some of her moral beliefs as should the citizens she represents, and this alone should sometimes stay her hand.
Third, there is the limitation imposed by what I (following Joel Feinberg (34)) have called the "presumption of liberty." (35) This is a general presumption against criminalizing behaviors because doing so diminishes the freedom of citizens' actions. Such a presumption is given weight by the values that back it. These include: the goodness of positive liberty to which such freedom from government coercion is a means; the goodness of Kantian autonomy, meaning the ability to act from right reason (which right reason does not include yielding to legal coercion); the goodness of Millian autonomy, which is the inherent value of human choice when made free of coercion; and the goodness of satisfying the well nigh universal human preference for unconstrained decision making. (36) Such presumption gains added force when it opposes criminalization of consensual, private, highly motivated, and widely popular behaviors because the kinds of enforcement costs earlier mentioned are particularly heavy for criminalization of behaviors with these four characteristics. This collection of values is weighty enough by itself to stay a retributivist-legal moralist from punishing minor immoralities. In such cases the wrongs done are minor enough that the harm done to the values behind the presumption simply outweighs the slight goodness achieved by punishing these minor immoralities.
Fourth, sometimes we have a right to do the wrong thing, in which event the state may not punish us for such wrongdoing. (37) Abortion, according to some people's view of it, is morally wrong to do; yet some of those same people urge that each woman has a right to abort her own fetus. This kind of wrongdoing is immune to criminalization even according to a legal moralist view of the Proper reach of criminal legislation. (38)
Fifth, even behavior that is morally wrong that no one has a right to do cannot be prohibited if the reason for the prohibition is not because of its moral wrongness. This is an implication of what I have elsewhere called the derived right of liberty: each citizen has the right, derivative from a more basic legislative duty, that behavior not be prohibited for paternalistic or conventionally moralistic reasons. (39) Legislators who cannot purge themselves of such motivations thus may not prohibit immoralities otherwise prohibitable.
The upshot is that legal moralism hardly justifies much of the criminal legislation already on the books. Such legislation criminalizes behavior that is not wrong according to any proper view of morality; or it is open to serious and reasonable doubt that it is wrong; or the behavior is not wrong enough that the good of its punishment outweighs the harm to the values behind the presumption of liberty; or the behavior, although wrong, is within the rights of persons to do; or the behavior, although wrong and within no one's rights to do, is not prohibited because it is wrong. Eliminating such criminalizations results in a criminal code that is recognizably liberal in its content, even if not in the form of its limiting principles.
Husak and I agree that one's theory of criminal legislation has to be consistent with one's theory of punishment. Not only does he praise my version of legal moralism for seeing this connection , but he also takes some pains to draw out the connection in his own theory . Starting with Husak's theory of punishment is thus an appropriate place to begin the explication of the minimalist theory of criminal legislation.
It is a curious feature of Overcriminalization that it nowhere makes explicit the theory of punishment animating the enterprise. The book rather defends there being a right all citizens generally possess, a right not to be punished [92-103]. This then sets the stage for demanding some theory as to when such a right may be justifiably infringed, which will be a theory of punishment.
Husak urges two considerations in favor of recognizing a right not to be punished. First, punishment involves the intentional infliction of suffering by the state, and second, that suffering is accompanied/motivated by society's expression of moral censure. Husak offers the following conclusions about these two features of punishment: "the government can do nothing worse to its citizens than to punish them," thus "persons have a right not to be punished," and therefore "it is easy to see why punishment is so difficult to justify" .
So what for Husak are the good reasons to punish, and thus to criminalize, and thus to infringe the right not to be punished? He makes clear he is not a utilitarian about punishment, for the familiar reason that a purely utilitarian theory of punishment justifies the punishment of the innocent and the criminalization of morally permissible behavior . Yet Husak is not a retributivist either. He does sign on to a recognizable version of what is sometimes called "negative retributivism": punishment in excess of what is deserved is unjustified, no matter what its social utility . But he rejects the distinctive claim of the retributivist, which is that giving wrongdoers what they deserve is a sufficient reason for punishment.
Husak's reasons for rejecting retributivism's distinctive claim are a bit puzzling, at least as stated in his book. Let's begin with the question of whether giving wrongdoers what they deserve is even a reason (let alone a sufficient reason) to criminalize wrongful behavior and then punish it. About this initial point Husak says all of the following: (a) "The value of implementing a principle of retributive justice does not entail that ... we have a reason to impose [punishments] ... [It] may simply negate the reason we typically have not to punish" [200, see also 206]; (b) the achieving of retributive justice is not an intrinsic good ; (c) "the state of affairs in which these individuals receive their just deserts is preferable to the state of affairs in which they do not (even though the former may not be intrinsically good)" [200-201, see also 203]; and (d) "conduct should be criminalized because it is an act of wrongdoing" [206 n. 121]. Weaving my way through this slalom, and pretty much disregarding statement (a) above, I gather that Husak thinks that giving just deserts is a reason to criminalize wrongful behavior and to punish it.
However, Husak plainly thinks that the giving of just deserts is not a sufficient reason to criminalize wrongful behavior and to punish it. I think Husak thinks this pretty much straight off, as it were, and not because of the reasons listed above. Like the Jeffrie Murphy of the last two decades (whom Husak cites [200 n. 103]), Husak believes that the goodness of giving wrongdoers what they deserve--retributive justice--is not good enough to justify the censuring/ harsh treatment constitutive of punishment.
This simple evaluative judgment is not what Husak says, however. What he says is: (a) some wrongs are not the state's business but are the concern of the victims of those wrongs only (so that giving just deserts simply isn't the state's business, although it is someone's business) ; (b) wrongs that intuitively are the state's business cannot be shown to be such by retributivism (because retributivism cannot give reasons why it is the state that should punish these "public" wrongs) ; and (c) institutions of punishment have well known enforcement costs, error costs, and abuse costs inevitably incurred in their administration by fallible state officials, and therefore "consequentialist [read: non-retributive] considerations must be included in the justification of criminal law and punishment" .
These three considerations motivate what I think is a recognizable version of what is usually called a "mixed" theory of punishment: what the retributivist needs, Husak concludes, "is some additional value [that] punishment can be expected to attain--a value which, when added to the value of attaining retributive justice, will justify the creation of an institution of criminal law and punishment" . That value is twofold, for Husak: first, the state has a legitimate and substantial interest in preventing harms, evils, rights-violations, wrongs, and set-backs to interests (to the extent that these differ from one another) [138-39]; and second, the state has an interest not involving prevention, an interest in expressing the moral condemnation of its citizens [87-88, 139-50]. We thus are justified in criminalizing wrongful behavior and in punishing it when, but only when, the wrongdoer deserves punishment and some preventative or expressive good is achieved by such prohibition and punishment. This is, as I say, a recognizable version of a mixed theory of punishment, so named because it mixes retributivist with non-retributivist reasons in its justification of the criminal law.
Husak uses his mixed theory of punishment to yield his minimalist theory of criminal legislation. In very general terms, the retributivist part of his mixed theory yields what he calls the "internal constraints" on permissible criminal legislation, whereas the preventative/expressive part of his mixed theory yields what he calls the "external constraints" on such legislation.
Husak fleshes out the internal constraints in terms of four principles. The first three of these are highly overlapping, if not identical, in their content. Criminal liability may not be imposed unless statutes prohibit a non-trivial harm or evil (the first principle) ; conduct that is morally wrongful (the second principle) ; or behavior deserving of punishment (the third principle) . It should be relatively transparent from what was said before how these three limiting principles follow from Husak's negative retributivism.
Husak fleshes out the external constraints in terms of three additional principles. Even if criminal statutes prohibit behaviors that cause harms or evils--ones that are wrong to do and deserving of punishment when culpably done those statutes remain unjustified unless the prohibition/punishment of those wrongs does the following: advances a substantial, non-retributive interest of a preventative or an expressive sort (the fifth principle); directly advances that interest (the sixth principle); and is no more extensive in its prohibition than is necessary to achieve its purpose (the seventh principle) . It should also be transparent how these three limiting principles follow from the non-retributivist part of Husak's theory of punishment.
Husak's fourth principle--which he lumps into the "internal constraint" basket but which is really sui generis--is a burden of proof principle. The idea is that the justificatory burden is on the state to produce evidence, and to convince its constituents, that each criminal prohibition satisfies the external and internal constraints on criminalization . The state has this burden, Husak alleges, because of the harsh treatment/censuring nature of punishment and the consequent right we all have not to be punished .
These seven constraints on the legislative prerogative to criminalize behavior have the potential to eliminate much of the special part of the criminal law as it is correctly practiced throughout the world. Although Husak modestly concedes that it would take a lifetime--indeed, many lifetimes--to delineate precisely what should be excised from the world's criminal codes , it is pretty clear that he regards many of the provisions of such codes to be illegitimate. Husak rejects, for example, offenses criminalizing what he calls "private wrongs" [135-38], such as breach of promise; offenses criminalizing morally permissible behaviors (such as eating a doughnut) ; offenses that are only proxies for the real targets of criminal legislation [40-42]; crimes that don't pass the "laugh test" ; drug offenses [197-98]; and so on and so forth. Husak also rejects offenses that may prohibit morally wrongful behavior but which fail to attach culpability requirements to such wrongdoings--he rejects, that is, most strict liability offenses [48-54]. Furthermore, Husak rejects criminal statutes on the basis of the reasons for which they are passed (and not just on the content of their prohibitions in terms of actions and mental states). Here Husak rejects--or at least regards as "dubious"--two of the legislative motives that were Mill's prime targets: prohibitions motivated paternalistically (that is, for the subject's own good) [138, 142], and prohibitions motivated by a desire to conform to moral consensus/social tradition . All together these rejections constitute a considerable winnowing of contemporary criminal codes, as Husak of course intends.
The Agreements Between the Two Theories
Husak's minimalist theory and my own legal moralist theory seem to agree on at least four basic things. First, Husak and I plainly agree on the role of a theory of punishment vis-a-vis a theory of criminal legislation. To our equal credit, we each "understand the implications of a theory of punishment for a theory of criminalization" . Husak (as we have seen) derives his theory of the latter from his theory of the former as tightly as do I.
It is important to see that our shared thought here is not (or at least was not) the conventional wisdom on this matter. Criminal law theorists tend to separate the "What to punish?" question from the "Why punish?" question, regarding the two questions as having little to do with each other. To pick one prominent example, H. L. A. Hart once urged that it was a "confusion between the simple immediate aim of any criminal legislation and the justification of punishment" that accounted for a variety of errors in criminal law theory. (40) Hart regarded it as obvious that "to announce to society that these actions are not to be done and to secure that fewer of them are done" were the only plausible answers to the question, "Why are certain kinds of action ... made crimes or offences?" (41) Hart thought this to be true irrespective of one's theory of punishment, retributivism included. (42) One needs a theory of punishment, according to Hart's view, only after one has settled the independent question of what should be prohibited and thus eligible for punishment. Husak's and my own contrary views may be already becoming a new orthodoxy, but they were not when they were first put forward.
Husak and I also agree on "negative retributivism," namely, the view that no punishment is justified if it is not deserved. On this there is widespread agreement, a consensus excluding only pure utilitarians and rehabilitationists from its scope.
Third, it is arguable at least that Husak and I agree on the implications of negative retributivism for criminalization. My hesitation here is due to my uncertainty as to how Husak wishes to construe the first three of his "internal constraints" on criminal legislation. My favored interpretation of these three constraints would make them (collectively) identical to the moral wrong constraint of my version of legal moralism. Such an interpretation goes like this: Husak seemingly agrees with me that desert is a function of two things--how wrongful was the act done, and how culpable was the mental state of the actor who did such a wrong . If this is right, then Husak's wrongdoing constraint is a part of his desert constraint. Indeed, the wrongdoing constraint is redundant to the desert constraint, given that wrongdoing is one-half of what determines desert.
One might object to this claim of redundancy that prohibitions of inchoate crimes are permissible under the desert constraint but not under a wrongdoing constraint, since a crime is inchoate when the wrong intended or risked is not completed. So according to this view the wrongdoing constraint would bar some prohibitions not barred by the desert constraint. Yet this is not how the wrongdoing constraint is construed by Husak . Inchoate crimes are permissible under any plausible wrongdoing constraint so long as the actions intended or risked would be wrong if they had been completed. Culpability is just wrongdoing in the mind of the actor (or for negligence, in the mind he would have if he were reasonable). (43)
I conclude that the wrongdoing constraint is fully redundant to the desert restraint. In addition, the first restraint--that requiring harms or evils--seems fully redundant to the second constraint (and thus, to the third as well). Whether this is so depends on how one relates harms, evils, and wrongs inter se.
Husak is sympathetic to Joel Feinberg's view that harms generically are the "thwarting, setting back, or defeating of an interest" of a person . He is also sympathetic to Feinberg's more limited notion of a harm for the purposes of constraining criminal legislation: "only setbacks to interests that are wrongs, and wrongs that are set back to interests, are to count as harms in the appropriate sense" . This means the harm restraint says nothing different from the wrongdoing constraint, and vice versa.
What about evils? According to the interpretation of Husak I am now favoring, these too are fully redundant to wrongs, so that the "evil" part of the first restraint adds nothing to the second (wrongdoing) restraint. Husak allows that one might say that "wrongful conduct just is conduct aimed at an evil"  in which case causing an evil, causing a harm, or doing a wrong, all come to the same thing. In which case there are not three restraints, but one: criminal legislation may only prohibit actions that are morally wrong to do and, because of that, culpable to intend or to unreasonably risk doing. Because culpable wrongdoing is desert, this can be phrased in Husak's way: criminal prohibitions can target only combinations of acts and mental states deserving of punishment.
If this is indeed what Husak thinks (I shall give some reason to doubt it in the next section), then his minimalist theory gets a lot of its minimalism from the same source as does legal moralism. Both theories drink from the same well, which is that where there is no wrongdoing (actual or in the mind of the actor) there can be no desert, and where there is no desert, there can be no justified criminalization or punishment.
Husak recognizes that under the interpretation of his internal constraints just concluded, the harm/ evil/wrongdoing/desert constraints become redundant of one another . Yet he still thinks his minimalist theory differs from legal moralism in that his external constraints (justified by the non-retributivist part of his theory of punishment) give "greater resources than legal moralism to resist objectionable impositions of the penal sanction" . Let us say that Husak has different resources than the "un-simple" parts of my legal moralist theory summarized earlier. Different as the resources of the theories may be, Husak and I appear to agree pretty much across the board on the bottom line conclusions. For, like Husak's minimalism, my legal moralism condemns proxy crimes, crimes that do not pass the laugh test, drug offenses, criminalization of morally innocuous behavior, so-called "private" wrongs such as breach of promise, and so on. Husak's different resources of argumentation seem to make little or no difference in what can be justifiably criminalized. And this is the fourth thing on which the two theories agree. Both are recognizably liberal in their recommended outcomes even while they differ in how they reach those outcomes.
Disagreements Between the Two Theories
As I said at the oral presentation of this paper, nobody will pay good money to see Doug and me in happy agreement, holding hands and singing Kumbaya together. The entertainment value of these productions all resides in the disagreements. These seem to me to be five in number.
The first has to do with Husak's first three internal constraints. As I stated in the last section, if one interprets these to be fully redundant of one another then they collectively amount to nothing different from the wrongdoing constraint imposed by legal moralism. It is unclear to me, however, whether Husak accepts such an interpretation, or that he should. After all, why have three expressions of the same principle?
At one point Husak appears to adopt the generic sense of "harm" for his first constraint; this sense equates a harm with any set-back to interest, irrespective of whether causing that set-back is wrongful or violates the interest-holder's rights. This then makes the harm constraint different from the wrong/desert constraints because there could be wrongless harms and harmless wrongs.
In detailing how his minimalist theory differs from my legal moralist theory, Husak focuses only on the latter, that is, on harmless wrongs. He wishes to show that my purported examples of these wrongs actually do involve harms, if one but looks hard enough [198 n. 93]. I am dubious about this response by Husak; my examples of cruelty to animals, destruction of a species, and abuse of a corpse seem to me (as they seemed to Feinberg) to be pretty clear examples of wrongs that may be criminalized even when those wrongs involve harm to no one. But suppose I am in error about this, and that there are no harmless wrongdoings. Then Husak's internal constraints are redundant of one another after all, and differ not a whit from legal moralism's wrongdoing restraint.
Husak also speculates that perhaps these behaviors are more like taboos than moral wrongs and thus should not be criminalized [198 n. 93]. Yet his heart is clearly not in this response. These behaviors are to my (and probably his) mind not like adult incest, which is a taboo but not a wrong.
Finally, Husak also urges that his is a complex theory so that one must conjoin his constraints: behavior must both be wrong and productive of harm in order to be criminalized under his first and second constraints, considered together [198 n. 93]. Yet I do not see how Husak can say this, given his seeming acceptance of conceptualizing evil in his first constraint as "harmless immoralities" [70 n. 70]. The first constraint is disjunctive: behavior must be productive either of harm or evil to be prohibited. But then conjoining the second constraint to it yields: behavior must be wrongful (second constraint) and (from the first constraint) either harmful or evil, where "evil" is read as harmless but wrongful. Translation: behavior must be wrongful or harmful to be prohibited. So harm is not necessary to prohibition, contrary to what Husak claims.
The second thing I do not understand about this response is why Husak wants to make it to begin with. If his first two constraints taken together do require harms in addition to wrongs, then he must be against criminalizing harmless wrongs like desecration of corpses, cruelty to animals, eradication of species, and so forth. And this conclusion he seems to have little stomach for, as we saw in his suggestion that perhaps these were mere taboos and not wrongs. Husak, too, thinks that we should criminalize at least some of these harmless wrongs, contrary to the purport of this third response of his.
What should Husak--the Husak who defines harms so that they are not necessarily wrongs--say about wrongless harms? He doesn't discuss wrongless harms, as he does discuss harmless wrongs, but perhaps we can tease out here what he should say. Presumably Husak would reiterate that his constraints are conjunctive, meaning behavior causing harms may not be prohibited if the causing of those harms is not morally wrong. Here the two theories can agree, because both make wrongdoing necessary to justified criminal prohibition. Where Husak's theory wants to disagree with mine is in wrongdoing being sufficient for prohibition. Husak seemingly urges that some harm is also necessary. This is where minimalism gets into the troubles just charted above with respect to harmless wrongdoing.
A second difference between Husakian minimalism and Moorean legal moralism lies in Husak's distinction between public and private moral wrongs. As presented above, legal moralism prima facie licenses the prohibition of all moral wrongs; minimalism requires a public wrong, private wrongs not being the proper subject of criminal prohibition. This could be a large difference, depending on what Husak means by private as opposed to public wrongs and on how closely a wrong being private maps onto one or more of the five restraints forming the un-simple part of the legal moralist theory. Husak claims that "even a liberal legal moralist [viz., Moore] will be forced to favor a bloated criminal code that makes our current predicament of overcriminalization pale by comparison" . Let's see.
Husak castigates legal moralism because it "obliterates the distinction between private and public wrongs" . I think, on the contrary, there is no distinction to be drawn here. Husak concedes that "the line between public and private wrongs is exceedingly hard to draw" . Yet he remains confident that there is such a line to be drawn in a principled manner.
His first stab at the distinction is in terms of the power of prosecution. For redress of a public wrong, it is appropriate that the state have the power to determine whether to prosecute the wrong; for redress of a private wrong, it is appropriate that the victim of the wrong solely have that power . Yet this takes us very little distance, because the question of what determines "whether to place the individual victim or the community in charge of pursuing a given complaint" is unanswered . So Husak continues: who should control prosecution is determined by to whom the wrong is done. If the wrong is done to the victim only, then the wrong is private; if it is also done to the community itself, then it is public .
Surely this answer is equally question-begging. To begin with, there is a respectable body of opinion in ethics that denies that all duties are duties to someone. (44) This tradition urges that there are duties simpliciter, not owed to anyone but duties nonetheless. Duties not to torture animals, duties to preserve the environment, and duties to save for future generations are oft-cited examples of these allegedly non-relational duties. If such duties exist, then there is no one to whom the wrongs (that are breaches of such duties) are done. Are these wrongs public or private?
More generally, why isn't every wrong that has a victim both a wrong to him and a wrong to the community? True enough, as Husak recognizes, violence against another wrongs him and wrongs the community . But so do breaking a contract, driving negligently, unfair and deceptive business practices, insider trading, trespassing onto another's land, and so forth. This is particularly true when "communities" are conceived (as they are by Husak) as consisting of "the shared values and interests of communities" . Given this understanding, any wrong going against values we share and interests we have in common is a wrong to the community.
If we leave Husak's criteria for what is a private wrong, and turn to his examples, things get a lot more plausible. Many torts and most breaches of contract indeed should not be criminalized even though they may be moral wrongs . Decisions about procreation also should not be criminalized, even if some forms of these are morally wrong [135-36]. Behaviors harmful to the actor(s) alone also ought not to be criminalized even if in some sense these represent wrongful choices . These examples of behaviors immune to criminalization are all plausible. Indeed, I agree with all of them. But what they show us is not that some wrongs are private, others, public. These examples are better accounted for in terms of my five limitations on criminalizing immoral behavior.
Some of these examples are instances of the first limit, because on no plausible moral theory is there anything morally wrongful about the behavior being prohibited. I find it insulting to morality to think that it cares about acts of non-procreative sex, or about what organ one inserts into what orifice of what gender of what species, and so forth. Other examples are instances in which a reasonable legislator could be in doubt about whether a behavior was morally wrong--one example being certain forms of abortion. This invokes my second limitation.
Yet others are instances of only minor moral wrongs. Husak urges that "breaches of promises inherent in contracts, for example, are among the paradigm examples of wrongful conduct" . That depends on whom you read in ethics. Lying and breaking still unrelied-upon promises join a thousand other "ordinary vices" as the small potatoes of moral wrongs. (45) Unless and until you cause serious harm to others by such behaviors, these simply are not matters of great moral consequence. In such cases my third limitation bars their criminalization: the values disserved by criminalization outweigh the minor good achieved by prohibition and punishment of these small immoralities.
The non-prohibitability of abortion illustrates the fourth of my limitations. Some abortions are wrong to do, but women have the right to do them. It is the basic right to liberty that bars criminalization here, not the supposedly "private" nature of the wrong.
Paternalistic legislation, such as that requiring motorcycle helmets, illustrates my fifth limitation. Even if it is wrong for the helmetless motorcycle rider to risk needlessly those who care about him, those who have to see and clean up the mess if he crashes, and those whose insurance premiums may go up, this is not what motivates this kind of legislation. Legislatures typically prohibit helmetless riding because such behavior harms its participants. (46) Barring such paternalistically-motivated legislation has nothing to do with the "privateness" of the wrongs done others and everything to do with what I call the "derived right to liberty." (47)
The upshot is that Husak's minimalism and my brand of liberal legal moralism disagree radically about why these kinds of behaviors may not be criminalized, even though we (probably) do not disagree at all about the bottom-line fact that none of them should be criminalized.
The next two differences have to do with Husak's mixed theory of punishment. As we have seen, Husak comes to his mixed theory largely because he doubts that giving offenders their just deserts is a sufficiently strong reason to justify punishing them. This last conclusion is mostly an intuition on his part, and at that level the issue is joined with the retributivist intuition that motivates my legal moralism. Partly, however, Husak supports his intuition by urging that retributivist/legal moralist theorists "do not show why the state is justified in punishing these culpable wrongdoers" . Conceding for the sake of argument that culpable wrongdoers receiving their just deserts is a good that gives all of us a reason to punish them, Husak challenges me to show why the state has any more reason to do this than anyone else.
The answer that I have urged before is that the giving of punishment is dangerous to virtue. (48) Doing so easily can give rise to those dark emotions that Nietzsche lumped together under the French term ressentiment, emotions of resentment, projected guilt, sadism, envy, and so on. Giving the power of punishment to the state alone does not eliminate that danger--witness, as examples, the sometime corruption of prison guards and the fraternity parties outside prison gates when there is an execution. But it does reduce such danger because institutionalized punishment can reduce the opportunities for sadism, abuse, and the pleasure of giving pain that can corrupt our virtue.
Second, equality of punishment is a good for retributivists no less than anyone else. Substantive proportionality (of punishment to desert) is of course good from a retributivist point of view, but so is comparative proportionality. Making punishment exclusively the prerogative of the state surely enhances the likelihood of achieving comparative proportionality--equality in sentencing--because the enduring entity that is the state can better coordinate its decisions, both at a time and over time. Individual punishers could much more easily be all over the map, even if they cared about equalizing their punishments, which many would not.
Third, there are the epistemic advantages the state may plausibly be thought to possess. In the achieving of substantive proportionality--making the punishment fit the crime--a state less blinded by the passions of vengeance and revenge has a better chance of accurately gauging just deserts. However, private individuals who are victims (actually or vicariously) may err too easily on the side of harshness in making these judgments.
These three considerations all militate in favor of the state being the exclusive exacter of retributive justice. There are undoubtedly many other reasons of a consequentialist or even utilitarian flavor that favor this conclusion. These arguments, too, are available to a retributivist, at least if he is of the stripe (as am I) that backgrounds his categorical obligations with a general consequentialism. (49)
Husak also gives a third reason why achieving retributivist justice is insufficient to justify criminal punishment. This reason leads us into the fourth difference between the minimalist and legal moralist theories. Husak urges that "consequentialist reasons must be included in the justification of criminal law and punishment" . To be sure, Husak thinks this in part because of the insufficiency of retributive reasons, a conclusion he reaches because of the two considerations just examined. But Husak also thinks this because of the inherent plausibility of including certain kinds of consequentialist considerations in one's justification of punishment. (In other words, even if retributivist considerations were not insufficient by themselves, Husak would conclude they were insufficient anyway insofar as they did not include Husak's favored consequentialist considerations.)
Husak's favored consequentialist considerations are three in number, having to do with the costs of punishment earlier mentioned. First, we should take into account the "astronomical" expense of administering our penal system--prisons, jails, police, courts, probation offices, and so on . Second, any system of punishment makes mistakes, inevitably punishing some innocent persons [203-204]. Third, power corrupts, and abuse by those who have it is to some extent inevitable. This too is costly .
Husak accuses legal moralists of being "insensitive" to these three "drawbacks of punishment" . Yet a sensible legal moralist is a properly sensitized fellow. Only a monomaniacal retributivist would urge that we must achieve retributive justice, no matter what the cost. A sensible retributivist admits that there are many good things to achieve with our comparatively scarce public resources, of which retributive justice is only one. Often we will sacrifice retributive justice to the attainment of these other good things. This includes sacrificing punishing some guilty in order to prevent more of the rights violations that violent crime represents; if a dollar of public resources expended could either catch and punish a guilty offender or prevent his offense to start with, surely we should use it to do the latter. (50)
Notice that this "budget committee" consequentialism is inevitable in government, (51) but that it in no sense betokens abandonment of justice-centered views of what the state should be seeking to achieve through law. Distributive justice, corrective justice, and natural rights protections are costly to realize by law too, and this limits how much of any of these goods we can achieve. Yet it would be a mistake to think that this acknowledgement represents any abandonment of these justice-centered views of law. In particular it would be a mistake to conclude, as does Husak, that preventative and expressive consequences have to be included within one's theory of punishment along with retributivism, by reason of these budgetary considerations. This would be like saying that Rawls is a mixed theorist about distributive justice, or Nozick a mixed theorist about the natural right to property, because neither of them can ignore the costs of realizing their schemes of justice. Truly mixed theories of these matters require that some social benefit be achieved by redistributive institutions, labor-rewarding title rules, or punishment practices before they can be justified, because by their nature these justice considerations are insufficient to justify them. Recognizing the inevitable costs of legal realization of any of these schemes of justice, by contrast, in no way elevates these consequentialist considerations to a necessary place in one's theory of justice.
Better is Husak's demand that the justice theorist at least convince us that the good achievable by setting up legal institutions to realize his preferred form of justice outweigh the inevitable costs . This is a fair demand. Yet Husak thinks that in the case of the retributivist/legal moralist this means that he must show us that the intrinsic goodness of achieving retributive justice is alone enough to outweigh the three costs of achieving it . And this is not true. Rather, what must be shown is that the goodness of achieving retributive justice is sufficient to outweigh the net balance of costs and other benefits of setting up punishment institutions. If punishing the guilty achieves the benefits of crime-prevention and expression of censure that Husak claims it does , then one must net out these social benefits of punishment against its social costs, and then ask (if the net is negative, which it may not be) whether the goodness of achieving retributive justice is enough to make its achievement worth its net cost. We require no more of other justice theories, such as Lockean natural rights theories of property. We do not ask whether rewarding (with a property right) those whose labor creates value is good enough that it outweighs the detriment to others who are excluded by the property right; rather, we ask only whether such a reward of labor is good enough to outweigh the net detriment of exclusion, taking into account the benefits of having property rights (which benefits prominently include the creation of wealth by the incentive effects of property rights). (52)
The upshot is that this fourth difference is less than it seems, or that Husak pretends that it is. A sensible legal moralist/retributivist can and should take into account all of the items Husak wants taken into account. Only: (1) the legal moralist need not think that he is thereby abandoning his retributivist theory of punishment (in favor of a mixed theory) when he does so; and (2) the degree of goodness he needs to attribute to giving offenders their just deserts is a lot less than Husak claims.
The fifth and last difference between the two theories has to do with how they treat the requirements of legality. The principle of legality, as it is known in the criminal law, is an amalgam of requirements justified by a medley of different values. The whole cluster of requirements and values is called "the" principle of legality. Roughly, the principle requires that no one be subject to punishment unless the behavior for which he is to be punished was prohibited by a statute (not a common law rule), that the statute was in force at the time the behavior took place, that it was clear enough in its content to be understood, that it was non-contradictory with other requirements of law, that it was generally applied, and so forth. (53)
Husak queries how a legal moralist/retributivist can justify this principle [202 n. 108]. The worry is that the good of punishing culpable wrongdoing can be achieved irrespective of whether that wrongdoing was prohibited by a statute satisfying the demands of legality. The punishment of Adolph Eichmann in Israel, and other Nazis at Nuremburg, seem to be illustrations of this.
One easy response here would be that of the "legalistic retributivist" (Husak's label) . Legalistic retributivism is the view that retributive justice is achieved by punishing those who have broken the law, even if the law defining the offense is unjustified because it prohibits morally innocent behavior. If legalistic retributivism were true, then one might well justify legality as part of the formalities attendant upon the valid legal prohibition that is the trigger for punishment according to this view. Yet legalistic retributivism is very implausible, as I and Husak  both think. There is no retributive justice achieved in punishing morally innocent behavior, and the mere fact that such behavior is legally prohibited does not make that behavior morally wrong.
Putting aside legalistic retributivism, Husak's query is a real one for all plausible forms of retributivism/ legal moralism. My answer is again to defend only a sensible, non-monomaniacal form of retributivism. The principle of legality does serve important values, yet they are values quite extraneous to the achievement of retributive justice. A sensible retributivist does not have to show how such values are a part of retributivism or how legality's constraints follow from retributivism. He needs only to show how the principle of legality can plausibly combine with retributivist reasons for punishment.
Requiring that there be statutes in place meeting the requirements of legality can achieve the following ends: (1) make salient the solutions to coordination games that we all have obligations to solve, such as which side of the road to drive on; (2) give incentives to solve the collective action problems in prisoner's dilemmas or chicken type situations that we all have obligations to solve, such as paying our taxes; (3) can make reliably clear what in morality may be unclear, such as when youth fades into maturity or a fetus/baby becomes a person; (4) can allocate governmental functions in the more efficient way contemplated by the traditional tri-partite separation of powers; (5) can allocate the major social choices to the more democratic of institutions under a scheme of separated powers, that is, to the legislature rather than the courts; and (6) can give additional incentives to individuals to avoid wrongdoing when their own internally generated motivations are insufficiently strong.
A sensible retributivist will recognize that these values extraneous to retributivism are real values too, so that most of the time they will constrain the achievement of retributive justice to just those cases where the requirements of legality are satisfied. But not always, as the Nazi examples show: when the goodness of punishing is great (because the guilt of those punished is great), then legality should lose out. Husak says that "why these values should be balanced in this way is not altogether clear" [202 n. 108]. Well, maybe, but Doug, I can't say it any better!
Having defended my virtue as best I can, it is time to step back and say why this is a good and important book by one of the world's leading philosophers of the criminal law. Husak is surely right that we have too many criminal laws. Overcriminalization is more of a crisis now than it was 40 years ago when Kadish proclaimed it to be such. (54) Our society criminalizes things it has no business criminalizing, without question.
With Husak, I think that part of the reason for this lies in a forgetfulness of our legislators bordering on willful blindness. When legislating, it is easy to focus on using the threat of the criminal sanction to prevent any form of undesirable behavior. Such a preventative focus forgets that no criminal law ever prevents all of the behavior that it prohibits, no matter how draconian the sanction. Thus much of the kind of behavior that is prohibited will be done despite such prohibition, and then the doer of it must be punished. If legislators simply said to themselves, "I cannot prohibit what I am not willing to punish," perhaps the great bloat of our criminal code could be diminished.
Husak's label for his theory--"minimalism"--is quite up front about his ambitions for the theory, which is to justify drastically fewer criminal prohibitions. In this our two theories do not disagree, and this reduces the differences between the theories charted in the last section to comparative quibbles. Such quibbles are the grist for the philosopher's mill, keeping us all employed no doubt, but they should in no way diminish the important achievement that this book represents. I am pleased to offer this commentary in the hope that it may help this book to receive the wide readership and acclaim that it deserves.
[This paper was given at the Center for Applied Philosophy and Public Ethics of the Australian National University, Canberra, in July 2008. My thanks go to the participants, and particularly Douglas Husak, for their helpful comments.]
(1) Douglas Husak, Overcriminalization: The Limits of the Criminal Law (New York: Oxford University Press, 2008). [Bracketed page numbers in the text refer to this volume.]
(2) Michael S. Moore, Placing Blame: A General Theory of the Criminal Law (Oxford, UK: Oxford University Press, 1997), chaps. 16-18.
(3) John Stuart Mill, On Liberty, in J. S. Mill's On Liberty in Focus, ed. J. Gray and G. W. Smith (1859; London: Routledge, 1991).
(4) On this, see Gerald Dworkin, "Paternalism," in Morality and the Law, ed. R. Wasserstrom (Belmont, CA: Wadsworth, 1971).
(5) See Moore, Placing Blame, 750 53, 767.
(6) James Fitzjames Stephen, Liberty, Equality, Fraternity, ed. Stuart Warner (1873; Indianapolis, IN: Liberty Fund, 1993). Stephen Morse traces Stephen's general standing within nineteenth century criminal law scholarship in Morse, "Thoroughly Modern: Sir James Fitzjames Stephen on Criminal Responsibility," Ohio State Journal of Criminal Law 5 (2008): 505-22.
(7) Stephen, Liberty, Equality, Fraternity, 17, 231.
(8) H. L. A. Hart, Law, Liberty, and Morality (New York: Vintage Books, 1963).
(9) Patrick Devlin, The Enforcement of Morals (Oxford, UK: Oxford University Press, 1965).
(10) Joel Feinberg, Harm to Others: Moral Limits of the Criminal Law (Oxford, UK: Oxford University Press, 1984).
(11) Joel Feinberg, Offense to Others: Moral Limits of the Criminal Law (Oxford, UK: Oxford University Press, 1985).
(12) Joel Feinberg, Harms to Self: Moral Limits of the Criminal Law (Oxford, UK: Oxford University Press, 1986).
(13) Joel Feinberg, Harmless Wrongdoing: Moral Limits of the Criminal Law (Oxford, UK: Oxford University Press, 1988).
(14) Feinberg, Offense to Others.
(15) Michael Sandel, "Moral Argument and Liberal Toleration: Abortion and Homosexuality," California Law Review 77 (1989): 521-38.
(16) Robert George, Making Men Moral: Civil Liberties and Public Morality (Oxford, UK: Oxford University Press, 1993).
(17) An idea shared by those more in the middle of the political spectrum too. See Joseph Raz, The Morality of Freedom (Oxford, UK: Oxford University Press, 1986); and Moore, Placing Blame, chaps. 16-18.
(18) Herbert Packer, The Limits of the Criminal Sanction (Stanford, CA: Stanford University Press, 1968).
(19) Norval Morris and Gordon Hawkings, The Honest Politician's Guide to Crime Control (Chicago: University of Chicago Press, 1970).
(20) Sanford Kadish, "The Crisis of Overcriminalization," Annals of the American Academy of Political and Social Science 347 (1967): 157-70.
(21) For a summary of the literature, see Moore, Placing Blame, 663-65.
(23) John M. Junker makes this criticism in "Criminalization and Criminogenesis," UCLA Law Review 19 (1972): 700.
(24) Husak so criticizes this older literature, Overcriminalization, 59.
(25) Husak's rather disparaging term for the debates in political theory just summarized. Ibid., vi.
(26) It doubtlessly sounds a bit odd to describe a famous utilitarian such as Mill as someone who has a "deontological cast" to his theory of liberty. Yet it is a well known puzzle about Mill how his basic utilitarian philosophy could accommodate his strident, categorical immunization of behavior not harmful to others from regulation. See, e.g., Dworkin, "Paternalism." The standard reconciliation is to construe Mill as some kind of rule (or other indirect) utilitarian. John Rawls, in his unpublished lectures on Mill, had a different interpretation of Mill: liberty was a presupposition of utilitarianism, because only freely formed preferences were plausibly valuable enough to be summed in the utilitarian calculus.
(27) As he states up front, one of Husak's main objectives in developing a theory of criminal legislation is "to combat the problem of criminalization," a problem of "injustice of monstrous proportions" about which he "can barely conceal [his] outrage." Husak, Overcriminalization, v, vii.
(28) I summarize the various requirements lumped together as "the" principle of legality in Michael Moore, Act and Crime: The Implications of the Philosophy of Action for the Criminal Law (Oxford, UK: Oxford University Press, 1993), chap. 9.
(29) Ibid. for a tabulation of these different values.
(30) The "new anarchists" on political obligation include M. B. E. Smith, Joseph Raz, Heidi Hurd, and myself. See, e.g., M. B. E. Smith, "Is There a Prima Facie Obligation to Obey the Law?" Yale Law Journal 82 (1973): 950-76.
(31) Moore, Placing Blame, 662.
(32) Ibid., 662-63.
(33) I so argue in my defense of moral realism, in Moore, Objectivity in Ethics and Law (Aldershot, UK: Ashgate, 2004), 135-37.
(34) Joel Feinberg, Social Philosophy (Englewood Cliffs, NJ: Prentice-Hall, 1973), 20-22.
(35) My own articulation of the presumption of liberty is in Moore, Placing Blame, 746-50, and in Moore, "Freedom," Harvard Journal of Law and Public Policy 29 (2005): 11-15. Early on in his theoretical work, Husak expressed skepticism about there being a presumption of liberty. Husak, "The Presumption of Freedom," Nous 17 (1983): 345 62. But I take his current shifting of the burden of proof onto the state to justify any criminal prohibition whatsoever (Overcriminalization, 99-100) to be but another way of stating the presumption in favor of liberty.
(36) I detail these values in Moore, "Freedom," 11-15.
(37) A bit of quick footwork needs to be done to avoid the seeming contradiction of having a permission to do what one has an obligation not to do. In a nutshell: one does not have a (Hohfeldian) liberty to do that action, for that would imply an absence of a duty not to do it; rather, along with one's duty not to do it comes an even stronger duty on others not to coerce your choice not to do it. See Moore, Placing Blame, 765-66.
(38) This is what I call the basic right to liberty. Ibid., 763-77.
(39) Ibid., 750-62.
(40) H. L. A. Hart, Punishment and Responsibility (Oxford, UK: Oxford University Press, 1968), 7.
(41) Ibid., 6.
(42) Ibid., 8.
(43) Moore, Placing Blame, 405.
(44) I refer to the Sidgwick/(G. E.) Moore/ Perry debate at the turn of the last century. For discussion and citations, see Moore, Objectivity in Ethics and Law, 238-41.
(45) On why breach of promise is not a serious wrong, see Heidi Hurd, "Promises/Schmomises," unpublished manuscript. On minor immoralities generally, see Judith Shklar, Ordinary Vices (Cambridge, MA: Harvard University Press, 1984).
(46) See the interesting tale of such legislation in Karen Lundegaard, "Risky Riders: Bikers Take Aim at Helmet Laws," Wall Street Journal, December 1, 2004, A1.
(47) Moore, Placing Blame, 750-62.
(48) Ibid., 115-127, 151-2.
(49) On this general picture of ethics, see Michael Moore, Causation and Responsibility (Oxford, UK: Oxford University Press, 2009), chap. 3.
(50) See Michael Moore, "Four Reflections on Law and Morality," William and Mary Law Review 48 (2007): 1551-52.
(52) As Robert Nozick argues in his construal of the Lockean proviso in his Anarchy, State, and Utopia (New York: Oxford University Press, 1974), 177.
(53) Moore, Act and Crime, chap. 9.
(54) Kadish, "The Crisis of Overcriminalization."
MICHAEL S. MOORE *
* Michael S. Moore is Walgreen University Chair, Professor of Law, Professor of Philosophy, Professor in the Center for Advanced Study, and Co-Director of the Program in Law and Philosophy at the University of Illinois, Champaign. Email: firstname.lastname@example.org
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|Author:||Moore, Michael S.|
|Publication:||Criminal Justice Ethics|
|Date:||May 1, 2009|
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