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Paternalism on pain of punishment.

"We overpunish and overcriminalize," Douglas Husak insists in his latest book-length tour de force entitled Overcriminalization: The Limits of the Criminal Law (2008). (1) In what ways and by what measure? In his carefully reasoned, systematic, and provocative analysis of the scope and limits of the criminal law, Husak provides benchmarks by which we can determine to what extent legislators have been overzealous in employing punishment to achieve their regulatory ends. And if Husak is right, we should be deeply concerned about the reach of American criminal law today, because it both prohibits legally what is not prohibited morally and imposes harsh and stigmatizing punishments on those who are not deserving of them. In Husak's view, we are subject to a regime that frequently and systemically violates a right that is as important as any that citizens can have-the right not to be punished--and we should both fear for our own freedom and be outraged on behalf of those who have already lost theirs unjustifiably. None can fail to admire the breadth of knowledge, both theoretical and empirical, that Husak brings to the defense of these conclusions, and none can fail to become impassioned by his passionate indictment of the ways in which legislators, police officers, prosecutors, and judges are complicit in perpetrating grave injustices in the name of criminal justice.

Among the pivotal claims of Husak's book--one surprising, in part, because it has received little serious defense by criminal theorists before is the claim that "persons have a right not to be punished," they have "a right not to be subjected to intentional deprivation and censure through state action." (2) Such a right is as weighty as any right we count as fundamental--as weighty, for example, as the constitutional rights of free speech, marriage, and privacy. In Husak's view, if legislators were to abide by seven general principles or "constraints" (which he derives from the criminal law itself and by analogy from tenets of equal protection analysis within constitutional interpretation), (3) the criminal law would not overreach its proper scope and the right against punishment that all citizens possess would not be in peril. But because legislators have not constrained their lawmaking zeal by conscientious adherence to these principles, our criminal law is now riddled with mala prohibita offenses, (4) ancillary offenses, (5) overlapping offenses, (6) risk-creation offenses, (7) paternalistically-motivated offenses, (8) and just plain stupid offenses (9) that permit offenders to be sentenced to prison terms that are grossly disproportionate to the severity of their misdeeds (if they are guilty of moral misdeeds at all). At stake and at risk today, argues Husak, is our right against punishment--a right that implies that those who seek to sanction our conduct "must satisfy demanding criteria of justification." (10)

Upon applying the constraints on criminal legislation that he develops, Husak reaches substantive conclusions about the limits of the criminal law that are largely identical to those that would be reached by theorists with classic liberal, and even strong libertarian, sympathies. But what is surprising, given these conclusions, is that his ambitious and important book is not, as such, a defense of liberty! It is not in the tradition of those who seek to derive checks on state power from a theory of personal freedom. It does not indict paternalistic laws on the basis that persons have moral permissions to engage in the conduct such crimes prohibit; it does not rail against the proliferation of mala prohibita offenses on the basis that persons should lose liberty only when its use threatens the rights of others; it does not sort out what he calls "ridiculous" crimes by identifying prohibitions that target abuses of rights that are matters of right nonetheless. This is because Husak's concern is not, first and foremost, with the protection of an arena of action immune to state interference; rather, his concern is with the protection of the right against punishment. Of course, we enjoy greater liberty when we are spared its loss as a means of punishment, and hence, those who are interested in the state's legitimate ability to deprive us of liberty must be interested in the degree of liberty that can be extracted from a right against punishment. But Husak's project is not to derive the constraints on criminalization from a general theory about personal liberty or from a general theory about the state's legitimate authority to curtail that liberty. (11) And the question, of course, is whether such an alternative approach would ultimately yield a more compelling account of the coercive power of a just state--one that would police against over-criminalization even better than can a theory that rests on Husak's proposed right against punishment.

By invoking a right against punishment as the touchstone of his theory of criminalization Husak is forced to begin his theorizing in what most theorists would think of as a philosophical hole. He is forced to argue that if all persons have a right not to be punished that is as fundamental as any right we have, and if that right can be overridden only by proof that the seven criteria of criminalization have been met, then we must say of the vicious killer that he has a right not to be punished notwithstanding his wicked deed. Inasmuch as the state can readily meet the seven constraints on punishment that Husak articulates it can justifiably "override" the killer's right. But the killer's culpable, unjustified, and unexcused wrongdoing does not cause him to lose his right altogether, nor does it cause that right even to pale. As so Husak concedes: "Should we say, for example, that persons lack a right to kill but have a right not to be punished for killing? I am willing to accept this result, albeit reluctantly." (12) By biting this bullet, Husak is forced to conclude that the vicious killer's right not to be punished is as robust after his killing as is the right of a couple to make procreative decisions, or the right of a person to attend the church of his choice, or the right of an African American to enter the workplace free of race-based discrimination. His starting point suggests that killers and gay men have an identical right with regard to the prospect of punishment: that is, both have a right not to be punished, and the question is whether the state can muster adequate proof that the conduct in which they engage is deserving of punishment and that punishing it will directly advance some (further) substantial state interest in the least invasive manner. One might think, alternatively and far more plausibly, that the killer forfeits any right against punishment when he does something deserving of punishment, and that, by contrast, gays and lesbians have a robust moral permission that compels the law to leave them at liberty to make whatever choices they want about their own sexual conduct regardless of the community's desire to regulate it.

But let us leave behind the question of whether one argues from a philosophical hole or a philosophical hill in choosing as one's first premise a right against punishment as opposed to a right that matches one's legal liberty to one's moral liberty. Let us instead take as a test of the relative merits of these alternative approaches the question of the legitimacy of laws that are motivated by paternalistic concern--namely, by a legislative desire to rescue persons from their own poor choices. And let us work through three possible sources of constraints on paternalistic criminal legislation: first, the constraints that Husak derives from a right against punishment and the seven general principles that he believes properly protect that right; second, the constraints that John Kleinig extracts from a free-standing legislative obligation to protect the value of human dignity; and third, the constraints that are entailed by matching the liberties afforded by law to the liberties afforded by morality itself.

Predicating Anti-paternalism on The Right Against Punishment

Although Husak does not devote a discrete section of his book to a sustained critique of paternalistically-motivated criminal laws (in the way that he does for mala prohibita offenses and risk-creation offenses, for example), he does advance a series of reasons spread across chapters and sections to think that paternalistic enactments are typically (although not always) unjustified. None, however, include the basic claim that persons enjoy rights to pursue their own conceptions of the good free of state interference when so doing will not result in the violation others' rights; and none include the seemingly more modest (but equally constraining) claim that legislators have free-standing obligations that require them to resist temptations to employ the criminal law to achieve paternalistic ends.

First, Husak argues that very often paternalistic laws concern private, rather than public, wrongs, and for that reason, they are ineligible for inclusion within a criminal code. "Because punishments are imposed in a public forum in the name of the state, criminal conduct must be regarded as a public wrong--not in the sense that it is a wrong done to the public but rather that it is a wrong that is a proper concern of the public ... [P]rivate wrongs, however identified, are not candidates for deserved punishment and thus for criminalization." (13) What makes wrongs "public" so as to be the proper concern of the state? Husak's answer is that public wrongs are those that are done "not only to individual victims but also to the shared values and interests of communities." (14) "Clearly, the whole community has a stake in reducing violence, even when violence involves domestic partners behind closed doors." (15) But, one surmises by extrapolation, the state does not have a stake in reducing many harms that people do to themselves, such as failing to develop their natural talents or choosing the pursuit of base pleasures over what Mill famously defended as higher order goods.

Moreover, Husak argues, even when wrongs are of public concern so as to give rise to a legitimate state interest in their redress, that interest may be insufficiently "substantial" (under the terms of the fifth constraint on criminal legislation (16)) to merit prohibition on pain of punishment. So it is, he claims, with numerous paternalistic interferences with choices that cannot be thought to be purely private. "We need not discredit the goals of criminal paternalism altogether to suppose that the state lacks a substantial interest in protecting adults from the negative consequences of their voluntary choices." (17) Thus, for example, while the choice to drive without the use of a seatbelt may adversely affect the shared values and interests of the community so as to be thought a public wrong, rather than simply a private wrong, it may do so in ways that cannot be thought of substantial interest to the state.

Finally, even when the state may have a substantial interest in preventing self-destructive conduct, it may prove counterproductive to attempt to do so, and when this is the case, paternalistic legislation will fail the direct advancement criterion that is the sixth general constraint on criminalization. (18) Indeed, Husak maintains, "[t]his constraint threatens to undermine all criminal paternalism." (19) In his view, "the punishment for violating a criminal law is almost always more detrimental to an offender than is the harm that he causes or risks to himself by engaging in the proscribed behavior." (20) Indeed, he insists that while the claim is hostage to empirics, "[a]lmost no conduct that sane adults are voluntarily inclined to perform is so destructive of their welfare that they are better off in jail than free to continue to engage in it." (21) Short of prohibitions on gladiatorial contests and their like, most paternalistically motivated criminal laws administer cures that are worse than their diseases, and so cannot be defended as consistent with the sixth constraint on criminal legislation.

Husak extracts from this succession of arguments the conclusion that paternalism is "rarely justified." (22) But notice how complicated and how empirically-dependent are the mechanics of his argument as compared, for example, with the elegant claim that the law cannot prohibit what morality permits, where that includes a great deal of behavior that may be risky or harmful to one's own interests.

I confess, to begin, that I cannot get a firm grip on the distinction that he draws between public and private wrongs--a distinction that results in his dismissal of an unspecified number of paternalistic enactments on the grounds that they concern private wrongdoing, rather than public wrongdoing. If the state can be said to have an interest in domestic violence even in the absence of a desire for protection by the victim of that violence--so as to make such violence a public wrong even though it goes on in a private place, why does the state not have an interest in sadomasochism or zoophilia or, for that matter, adventure sports that threaten the same kinds of bodily injuries as do domestic brawls? Husak's argument that wrongs are relational so as to accord the state standing to call us to account for our conduct only when that conduct breaches a responsibility to the community strikes me as unhelpful. And it is not aided by his notion that the community is owed a duty when conduct implicates "shared values and community interests." For few forms of conduct have excited more community outrage and collective moral condemnation that invoke "shared values" and "community traditions" than have creative methods of achieving bodily pleasure by consenting adults behind closed doors.

Husak seeks to rescue his distinction from this difficulty by distinguishing between a community's moral judgments and its "collective prejudices," insisting that a community's "[m]ere allegations of immorality, unsupported by argument or evidence, should not allow the state to infringe the right not to be punished." (23) As he insists, "[a]llegations of immorality do not become more credible just because they are bolstered by historical data or surveys of public opinion." (24) But to say this is to abandon the notion that wrongs are done to the community whenever the community's (actual) values are impugned. It is to say that communities can be wrong about whether they are wronged, in which case, the community's values are not, in fact, the touchstone of when a wrong should be thought to be of a public, rather than a private, sort. So the question again arises: How can we sort between public wrongs and private wrongs if not by a measure of community sentiment?

If this question proves unanswerable, Husak might abandon the notion that whole classes of wrongs are ineligible for criminalization because they are private, pressing instead his alternative arguments that (1) what is special about paternalistic laws is that they almost always reflect a concern for interests that are insubstantial to the state, and (2) they cannot be prosecuted without self-defeatingly implicating even greater interests. Once again, however, I am dubious about the promise of these argumentative strategies.

Husak himself asks, "How might we begin to decide whether given legitimate governmental interests are substantial?" (25) He replies, Most obviously, the prevention of physical harm will qualify as compelling, and a fortiori, as substantial," (26) as will the prevention of economic harms that take the form of forced transfers of property rights and infringements on public goods. (27) But without qualification, this answer makes a great many paternalistic preoccupations substantial, for physical harm is risked by numerous activities that anti-paternalists typically want to exempt from regulation--from sadomasochism in the bedroom, to riding motorcycles without helmets down freeways, to using drugs recreationally, to tattooing and piercing body parts. Without a means of parsing among physical harms so as to exclude some from the category of harms that are a fortiori substantial, it would seem that Husak's fifth "substantiality constraint" on criminalization would do little to constrain paternalistic legislation. Although it would permit the state to interfere with behavior like the consensual cannibalism in which Armin Meiwes and Bernd Jurgen Brandes engaged, (28) it would also seemingly permit the state to prohibit suicide, and though one might be sympathetic to the former consequence (although it is not clear that Husak would be!), it seems far less obvious that the latter consequence would sit happily with those who harbor skepticism about the legitimacy of legal paternalism.

This finally brings us to Husak's argument that it is really the sixth "directness constraint" that "threatens to undermine all criminal paternalism," because even if (arguendo) a great many self-injurious activities in fact count as substantial public wrongs (because, most obviously, they involve the risk of physical injury), it is almost always counterproductive to punish them. As Husak argues, "[t]he punishment for violating a criminal law is almost always more detrimental to an offender than is the harm that he causes or risks to himself by engaging in, the proscribed behavior." (29) He asks: Can a legislator seriously maintain that Rocky is better off not boxing in jail than boxing out of jail?" (30)

But this is a puzzling argument for two reasons. First, it fails to account for the "dentist principle"--namely, for the possibility that short-term pain will yield long-term gain. The question is not whether during a given year it would be better for Rocky "to be not boxing in jail than boxing out of jail." The question is whether it would be better for Rocky to live a lifetime without boxing at the cost of one year in jail than to live a (reduced!) lifetime of regular boxing with no jail time. Given the extraordinary toll that boxing takes on a boxer's health and longevity, it would be plausible to think that if Rocky's predilection for boxing could be cured by a year in jail, it would be in his long-term interests to endure the year in jail in the same way that it is in his long-term interests to endure regular, but highly unpleasant, dental work or medical care. In short, contrary to Husak's claim that only gladiatorial contests will survive this test, it seems there are many risky activities which jail time might successfully eliminate so as to achieve for people lifetimes of greater health, wealth, and happiness.

But Husak's argument that punishment is counter-productive when employed for paternalistic ends is puzzling for a second reason. If boxing is a public wrong of substantial state interest, and if punishing Rocky will reduce boxing not only on his part but on the part of many others who seek to emulate him, why would it be counter-productive to punish Rocky? Husak anticipates this argument and replies as follows: "[P]unishing Rocky in order to increase general deterrence can hardly be thought to promote the interests of Rocky himself. That is, the state does not treat Rocky paternalistically when he is punished to deter others. If the law purports to treat Rocky paternalistically, punishment must be thought to be in his interest." (31) But for two reasons paternalists do not need to argue that punishment must itself be in the intrinsic interest of the person punished in order for its imposition to be both paternalistic and legitimate. If they are consequentialist-paternalists, their goal is to maximize the protection of people from their own risky choices, and if punishing Rocky protects a great many others from choosing to box, then punishing Rocky is both paternalistic (to others') and, prima facie, legitimate. Even if they are not consequentialists who are willing to sacrifice one person's interests for the protection of others, paternalists can insist that punishment need not be intrinsically valuable to the person punished--it need only be instrumentally valuable; that is, what must be in his interest is the elimination of a temptation to engage in an activity that risks his welfare, and so long as punishment accomplishes this goal, it is aptly deemed to be paternalistic toward him, and, at least prima facie, legitimately so. I see nothing in Husak's argument about the self-defeating nature of punishment for paternalistically-motivated crimes that rebuts these moves and, thus, I am left in doubt about whether his final argument more convincingly reduces the prospect of paternalistic criminal legislation than did his previous arguments.

What seems to be missing, of course, is a defense of a right of liberty on the part of citizens, or at least a defense of an obligation to protect liberty on the part of legislators. Absent a willingness to defend the claim that legislators have moral duties to protect a sphere of liberty on the part of citizens within which citizens may do self-injurious deeds, and absent a willingness, in the alternative, to defend the claim that persons have moral rights to engage in activities that risk or invite self-injuries of various (possibly immoral) sorts, Husak's theory of criminalization may fail to secure the goal he sets for himself--which is to reduce the size and scope of the criminal law by reducing or eliminating paternalistically-motivated laws. For without an argument that places (many or most) self-risking activities beyond the legitimate reach of the state, Husak will be susceptible to empirical demonstrations that suggest that many such activities are really risky, that the harms that occur when their risks materialize are really physically injurious, that the community really and rightly considers such harms at odds with its deepest shared values, and that the imposition of criminal penalties would really reduce their incidence.

Predicating Anti-paternalism on a Legislative Obligation to Protect Human Dignity

John Kleinig, in his recent article, "Paternalism and Human Dignity," provides a wonderfully thoughtful example of the first sort of alternative argument--one that accords lawmakers obligations that both require them to stay their legislative hands when citizens engage in self-injurious activities and require them to intervene when citizens turn to activities that are morally self-destructive. (32) Put a bit more bluntly than Kleinig himself puts his thesis, legislators are obligated not to intrude upon the choices that citizens make with regard to their own welfare unless those choices result in conduct that is self-degrading in a manner that is "radical and permanent"--that is, destructive of the moral self. (33) As Kleinig argues, a commitment to human and personal dignity is a central tenet of liberalism. Although human dignity is often equated with a capacity for autonomous decision-making, even Mill imbued it with a richer and more substantive meaning. "Dignity is shown in the way in which we conduct our individual and social lives--our conduct should not be unbecoming to our status as human beings." (34) Dignity is "embedded in a conception of humans as 'progressive beings' or 'moral agents' engaged in projects that, as Mill characterized them, are 'self-perfecting' and 'self-beautifying."' (35) Because law--even civil law--"can be a heavy and cumbersome instrument of social control," it must be administered in accordance with "a presumption in favor of self-chosen ends, including self-chosen ends that we may find disgusting or repulsive," so that "only in cases in which those self-chosen ends will result in serious and ongoing dehumanization should the law intervene." (36) But intervene it should when a person engages in conduct that is so degrading or debasing as to "reduce [the] person's behavior and status to a subhuman level, one in which the moral agency of the person is undermined or jettisoned." (37)

Kleinig argues that a theory of criminalization that reserves punishment for those actions that are seriously and permanently degrading accords us a means of explaining why "we may want to ban consensual brawls but not boxing matches conducted under Marquis of Queensberry rules, why we may not interfere with the alcoholic but take some sort of action against nonviolent public drunkenness, why we may permit high-risk sports but ban paid gladiatorial contests, and so on." (38) It accounts for why we can properly prohibit the ghastly actions of Meiwes and Brandes, even though the bodily mutilation and living cannibalism that eventually lead to Brandes's death was something to which he consented and in which he himself actively participated. It also explains why sadomasochistic sexual practices are hard cases, and may well be beyond the reach of the criminal law, for though they often involve injuries, these injuries are typically not "serious or permanent." (39) And it interestingly accounts, Kleinig argues, for why those who suffer from Body Integrity Identity Disorder should not be prevented from, or punished for, amputating healthy limbs as a means of escaping the psychological misery such appendages cause. Although such bodily-altering actions may be deemed tragic, "[r]emoving a limb is not per se an act of debasement or degradation" for it does not undermine moral agency or reduce a person to a "subhuman level." (40)

As these examples suggest, the notions of dignity and degradation are inherently philosophically squishy, and this fact would seem to threaten Kleinig's claim that we can use these concepts to delineate a domain of liberty that is properly impregnable by the criminal law. In response to particular cases of self-injury, we tend to share feelings of disgust, distaste, or pity; but articulating why such differing feelings should result in differing legal treatment seems elusive. Why does removing a body part for the sake of achieving a match between one's body and one's disfigured self-conception deserve legal protection, whereas removing a body part so that it can be a shared meal demands legal intervention? Why are consensual brawls degrading if boxing is not? Why should women be left at liberty to parade their nude bodies before gawking men if their body parts cannot be used upon their deaths for ornamental purposes?

Kleinig himself makes reference to two considerations that echo those of Husak, although he construes them rather differently. First, he says, private degradation is of a different order (and/or magnitude) from public degradation. "The self-degradation brought about when a person privately consumes so much alcohol that he can no longer control his bodily functions is hardly appropriate for legal intervention ..." (41) But notice that Kleinig has a more traditional spatial or geographical conception of what makes an action private, not a jurisdictional one of the sort that Husak embraced. Put simply, activities for him are private if they are hidden from the view of those who are not participants--that is, if they go on behind closed doors. One does less damage to the value of humanity--to the concept of moral agency--if one does not debase oneself for all to see. Why would degradation behind closed doors be of less moral (and therefore legal) concern than degradation for all to see? His answer, again reminiscent of Husak's, is that the social visibility of debasing practices can "have an impact on our broader social self-perceptions." Inasmuch as legislators within a liberal state have an obligation to advance human flourishing by securing and maintaining human dignity "as both an individual quality and a social value," (42) they have an obligation to be responsive to practices that impact not only upon the individual's moral agency, but on the moral fabric of the larger society. As such, while social considerations of decency, with which considerations of dignity are often confused, rarely justify state actions, the state is entitled to concern itself with conduct that is deeply offensive to the public, for such conduct may erode moral dignity as a social value.

Kleinig's conviction that, as a moral matter, people can often do in private what they cannot do in public strikes a chord with many, myself included. But why the geography of wrongdoing or the limits of people's eyesight matters remains frustratingly opaque. Kleinig's invocation of the prospect of damage to social values, community norms, and the public's interest, like Husak's before, fails to persuade me that our raw intuitions are philosophically respectable. And, more troubling for Kleinig, they have little purchase on many of the questions that can be raised concerning Kleinig's specific examples, for the boxing matches, strip shows, and bodily amputations that he would have the law permit are not private (in Kleinig's sense), while the consensual cannibalism of Meiwes and Brandes that Kleinig would have the criminal law punish was clearly physically intimate, as are various risky forms of sadomasochism and corpse desecration which Kleinig considers to be eligible for legal regulation.

Kleinig can point, however, to a third piece of philosophical machinery that does work, in his view, to separate cases of degradation that are sufficiently serious to justify paternalistic interventions from cases in which people must be left at liberty. In his view, legislators have greater moral license to criminalize acts that degrade others (however consenting those others are to being degraded) than they have to criminalize acts that are self-degrading. "Though we may sometimes consider it appropriate to intervene non-punitively in cases in which a person debases himself, those who do the debasing may sometimes be criminally condemned for treating a fellow human being in such a manner." (43) Kleinig is surely right that as a conceptual matter there need be no match between the morality of someone doing a degrading act to another and the morality of that other consenting to that act being done. And Kleinig may be right that as a moral matter such seemingly complementary actions may be of different pedigrees. Perhaps it is less degrading of masochists to consent to genital mutilation than it is degrading of masochists to be mutilated by sadists, and hence perhaps it is more degrading to be a sadist, for it entails the degradation of others, as well as the degradation of self. It thus may be legitimate to criminalize sadism, but not masochism (a conclusion that would make legitimate the prosecution of Meiwes for the mutilation, killing, and cannibalization of Brandes, despite Brandes's full consent to these behaviors). And perhaps, as Kleinig seemingly wants to argue, legislators are not entitled to prohibit those with Body Integrity Identity Disorder from amputating their own limbs, but they are entitled to prohibit doctors and others from assisting them in so doing, for one can do to oneself what others cannot do to oneself.

There are, however, some oddities and discomforts entailed by pursuing this line of argument. Consider just two for the moment. First, it rejects what I have elsewhere called "the correspondence thesis"--the thesis that the justifiability of an action entails the justifiability of assisting with that action. Such a thesis draws motivation from the claim that the reasons that make permissible an action are reasons as much for others as for the actor; so that if the actor is permitted to do the action in question, others must be permitted to aid him. I shall not seek to defend this thesis here, for there are far too many permutations required to demonstrate that it can withstand obvious attacks. But notice that the correspondence thesis receives validation from the fact that, in law, what separates justifications from excuses is the fact that others can aid one who is justified, but they cannot aid one who is excused. Put differently, if a justification shields a principal, it shields those who aid him; but if an excuse exonerates a principal, it does not necessarily exonerate those who aid him. If consent transforms the morality of a harm so as to strip it of its wrongfulness to the one who is harmed, then it would seem that consent would serve as a justification, not merely as an excuse. And if his own consent makes the masochist's submission to torture permissible, it would seemingly make the sadist's torture of the masochist permissible.

The second discomfort caused by Kleinig's claim that we should distinguish between self-degrading acts and acts that degrade others is that it again seems to deliver counter-intuitive conclusions concerning the particular examples that motivate Kleinig's analysis. How can it be that one can amputate one's own limbs, but one cannot seek assistance from others in so doing? One cannot help but have disturbing visions of Monty Python's black knight--except that he would inevitably be left with one arm! And what can be said to make sense of why strip shows, pornography, and prostitution should remain permissible, since those, after all, involve the participation of many others in the degradation of some? Surely it would be cruel to give people the right to die, but to deny them aid if they do not find it a valuable right until they are past the point of being able to exercise it autonomously. And what sense can we make of cases that involve self-degrading omissions? Must others force-feed the anorexic who flatly refuses food so as to avoid being participants in her self-destruction? Finally, what should we make, again, of boxing, or American football, or karate, or mud-wrestling, or any other form of physical combat or contest that derives its sporting value from the violence that participants do to one and other?

None of these considerations suffices to suggest that we cannot develop conceptions of human dignity and degradation that are hard-edged enough to ground a defensible theory of paternalism. But they suggest that we have a long way to go before we have a legislative obligation to protect human dignity that will sort between cases of legitimate legislative intervention and cases in which people ought to be left free to pursue potentially self-injuring activities.

Predicating Anti-paternalism on a Multi-faceted Right to Liberty

Let me now map a third alternative path that one might take--one that derives the constraints on criminal legislation from the rights to liberty that citizens can claim. According to this third theory, the constraints on criminal legislation are matched to the constraints that our best deontic morality imposes upon citizens. Such a theory gets its start from the plausible (indeed, I would say, compelling) premise that the state cannot legitimately prohibit what morality itself permits, so that if morality itself leaves citizens at liberty, so must the law. There appear to be four general ways in which morality itself requires that one be left at liberty by law. Let me list them first, and then take them up briefly in turn. (44)

First, morality may itself have gaps such that some conduct may be neutral in its moral status or without a moral pedigree of any sort. Conduct that falls within such gaps cannot be said to be immoral, and as such, the state can have no moral justification for prohibiting it.

Second, morality may require us to recognize that our best legal institutions will inevitably have gaps in their ability to declare certain conduct immoral, even when such conduct undoubtedly has a definitive moral status. Thus, legislative doubt about the morality of conduct can be a reason to refuse to regulate or punish it, as can persistent disagreement among reasonable persons over the morality of given conduct (separate from any moral doubt the legislature itself may have).

Third, persons may have moral rights to do what is morally wrong; or, to put it more carefully, persons may have moral rights to engage in conduct that can nevertheless be morally blameworthy. Persons who abuse but do not exceed their rights may be properly blamed for acting in a manner that is "suberogatory" by revealing character traits that reflect aretaic vice rather than virtue; but inasmuch as they remain within their deontic rights, the state itself lacks a moral right to criminalize their choices.

And fourth, even when morality flatly prohibits conduct, it may nevertheless count the moral costs of legally enforcing a prohibition as sufficient to require that persons be legally permitted to do what is morally impermissible.

Now let us take these claims more slowly so as to test whether they give us greater resources with which to define the proper limits of the criminal law.

The Limits on Criminal Legislation that Derive from Moral Gaps

Consider the ways in which morality might itself be "gappy" so as to leave conduct free of moral implication and so as to strip legislators of any moral grounds for criminalizing it. It might be that morality is sometimes silent, such that persons are at liberty in Sartre's existential sense simply "to choose." (45) Certainly we live our lives as though many choices were unfettered by moral implications altogether. We pick colleges, friends, spouses, occupations, homes, clothes, and cars without any sense that these important choices are of moral significance. And one might think, for example, that morality is simply silent with regard to consensual sexual practices that cause no physical pain or bodily harm, so that whether one is gay or straight, promiscuous, monogamous, or abstinent, conservative or experimental, is simply without moral consequence altogether. For it is not a topic on which morality speaks.

The notion that there are times of moral silence is not without its puzzles, (46) and those who would insist that morality is never silent--that all choices are subject to practical reasoning that requires a balancing of factors of normative significance--may locate the "gaps" of morality not in silences, but in "face-offs." Consequentialists confront the prospect of moral face-offs when the consequences that must be weighed in a choice situation are "tied"--that is, when they would yield the same net balance of good and bad. In such "moral ties," it is plausible to think that one is at moral liberty to choose because no choice is better or worse than its alternatives.

Deontologists may confront their unique brand of moral "face-offs" in circumstances in which moral obligations practically conflict. Recall Sartre's famous dilemma of the son who is simultaneously obligated to care for his mother and to join the Free French, when he cannot practically fulfill both obligations. Once again, if no choice can be thought to be better than its alternative, one might plausibly think that morality is silent as to how liberty ought to be employed. And so, when someone will be damned if he does and damned if he doesn't, it would seem that the law, like morality, must make private choice the sole arbiter.

Whether one thinks of moral face-offs as involving consequentialist ties or deontological dilemmas, one suspects that numerous circumstances that have invited paternalistic concern reflect just such face-offs. Thus, for example, when persons seek to end painful lives because they do not find them worth living or when they seek to take risky medicines or pursue experimental treatments in order to prolong their lives, it may be that they are stuck between moral rocks and hard places. Inasmuch as morality can afford lawmakers no better reasons to make alternative choices for citizens who confront moral face-offs, citizens ought to be left at liberty to break ties or resolve dilemmas as they choose, even when what they choose does not accord with what legislators would choose on their behalf.

A fourth source of moral gappiness resides in the possibility that some goods are incommensurable, such that there is no metric by which they can be reasonably compared and no metric by which to prefer one over another. In the silence created by an absence of moral criteria with which to choose among incommensurable goods, one would appear to be purely at liberty. As John Finnis argues:

Of course, each one of us can reasonably choose to treat one or some of the values as of more importance in his life. A scholar chooses to dedicate himself to the pursuit of knowledge, and thus gives its demands priority ... over friendships, the worship, the games, the art and beauty that he might otherwise enjoy ... That chosen plan [makes] truth more important and fundamental for him.... But one's reasons for choosing the particular ranking that one does choose are reasons that properly relate to one's temperament, upbringing, capacities and opportunities, not to differences in rank between the basic values. (47)

This may be the best explanation of why persons ought to be left at liberty to choose whether to attend church services, or to develop their natural talents, or to maintain consistent employment, or to seek out forms of artistic expression, or to have a family. It may thus be the best explanation of why the state may not justifiably intrude upon many private choices that incite legislative disapproval--for they may be choices among incommensurable goods which cannot be justified, but cannot be justifiably criticized as well.

Fifth, many reasons for action appear to be agent-relative, in the sense that they apply only to those from whose projects they derive. That I value adventure sports gives me an agent-relative reason to white-water raft, but it does not give a reason to others to do so unless they, too, count adrenaline-pumping sports amongst their personal projects. Although it might be meaningful to say that I violate a duty to myself if I choose poorly between my agent-relative reasons for action (choosing rafting over gardening, when in fact I value the aesthetics of gardening even more than the thrill of pounding white water), I cannot be criticized by others for my choice, for my actions do not implicate any reasons for action that are applicable to their choices, and hence, I commit no immorality that can be complained of by them.

There are, however, several reasons to worry about postulating agent-relative reasons that vindicate a liberty to make unencumbered choices about the pursuit of personal projects that do not implicate the reasons that others have to act. (48) For example, if the agent-relativity of our personal projects precludes others from having legitimate concerns about how our projects are going, then this would tend to suggest that there can be no justified instances of pure paternalism. If one thinks of pure paternalism as motivated solely by an interest in protecting others from self-injuring conduct, rather than by an interest in preventing them from causing harm to others or to oneself, then it would seem that such interventions must be unjustified in cases in which the conduct is destructive only to self-defined projects which give only agent-relative reasons for the agent not to do them. In short, where a citizen's conduct might harm only himself or his own projects, it would seem to generate only agent-relative reasons for the citizen to desist, and it would therefore seem to give others no reason at all for interference. This will be a happy consequence to those with strong libertarian intuitions, for it will put the consensual cannibalism of Meiwes and Brandes, the sadomasochistic practices of the defendants in R. v. Brown, and the surgical alterations of those with Body Integrity Identity Disorder beyond the reach of the law. But those, like Kleinig, who believe that the law can take an interest in the projects that we set for ourselves and in the conduct that such projects give us reasons to pursue, must reject the notion that agent-relative reasons insulate one against others' interference.

There are, I believe, other sources of moral gaps that may justify legally-recognized liberties on the grounds that legislators can give no moral grounds for regulation. (49) But inasmuch as all arguments from moral gaps simply justify legal rights to do what is right (or at least, not wrong) they are likely to be of insufficient comfort to those who are hoping for more meaty legal permissions--namely, for a basis upon which to fend off state interference with actions that are, in some sense or other, genuinely blameworthy. So let me turn to three sources of moral arguments that may entail that legislators cannot criminalize all conduct that is genuinely wrongful (as opposed to all conduct that is simply not wrongful--that is, permitted)--none of which turn on a public-private distinction or on claims of shared community values that proved so nettlesome within the accounts advanced by Husak and Kleinig.

The Limits on Criminal Legislation that Derive from Institutional Gaps

Legislators may be unable to declare conduct wrongful for reasons beyond the fact that morality itself may be neutral about certain choices. First, there may be circumstances in which lawmakers lack the competence to declare conduct immoral, and hence, in such circumstances, moral doubt (or epistemic modesty) alone ought to stay their legislative hand. The literature on legislative competence is rich with reasons to think that certain decisions are beyond the ken of legislators, either because legislators lack sufficient motivation to make those decisions with moral precision or on morally valid grounds, or because they lack the capacity to do so. Although institutional constraints can go a considerable distance toward making up for motivational, cognitive, and informational impairments so as to give us some confidence that intellectually limited, short-sighted, self-interested, uninformed, and unsympathetic legislators may nevertheless reach collective decisions that are of greater moral accuracy than the sum of their parts, few can deny that bad cases result in bad laws. And few can deny that many moral judgments defy the considerable fact-finding capacities about which legislatures can boast. Some judgments may be so "personal" as to defy legislative second-guessing (for example, the decision to have children); some may turn on scientific facts not yet conclusively established so as to make legislative efforts premature (for example, the point of fetal viability); and some may require knowledge of facts that cannot be obtained without objectionable modes of surveillance (for example, peepholes in public washrooms). When the legislature is in a position in which it ought to doubt the validity of its moral judgment, morality will itself demand that legislators resist temptations to enact criminal legislation that runs the risk of imposing upon citizens' moral rights. One suspects that this is the case with regard to many morally-charged behaviors in which paternalists take an interest. It is simply not clear that legislators know enough to be wading into the morality of what goes on in the bedrooms of sadomasochists, or to be passing judgment on the morality of amputations by those who view their own limbs as ego-alien, or to be regulating extreme sports so as to reduce their extremism.

Second, it is a cornerstone of liberal political theory that persons ought to be left at liberty to make their own choices when there is persistent disagreement among reasonable persons about the morality of those choices. According to one interpretation, this argument for liberty collapses into the previous one: whenever there is persistent moral disagreement, legislators ought to be in doubt about their own moral judgment on the topic in question, and therefore, they ought to leave citizens at liberty out of epistemic modesty. But one might think that even if legislators are confidently in accord about a matter of moral dispute, the value of fairness requires them not to shove their unanimous view down the throats of others with whom they are in reasonable disagreement. Thus, for example, in the face of public controversy over the morality of homosexuality, legislators who are unanimously in favor of increasing penalties for sodomy ought nevertheless to suspend their efforts out of deference to an absence of democratic authority.

Finally, some choices seem so "personal" as to resist competent legislative scrutiny. If morality is highly "particularistic"--that is, if its dictates vary considerably between persons and between different contexts--then legislators may be institutionally incapable of enacting laws that capture many of the moral obligations that citizens have, and so they may be forced to leave citizens at considerable liberty to violate those obligations. One version of this argument again collapses back into an argument from epistemic doubt: that moral obligations are highly "person-specific" or "fact-sensitive" or "context-relative" suggests that legislators at considerable remove will be incompetent at assessing them. But there is an alternative interpretation of this argument that makes "moral particularism" an independent constraint on criminalization. According to this alternative argument, there is on any given occasion a right answer to how an individual ought to act, but the answer is so personal as to be non-generalizable. Inasmuch as law is not law at all unless it comports with the formal constraints that Lon Fuller described as comprising the "inner morality of law"--requirements that it be general, clear, predictable, and consistent--law cannot mirror morality if morality itself does not exhibit these formal features. (50) If morality is highly particularistic, then legislators cannot hope to specify, in the general language in which legislation must speak, the actions that roughly 300 million Americans must perform to live moral lives. Therefore, according to this argument, however legitimate paternalism may be as a motive, it founders on the fact that it often cannot be accomplished through criminal legislation, because what is in the best interests of one is not in the best interests of all, or even of most, or even of many.

The Limits of Criminal Legislation that Derive from Moral Permissions to do What is (In Some Sense) Immoral

Let us now turn to circumstances in which legislators can have confidence that conduct is, in some sense, immoral, and ask whether morality might nevertheless demand that lawmakers tolerate such conduct. The only form of consequentialism that has the wherewithal to generate a theory of morally permitted moral wrongs is rule-consequentialism. For just as any form of rule-consequentialism will sometimes prohibit acts that are act-consequentially justified (for example, telling a lie or running a red light in the middle of the night), so it will permit acts that are act-consequentially unjustified. Rule-consequentialism therefore holds out the possibility that one may be at moral liberty to do acts that fail to maximize good consequences. To the extent that rule-consequentialists take themselves to be able to justify (on consequential grounds) broad permissions to speak as we choose, travel where we want, marry whom we love, pursue professions that match our ambitions, and so forth, rule-consequentialists can make some sense of the notion that those broad permissions will give consequentially justified grounds for tolerating (act-)consequentially unjustified actions.

Of course, among other complaints, rule-consequentialists must answer the classic charge that their moral theory collapses into act-consequentialism, and to the extent that one doubts their ability to provide a satisfactory answer to this chestnut problem, one will think that a deontological morality is far better equipped to make philosophical sense of how morality itself might permit what is, in some sense, immoral. I repeat the phrase "in some sense," for surely no morality can coherently deliver up contradictions and, hence, it would seem that no morality could give one a moral right to do what it claims one has no moral right to do. But deontologists can insist that our best deontological theory gives persons permissions to do what is consequentially sub-optimal. Still, such permissions can be "stained" by abuse. In philosophical terms, we count a person's abuse of a right as a "suberogatory" action--an action that is permitted, but nevertheless morally blameworthy.

I have elsewhere argued that while our best deontic theory makes many suberogatory actions into matters of right, our best theory of virtue makes it obligatory of us to become the sorts of persons who refrain from suberogatory deeds. And so it is that suberogatory actions derive their blameworthy quality not from the fact that they violate any deontic duties (because, ex hypothesi, they are matters of deontic right), but because they manifest personal vice--that is, a failure on our part to live up to aretaic duties that require us to be the sorts of persons who do not stand on deontic rights. (51)

If, by virtue of having certain (deontic) moral permissions, persons act with moral impunity in many circumstances in which they do not maximize good consequences and do not manifest good character, then it would seem that lawmakers cannot legitimately criminalize the conduct of citizens in such circumstances. Legislators should thus tolerate many acts that they deplore, for citizens do not commit (deontic) moral wrongs when they engage in these acts, even as they act in (aretaically) blameworthy ways. Thus, for example, citizens may be legally prohibited from killing, raping, and stealing, for these acts do not fall within the ambit of any moral permissions; but one might think that they may not be legally prohibited from using drugs, engaging in consensual sadomasochistic sexual activities, logging onto racist web sites, reading pornography, gambling, and so forth, because, though these acts are consequentially unjustified and manifest vice rather than virtue, they are not deontically prohibited.

The perfectionist might ask at this point why the law cannot be justifiably used to cultivate virtue and suppress vice. Why can it not enforce aretaic obligations that require us to be or become the sorts of people who would not want to impair their cognitive abilities, or be members of racist organizations, or derive sexual pleasure through others' pain, or mutilate their own bodies? If the law begins where morality ends, why does it not begin where deontic morality ends? Why must it permit what aretaic morality prohibits namely, character traits that reveal themselves as vices through the abuse of deontic rights? In short, why cannot legislators paternalistically pursue what is in citizens' aretaic interests, even though that may mean that they will indirectly inhibit what citizens would otherwise have deontic rights to do?

This strikes me as the paternalist's greatest challenge to the claim that the criminal law must honor deontic rights, and so permit a great many blameworthy (that is, suberogatory) actions. There are at least four arguments that might be employed to vindicate the anti-paternalist's conviction that not all morally condemnatory deeds can be prohibited in the name of cultivating morally laudable character traits. First, it might be argued that when actions are coerced, they do not derive from the character of citizens. Inasmuch as super- and suberogatory deeds take their moral worth from the quality of the character traits that they manifest, any attempt to coerce the cultivation of good character through the regulation of deeds consistent with that character will be self-defeating. It might be tempting for paternalists to respond, with Aristotle, that the habitual repetition of acts of a certain sort cultivates character dispositions consistent with those acts, so that requiring acts consistent with virtue and prohibiting acts that manifest vice will lead, over time, to the inculcation of virtuous dispositions and the suppression of vicious ones. Of course, whether Aristotle was right about the relationship between habit and virtue is a purely empirical question, and one can imagine that anti-paternalists might well be able to advance evidence that the more the law prohibits tempting activities, the more tempting they become. (52)

The second argument that might be advanced by anti-paternalists is that even if Aristotle were right in maintaining that the criminal law could induce virtuous dispositions by prohibiting actions that manifest vice, the claim that legislators ought to employ the criminal law to do so is more comfortably at home within a consequentialist theory than within a deontological one. Those who believe that rights should be respected and duties should be satisfied, not maximized, will be nonplused by the claim that legislative violations of citizens' deontic rights might maximize the fulfillment of citizens' aretaic duties.

Third, it would seem impossible for legislators to pursue a perfectionist agenda without violating either the principle of weak retributivism (defended by Husak as his third constraint on criminalization) or the principle of equality. Unlike deontic duties, which concern themselves with specific actions, aretaic duties concern themselves with character traits, and as such, they can potentially be fulfilled without performing any actions at all (when the capacities or opportunities for their manifestation are absent), and they can be fulfilled (assuming unimpaired capacities and normal opportunities) by performing a great many quite different actions. Consider, for example, the innumerable ways in which persons can demonstrate kindness. Were the law to mandate particular means of demonstrating a virtue over others (say, by requiring citizens to give a certain percentage of their income to charity), and then punish those who substituted other means of expressing the same degree of that virtue, it would violate the principle that punishment should track moral desert, for it would impose sanctions on those who, in fact, do their deontic duty. And any attempt to discourage a vice by criminalizing particular actions that manifest vice (for example, smoking, drug use, prostitution, gambling) would result in the unequal treatment of equal offenders. For just as a single virtue can manifest itself in many actions, so too can a single vice. To punish some manifestations of vice and not others would be to treat unequally those who are morally equal.

Finally, any attempt to eliminate the threat to the principles of equality and weak retributivism either through more or less specific prohibitions would implicate rule of law values. For inasmuch as citizens can super-and suberogate in a virtually infinite number of ways, legislators cannot hope to enumerate the specific actions that would merit equal treatment, and courts could not adjudicate general standards (requiring, say, charity or courage or temperance) without rendering the law vague, unknowable, and unpredictable.

For all of these reasons, legislators should resist the temptation to use the criminal law to enforce aretaic obligations of character. As such, they should feel themselves constrained to prohibit all actions that reveal vice, for many represent instances in which persons abuse but do not exceed their deontic rights. So long as legislators must match the criminal law's prohibitions to those of deontic morality, they must respect that abuses of rights are nevertheless matters of right.

The Limits on Criminal Legislation that Derive from the Morally Relevant Costs of Enforcing Moral Prohibitions

Those who seek robust legal rights to do full-blown moral wrongs may by now be thoroughly irritated. They will say: "Of course the law must grant us rights to do what we have rights to do. The real point is that it must also grant us rights to do what we have no rights to do!" Those who believe that consensual cannibalism and recreational genital mutilation are just plain wrong, but who nevertheless believe that the law ought not to punish such activities, require an argument that makes sense of legal rights to do moral wrongs that are in no sense right or permissible. Let us then ask why, if at all, lawmakers might be morally required to allow citizens to do what (both deontic and aretaic) morality flatly prohibits them from doing.

On a strong theory of autonomy, it might be argued that an action has moral worth if, but only if, it is autonomously chosen. According to this view, to coerce good choices deprives them of their goodness. Legislators who thus seek to match law's prohibitions to morality's prohibitions are necessarily stymied, for inherent in morality is a requirement that actions motivated by law rather than morality lose their moral value. The most glaring problem with this vindication of legal rights to do moral wrongs is that a strong theory of autonomy seems far too strong. Although some actions depend upon the autonomy with which they are chosen for their moral worth (so that charity becomes taxation if coerced), it seems patently false to say that whereas cannibalism is wrong, there is no moral worth in resisting its temptation if one's resistance is purely a product of fear of legal sanctions, and hence, one who is unmoved by morality might as well get out the butter.

According to a more plausible, weaker view of autonomy, an otherwise good choice that is made autonomously has greater moral value than would that choice if it were a product of coercion; but bad choices acquire no moral worth from the autonomy with which they are made, and even coerced good choices have some, and perhaps substantial, moral value despite their lack of autonomy. (53) It is possible, on this weaker view, that less-than-optimal choices that are autonomously made may have greater moral worth by virtue of the incremental value added by their autonomous choice than optimal choices that are coerced. This weaker thesis about the role of autonomy in personal decision making yields two significant results for our purposes. First, this view licenses the state to intervene in an individual's life in circumstances in which the state can coerce that person to abandon morally worthless conduct, for such conduct has no moral value, and the autonomy with which it is chosen is itself of no moral benefit. Second, this view also provides reasons to think that legislators must tolerate some, and perhaps many, worthless choices. For if persons must make mistakes in order to learn to avoid making mistakes, then persons must be permitted to make (certain) autonomous bad choices if they are expected to make an increasing number of autonomous good choices. If the state should maximize the moral worth of its citizens' actions, then it should prefer autonomous good choices to coerced good choices, and it should tolerate autonomous bad choices when so doing is a necessary means of achieving a greater number of autonomous good choices. And though it is likely never to be the case that tolerating serious violations of others' rights will yield more good choices than bad choices, tolerating moral offenses that take as their "victims" those who choose to commit them--drug use, prostitution, gambling, smoking, various forms of sadomasochistic sexual practices, adult pornography, and so forth--may indeed be a necessary means of educating people about the moral and personal perils of such behavior.


I have surveyed three approaches to determining the proper size and scope of the criminal law, testing each on the question of whether it generates a justifiable account of the limits of legislative paternalism. The first is Doug Husak's novel theory that derives the constraints on criminal legislation from a general right against punishment--a right possessed as much by the murderer as by his innocent victim. As I have suggested, such a right, unpacked in Husak's terms, fails to guarantee that individuals will enjoy a domain of liberty into which the criminal law may not intrude. Absent allegiance to a theory that accords legislators obligations to permit self-injurious actions, and absent a defense of a true right of liberty on the part of citizens that provides them with an inviolable arena in which to perform such actions, a theory of criminalization will lack assurances that it will keep in proper check the paternalistic impulses that may motivate legislators to expand the criminal law unjustifiably.

Second, I have explored an example of the first of the above alternatives to curbing paternalistic criminal legislation by examining John Kleinig's suggestion that legislative obligations that derive from the value of human dignity both license and circumscribe the use of criminal legislation for paternalistic ends. I have argued that although such a theory promises to accord citizens an inviolable sphere in which to make choices with which legislators may disagree, the philosophical resources that are available to decipher the demands of dignity are simply too spare to fix the boundaries of this arena with any measure of precision or clarity.

Finally, I have mapped an approach that matches the boundaries of legitimate criminal legislation to the boundaries of our moral liberties. As I have argued, morality itself affords substantial liberty to moral agents to make choices regarding their own activities. If the liberties that the criminal law accords us must match the liberties that morality itself affords, legislators will be precluded in many instances from rescuing citizens from unfortunate choices. (1) Morality contains multiple gaps in which conduct must be thought to be morally neutral. (2) Morality makes morally relevant the cognitive and motivational limitations of legislators so as to require that citizens be left at liberty when legislative competence is in question. (3) Morality accords persons multiple permissions to pursue activities of their choice, including activities that may well fail to maximize good consequences or are otherwise "suberogatory" in revealing character traits that are vices, rather than virtues. (4) Morality requires legislators to tolerate some conduct that morality itself flatly prohibits as a means of enabling citizens to learn from experience how to put their autonomy to good use, rather than bad. If I am right that morality requires that persons be left at liberty to make blameworthy and even immoral choices, then the criminal law need only be constrained by morality to preclude overly-eager legislative paternalism.


[I am very grateful to the Australian National University's Fleming Centre and the University of Illinois College of Law for their generous support of this work. My thanks to Doug Husak and John Kleinig for provoking my thoughts on this topic, and to Michael Moore for helpful discussions about a number of the arguments developed in this piece.]

(1) Douglas Husak, Overcriminalization: The Limits of the Criminal Law (New York: Oxford University Press, 2008), 4.

(2) Ibid., 57.

(3) The seven criteria or constraints that Husak develops into a general theory of criminalization are as follows:

1. The nontrivial harm or evil constraint: "Criminal liability may not be imposed unless statutes are designed to prohibit a nontrivial harm or evil." Ibid., 66.

2. The wrongfulness constraint: "Criminal liability may not be imposed unless the defendant's conduct is (in some sense) wrongful." Ibid., 66.

3. The desert constraint: "Punishment is justified only when and to the extent it is deserved." Ibid., 82.

4. The burden of proof constraint: Those who favor criminal legislation must bear the burden of proving that it comports with our best test of criminalization (i.e., that it comports with principles 1-3 and 5-7). Ibid., 100.

5. The substantial state interest constraint: "Criminal legislation must aim toward a [legitimate and] substantial state interest." Ibid., 132.

6. The direct advancement constraint: A criminal prohibition must directly advance the legitimate objective towards which it aims. Ibid., 145.

7. The overinclusiveness constraint: Criminal legislation may be no more extensive than is necessary to achieve its legitimate objective (such that there is "a presumption against overinclusive criminal laws"). Ibid., 153-54.

(4) Such crimes proscribe conduct that is not wrongful prior to or independent of its proscription. Husak's favorite example of this kind of crime is money laundering, which imposes up to 10 years imprisonment for engaging in monetary transactions with funds greater than $10,000 that are known to have been derived from specified forms of unlawful activities (e.g., by depositing them in a bank account). See ibid., 105.

(5) Ancillary crimes are derivative of already proscribed conduct, typically taking the form of prohibitions on "aid-like conduct" or on the destruction or failure to provide valuable records or information that may be useful to a criminal investigation. For example, the Bank Secrecy Act makes it a crime "for a financial institution to omit to file a report about a bank transaction that exceeds a given amount." Ibid., 41.

(6) According to William Stuntz, "federal and state codes alike are filled with overlapping crimes, such that a single criminal incident typically violates a half dozen or more prohibitions." William Stuntz, "The Pathological Politics of Criminal Law," Michigan Law Review 100 (2001): 506, 507 n. 113; qtd. in Husak, Overcriminalization, 36. As Husak explains, "typically the original conduct was proscribed already, and the new offense simply describes the criminal behavior with greater specificity while imposing a more severe sentence." Husak, Overcriminalization, 37. So in addition to it being a crime to damage property, it is a separate crime in Illinois to damage library materials and a separate crime to deface a delivery container, so that one can be charged with three separate crimes if one breaks into a box of books that have been delivered to an Illinois library!

(7) Typically, risk-creation offenses are designed to reduce the risk that harms that are themselves separately proscribed will occur. Thus, vagrancy ordinances are thought to reduce the risk of vandalism and dangerous driving prohibitions are thought to reduce the risk of recklessly-caused collisions. As Husak argues, risk-creation prohibitions become highly suspect when the harms they seek to prevent are unclear or when what is risked is not itself separately prohibited; for example, the dissemination of obscene materials or the possession of a firearm or even the use of drugs. Ibid., 159-77.

(8) Husak's favorite examples are prohibitions that are designed to prevent the use of drugs. My favorite example is a Scottish prohibition on playing the bagpipes without ear plugs!

(9) Husak cites such crimes as Indiana's prohibition on the coloring of birds, Virginia's misdemeanor offense of spitting in public, and Alabama's prohibition on impersonating a member of the clergy. Ibid., 35. Husak quotes Eric Luna, "Overextending the Criminal Law," in Go Directly to Jail: The Criminalization of Almost Everything, ed. Gene Healy (Washington, DC: Cato Institute, 2004), 1-2.

(10) Husak, Overcriminilization, 57.

(11) As Husak writes, "How might we defend constraints on criminalization? ... An ambitious answer might try to extract each of the several limitations on the criminal law from a general view about the conditions under which political authority is legitimate.... [T]he strategy I pursue here is more modest, avoiding deep connections to political philosophy." Ibid., 55-56.

(12) Ibid., 102 n. 209.

(13) Ibid., 135.

(14) Ibid., 136-37.

(15) Ibid., 136.

(16) Recall that Husak's fifth constraint requires that criminal legislation aim toward a "substantial" state interest.

(17) Ibid., 142.

(18) Recall that Husak's sixth constraint demands that criminal prohibitions advance directly, not indirectly, whatever legitimate objectives at which they aim.

(19) Ibid., 151 (italics added).

(20) Ibid.

(21) Ibid., 152.

(22) Ibid., 153.

(23) Ibid., 140.

(24) Ibid.

(25) Ibid., 138.

(26) Ibid.

(27) Ibid., 138-39.

(28) Armin Meiwes advertised on the internet on a website called "The Cannibal Cafe" that he was looking for "a well-built 18-30 year old to be killed and then consumed." Bernd Jurgen Brandes, who was known for an interest in bodily mutilation, answered the advertisement. As was revealed in a videotape that the two men made of their encounter, Meiwes amputated Brandes's penis after Brandes tried but failed to bite it off. After mutually experimenting with its raw consumption, Meiwes and Brandes sauteed it with butter and garlic, and thereafter, Meiwes read a book for three hours while Brandes lay bleeding in an increasingly weakened state in Meiwes's bathtub. Meiwes finally brought Brandes's death to a close by stabbing him in the throat, and he then hung Brandes's body on a meat hook and tore it into chunks which he then froze. Over the following ten months, Meiwes then consumed over 20 kg of Brandes's body, and was caught and convicted of manslaughter only after he advertised the killing in an effort to attract another willing victim. On appeal, a retrial was ordered and he was thereafter convicted of murder and sentenced to life in prison.

(29) Husak, Overcriminalization, 151.

(30) Ibid., 152.

(31) Ibid., 151-52.

(32) John Kleinig, "Paternalism and Human Dignity," Criminal Law and Philosophy (forthcoming). Page references are to the manuscript in the author's possession. A German version of the paper will appear first in Paternalism in Criminal Law, ed. Andrew von Hirsch and Ulfrid Neumann (Baden-Baden: Nomos Verlagsgesellschaft, 2009).

(33) Ibid. 11.

(34) Ibid. 5.

(35) Ibid. 11.

(36) Ibid. 14.

(37) Ibid. 13.

(38) Ibid. 6.

(39) Ibid. 12 (discussing R. v. Brown, 2 All ER 75 (1993), a case in which a group of homosexuals periodically indulged in and videotaped sadomasochistic practices that were injurious, but not seriously so).

(40) Ibid., 13.

(41) Ibid.,

(42) Ibid., 1.

(43) Ibid., 15.

(44) This analysis draws heavily on, and at points replicates arguments from, my earlier article, Heidi M. Hurd, "Liberty in Law," Law and Philosophy 21 (2002): 385-465. I refer readers throughout this section to the specific segments of that other work from which I borrow.

(45) Jean-Paul Sartre, "Existentialism is a Humanism," in Existentialism Versus Marxism, ed. George Novack (New York: Dell Publishing, 1966), 70-84, 81.

(46) First, for, example, such liberties must surely be puzzling both to consequentialists and to deontologists who conceive of agent-relative duties and permissions as exemptions from a general duty to maximize the good. For these theorists, all choices (or at least those that are not subject to deontological constraints) are properly judged by their consequences. According to such a view, morality is never silent and practical reason is never without work. Second, though a moral liberty (of a sort analogous to a Hohfeldian legal liberty) allows one to act with moral impunity, it cannot make wrong others' interference with one's actions. If citizens have Hohfeldian-style moral liberties, then, necessarily, the state can have no moral objection to their exercise of such liberties; but simultaneously, if all that citizens have are Hohfeldian-style liberties, then citizens have nothing that makes wrong the state's interference. For a more detailed discussion of moral silences and their spare promise for a theory of legislation, see Hurd, "Liberty in Law," 393-97. See also Wesley Newcomb Hohfeld, Fundamental Legal Conceptions, ed. W.W. Cook (New Haven, CT: Yale University Press, 1919), 39.

(47) John Finnis, Natural Law and Natural Rights (Oxford, UK: Clarendon Press, 1987), 93-94.

(48) For a more sustained analysis of the problems generated by postulating agent-relative reasons for action, see Hurd, "Liberty in Law," 408-13, discussing the concept of "moral individualism."

(49) For example, imperfect duties, conceived of in both Millian and Kantian terms, themselves permit choice concerning their fulfillment. And some who defend threshold deontology believe that when the threshold is crossed, one is "beyond morality." For lengthy discussion of these sources of freedom, see Ibid., 405-8, 413-18.

(50) Lon Fuller, The Morality of Law, 2d ed. (New Haven, CT: Yale University Press, 1969), 33-94.

(51) Deontic duties concern actions or omissions. Aretaic duties concern traits of character. A perfect deontic duty concerns an action or omission required (or prohibited) at a razor point in time. Perfect deontic duties are to be contrasted with what are often called "imperfect duties," which (like the duty of charity) permit substantial discretion concerning the terms of their fulfillment, but which similarly take actions as their objects. In contrast to perfect and imperfect duties, aretaic duties concern dispositions to act or dispositions to possess certain ends. Put differently, the objects of aretaic duties are traits of character--enduring dispositions that cumulatively define what sort of person a person is. In my view, we are subject both to obligations that compel certain actions or omissions and to obligations that compel us to be or become persons of certain character. We have obligations to be kind, to be generous in judgment, to be forgiving of others, to be steady of temperament, to be honest, to be courageous, and so forth. These obligations cannot be collapsed into or reduced to deontic obligations, because one can both be scrupulous in doing the right thing without being a person of good character (think of Javier in Les Miserables), and one can be a person of quite laudable character who at least sometimes, and perhaps often, fails to act rightly (think of the judge who indulges mercy too frequently, and therefore frequently fails to give offenders their just deserts). For an extended discussion of how suberogatory actions that are, ex hypothesi, matters of deontic right take their blameworthiness from an aretaic theory that postulates that we have obligations of character that require us to become the sorts of persons who would not suberogate, see Heidi M. Hurd, "Duties Beyond the Call of Duty," Annual Review of Law and Ethics 6 (2001): 1-39.

(52) See Husak, Overcriminalization, 147-48 (discussing empirical support for the "forbidden fruit phenomenon" by which the attractiveness of an activity is increased by its prohibition).

(53) For an extensive defense of this view, see Joseph Raz, The Morality of Freedom (Oxford, UK: Clarendon Press, 1986), 369-99; Joseph Raz, "Liberalism, Skepticism, and Democracy," Iowa Law Review 74 (1989): 7.


Heidi M. Hurd, author of Moral Combat (1999), is David C. Baum Professor of Law and Philosophy, University of Illinois, Champaign. Email:
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Title Annotation:SYMPOSIUM
Author:Hurd, Heidi M.
Publication:Criminal Justice Ethics
Article Type:Critical essay
Geographic Code:1USA
Date:May 1, 2009
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