Wrongness Constraint

Simester and von Hirsch discuss when the criminal law is justified in criminalizing a certain conduct. They see criminal law as a coercive system that serves out censorious hard treatment. Because the state condemns criminals, then the criminalized conduct should actually constitute a wrong or else the state would be falsely defaming an individual. The authors provide to reasons why the state should only criminalize wrongful conduct. First, criminalizing conduct that is not wrongful would conflict with the state’s interest in creating a credible criminal law system. Second, regarding the rights of the citizens, they have a right that something not occur if they do not deserve it. Therefore, it would be morally wrong for the state to criminalize conduct that is not wrongful.

The authors also provide three theses pertaining to a wrongness constraint:

The first two theses state that wrongfulness is a necessary but insufficient condition to justify criminalization of a particular conduct. Many agree that wrongfulness is insufficient to justify criminalization, but there exists disagreement over whether wrongfulness is a necessary condition. The non-qualifying thesis states that wrongness is not even necessarily a reason for criminalization, meaning that some conducts may be wrongful but still should not be criminalized. Simester and von Hirsch adhere to this line of thinking as they believe the state can only legitimately intervene when a certain conduct directly or indirectly affects people’s lives, and the state would intervene on the grounds of preventing harm. Simester and von Hirsch view the state as an instrumental actor with the purpose of advancing the welfare of its subjects, which is why they believe the state should only intervene to promote its subjects’ welfare.

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