Criminalization, Legitimacy, and Welfare

Authors

Dan Priel, Osgoode Hall Law School of York UniversityFollow

Author ORCID Identifier

Dan Priel: 0000-0002-8648-5760

Document Type

Article

Publication Date

11-9-2017

Source Publication

Criminal Law, Philosophy 12, 657–676 (2018). https://doi.org/10.1007/s11572-017-9451-8

Keywords

Criminal law; Criminalization; Legtimacy; Mala in se; Regulatory offenses

Abstract

A standard view about criminal law distinguishes between two kinds of offenses, “mala in se” and “mala prohibita.” This view also corresponds to a distinction between two bases for criminalization: certain acts should be criminalized because they are moral wrongs; other acts may be criminalized for the sake of promoting overall welfare. This paper aims to show two things: first, that allowing for criminalization for the sake of promoting welfare renders the category of wrongfulness crimes largely redundant. Second, and more importantly, accepting welfare as a legitimate ground for criminalization implies a certain view about legitimate state action, which makes criminalization for wrongfulness more difficult to justify. If I am right, the view that keeps the two categories of criminalization as largely separate is untenable. I conclude with some remarks about the advantages of welfare (and not wrongfulness) as the basis for criminalization.

Repository Citation

Priel, Dan, "Criminalization, Legitimacy, and Welfare" (2017). Articles & Book Chapters. 3362.
https://digitalcommons.osgoode.yorku.ca/scholarly_works/3362