On the Wrongfulness Constraint

It is commonly agreed that in order to constitute an action as criminalizable and thus punishable, the action must be considered morally wrongful. This limitation on criminalization is called the wrongfulness or wrongness constraint. In “Rethinking the Wrongfulness Constraint on Criminalisation,” Andrew Cornford clearly outlines the arguments for the wrongfulness constraint. He then turns these arguments on their head by using them to prove that there are situations in which criminalizing non-wrongful conduct could be reasonable. In this discussion I outline both parts of Cornford’s essay and then I consider how effective principles of determining whether something ought to be criminalizable can be in actually addressing injustice at the hands of the state.

The general argument for the wrongfulness constraint is that the state is committing a wrong, morally speaking, when condemning and punishing individuals. In order to justify the states impermissible behavior, the state must only condemn wrongful conduct. This means that when the state criminalizes non-wrongful behavior, they are undesirably able to perform unjustified immoral behavior (Cornford, 621–622). Cornford breaks down the argument for the wrongfulness constraint by focusing on three different ways that criminalizing behavior intends to interfere with the liberty of individuals and thus do wrong. These arguments demonstrate that there needs to be morally based reasons for the state to act immorally or the state can inflict serious morally unjustified harm (Cornford, 621).

The first argument is that criminalizing behavior procures or facilitates the harm, often very serious life-changing harm, of criminal offenders through condemnation and punishment (Cornford, 622). The wrongness of the punishment must be based on the wrongness of the conduct (Cornford, 623). It follows that the state is not justified in facilitating the punishment people that have not done anything wrong and thus should not be able to criminalize non-wrongful behavior (Cornford, 625). The second argument is that criminalizing behavior is coercive (Cornford, 625). By issuing coercive threats, the state impedes on citizens’ right to choose to engage in criminal behavior. According to principles of morality and liberty, people should be able to choose to engage in non-wrongful behavior. Criminalizing non-wrongful behavior is thus immoral because it impedes on a persons liberty to act in ways they ought to be able to (Cornford, 626). The third argument is that by criminalizing an action the state is portraying that conduct as morally wrong which is evident from the general nature of criminal law being considered a moral duty and the way institutions value moral judgement (Cornford, 630–631). Portraying conduct as morally wrong when it is not is deceptive and like coercion affects citizens ability to choose to participate in behavior they ought to be able to participate in and undermines the value of criminal law (Cornford, 632).

From these arguments, one may conclude that it is impermissible for the state to criminalize conduct that is not-wrongful. Cornford challenges this conclusion by demonstrating that there are two ways for something to be impermissible (633). The first type is “impermissible, all things considered” which means that there are decisive, absolute reasons not to do something. The second type of impermissible conduct is “presumptively impermissible” where there are good reasons to not do something but sometimes a strong case can be made to do it (Cornford, 633). Cornford argues that criminalizing non-wrongful behavior is presumptively impermissible so there can sometimes be a good case to criminalize non-wrongful conduct. He argues this first by showing that the normative principles he outlined as reasons for the wrongfulness constraint — facilitation, coercion, and communication — are presumptively impermissible. If these immoral behaviors of the state were impermissible all things considered, criminalization would never be permissible (Cornford, 634). Because reasons for the wrongfulness constraint cannot be plausibly understood in the impermissible, all things considered sense, then we must understand the wrongfulness constraint as something that can reasonably be violated.

To support the logical move Cornford made suggesting that there may be good reason to criminalize some non-wrongful actions, he talks about specific situations that undermine the necessity of the wrongfulness constraint (639). He talks about “over-inclusive crimes,” or laws that criminalize non-wrongful conduct to target a potential underlying wrong (639). An example is the crime of sexual activity with a minor (Cornford, 639). While there are cases where it may be permissible to have sex with a minor, the existence of the over-inclusive crime can help actors and courts determine the most efficient and sound mode of conduct and also enhance the potential of the law to prevent the actual wrongdoing (Cornford, 640).

I found this paper to be very interesting because it demonstrates how a constraint on what should be criminalizable can be shown to be invalid. I think it demonstrates that, in general, principle based constraints on criminalization struggle to be sound and complete. The principle based constraints tend to always prove to be useful because they challenge injustice done on behalf of the state. However, the inability for a lot of these principles to be consistent in and of themselves, like how the wrongfulness constraint was shown to be able to be broken by its own reasons, demonstrates the general problematic nature of these constraints abilities to actually challenge injustice done on behalf of the state. Perhaps, a promising approach on injustice should try to argue not on principles that could ground justice while maintaining the integrity of the criminal justice system but instead argue for and create principles of justice despite the criminal justice system. Proposals from this new approach are likely not to fail in and of themselves because they are not focused on maintaining the system they are critiquing. For example, a principle saying that criminalization is not permissible on the grounds that it continues the disenfranchisement of black people from slavery challenges notions of immorality in law while being open to dismissing law itself. These approaches, though maybe more concerned with the practical and social aspects of law and punishment than the philosophical and pure aspects of law, might prove to be stronger and more able to challenge system based oppression.

Cornford, Andrew. “Rethinking the Wrongness Constraint on Criminalisation.” Law and Philosophy, vol. 36, no. 6, 2017, pp. 615–49. Crossref, doi:10.1007/s10982–017–9299-z.