In Harms, Wrongs, and Crimes, Simester and von Hirsch set out to identify when exactly the criminal law should be applied. This is of utmost importance due to the fact that the criminal law is a moral voice, one that is both a condemnatory response by the state as well as a coercive system that attempts to regulate the behavior of people (Simester and von Hirsch, 19).
Because of this, when the state criminalizes behavior, thus identifying those who commit the criminalized behavior as wrongdoers, it is important for the state’s identification to be correct. As is apparent to most people, only those who actually have committed a crime should be convicted of it and only those who are rightfully convicted should be punished.
For Simester and von Hirsch, wrongness — whether in the form of culpably harming someone, creating unwarranted risks of injury, or flouting important communal obligations — must be present in an action in order for it to be criminalized (20). However, while wrongness is a necessary condition, it is not by itself a sufficient cause for criminalization. While wrongness may establish a prima facie case for criminalization, other negative constraints must be overcome and questions about the ability of criminalization to adequately control the action must be answered (22).
After a discussion of the differences between wrongness and culpability, Simester and von Hirsch turn to offenses that are mala prohibita rather than mala in se. The former refers to conduct that is only wrong because of a statute prohibiting it — not because it is wrong or bad in and of itself, whereas the latter refers to conduct that is wrong in itself. The authors believe that these statutes, while not criminalizing actions that are wrong in and of themselves, nevertheless criminalize wrongs because the state does have the moral authority to create moral reasons in support of criminalization (25). If those reasons are good and justified, then the state, in effect, can create (or identify) wrongful behavior.
In the end of the chapter, the authors finally discuss the constraint that they believe should accompany the wrongness principle — a harm-based constraint, which is desirable since the starting point of the justification of criminalization is not wrongness, but rather, the lives of people (29–30).
On the other hand, Cornford, in Rethinking the Wrongness Constraint on Criminalisation, thinks we should do just that — rethink the wrongness constraint that so many people blindly accept. To clarify, Cornford thinks that the wrongness constraint is presumptively correct, but that there may be significant countervailing reasons not to adhere to the constraint in certain situations (615).
He begins by explaining the wrongness constraint, often quoting Simester and von Hirsch, which does not need to be explained again here. Cornford, too, does not take lightly the fact that criminalization is serious and has major repercussions for those convicted of crimes. He also explains the difference between actual guilt and criminal guilt, noting how it is possible to be convicted of criminal guilt (either by pleading guilty or being found guilty beyond reasonable doubt) without actually being guilty. Of course, it seems unjust that someone should be found guilty of a crime they did not actually commit and be subjected to the infringement of their rights by the criminal justice system if they did not actually do anything wrong (619).
Interestingly, Cornford spends quite some time explaining justifications for the wrongness constraint, the very thing he wants to ultimately argue against. He justifies the constraint primarily through three arguments — 1) The Argument from Facilitation, 2) The Argument from Coercion, and 3) The Argument from Communication (625–633).
Following this, he goes on to explain why criminalizing non-wrongful conduct might be sometimes permissible. First, criminalizing non-wrongful conduct is only presumptively impermissible — there will always be mistakes in applying the law, laws that are too generally written or that are otherwise over-inclusive (634). And second, justifiably criminalizing non-wrongful conduct can be legitimate, as demonstrated by the example he provides of age-of-consent crimes (640).
What is interesting here is that where Simester and von Hirsch would have identified the criminalization of age-of-consent crimes (ones that were originally not wrong and did not involve exploitation, etc.) as something that made them wrong just by virtue of the powers vested in the state and thus still within the constraints of the wrongness principle, Cornford sees it very differently. Cornford believes that the non-exploitative actions do not become wrong when criminalized, but they are an exception to the presumptive view that non-wrong actions should not be criminalized. In fact, Cornford argues strongly against the arguments of Simester and von Hirsch, noting that just because justifiable criminalization can make something wrong, it doesn’t necessarily do so (644). Therefore, Cornford concludes, “…we can grant that legislators may sometimes depart from the wrongness constraint. But they must nevertheless have good reasons for doing so (648).
Cornford, Andrew (2017). Rethinking the Wrongness Constraint on Criminalisation. Law and Philosophy, 36:615–649. Retrieved September 29, 2020, from http://doi.org/10.1007/s10982-017-9299-z.
Simester, A.P. and von Hirsch, A. (2011) Crimes, Harms, and Wrongs. Hart Publishing, 615–648.