Criminal Law and Penal Law
The Wrongness Constraint and a Complementary Forfeiture Model
By Alec Walen
Rutgers University
(Draft: Do not cite without permission)
I. Introduction
What makes law criminal law? What, in particular, distinguishes it from mere
regulations to which a penalty might be attached? Antony Duff argues that the relevant
difference is this: “criminal law should be concerned with culpable wrongdoing: not merely with
the violation of legal regulations, but with moral wrongdoing that merits condemnation or
censure.” (18-19)1 I think this is deeply right. I think it is a deep mistake to treat criminal law as
merely a tool that can be used whenever it would serve any of the purposes often associated
with the criminal law: deterrence of unwanted behavior, incapacitation of the dangerous,
rehabilitation of those with anti-social tendencies, or vindication of the rights of victims. Even if
one or more of these purposes would be served, it would be morally wrong in all but the most
extreme emergencies for a judge or juror to vote to convict someone of a crime if she knew
that the defendant had not committed it. Additionally, the general availability of defenses in
the form of justifications and excuses shows that the criminal law generally presumes that it
would be wrong to convict defendants if they are not culpable for committing the crimes with
which they are charged. Of course, the criminal law contains strict liability offenses and some
1
All pages in brackets are to The Realm of Criminal Law (Oxford: Oxford University Press, 2018).
,morally dubious limits on defenses. But Duff’s point is that the task of the theorist of criminal
law is not simply to account for the law as it is; it is to give a normatively attractive
reconstruction of how it ought to be.2 A proper normative reconstruction of the criminal law—
one that presents it as an institution “whose proper role in a political community we can then
usefully discuss” (13)—would distinguish as “quasi-crimes” those “offenses that are formally
part of the criminal law, but that cannot plausibly be seen or described as censure-worthy
wrongs.”3 (19)
Why take condemnation for culpable wrongdoing, and in particular the commission of
public wrongs—moral wrongs that the public can take to be part of its “collective business as a
polity” (278)—to be essential to the criminal law? I already mentioned the importance of the
defenses of justification and excuse. Duff adds that this connection also allows us to make
sense of:
why we should object so strongly … to statutes that impose strict criminal liability,
understood as liability without fault; or to statutes criminalizing conduct that cannot
plausibly be portrayed as wrong: the reason is not (only) that people are then subjected
2
Importantly, what Duff offers is a normative argument, not an appeal to a “definitional stop.” See H.L.A. Hart,
Punishment and Responsibility: Essays in the Philosophy of Law, 2nd edition (Oxford, Oxford University Press,
2008): p. 5.
3
Duff’s use of “quasi-crime” is different from the use in U.S. law, according to which “one can loosely group quasi-
criminality into two major categories. The first, where use of the term originated, involves proceedings
characterized by adjunctive criminal prosecution, either real or threatened [e.g., civil forfeiture in association with
criminal activity]. The second lacks any corresponding criminal charges but presents nonetheless significant
infringement of personal freedoms, often accompanied by reputational stigma [e.g., loss of license to practice
law].” John Kip Cornwell, “The Quasi-Criminality Revolution,” UMKC L. Rev. 85 (2017): 311-341, p. 313.
2
, to the prospect of material burdens that they had no fair opportunity to avoid, but that
they are unjustly portrayed and censured as wrongdoers. (19)
Or as he puts it later, when discussing the deterrence function of the criminal law:
the legitimacy of deterrence depends on there already being sufficient, non-deterrent,
normative reasons for us not to do what the law seeks to deter us from doing: if the
criminal law is to have more normative authority than the gunman who coerces us to
act as he wishes, what it seeks to deter us from must be something that we anyway,
independently of its deterrent threats, have good normative reason not to do. (23)
Of course, if one accepts this connection between criminalization and culpable
wrongdoing, one needs an account of why mala prohibita—crimes that concern behavior that is
not pre-legally wrong—concern the kinds of moral wrongs that merit condemnation or censure.
But Duff offers a three-step account of those wrongs that I also think is deeply right:
The first step … is to show that we have good reason to create a legal regulation that
prohibits or requires a type of conduct; the second step is to show that, once such a
regulation has been enacted, we ought to obey it; the conclusion is that the breach of
such a regulation then constitutes a public wrong, which we have reason to criminalize…
[or] to which criminalization is a potentially appropriate response. (313)
3
The Wrongness Constraint and a Complementary Forfeiture Model
By Alec Walen
Rutgers University
(Draft: Do not cite without permission)
I. Introduction
What makes law criminal law? What, in particular, distinguishes it from mere
regulations to which a penalty might be attached? Antony Duff argues that the relevant
difference is this: “criminal law should be concerned with culpable wrongdoing: not merely with
the violation of legal regulations, but with moral wrongdoing that merits condemnation or
censure.” (18-19)1 I think this is deeply right. I think it is a deep mistake to treat criminal law as
merely a tool that can be used whenever it would serve any of the purposes often associated
with the criminal law: deterrence of unwanted behavior, incapacitation of the dangerous,
rehabilitation of those with anti-social tendencies, or vindication of the rights of victims. Even if
one or more of these purposes would be served, it would be morally wrong in all but the most
extreme emergencies for a judge or juror to vote to convict someone of a crime if she knew
that the defendant had not committed it. Additionally, the general availability of defenses in
the form of justifications and excuses shows that the criminal law generally presumes that it
would be wrong to convict defendants if they are not culpable for committing the crimes with
which they are charged. Of course, the criminal law contains strict liability offenses and some
1
All pages in brackets are to The Realm of Criminal Law (Oxford: Oxford University Press, 2018).
,morally dubious limits on defenses. But Duff’s point is that the task of the theorist of criminal
law is not simply to account for the law as it is; it is to give a normatively attractive
reconstruction of how it ought to be.2 A proper normative reconstruction of the criminal law—
one that presents it as an institution “whose proper role in a political community we can then
usefully discuss” (13)—would distinguish as “quasi-crimes” those “offenses that are formally
part of the criminal law, but that cannot plausibly be seen or described as censure-worthy
wrongs.”3 (19)
Why take condemnation for culpable wrongdoing, and in particular the commission of
public wrongs—moral wrongs that the public can take to be part of its “collective business as a
polity” (278)—to be essential to the criminal law? I already mentioned the importance of the
defenses of justification and excuse. Duff adds that this connection also allows us to make
sense of:
why we should object so strongly … to statutes that impose strict criminal liability,
understood as liability without fault; or to statutes criminalizing conduct that cannot
plausibly be portrayed as wrong: the reason is not (only) that people are then subjected
2
Importantly, what Duff offers is a normative argument, not an appeal to a “definitional stop.” See H.L.A. Hart,
Punishment and Responsibility: Essays in the Philosophy of Law, 2nd edition (Oxford, Oxford University Press,
2008): p. 5.
3
Duff’s use of “quasi-crime” is different from the use in U.S. law, according to which “one can loosely group quasi-
criminality into two major categories. The first, where use of the term originated, involves proceedings
characterized by adjunctive criminal prosecution, either real or threatened [e.g., civil forfeiture in association with
criminal activity]. The second lacks any corresponding criminal charges but presents nonetheless significant
infringement of personal freedoms, often accompanied by reputational stigma [e.g., loss of license to practice
law].” John Kip Cornwell, “The Quasi-Criminality Revolution,” UMKC L. Rev. 85 (2017): 311-341, p. 313.
2
, to the prospect of material burdens that they had no fair opportunity to avoid, but that
they are unjustly portrayed and censured as wrongdoers. (19)
Or as he puts it later, when discussing the deterrence function of the criminal law:
the legitimacy of deterrence depends on there already being sufficient, non-deterrent,
normative reasons for us not to do what the law seeks to deter us from doing: if the
criminal law is to have more normative authority than the gunman who coerces us to
act as he wishes, what it seeks to deter us from must be something that we anyway,
independently of its deterrent threats, have good normative reason not to do. (23)
Of course, if one accepts this connection between criminalization and culpable
wrongdoing, one needs an account of why mala prohibita—crimes that concern behavior that is
not pre-legally wrong—concern the kinds of moral wrongs that merit condemnation or censure.
But Duff offers a three-step account of those wrongs that I also think is deeply right:
The first step … is to show that we have good reason to create a legal regulation that
prohibits or requires a type of conduct; the second step is to show that, once such a
regulation has been enacted, we ought to obey it; the conclusion is that the breach of
such a regulation then constitutes a public wrong, which we have reason to criminalize…
[or] to which criminalization is a potentially appropriate response. (313)
3
