Wrongfulness and Reasons by Simester and Hirsch and Rethinking the Wrongness Constraint by Cornford
In the joint work of Simester and Hirsch, they both explain and defend a type of wrongfulness principle, which states that “Conduct is deemed through its criminalization to be, and is subsequently punished as, wrongful behavior that warrants blame” (Simester and Hirsch 19). This should be the ideal and the state should always work to uphold this purpose. However, there are many instances where citizens are criminalized for seemingly not wrongful deeds such as mala prohibita offenses such as speeding, illegally turning right at a stop light, or even downloading a movie from the internet for free. Though there aren’t necessarily any moral reasons to do these things in themselves, Simester and Hirsch claim that when non wrongful things are made into a law they can sometimes be automatically made into a moral issue should someone break it (20). Though this does not mean that the state is a legitimate author of morality, “the state can contribute to the creation of moral reasons” (Simester and Hirsch 25).
There is a legitimate case to be made for non wrongful deeds to be criminalized. It bases itself on the fact that the state must have substantial reasons to make a law into a law and those reasons must be sufficient. For example, Simester and Hirsch mention on page 28 of their book, the issue of over-inclusive laws which criminalizes “a wider range of conduct than is required by the reasons motivating the prohibition.” This wider range includes wrongful conduct and non wrongful conduct. Simester and Hirsch give the example of speeding — though speeding is not always wrongful or dangerous, it can be, so the law includes all degrees of speeding and qualifies it as recklessness even though that might not be the case. Thus, speeding and other non wrongful (necessarily wrongful) actions can be justified simply because the government outlaws it.
Cornford, on the other hand, categorically opposes the wrongness restraint and approaches the subject of criminalization and the features which make criminalization legitimate more broadly. Cornford suggests that cases of over inclusion (for example, speeding as Simester and Hirsch talked about) are probably valid in consideration of a the overarching reasons behind the criminalization of them (639). Similar to Simester and Hirsch, Cornford says that “over-inclusion in crimes… can serve valid goals” (640). Here he is specifically talking about “over-inclusion” in laws pertaining to illegal sexual activities with minors.
I agree that this is probably safer, and therefore probably serves the goal of the legal system better by protecting more minors (and others in other cases such as speeding) despite the fact that it does go against the wrongfulness principle. Even though it goes against the wrongfulness principle, the legal system gains more moral legitimacy by adopting laws which are more effective at protecting the people. Considering both articles, and their differing — yet similar — perspectives on the wrongfulness principle, I think it is fair to say that for the sake of good reasons which are reasonable and sufficiently argued for, it is permissible to go beyond the wrongfulness principle and criminalize some things that are not wrong necessarily.
Cornford, Andrew (2017). Rethinking the Wrongness Constraint on Criminalization. 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.