To see how such a theory might generate constraints, consider W. One argument for that principle is the argument from conviction Simester and von Hirsch , 19—20 :. One response to these arguments is that criminal law does not always censure or stigmatize. Another is that the arguments rely on priority claims that cannot be sustained. The argument from conviction depends on our accepting that moral defamation cannot be justified. The argument from punishment depends on our accepting that those who do not act wrongly have an absolute right not to be punished.
These claims may be too strong. To test the second, think again about possession of guns. Imagine that we criminalize possession, and that we have good reason to think that we can thereby save many lives. It is plausible to think not.
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This would likely result in some lives being lost. The fact that not punishing safe possessors would probably have this effect is a good reason to think that safe possessors lack a valid complaint if they are punished. It is a good reason to think that it sometimes is permissible to punish the morally innocent. If it is, premise 3 of the argument from punishment is false Tadros , — Now consider HPP. Whatever one thinks of this means of prevention, it is not the means we utilize when we make use of criminal law. Absent perfect compliance, criminal law prevents wrongs by publicly making accusations, condemning people as wrongdoers, and punishing them for their wrongs.
Public accusations often stick even if nothing comes of them. Punishment is harmful by its very nature.
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Some claim that we can justify causing such harm—at least when the state does the harming—only if this is a necessary and proportionate means of preventing people being harmed. So it is impermissible to criminalize when this condition is not satisfied. One might reply that the harm internal to justified punishment is harm we lack reason not to impose. Leaving this aside, it is far from obvious that harm has lexical priority over other values.
The above argument for HPP seems to depend on this claim. But there is wrongdoing that is both serious and harmless.
It is plausible to think that the value of preventing such wrongs, even when this does not prevent harm, is at least sometimes capable of justifying the harm done by criminalization Tadros , — A second defence of constraints proceeds from within non-ideal theory : from our account of what should be done when some people will not act as they should. One might say that all criminal law theory is part of non-ideal theory—that we have reason to have criminal law precisely because people will otherwise act wrongly. Be that as it may.
As well as fallible agents who would otherwise commit crimes, there are fallible agents who make, apply, and enforce criminal laws. Any non-ideal theory must also take account of the errors the latter are disposed to make. Some are errors of application and enforcement—errors made when police officers arrest, prosecutors charge, and courts punish the innocent.
More important for present purposes are the errors law-makers are disposed to make when creating crimes. These errors matter here for the following reason. If followed, speed limits prevent some drivers from driving in ways that are impeccable in isolation. Let us grant that, when followed, constraints like W or HPP prevent some law-makers from criminalizing in ways that are impeccable in isolation.
Many defenders of HPP offer defences that proceed in the manner just described.http://leondumoulin.nl/language/classic/executive-protection.php
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One error is that of underestimating the value in lives very different from our own: of mistaking the virtues required to succeed in those lives for vices, and of concluding that these supposed vices ought to be suppressed Raz , —; Gardner , — A second error is that of underestimating the value of toleration. That value includes making space for experiments in living, which both help combat prejudice by exposing people to the unfamiliar, and help people develop deliberative faculties by exposing them to that with which they disagree Mill ; Brink If the main effects of criminalizing drug use are felt in communities the affluent shun, it is not hard to see how law-makers could be blind to the amount of damage criminalization does.
Law-makers who make each of these errors will be tempted to create criminal laws that are anything but impeccable—laws designed to suppress activities the value in which has been missed, which do much more harm than their designers anticipated. The case for HPP is that it stands in the way of this temptation. Those who follow it must tolerate conduct—however offensive or immoral they deem it to be—unless they can show that criminalization is a necessary and proportionate means of preventing harm.
Harm-based arguments are nowadays ubiquitous when proposed criminal laws are discussed. Some think this shows that HPP is no constraint at all Harcourt But it is no surprise that those who merely pay lip service to a principle are not constrained by it. The argument of the previous paragraph was an argument that HPP should be followed. To follow that principle is to take seriously the need for an empirical showing—grounded in adequate evidence—that a given law is necessary to prevent a proportionate amount of harm.
A better objection is that the error-based argument is incomplete. How widespread would error be if law-makers took themselves to be free of HPP? When are the benefits of following HPP —in errors prevented—worth the costs—in otherwise impeccable criminal laws?
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Might there be some other rule that brings us those benefits at a lower cost than HPP? We need answers to all these questions, and more, to know if an argument from within non-ideal theory can support HPP Tadros , 94— A number of other possible constraints on the criminal law have been proposed Dan-Cohen , —; Ripstein As mentioned earlier, some are skeptical of all such principles. The correct response to this skepticism remains unclear. One possibility is that a defensible general line can indeed be found. The question is where the line is, and how it is to be defended against objections like those sketched above.
If so, we must ask what shape that theory ought to take, and how lofty should be the ambitions of those who construct it. Elements of offences that require particular mental states are known as mens rea elements. Other elements are known as actus reus elements.
Responsibility is understood here as answerability Duff , 19— While we are answerable to the courts for committing offences, we may avoid liability by offering satisfactory answers in the form of defences. This account of criminal responsibility—call it the answerability account —relies on a distinction between offence and defence to which we will return. One argument for the answerability account invokes rules of criminal procedure and evidence.
The best explanation of these rules, so the argument goes, is that offending acts generate a duty to answer that is otherwise absent. Some think that, on closer inspection, our rules of procedure and evidence fail to support the answerability account, and help to undermine it. This matters here for the following reason.
It suggests that we owe the criminal courts answers not for acts that are offences but for acts that are crimes —for offending acts which do not satisfy an available defence. Obviously enough, it is for crimes that we are criminally liable. If responsibility is answerability, and we are answerable for crimes, the conditions of criminal responsibility and the conditions of criminal liability are one and the same.
What should these conditions be? There has been much discussion of the mens rea principle MR :. Standard mens rea requirements include intention and recklessness.
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Whether criminal responsibility should require mens rea , and what mens rea it should require, both depend on the reasons we have to accept MR. Perhaps the most familiar defence appeals to the culpability principle C :. Culpability, as that term is used here, is a moral notion. It is synonymous with moral fault or moral blameworthiness.
Mens rea is not sufficient for culpability—even intentional killings are sometimes excused. But it may well be necessary—culpability may presuppose at least some element of mens rea Simester ; cf. Gardner , — If this is so, the debate shifts to whether we should accept C. One worry about this principle is its generality.
The consequences of criminal liability are not always especially burdensome. And the benefits of liability without culpability may be especially significant. To take but one example, think of regulations that govern the activities of corporations, and which protect the health and safety of the public at large. Making it a criminal offence to violate these regulations, and imposing hefty fines, need have none of the destructive effects of imprisoning individuals.
Dispensing with culpability requirements may increase the deterrent effects of the law, by making it harder for violators to escape conviction. Whether C is sound depends on whether effects like these—which, ex hypothesi , protect the health and safety of many—can justify imposing criminal liability without culpability. That C may admit of exceptions does not, of course, show that C is not generally sound.
I suggested above that, where C does apply, it entails MR. How much mens rea C requires is a further question. Take the offence of causing death by dangerous driving. The idea that each actus reus element should have a corresponding mens rea element is known as the correspondence principle Ashworth Whether C in fact supports that principle is a matter of debate.