Rethinking the Wrongness Constraint on Criminalisation
rare doubters tend not to challenge the principle itself, but rather to raise questions about its substantive content
and implications. See e.g. A. du Bois-Pedian, 'The Wrongfulness Constraint in Criminalisation', Criminal Law
0 See also J. Feinberg, 'The Expressive Function of Punishment' , The Monist 49 (1965): 397-423; I. Primoratz, 'Punishment as Language', Philosophy 64 (1989): 187-205
1 Most notably and obviously, in decisions about employment. But criminal records can also be harmful in many less obvious ways. For a comprehensive study (primarily from an American per- spective) , see J.B. Jacobs , The Eternal Criminal Record (Cambridge, MA: Harvard University Press , 2015)
2 School of Law, University of Edinburgh, Old College , South Bridge, Edinburgh, EH8 9YL , UK
wrongness constraint; that is; that conduct may be criminalised only if it is wrongful; This
especially important role in determining the proper scope of the
criminal law. Thus, one leading work on the subject says that the
wrongness constraint is ‘implicitly assumed in debates about
criminalisation’,2 while another describes it as the proper ‘starting point’ for such
debates.3 Despite this widespread endorsement, however, the case for
the wrongness constraint has never been examined in detail. This
should lead us to question whether the endorsement is deserved. What
are the supposed normative foundations of the wrongness constraint?
And how, if at all, do they support that principle?
The standard answer to these questions points to the criminal
law’s distinctive use of condemnation and punishment. Criminal
sanctions are condemnatory and punitive; thus, to criminalise
conduct is to subject it to potential condemnation and punishment.
Common sense suggests that we may only condemn and punish
those who have done something wrong – or, perhaps more to the
point, that we shouldn’t condemn and punish those who haven’t
done anything wrong. Seemingly, then, common sense demands
that only wrongful conduct may be criminalised. For many people,
this attractively simple line of argument is all we need to establish
the wrongness constraint. As Antony Duff writes, for example:
What is distinctive about criminal law is that it inflicts not just penalties, but
punishments – impositions that convey a message of censure or condemnation;
the convictions that precede punishment are not mere neutral findings of fact, that
this defendant breached this legal rule, but normative judgments that this
defendant committed a culpable wrong. The criminal law portrays crimes as wrongs; if
it is to be truthful, it must therefore define conduct as criminal only if that conduct
is, pre-criminally, wrongful.4
And as Andrew Simester and Andreas von Hirsch put it:
[T]he criminal law is distinctive because of its moral voice. It removes specified
activities from the permissible and punishes individuals who venture or stray into
its realm. It is a complex, authoritative, censuring device. Conduct is deemed
through its criminalisation to be, and is subsequently punished as, wrongful
behaviour that warrants blame. This official moral condemnation of activity and
actor generates a truth-constraint. When labelling conduct as wrongful, and when
labelling those it convicts as culpable wrongdoers, the state should get it right.5
2 Duff, Answering for Crime (n. 1), p. 81.
3 Simester and von Hirsch, Crimes, Harms, and Wrongs (n. 1), pp. 20–22.
4 R.A. Duff, ‘Towards a Modest Legal Moralism’, Criminal Law and Philosophy 8 (2014): 217–235,
5 Simester and von Hirsch, Crimes, Harms, and Wrongs (n. 1), p. 19; emphasis in original.
Or, in the more succinct words of Victor Tadros:
Two of the central functions of criminal law are condemnation and punishment of
offenders. But condemnation and punishment are justified only if the person has
done wrong. Therefore, it is wrong to criminalize conduct that is not wrong. To
do so would be to warrant condemnation and punishment of conduct that is not
At its simplest, then, the case for the wrongness constraint can be
reduced to two claims. The first is a claim about the nature of
criminalisation. As Tadros puts it: To criminalise conduct is to
warrant the condemnation and punishment of that conduct. The
second is a normative claim about condemnation and punishment:
Legislators may warrant the condemnation and punishment of
conduct only if that conduct is wrongful.
In this article, I assess this case for a wrongness constraint on
criminalisation. I begin in Section II by clarifying the first of the two
claims just identified: that to criminalise conduct is to warrant its
condemnation and punishment. In Section III, I then turn to the
second of these claims: that legislators may warrant the
condemnation and punishment of conduct only if that conduct is wrongful. I
examine three possible arguments for this view. These arguments
hold that to criminalise conduct is to facilitate its condemnation and
punishment; to coerce citizens against it; and to portray it as
wrongful. All of these actions are impermissible, the arguments hold,
when the conduct that they target is not wrongful. I conclude that
each of these arguments is plausibly sound. In all three cases,
criminalisation does involve an action of the relevant type, and that
action is plausibly impermissible when the conduct targeted is
nonwrongful. Therefore, to criminalise non-wrongful conduct is likewise
Ultimately, however, I conclude that the wrongness constraint is
false, at least as it is usually understood. In this context,
‘impermissible’ is best understood in its presumptive sense: Although there
are strong reasons against criminalising non-wrongful conduct, this
might yet be permissible, all things considered. In Section IV, I
explain why this is so. First, I argue that the normative principles
examined in Section III are best understood in this presumptive
6 Tadros, ‘Wrongness and Criminalization’ (n. 1), p. 165. Tadros himself concludes that the
wrongness constraint is probably a sound principle, although he has his doubts: ibid., p. 172.
sense: It is permissible to breach them, given sufficient
countervailing reasons. Second, I argue that there are realistic cases in which
legislators have such reasons. Specifically, some types of
over-inclusive criminalisation are probably justified, despite targeting
nonwrongful conduct. Thus, while legislators have strong reasons
against criminalising non-wrongful conduct, it is not the case that
conduct may be criminalised only if it is wrongful. We should
therefore rethink our commitment to the wrongness constraint.
Before we begin, a couple of quick clarifications. First, in the
context of the wrongness constraint, ‘wrongness’ simply means
moral wrongness. We could thus re-phrase the principle as follows:
Conduct may be criminalised only if, morally, we ought not to
engage in that conduct.7 Second, we must assume here that
criminality does not entail moral wrongness. The wrongness constraint is
meant to guide legislators; however, it cannot do so if making
conduct criminal necessarily makes it morally wrongful. Advocates
of the wrongness constraint must thus presume that citizens have no
general moral obligation to comply with the law. Of course, they
needn’t claim that criminalisation cannot affect moral wrongness:
Surely, conduct can sometimes become wrongful as a result of its
criminalisation. The point is that it doesn’t necessarily do so. In short,
the wrongness constraint requires moral wrongness, which is
presumed to be independent of criminal wrongness. I conclude in
Section V by revisiting this point in more detail.
II. CONDEMNATION, PUNISHMENT AND CRIMINALISATION:
CLARIFYING THE RELATIONSHIP
What does it mean to say that criminalisation ‘warrants’
condemnation and punishment? In short, this is to describe some of the legal
liabilities that criminalisation creates. By criminalising conduct,
legislators make citizens liable to be convicted and sentenced for that
conduct – liabilities that expose citizens to potential condemnation
and punishment. These liabilities are most easily understood in
terms of their correlative powers. Conviction and sentence are
7 Thus understood, the wrongness constraint doesn’t imply anything about what moral wrongness
consists in, or about what sub-set of moral wrongs the criminal law should target. It simply claims that
moral wrongness is a necessary condition for permissible criminalisation. On why the principle is best
understood in this way, see J. Edwards and A.P. Simester, ‘Wrongfulness and Prohibitions’, Criminal
Law and Philosophy 8 (2014): 171–186.
powers in the technical sense that their use changes citizens’ legal
position, including in relation to official condemnation and
punishment. Normally, citizens have legal rights against these things:
Officials are under legal duties not to condemn and punish citizens.
But conviction and sentence release officials from these duties:
Officials are permitted to condemn and punish offenders. Moreover,
these officials will often be legally obliged to exercise this permission,
because of the duties attached to their official roles. We can capture
this combination of permissions and duties by saying that officials are
authorised to condemn and punish offenders.
Courts authorise several forms of official condemnation and
punishment by convicting and sentencing citizens. Take conviction
first. Most obviously, a guilty verdict in a criminal trial is itself a form
of public condemnation. But more significantly, convictions go on
one’s criminal record. Arguably, criminal records have punitive as
well as condemnatory effects: For example, they permit others to
discriminate against one in ways that would otherwise be wrongful.8
Similar things are true of sentencing. Again, judges’ remarks when
passing sentence are often condemnatory in themselves. But more
importantly, sentencing offenders authorises their punishment. Once
offenders are sentenced, they may be treated in ways that they
would otherwise have rights against: For example, their property
may be confiscated, they may be restrained and locked away, or
forced into unpaid work. Finally, many think that punishment is
itself condemnatory. As Duff says, criminal punishments are not
mere penalties: They have an expressive, condemnatory dimension.9
In light of all this, conviction and sentence may each be seen as both
condemnatory and punitive in character.
Under what conditions may courts exercise these condemnatory
and punitive powers? The short answer is that criminal guilt is
typically both necessary and sufficient for conviction and sentence:
Courts may convict and sentence a defendant if and only if the
defendant is guilty of the crime alleged. Moreover, criminal guilt
usually obligates courts to exercise these powers: Courts have duties
to convict and sentence the guilty. Strictly speaking, this last
statement isn’t always true. Under some conditions, courts might be able
to grant guilty defendants a ‘sentence’ that is functionally identical to
an acquittal.10 Normally, however, criminal courts are both
permitted and obliged to convict and sentence guilty defendants. To say
that criminalisation ‘warrants’ condemnation and punishment is thus
It’s important to notice, however, that ‘guilt’ is used here in a
procedural sense. The powers to convict and sentence are not
conditional upon whether one has actually committed a crime; rather,
they are conditional upon guilt as established through the criminal
process. Such guilt can arise only in the context of criminal
proceedings and in only a limited number of ways. Put simply: The
defendant must either plead guilty to the relevant charge or be found
guilty beyond a reasonable doubt.11 This is not to say that actual
criminal conduct is irrelevant to the legitimacy of conviction and
sentence. To convict someone of a crime they didn’t commit is
clearly wrong, on some level.12 The point is rather that the legal
powers to convict and sentence are not conditional upon actual
criminal conduct. What matters to the legal permissibility of
conviction and sentence – what legitimises condemnation and
punishment in the eyes of the law – is criminal guilt, in the procedural
This point is important, because criminal guilt and actual criminal
conduct are logically independent: neither entails the other. Clearly,
criminal conduct isn’t sufficient for criminal guilt. For example, one’s
criminal conduct might never be detected, or one might benefit from
attrition in the criminal process. Perhaps less obviously – but as we’ll
see, more importantly for our purposes – neither is criminal conduct
necessary for criminal guilt. Clearly, one can plead guilty to a crime
10 In English law, for example, courts may sometimes grant guilty defendants an absolute discharge:
Powers of Criminal Courts (Sentencing) Act 2000, ss. 12 and 14. Roughly, a conviction followed by an
absolute discharge does not count as a conviction for any purposes beyond the immediate context of
the proceedings in which the offender is convicted.
11 This is arguably an over-simplification. Some informal sanctions for criminal conduct – such as
cautions and fixed penalty notices – might be seen as condemnatory and punitive in character, despite
not being conditional upon a plea or finding of guilt. For ease of exposition, I leave these complications
aside here. For discussion of the relative advantages and disadvantages of such informal sanctions, see
e.g. A. Ashworth and L. Zedner, ‘Defending the Criminal Law: Reflections on the Changing Character
of Crime, Procedure, and Sanctions’, Criminal Law and Philosophy 2 (2008): 21–51, pp. 24–28.
12 It might even be wrong on a legal level: for example, as a civil wrong for which one can claim
compensation. Thanks to an anonymous reviewer for pointing this out.
without having committed it.13 But one can also properly be found
guilty without having committed the crime alleged. This possibility
arises from the standard of proof in criminal trials. If the evidence
against one leaves no room for reasonable doubt, then one is legally
guilty. This holds even when a doubt that is unreasonable, from the
fact-finder’s perspective, in fact discloses the truth.14 Again, one is
legally liable to be convicted and sentenced in such cases, despite not
having committed a crime.
Informally, then, criminalising conduct can plausibly be described
as warranting the condemnation and punishment of that conduct.
However, it’s important to be clear about what this means. To
criminalise something is to give courts the power to convict and
sentence those who are guilty of it – along with a duty to exercise
these powers in most cases. Convicting and sentencing someone
means, among other things, permitting and obliging officials to
condemn and punish that person. For short, let’s describe conduct
that is subject to this kind of liability as punishable. To criminalise
conduct, let’s say, is to make it punishable in this sense. If the case for
the wrongness constraint is to succeed, one must therefore show
that conduct may be made punishable only if it is wrongful. Our task
in the rest of this article is to assess this claim.
III. THREE ARGUMENTS FOR THE WRONGNESS CONSTRAINT
Why might we think that conduct may be made punishable only if it
is wrongful? In this Section, I examine three possible answers to this
question. All three answers have a similar structure: By making
conduct punishable, legislators perform an action that is
impermissible when the conduct being targeted is not wrongful. Specifically,
to make conduct punishable is to facilitate its condemnation and
13 This is not a trivial risk: Modern criminal justice systems typically offer defendants numerous
powerful incentives to plead guilty. Sentence discounts for guilty pleas, alongside practices of plea,
charge, and fact bargaining, inevitably incentivise even innocent defendants to avoid going to trial. See
e.g. A. Ashworth and M. Redmayne, The Criminal Process, 4th ed. (Oxford: Oxford University Press,
2010), ch. 10; A. Sanders, R. Young and M. Burton, Criminal Justice, 4th ed. (Oxford: Oxford University
Press, 2010), ch. 8.
14 To see this, notice that the law itself sometimes gives content to the ‘reasonable doubt’ standard.
And on no conception of this content does ‘proved beyond reasonable doubt’ mean the same as ‘true’.
This is particularly obvious when the standard is made to depend on fact-finders’ mental states: for
example, on whether they are ‘sure’ that the defendant committed the crime alleged. But the point also
holds for other elaborations of the standard. For discussion of the various legal meanings of ‘reasonable
doubt’, see P. Roberts and A. Zuckerman, Criminal Evidence, 2nd ed. (Oxford: Oxford University Press,
2010), ch. 6.4.
punishment; to coerce citizens against it; and to portray it as
wrongful. All three arguments are plausibly sound. We thus have a
strong case for thinking that it’s impermissible to make
nonwrongful conduct punishable. To see why, let’s examine the
arguments in turn.
A. The Argument from Facilitation
The most obvious argument for the wrongness constraint points to
the permissibility of actual condemnation and punishment. Conduct
may be made punishable, we might think, only if we may actually
condemn and punish it; and conduct may be condemned and
punished only if it is wrongful.15 This argument relies on two normative
claims. The first is a claim about permissible condemnation and
punishment: one may condemn and punish others only for their
wrongful conduct. The second is a claim about the permissibility of
making conduct punishable: Legislators may make conduct
punishable – and thereby facilitate the condemnation and punishment of
that conduct – only if it would be permissible to condemn and
The first of these claims is highly plausible. To see why, consider
first condemnation. Once we appreciate what condemnation
involves, it quickly seems obvious that its permissibility depends on
the wrongness of the conduct being condemned. To condemn others
for their conduct is to express disapproval of that conduct, and to
signal the appropriateness of certain reactions towards them: for
example, attitudes of resentment.16 Consequently, condemnation
also tends to tarnish the target’s reputation: It amounts to ‘moral
defamation’ if not appropriately directed.17 To inflict such responses
on others seems clearly wrong, unless they’ve done something to
merit them. And it’s hard to imagine anything that might merit these
responses besides the targeted person’s wrongdoing.18 Thus, the first
15 Doug Husak is the most influential proponent of this line of argument. See generally Husak,
Overcriminalization (n. 1), especially ch. 2.II.
16 Feinberg, ‘The Expressive Function of Punishment’ (n. 9), pp. 402–404.
17 Simester and von Hirsch, Crimes, Harms, and Wrongs (n. 1), pp. 19–20.
18 This claim probably needs to be qualified, to reflect the differing content that disapproval,
resentment, and defamation can have. These things plausibly require wrongdoing, in the form in which
they’re involved in criminal sanctions. But the same may not be true of all their forms. For example,
perhaps you may express disapproval of my holding certain opinions, even if my holding those opinions
is not wrong.
claim just identified seems straightforwardly true of condemnation:
only wrongful conduct may permissibly be condemned.
The first claim is also highly plausible in relation to punishment:
That is, the permissibility of punishing others plausibly depends on
the wrongness of the conduct for which they’re being punished. One
explanation for this is that, as we’ve already noted, punishment itself
is usually thought to be condemnatory. Thus, if wrongness is a
constraint on the permissibility of condemnation, then it’s also a
constraint on the permissibility of punishment.19 However, it’s also
independently plausible that permissible punishment requires
wrongdoing. While people disagree about the precise conditions for
permissible punishment, most current theories take it for granted
that only wrongdoers may be punished.20 To see why this
assumption seems so plausible, we can briefly examine two
questions: first, why punishment requires justification; and second, why
wrongdoing is probably necessary for any such justification to
Punishment requires an especially strong justification, because it
harms people in ways that would otherwise infringe their rights.21
Indeed, criminal punishment appears to infringe our rights in
especially dramatic ways. For example, consider imprisonment, fines, and
community service. Outside the context of (deserved) punishment,
these things would clearly infringe our rights: They are materially
identical to abduction, robbery, and enslavement. On reflection,
then, the state seems to breach its duties to its citizens when it
19 This observation raises the issue of non-punitive penalties: sanctions that involve similar ‘hard
treatment’ to punishment, but without its condemnatory aspects. Would a legal regime backed by
penalties, rather than punishments, also have to be subject to a wrongness constraint? I leave this
question aside here. For related discussion, see e.g. R.A. Duff, ‘Perversions and Subversions of Criminal
Law’ in R.A. Duff et al (eds.), The Boundaries of the Criminal Law (Oxford: Oxford University Press, 2010),
pp. 102–105; J. Horder, ‘Bureaucratic ‘‘Criminal’’ Law: Too Much of a Bad Thing?’ in R.A. Duff et al
(eds.), Criminalization: The Political Morality of the Criminal Law (Oxford: Oxford University Press, 2014),
pp. 116–121; V. Tadros, ‘Criminalization and Regulation’ in R.A. Duff et al (eds.), The Boundaries of the
Criminal Law (Oxford: Oxford University Press, 2010).
20 For this reason, the traditional way of classifying theories of punishment – as either ‘retributive’ or
‘consequentialist’ – has long been unhelpful. Even those philosophers of punishment who emphasise its
consequentialist aims are now almost always retributivists in the weak sense: They take past
wrongdoing to provide a constraint on permissible punishment. For a helpful summary of the literature, see
R.A. Duff, ‘Legal Punishment’ in E.N. Zalta (ed.), The Stanford Encyclopedia of Philosophy
(2013) https://plato.stanford.edu/entries/legal-punishment/, especially ss. 3 and 4; accessed 26 January 2017.
21 Advocating a ‘right not to be punished’, see e.g. Husak, Overcriminalization (n. 1), ch. 2.III.
punishes them: Punishing them is at least presumptively
impermissible.22 It follows that, if punishment is to be permissible, then it
must also be justified: There must be factors counting in its favour
that make it permissible, despite its ordinarily infringing rights. So
why might wrongdoing be necessary to justify punishment, in this
The answer is that punishment is justified only if it is deserved –
and one deserves punishment only if one has done wrong.23
Deserved punishment is justified because the deserving have forfeited
their rights against being punished: While punishing them
usually infringe their rights, it doesn’t do so when the punishment is
deserved.24 It’s widely assumed that desert is the only way that one
can forfeit one’s rights against being punished. Thus, undeserved
punishment is always presumptively impermissible. Furthermore,
it’s widely assumed that no other justification can outweigh this right
against undeserved punishment. This reflects the
principle that one may not harm the morally innocent in order to
promote the greater good.25 On these assumptions, not only does
punishing non-wrongdoers infringe their rights; it likely always
infringes them unjustifiably. The first normative claim identified above
Consider next the second normative claim on which this
argument relies: that it’s permissible to facilitate the condemnation and
22 Throughout this article, I use the term ‘presumptively impermissible’ to refer to actions that one
ought not to perform, in the absence of sufficiently strong countervailing reasons. This definition
includes, but is not limited to, actions that we have duties not to perform. Breaching one’s duties is
presumptively impermissible in a special sense: Only a limited range of reasons can justify breaching
one’s duties. For the classic account of this idea, see J. Raz, Practical Reason and Norms (Oxford: Oxford
University Press, 1975), ch. 2.
23 I use ‘desert’ here in the negative sense outlined in this paragraph: If one deserves punishment,
then one lacks a right against being punished. Note, however, that negative desert needn’t be explained
in retributive terms: One can consistently believe both that negative desert exists, and that only
consequentialist aims can justify punishment. For accounts of this sort – which also try to explain why
wrongdoing should be necessary for negative desert – see e.g. D.M. Farrell, ‘The Justification of General
Deterrence’, Philosophical Review 94 (1985): 367–394; W. Quinn, ‘The Right to Threaten and the Right to
Punish’, Philosophy and Public Affairs 14 (1985): 327–373; V. Tadros, The Ends of Harm: The Moral
Foundations of Criminal Law (Oxford: Oxford University Press, 2011), especially ch. 12.
24 Note that the language of ‘forfeiture’ here is merely a helpful way of describing the normative
effects of desert. It is a separate question whether the idea of forfeiture can also explain those effects, or
serve to justify punishment. For a defence of the view that it can, see C.H. Wellman, ‘The Rights
Forfeiture Theory of Punishment’, Ethics 122 (2012): 371–393.
25 For some people, it follows that all punishment aimed at consequentialist goals is impermissible.
Others reply that consequentialist punishment can be permissible, so long as it is suitably constrained.
For a useful discussion, defending the latter view, see Z. Hoskins, ‘Deterrent Punishment and Respect
for Persons’, Ohio State Journal of Criminal Law 8 (2011): 369–384.
punishment of conduct only if it would be permissible to condemn
and punish that conduct. Again, this claim is plausible, for at least
some relevant senses of ‘facilitate’. Typically, by making conduct
punishable, legislators cause some of that conduct to be condemned
and punished. And if it’s impermissible to do something, then it’s
also impermissible to cause it.26 Of course, criminalisation is not a
direct cause of condemnation and punishment. So perhaps it’s more
accurate to say that, by making conduct punishable, legislators
procure or incite other state officials to inflict such sanctions. But as
we’ve seen, to make conduct punishable is to procure its punishment
in an especially direct way: If a defendant is guilty, then officials are
both authorised and obliged to punish them. Legislators have little
room to deny responsibility for conduct that they are, in effect,
demanding from officials.27 Thus, if it’s impermissible to condemn
and punish those who’ve done nothing wrong, then it’s likely also
impermissible to facilitate such responses in this way.
B. The Argument from Coercion
A second possible argument for the wrongness constraint points to
the coercive, liberty-restricting character of criminalisation. By
making conduct punishable (this argument goes), legislators coerce
citizens against that conduct: They restrict the liberty to engage in it.
But whether such coercion is permissible depends on the liberty
being restricted. If conduct isn’t wrongful, then citizens should be
free to engage in it. Thus, it’s impermissible to make non-wrongful
conduct punishable – and the wrongness constraint therefore
follows.28 To assess this argument, we need to know two things.
26 Indeed, some argue that, for the purposes of moral and legal responsibility, there is no material
difference between doing something and causing it. See e.g. M.S. Moore, Causation and Responsibility: An
Essay in Law, Morals and Metaphysics (Oxford: Oxford University Press, 2009), ch. 1.
27 This is a simplification. If a criminal court exceeds its powers in convicting and sentencing a
defendant – for example, if it convicts in the absence of adequate evidence – then legislators would
perhaps have some room to deny responsibility for its actions. For simplicity’s sake, I disregard such
cases in the main text. Clearly, however, the potential for legally unauthorised convictions and
sentences must also carry some weight in criminalisation decisions.
28 Surprisingly, criminalisation scholars haven’t paid much attention to this line of argument.
Criminal law’s coerciveness has played a major role in motivating the search for principles of
criminalisation. For example, Joel Feinberg characterised his four-volume work on the limits of the criminal
law primarily as a search for valid ‘liberty-limiting principles’: Feinberg, Harm to Others (n. 1), General
Introduction. However, it has not played much of a role in the formulation of those principles. This
Subsection, then, is partly an exploration of how criminal law’s coerciveness might constrain its
Mainly, we need to know whether it relies on a sound account of
permissible coercion: that is, whether it’s true that coercing others
against non-wrongful conduct is impermissible. Firstly, though, we
need to know whether it’s correct to describe criminalisation as
‘coercive’. How, exactly, does making conduct punishable coerce
citizens against that conduct?
Criminalisation is aptly described as coercive because it interferes
with citizens’ choices in a particular way. Specifically, by criminalising
conduct, legislators issue a threat: If citizens are guilty of engaging in
that conduct, then the state will condemn and punish them. Such
threats exert a kind of pressure on citizens’ choices that is characteristic
of coercion. By issuing them, legislators pressurise citizens not to
engage in the conduct criminalised: They make that conduct more
difficult for citizens to choose. Of course, there are several ways of
making options more difficult to choose, not all of which are coercive.
For example, legislators might offer citizens a reward for not choosing
the relevant option. But this result is surely coercive if achieved by
means of a threat: that is, by claiming that, if citizens choose the
option, they will be made significantly worse off.29 Since
condemnation and punishment normally infringe citizens’ rights, criminalisation
thus amounts to a coercive threat of such sanctions.
Such interference with others’ choices is also what makes
coercion morally troubling. By coercing others against an option, one
restricts their freedom to choose that option. Threats might also be
troubling for other reasons: for example, the fact that they involve a
commitment to carrying them out.30 But what makes them
troubling as a form of coercion is their unwelcome impact on the
threatened person’s choices.31 Interfering with others’ choices in this way
is potentially wrong, because it infringes their autonomy. There is
some range of options for which we are each entitled to control over
our choices among those options. And within this range, there are
limits to the ways in which others can permissibly interfere with our
choices.32 Put simply, there are some options that we should be able
to choose, free from certain types of pressure from others. Coercive
behaviour is impermissible if and when it infringes this right.
Do legislators act impermissibly, in this sense, in threatening to
condemn and punish citizens for non-wrongful conduct? It’s
plausible that they do, for two reasons. First, the option that legislators are
thereby interfering with is among those that citizens should remain
free to choose. If conduct is non-wrongful, then the choice of that
conduct falls within the protected range just mentioned. Wrongful
conduct might not fall within this range – at least, not always.
Plausibly, we lack a general right against others that they refrain
from interfering with our choices to do wrong.33 By contrast, this
right does plausibly extend to our choices to act permissibly. If it’s
permissible for us to do something, then we should also be free to
choose to do it; which is to say, we have rights against others that
they refrain from certain interferences with that choice.
Second, and following on from this, threats of condemnation and
punishment are among the impermissible types of interference. Such
threats inherit their wrongness from the wrongness of what’s
threatened: If it’s impermissible to do something to someone, then it’s also
impermissible to threaten coercively to do it to them.34 As we’ve seen,
it’s impermissible to inflict undeserved condemnation and punishment
on others. Hence, it’s also impermissible to threaten others with such
sanctions. This isn’t necessarily a complete account of the wrongness
of threatening, or of coercive conduct more broadly.35 But it’s a highly
plausible part of such an account: If we’re entitled to freedom from
32 J. Pallikkathayil, ‘The Possibility of Choice: Three Accounts of the Problem with Coercion’,
Philosophers’ Imprint 11(16) (2011). A related possibility is that, by threatening others, one wrongly
assumes a form of power over them. See S.A. Anderson, ‘On the Immorality of Threatening’, Ratio 24
33 To be clear, legislators have many good reasons to be cautious about interfering with citizens’
wrongful actions. Perhaps citizens even have rights against some such interferences. The point is simply
that there is no general such right. See e.g. Moore, Placing Blame (n. 1), ch. 18; M.S. Moore, ‘Liberty’s
Constraints on What Should be Made Criminal’ in Duff et al (eds.), Criminalization (n. 19); C.C. Ryan,
‘The Normative Concept of Coercion’, Mind 89 (1980): 481–498.
34 This claim attracts a broad consensus in the literature on coercive threats. See e.g. Berman, ‘The
Normative Functions of Coercion Claims’ (n. 31); W.A. Edmundson, ‘Is Law Coercive?’, Legal Theory 1
(1995): 81–111; Haksar, ‘Coercive Proposals’ (n. 31); Palikkathayil, ‘The Possibility of Choice’ (n. 32);
Ryan, ‘The Normative Concept of Coercion’ (ibid.); Shaw, ‘The Morality of Blackmail’ (n. 31); A.
Wertheimer, Coercion (Princeton, NJ: Princeton University Press, 1987), particularly ch. 12.
35 For instance, some people dispute whether the wrongness of threatening requires that the conduct
threatened be wrongful. Blackmail is often given as a counter-example: see e.g. Lamond, ‘The
Coerciveness of Law’ (n. 30), pp. 48–51. Since this dispute is irrelevant to our enquiry, I set it aside here.
certain interferences with a choice, then the prospect of wrongful
sanctions on the relevant option is surely among these. Since
legislators threaten such sanctions by criminalising non-wrongful conduct, it
follows that it’s impermissible for them to do so.
At this point, one might object that criminalisation does not
necessarily have coercive effects. On the view just described, the
wrongness of coercion is grounded in its effects on people’s choices.
However (one might observe), criminalising conduct needn’t interfere
with citizens’ choices to engage in that conduct. For the criminal law’s
threats can fail, in several ways.36 First, these threats often aren’t
communicated successfully: citizens tend to be unaware of the precise
content of the substantive criminal law.37 Second, these threats may
not be credible, even when they are communicated: Some criminal
laws are never enforced, or are enforced only sporadically.38 And third,
because of attrition in the criminal process, even regular enforcement
doesn’t guarantee credibility. If one can be confident of avoiding
detection, arrest, or prosecution for one’s conduct, then the
criminality of that conduct needn’t affect one’s choices.
We can give two responses to this objection. First, for the
argument from coercion to succeed, it would be enough that
criminalisation has some coercive effects. True, criminalising a given type of
conduct won’t exert pressure on every choice to engage in that
conduct. But even the mere risk of sanctions will be enough to exert
some pressure on some people’s choices.39 Admittedly, however,
this is only a partial response to the present objection. For this
objection shows that criminalisation needn’t have any coercive
effects. If citizens are totally unaware of a crime’s existence, or if they
36 By ‘fail’, I mean fail to exert some pressure on citizens’ choices. I assume that such pressure can be
wrongful even if it doesn’t lead to actual deterrence of non-wrongful conduct.
37 P.H. Robinson and J.M. Darley, ‘Does Criminal Law Deter? A Behavioural Science Investigation’,
Oxford Journal of Legal Studies 24 (2004): 173–205, pp. 175–178. Much of this ignorance is non-culpable,
stemming from the worrying inaccessibility of much contemporary criminal law: see generally J.
Chalmers, ‘ ‘‘Frenzied Law Making’’: Overcriminalization by Numbers’, Current Legal Problems 67 (2014):
38 It’s hard to say exactly how often this occurs – partly because we know so little about the exact
scope of the criminal law. However, there are well-known examples of criminal laws falling into disuse,
whether through gradual neglect or deliberate choice by officials. A good example from English law is
the crime of blasphemy, which was finally abolished by s. 79 of the Criminal Justice and Immigration
Act 2008 after almost a century of disuse.
39 The same is true of legal regulation generally: At most, it tends to coerce. Sometimes it will coerce
successfully; sometimes it will merely be intended to coerce; sometimes it will risk coercion as a
sideeffect. Whether any particular coercive measure can be justified depends on the relative difficulty of
justifying each of these things. See e.g. Lamond, ‘The Coerciveness of Law’ (n. 30), pp. 52–56.
think it will never be enforced, then their choices will remain totally
unimpeded. It’s debatable whether any such cases exist in reality –
and if they do, how frequently they occur.40 But regardless of this,
we should at least account for their possibility. Ultimately, the
coercive effects of criminalisation are contingent upon independent
factors, such as enforcement practices. Thus, even if criminalisation
typically has such effects, it needn’t always do so.
A second response to the objection addresses this issue: It’s
sometimes wrong to make coercive threats, even when doing so
does not have coercive effects. Here are just two ways in which
criminalisation might be wrong qua coercive threat, despite not
pressurising citizens’ choices. First, making threats might be wrong
because it is inchoate to actual coercive effects. By enacting new
crimes, legislators are often attempting to coerce citizens against the
targeted conduct. And even in the absence of coercive intent,
criminalisation risks coercive effects – precisely because failures of
coercion will be due to factors that are independent of decisions to
criminalise, and hence beyond legislators’ control. Second, special
normative considerations arguably apply to coercion by law. For
example, perhaps citizens should be able to rely on the substantive
criminal law as an authoritative guide to what they may and may not
do. If so, then even completely unknown and unenforced criminal
laws affect citizens’ choices in a sense: their choices would be
pressurised, were they to use the law as they are entitled to use it.41
By criminalising non-wrongful conduct, then, legislators make an
impermissible coercive threat. Perhaps there are cases in which this is
false – in which legislators expect the relevant crime to go
completely unenforced, and to do nothing to guide citizens’ conduct. But
since there would be little reason to enact such crimes, we can
expect these cases to be exceptional. For most imaginable cases of
criminalisation, the argument from coercion is plausibly sound.
C. The Argument from Communication
A final possible argument for the wrongness constraint points to the
communicative function of criminalisation. By criminalising conduct
40 See n. 38 above.
41 V. Tadros, ‘Crimes and Security’, Modern Law Review 71 (2008): 940–970, pp. 956–957. See further
the discussion of rule of law values at n. 67 and onwards below.
(this argument goes), legislators portray that conduct as wrongful.
Obviously enough, it seems wrong to portray conduct as wrongful if
it’s not actually wrongful. Hence, to criminalise non-wrongful
conduct also seems wrong. To see whether this argument succeeds, we
need to consider two points. First, we need to consider what’s wrong
with portraying non-wrongful conduct as wrongful. But second, we
need to consider whether criminalisation actually does portray
conduct as wrongful. Let’s begin with this second issue. What, if
anything, does criminalising conduct say about its wrongness?
The answer must be that criminalisation portrays conduct as
morally wrongful: It communicates a judgement that one ought not
to engage in the conduct criminalised.42 Two promising lines of
argument can be given to support this view. The first relates to the
nature of legal wrongs generally, and relies on two assumptions that
are widespread in legal discourse. The first is that crimes are legal
wrongs: That is, that criminalising a given type of conduct creates a
legal duty not to engage in that conduct.43 The second is that legal
duties are putative moral duties. As some would put it, the law
claims legitimate authority: It claims the power to make our
compliance morally obligatory.44 On these assumptions, by criminalising
conduct, legislators at least imply that that conduct is morally
wrongful. For since crimes are legal wrongs, they are also putative
moral wrongs: In the eyes of the law, it’s wrong for citizens to
engage in the conduct that they target.
A second promising argument for this view points to the specific
institutional features of the criminal law. According to this
argument, many of these features make sense only if we see crimes as
putative moral wrongs. Some of these features are part of the very
nature of the criminal process. Criminal conduct plays a justificatory
role in this process, at every stage: It is criminal conduct for which
one is arrested, charged, found guilty, and ultimately punished.45
42 Duff gives the most explicit endorsement of this claim: see generally Duff, Answering for Crime
(n. 1), ch. 4.
43 See e.g. H.L.A. Hart, The Concept of Law, 2nd ed. (Oxford: Oxford University Press, 1994 ),
p. 27: ‘The criminal law is something which we either obey or disobey and what its rules require is
spoken of as a ‘‘duty’’. If we disobey we are said to ‘‘break’’ the law and what we have done is legally
‘‘wrong’’, a ‘‘breach of duty’’, or an ‘‘offence’’’.
44 See e.g. J. Raz, The Authority of Law: Essays on Law and Morality (Oxford: Oxford University Press,
1979), ch. 2.
45 J. Edwards, ‘Coming Clean About the Criminal Law’, Criminal Law and Philosophy 5 (2011): 315–
332, pp. 320–322.
Others are pervasive features of current practice. For example, the
doctrines of the substantive criminal law often cast wrongness in an
inculpatory role, and the absence of wrongness in an exculpatory
role.46 The seriousness of offences is a key factor in sentencing
decisions.47 And officials’ behaviour often suggests that they regard
crime as something to be avoided: ‘crime prevention’ and ‘law
enforcement’ are considered to be good uses of public resources.
Against this institutional background, one might think,
criminalisation cannot help signalling that the targeted conduct is morally
Despite the plausibility of these arguments, however, they remain
open to challenge. To repeat, the conclusion is that criminalisation
communicates a judgement about the moral wrongness of the
targeted conduct: It sends a message that that conduct is wrong. But
how exactly could criminalisation send this message? The answer
can’t be that legislators intend to portray conduct as wrongful by
criminalising it, for that is by no means necessarily true.48 Rather, the
answer must be that criminalisation has a certain symbolic meaning:
We share the understanding that criminalisation conveys a
judgement that the targeted conduct is wrongful. However, whether such
a shared understanding exists is an empirical question. Thus, the
above arguments may lead us to infer that criminalisation portrays
conduct as wrongful. But we must bear in mind that this is just an
inference, which further evidence might ultimately disprove.49
Consider next the claim that it’s impermissible to portray
nonwrongful conduct as wrongful. On one level, this claim seems
obviously true. To portray conduct as wrongful when it’s not is to
tell a lie; and lying is generally wrong, because it risks deceiving
others.50 Most obviously, this kind of deception is wrong for similar
reasons to coercion: It affects one’s choice to engage in the relevant
46 See e.g. Husak, Overcriminalization (n. 1), ch. 2.I, deriving the wrongness constraint – along with
other constraints on criminalisation – from general part doctrines.
47 See e.g. A. Ashworth, Sentencing and Criminal Justice, 6th ed. (Cambridge: Cambridge University
Press, 2015), ch. 4.
48 For example, legislators can (and sometimes do) intend only that a subset of the conduct caught
by a crime be regarded as wrongful. See references at n. 72 below.
49 So far as I know, we lack evidence either way on this point. But there is some evidence on the
related question of whether citizens believe the law’s moral messages: see n. 51 below.
50 There are large questions about the nature and wrongness of lying and deception that we must
gloss over here. For a summary, see P. Faulkner, ‘Lying and Deceit’ in H. LaFollette (ed.), The
International Encyclopedia of Ethics (Chichester: Wiley-Blackwell, 2013).
conduct. By sending the message that conduct is wrongful,
legislators can lead people to believe that that conduct is wrongful – and
hence, can make choosing that conduct less attractive than it should
be. Again, we may question whether criminalisation is necessarily
deceptive in this way. Evidence suggests that people aren’t so easily
fooled.51 But as with the argument from coercion, such evidence
doesn’t fatally undermine the present argument. Criminalisation
might still lead to some deception. And even when it doesn’t, the fact
that legislators are attempting or risking deception might be enough
to make it impermissible.
One might further argue that such deceptive communication has
unwelcome side-effects in the criminal law context. For example,
Simester and von Hirsch argue that it can undermine the criminal
law’s distinct value as a type of regulation. As we’ve repeatedly
noted, the criminal law is distinctive in its use of condemnatory
sanctions. But its ability to condemn is undermined when it targets
conduct that doesn’t actually deserve condemnation: This ‘[blurs]
the moral voice’ and ‘gunks up the censure machine’.52 Over time,
such deception might even lead to worse consequences: For
example, it ‘risks undermining the moral authority of the criminal law’.53
Once again, these are empirical claims that require empirical
support. And the available evidence here gives us reason for caution:
Whether criminalising non-wrongful conduct weakens the law’s
moral standing in these ways is probably contingent upon other
factors.54 Nevertheless, the potential for such side-effects shows us
that deceptive communication needn’t always be a trivial matter. At
51 Contrary to widespread assumptions, it appears that blind obedience of the law is rare. People
don’t always comply with legal obligations that they don’t endorse on content-dependent grounds. And
even when they do, their compliance may not be motivated by a belief in the law’s moral authority: see
e.g. F. Schauer, The Force of Law (Cambridge, MA: Harvard University Press, 2015), ch. 5. Even
compliance that’s motivated by a sense of the law’s ‘legitimacy’ doesn’t depend in any simple way on
beliefs about its authority. For the seminal study along these lines, see T.R. Tyler, Why People Obey the
Law (Princeton, NJ: Princeton University Press, 2006); and, extending Tyler’s findings to England and
Wales, see J. Jackson et al., ‘Why Do People Comply with the Law? Legitimacy and the Influence of
Legal Institutions’, British Journal of Criminology 52 (2012): 1051–1071.
52 Simester and von Hirsch, Crimes, Harms, and Wrongs (n. 1), p. 20.
54 Some people have argued that the criminal law’s moral authority and capacity to condemn are
sensitive to the conduct that it targets. Perhaps unsurprisingly, though, what matters for these people is
not the actual moral wrongness of criminal conduct; it’s whether this conduct is widely believed to be
wrongful. See e.g. P.H. Robinson and J.M. Darley, ‘The Utility of Desert’, Northwestern University Law
Review 91 (1997): 453–499.
least in those cases where it would risk these side-effects, legislators
have relatively strong reason to avoid it.
We began this Section by asking: why might we think that
conduct may be made punishable only if it is wrongful? We can now see
that there are (at least) three good answers to this question. The
arguments from facilitation, coercion and communication all
plausibly establish that it’s impermissible to make non-wrongful conduct
punishable. At first glance, the wrongness constraint on
criminalisation seems to follow from these conclusions. As we saw, to
criminalise conduct is to make it punishable. So doesn’t the
discussion in this Section imply that only wrongful conduct may be
criminalised? I turn to this question in the following Section.
IV. WHY CRIMINALISING NON-WRONGFUL CONDUCT MIGHT
SOMETIMES BE PERMISSIBLE
By making non-wrongful conduct punishable, legislators act
impermissibly. But if that’s true, how could the wrongness constraint be
false? The answer lies in an ambiguity in the language of
permissibility – an ambiguity that I’ve only hinted at thus far. When we
describe something as ‘wrong’ or ‘impermissible’, we could be saying
one of two things. First, we could be saying that it’s impermissible,
all things considered: That is, that we have decisive reason not to do it,
taking all relevant factors into account. Second, we could be saying
that it’s presumptively impermissible: That is, that we have good
reason not to do it, albeit a reason that may be defeated by
countervailing factors in some cases.55 Accordingly, when we say that
conduct may be made punishable only if it is wrongful, we could be
saying one of two things. We could be making the strong claim that
it’s impermissible to make non-wrongful conduct punishable, all
things considered. Or we could be making the weaker claim that this
is presumptively impermissible. This weaker claim leaves open the
possibility that legislators are sometimes permitted to criminalise
non-wrongful conduct, given sufficient countervailing reasons.
In this Section, we’ll see that this possibility is a realistic one – and
thus, that the wrongness constraint is false, at least as it is usually
understood. To demonstrate this, we need to establish two things.
First, we need to establish that the normative principles discussed
55 See further n. 22 above on presumptive impermissibility.
above are best understood in the presumptive sense, rather than the
all things considered sense. We need to establish, that is, that the
types of action examined in the previous section are only
presumptively impermissible when the targeted conduct is
nonwrongful. Second, we need to establish that there are some cases in
which legislators are justified in criminalising non-wrongful conduct
– in which the reasons in favour of this course of action outweigh the
reasons against it. Let’s begin with the first of these points.
The normative claims examined in Section III are best understood as
claims about presumptive impermissibility. As we saw there, these
claims are highly plausible; yet once understood as ‘all things
considered’ claims, they quickly seem highly implausible. To see this,
consider first the claim that it’s impermissible to facilitate the
condemnation and punishment of non-wrongful conduct. According to
an all things considered version of this claim, legislators have decisive
reason against such facilitation. But if this claim were true, then
criminalisation would never be permissible. For criminalisation
always and inevitably facilitates the condemnation and punishment of
some non-wrongful conduct. Partly, this result is due to the practical
realities of criminal justice. Officials inevitably make errors in
enforcing the criminal law, meaning that some non-wrongdoers are
condemned and punished. However, this result is hard to avoid even
at the level of the ‘law in the books’. This is because crimes need to
be defined so as to apply generally, over whole populations and
diverse sets of facts. Such generalised rules tend to be over-inclusive,
relative to the wrongs that they target. No matter how much we try
to refine the definition of a crime, it will thus tend to catch some
people whom we do not wish to condemn and punish as
wrongdoers of the relevant kind.56
More fundamentally, however, criminalisation facilitates some
undeserved condemnation and punishment as a matter of law. For, as
we’ve seen, criminalisation extends criminal liability beyond those
who have actually engaged in the conduct criminalised. Liability to
conviction and sentence is conditional not upon criminal conduct,
but upon criminal guilt. And one may plead guilty to a crime, or
even properly be found guilty of that crime, despite not having
committed it. Thus, even if we could define crimes in such a way
that they only caught wrongful conduct, we could not similarly limit
the resulting liabilities. Criminalisation inevitably authorises some
condemnation and punishment of non-wrongdoers – and hence, is
always impermissible, on the all things considered version of the
Similar objections apply to an all things considered version of the
claim about coercion. According to this claim, legislators have
decisive reason to avoid coercing citizens against non-wrongful
conduct. Again, though, if this version of the claim were true, then
criminalisation would never be permissible.57 Partly, this result is
also due to the fact just highlighted: Liability to conviction and
sentence is conditional upon criminal guilt, rather than actual
criminal conduct. Hence, the threats of condemnation and
punishment involved in criminalisation attach to conduct beyond that
which is criminalised. In relation to coercion, however, the problem
may also run deeper than this. For liabilities to conviction and
sentence are not the only liabilities that criminalisation creates. For
instance, consider the liability to be prosecuted for the relevant
crime. This liability is conditional not upon guilt, but its mere
probability.58 Plausibly, however, if we haven’t engaged in wrongful
conduct, then we have a right against being formally accused of
having done so. This suggests that the creation of liability to
prosecution could also amount to an impermissible coercive threat. If
this is correct, then again, the present claim would render all
In making these points, I’ve assumed that there is no material
difference among the different effects of criminalisation – in
particular, between its effects on the conduct actually criminalised and its
inevitable implications for a wider range of conduct. But perhaps this
is false. Perhaps, for example, there is a difference between what
legislators intend to do by criminalising conduct and what they do
thereby as a side-effect. One might argue that this difference is
significant for the permissibility of criminalisation. Admittedly, it
cannot be impermissible, all things considered, simply to coerce citizens
against non-wrongful conduct or to facilitate its punishment. But
these actions are plausibly impermissible, all things considered, when
performed intentionally. Thus, there is a moral difference between
the actual criminalisation of non-wrongful conduct and the
implications that all criminalisation has for such conduct. Only in the
former case are the relevant actions intended – and thus
impermissible, all things considered.59
We can give two responses to this objection. First, it’s doubtful
whether intention can play the normative role that the objection
requires of it: namely, rendering it impermissible, all things
considered, to coerce citizens against non-wrongful conduct or to facilitate
its punishment. For one thing, it’s doubtful whether these actions are
necessarily impermissible, all things considered, even when
performed intentionally. Mightn’t they be justifiable if, for example,
they were necessary in order to avoid some sufficiently great harm?60
More fundamentally, however, it’s doubtful whether intention can
affect the permissibility of actions at all. Exactly how actors’ mental
states could make their actions harder to justify – that is, could give
them stronger reason against performing an action – is notoriously
difficult to explain. Indeed, it’s especially difficult to explain in
relation to collective actors such as states or legislatures, for whom
autonomy and individual responsibility are relatively unimportant
concerns.61 While we can’t assess these claims fully here, they at
least give us reason for caution about the above objection.
The second response to the objection is more decisive: It’s not
necessarily true that, when legislators criminalise conduct, they
intend to facilitate its punishment or to coerce citizens against it. Of
course, these things are often true. By criminalising conduct,
legislators are often trying to deter citizens from engaging in it, and to
ensure that those who do so are prosecuted and punished. But
whether this is true of any particular new crime is a contingent
matter. For example, criminalisation might be intended purely as a
symbolic gesture or as a way of winning votes. Indeed, legislators
might not intend that their new law be enforced at all.62 Given this,
it is also contingent whether, in criminalising non-wrongful conduct,
legislators act impermissibly, all things considered. On the present
interpretation, coercing citizens against such conduct, and facilitating
its punishment, are impermissible in this stronger sense only when
they are intended. But it’s not necessarily true that, in criminalising
non-wrongful conduct, legislators intend such effects. Thus, the
present objection cannot save the wrongness constraint, as an all
things considered principle.
Similar responses will also apply to other versions of this
objection: that is, to other attempts to distinguish the actual
criminalisation of non-wrongful conduct from the implications that
criminalisation inevitably has for such conduct. On the one hand, if
we adjust the relevant normative claims to refer to legislators’
mental states, then we face responses analogous to those just given.
For example, consider claims referring to legislators’ beliefs. It’s not
necessarily true that, when legislators criminalise non-wrongful
conduct, they believe that they are facilitating its punishment or
coercing citizens against it. And in any event, the normative
significance of such beliefs is doubtful. On the other hand, claims referring
to objective factors will fail to distinguish the two kinds of effects.
For example, consider claims referring to the evidence available to
legislators. According to this evidence, criminalisation clearly has
implications not only for the conduct criminalised, but also for a
wider range of conduct. Thus, on an all things considered version of
such a claim, we would again be left with the implausible result
highlighted above: all criminalisation would be impermissible.
All of this suggests that the normative claims about facilitation
and coercion cannot plausibly be understood in the all things
considered sense. But is the same true of the claim about
communication? According to an all things considered version of this claim,
legislators have decisive reason to avoid portraying non-wrongful
62 I assume here, along with the anticipated objection, that there is a satisfactory way of determining
what legislators collectively intend. This may be false – in which case, the objection fails along with my
conduct as wrongful. This claim doesn’t suffer from the same
problem as the two claims just considered. Only the conduct actually
criminalised is portrayed as wrongful through criminalisation; thus,
this claim doesn’t apply to the wider set of liabilities thereby created,
and doesn’t have the implausible result that all criminalisation is
rendered impermissible.63 Might it therefore provide a sound basis
for the wrongness constraint, as an all things considered principle?
In fact, an all-things-considered version of the claim about
communication is also implausibly strong. Telling untruths to others is
surely easier to justify than wrongfully coercing them, or wrongfully
facilitating their condemnation and punishment. Yet as we’ve just
seen, criminalisation is sometimes permissible despite such effects.
Whatever justifies criminalisation in these cases can surely also
justify legislators in communicating at least some falsehoods. Indeed, as
we noted above, legislators’ reasons to avoid such falsehoods can be
relatively weak. Portraying non-wrongful conduct as wrongful might
sometimes have unwelcome side-effects, such as diminishing the
law’s moral standing; however, these effects are probably contingent
and incremental. In their absence, such communication is wrong
mainly because it risks deception – a risk that, in reality, may be
relatively small. It’s therefore unlikely that legislators’ reasons to
avoid such communication are necessarily decisive against it.64
It follows that the arguments examined so far do not suffice to
establish the wrongness constraint. The normative claims on which
these arguments rely are best understood in the presumptive sense:
They establish that it’s presumptively impermissible to make
nonwrongful conduct punishable. But this claim supports only a weaker
principle of criminalisation than the wrongness constraint: that it is
presumptively impermissible to criminalise non-wrongful conduct.
This principle leaves open the possibility that it is sometimes
permissible to criminalise non-wrongful conduct, all things considered –
and hence, that the wrongness constraint is false, as it is usually
63 Even this might not strictly be true. As we just noted, crimes should ideally be general and clear in
their definition; but this can be achieved only at the cost of over-inclusiveness. Ironically, then,
welldefined crimes might well end up portraying some non-wrongful conduct as wrongful.
64 Compare P.H. Robinson, Intuitions of Justice and the Utility of Desert (Oxford: Oxford University
Press, 2013), ch. 10, arguing that the criminal law may sometimes depart from community intuitions
about retributive justice, despite the unwelcome effects to which such departures can lead.
Moreover, there are indeed realistic cases in which it is permissible to
criminalise non-wrongful conduct, all things considered. To illustrate
this point, I’ll examine the case of over-inclusive crimes.
Over-inclusive crimes target a genuine underlying wrong: At least some of
those who commit them genuinely deserve condemnation and
punishment through the criminal law. As the name suggests,
however, they are over-inclusive relative to that wrong: Some of the
conduct that they catch does not constitute wrongdoing of the
relevant kind. Due to constraints of space, we can’t hope to establish
here that any particular over-inclusive crime is definitely legitimate.
But we can establish a more general claim: that some over-inclusion
in criminal legislation is probably legitimate. To do this, we can
identify some good reasons that legislators might have for enacting
over-inclusive crimes. Taken together, these reasons can plausibly
justify legislators in making some non-wrongful conduct punishable.
To aid discussion, let’s begin with an example of an over-inclusive
crime: the crime of sexual activity with a child, under England’s
Sexual Offences Act 2003. Adults commit the actus reus of this
offence if they sexually touch another person, and this other person is
under sixteen.65 This provision targets a genuine underlying wrong:
the exploitation of children who are not yet mature enough to make
fully informed decisions about sexual activity.66 However, it is
overinclusive relative to this wrong. Some people who are under sixteen
are mature enough to make well-informed decisions about sexual
activity. And some adults who engage in sexual activity with persons
under sixteen do not exploit them. Imagine, for example, an
eighteen-year old who has a mutually consensual and non-exploitative
sexual relationship with a relatively mature fifteen-year old. Given
these observations, this provision apparently falls foul of the
wrongness constraint: It criminalises some non-wrongful conduct. If
so, its creation was presumptively impermissible. Might it be justified
despite this? And if so, how?
The answer is that over-inclusion in crimes of this kind can serve
valid goals. The most familiar of these goals relate to determinacy.
Age-of-consent crimes are over-inclusive relative to the wrong of
exploitation that they target. But they are also much more
determinate in their scope than crimes defined explicitly in terms of
exploitation. This increased determinacy yields several related
benefits. First, it makes it easier for actors to predict when their conduct
will fall within the scope of the crime. Second, it promotes efficient
and consistent decision-making by courts and other officials. And
third, it can help to reduce errors in such decision-making.
Admittedly, these benefits are of relatively modest weight in the criminal
law context. Compared to the avoidance of undeserved punishment,
the virtues of determinacy seem modest: There’s relatively little
value in the efficient, consistent, and accurate imposition of
undeserved sanctions.67 Nevertheless, these are genuine virtues – virtues,
indeed, that are commonly identified with the ideals of legality and
the rule of law.68 Hence, they may do at least some modest work in
justifying over-inclusive crimes.
More significantly, though, over-inclusion can enhance the
preventive potential of criminalisation. Unlike determinacy, prevention
can provide relatively strong reasons in favour of over-inclusive
crimes. Over-inclusion might enhance the preventive potential of
criminalisation in several ways; in the context of child sex crimes,
two are particularly important. First, age-of-consent crimes might be
a more effective deterrent than crimes explicitly targeting
exploitation. By stating clearly that any sexual activity with children is
punishable, we can expect them to deter more of the exploitation
that they target.69 Second, age-of-consent crimes cause less
secondary victimisation through the criminal process than would a
crime based on exploitation. By putting exploitation in issue in
criminal cases, legislators would oblige courts to examine intimate
67 For further discussion of all these claims, see Schauer, Playing by the Rules (n. 56), ch 7.
68 The ideal of the rule of law is that the law should be capable of guiding citizens’ conduct. As the
discussion here suggests, legislators needn’t, and shouldn’t, give absolute priority to this ideal. But they
must give it some weight: Compliance with the rule of law is necessary to maximise citizens’ freedom
and autonomy under coercive systems like the criminal law. See Raz, The Authority of Law (n. 44), ch.
69 There are good reasons generally to be sceptical about the marginal deterrent effects of changes
to the substantive criminal law: see e.g. Robinson and Darley, ‘Does Criminal Law Deter?’ (n. 37).
However, age-of-consent crimes overcome at least one of the obstacles to deterrence that Robinson and
Darley identify: Unlike many other crimes, the standards of conduct that they impose are widely
details of complainants’ lives and behaviour: for example, their
relative maturity or their conduct towards the defendant. As is well
known, putting complainants ‘on trial’ in this way can seriously
harm them.70 Legislators can avoid this by defining offences in terms
of a more easily ascertained fact, like age.
Importantly, this kind of over-inclusion is also relatively easy to
justify to potential actors. While age-of-consent crimes do authorise
undeserved sanctions, they at least make those sanctions relatively
easy to avoid. Of course, these offences do constrain actors’ choices
in one sense: They restrict some liberties to engage in non-wrongful
sexual conduct. As we’ve seen, this gives us genuine cause for
concern. For most people, though, the crime of sexual activity with a
child will have only a modest impact on their liberties. And for those
whose liberties are restricted, this provision makes their choices very
clear: It gives them very clear guidance on when their conduct will
be punishable.71 In short, while the over-inclusion involved in
age-ofconsent crimes is not benign, neither is it cynical. Not only does this
over-inclusion pursue valid goals; it does so in a way that’s relatively
fair to those whose liberties are restricted.72
A possible reply to all of this is that there are ways of achieving
these goals that do not involve the criminalisation of non-wrongful
conduct. For example, when legislators enact over-inclusive offences,
perhaps they could also create ‘no wrongness’ defences: that is,
defences exempting citizens from liability where they have not
committed the relevant underlying wrong. In the context of sexual
activity with a child, for example, we could allow defendants to
avoid liability by pleading that their conduct was not actually
exploitative. This solution seems like an attractive compromise. It
enables us to preserve the advantages of over-inclusive offences,
70 This effect has most often been discussed in the context of sexual offences, where courts are
obliged to ascertain the complainant’s non-consent. For discussion, and for critique of the evidential
rules governing such cases, see J. Temkin, Rape and the Legal Process, 2nd ed. (Oxford: Oxford University
Press, 2002), ch. 4.
71 Provisions like these can also provide another sort of valuable guidance: guidance on how to
avoid the wrong underlying the crime. Age-of-consent crimes might provide more effective guidance on
how to avoid exploiting children than a crime framed explicitly in terms of exploitation. See e.g.
Alexander and Ferzan, Crime and Culpability (n. 1), pp. 310–311; Simester and von Hirsch, Crimes, Harms,
and Wrongs (n. 1), pp. 76–77. Whether this is true of any particular crime is a contingent matter.
72 In this respect, age-of-consent crimes differ from many other over-inclusive crimes. Some types of
over-inclusive criminalisation are unabashedly cynical, aimed mainly at making it easier to prosecute
the underlying wrong. For examples and critique of such offences, see e.g. J. Edwards, ‘Justice Denied:
the Criminal Law and the Ouster of the Courts’, Oxford Journal of Legal Studies 30 (2010): 725–748,
Tadros, ‘Crimes and Security’ (n. 41), pp. 951–964.
without thereby making non-wrongful conduct punishable. And if
such a compromise option is available, then legislators surely ought
to prefer it to an option under which non-wrongful conduct is made
punishable. Hence (the reply goes), it remains impermissible for
legislators to criminalise non-wrongful conduct, despite their
admittedly good reasons for doing so.73
Unfortunately, however, ‘no wrongness’ defences are an
imperfect compromise. While they will lead to fewer breaches of the
normative principles underlying the wrongness constraint, they are
also likely to set back the goals that over-inclusive offences pursue.
We should expect, therefore, that legislators will sometimes have
stronger reason simply to enact an over-inclusive crime, than to
compromise by adding a no-wrongness defence. To see why, let’s
remain with the example of sexual activity with a child. How might
legislators set back the goals that are served by the over-inclusive
definition of this crime, if they were to introduce a ‘no-exploitation’
Consider first the goals of determinacy. The problem here is that,
by introducing a ‘no-exploitation’ defence, legislators would be
introducing precisely the kind of indeterminacy that over-inclusion
here serves to avoid. This is because, as a result of this defence,
exploitation would become a condition of liability for the crime.74
The law would thus inherit the problems of this concept’s
indeterminacy – such as inefficiency, inconsistency, and consequent loss of
predictability. Admittedly, a no-exploitation defence would be less
problematic in this respect than an offence defined in terms of
exploitation. Exploitation would be in issue only if the defendant
chose to introduce it; it wouldn’t need always to be considered. For
our purposes, however, it’s enough that exploitation would always
be potentially in issue. Indeed, we may expect that it would
frequently be in issue: To have a chance of avoiding liability, defendants
would need only to produce some evidence that their conduct was
not exploitative.75 Given this, a no-exploitation defence is likely to
73 Thanks to an anonymous reviewer for suggesting this reply.
74 More precisely: it becomes a condition of liability for the crime that the absence of exploitation is
75 Or so we may assume: A requirement that the defendant prove the absence of exploitation
would, I take it, infringe the presumption of innocence.
result in significant problems of indeterminacy. Legislators thus have
good reason to avoid its creation.
Consider next how such a defence might set back the goals of
prevention. Take first the prevention of secondary victimisation
through the criminal process. A no-exploitation defence would set
back this goal in much the same way that it would set back the goals
of determinacy: Exploitation would always potentially be in issue in
criminal cases, so complainants could always potentially end up ‘on
trial’. By contrast, in the absence of such a defence, this need never
happen. Take next the goal of prevention through improved
deterrence. Again, the problem here is that, with such a defence in place,
exploitation becomes a condition of liability for the crime. Hence,
fewer people may be deterred from conduct that is actually
exploitative, when they believe (incorrectly) that it is not
exploitative.76 Moreover, it’s hard for legislators to avoid this effect without
engaging in deception. If the law is to be honest with citizens about
the criteria for their liability – including the criteria found in defences
– then it cannot avoid the risks of citizens interpreting those criteria
incorrectly.77 Since those risks are greater for an exploitation
standard than for an age-of-consent standard, the latter may deter
citizens more effectively from the underlying wrong.
We should conclude, then, that legislators are sometimes justified
in criminalising non-wrongful conduct. It follows that the wrongness
constraint, as an all things considered principle, is false. To
emphasise, it doesn’t follow that the criminalisation of non-wrongful
conduct is unproblematic. The state has good reason to avoid
condemning and punishing such conduct; hence, even when
legislators are justified in enacting over-inclusive crimes, perhaps they
should seek to avoid this result in other ways (such as through
76 The risk of this effect is especially high in cases like the present, in which people are prone to
over-estimate their ability to judge their own behaviour. To be clear, however, there will doubtless
remain some individuals who are justified in trusting their own judgement. The question is whether the
benefits of increased deterrence among the former group outweigh the costs of over-deterrence among
the latter group. Compare Duff, Answering for Crime (n. 1) pp. 166–172; L. Alexander and E. Sherwin,
The Rule of Rules: Morality, Rules, and the Dilemmas of Law (Durham, NC: Duke University Press, 2001)
77 One might reply that the law need not be so honest. It could employ some measure of ‘acoustic
separation’: The age of consent could be advertised as the rule governing citizens’ conduct, while courts
employ the no-exploitation defence covertly. However, such strategies are both morally dubious and
practically difficult to maintain. See e.g. Alexander and Sherwin, The Rule of Rules (ibid.), pp. 86–91; R.A.
Duff, ‘Rule Violations and Wrongdoings’ in S. Shute and A.P. Simester (eds.), Criminal Law Theory:
Doctrines of the General Part (Oxford: Oxford University Press, 2002).
policing or prosecution policies). However, our concern here is with
criminalisation: with making conduct punishable.78 And legislators
can have good reason to make non-wrongful conduct punishable,
despite their reasons against doing so. As a principle of
criminalisation, the wrongness constraint must therefore be rejected.
Advocates of the wrongness constraint, as an all things considered
principle, might make one further argument in its favour. They
might concede the point just made: that is, that legislators might
sometimes be justified in criminalising non-wrongful conduct.
However, they might argue that this point is consistent with the
wrongness constraint. For there remains a possibility that we have so
far overlooked: that by justifiably criminalising conduct, legislators
make that conduct wrongful. This argument is not premised on the
claim that citizens have a general duty to comply with the law. As
we saw at the outset, advocates of the wrongness constraint
presumably deny that there is such a duty.79 Rather, it is premised on
the narrower, more plausible claim that citizens have a duty to
comply with justified laws. If this claim is true, then there is no such
thing as conduct that is non-wrongful but permissibly criminalised –
and so the wrongness constraint is salvaged.
Before assessing this argument directly, we should firstly be clear
about what is and isn’t at stake here. The issue is not whether
justifiable criminalisation can sometimes make conduct wrongful; it’s
whether it necessarily does so. Most would agree that, by enacting
regulations targeting a given type of conduct, legislators sometimes
give citizens new reasons against engaging in that conduct. Classic
examples are regulations designed to solve problems of coordination
78 One could also frame this point in terms of the distinction between formal criminalisation (‘the
law in the books’) and substantive criminalisation (‘the law in practice’). The wrongness constraint is
unsound as a principle of formal criminalisation. But it could yet be, in some sense, a sound principle of
substantive criminalisation. I leave this question open here. On the ideas of formal and substantive
criminalisation generally, see N. Lacey, ‘Historicising Criminalisation: Conceptual and Empirical Issues’,
Modern Law Review 72 (2009): 936–960.
79 Indeed, criminal law scholars are generally sceptical about the existence of a duty to comply with
the law. Even the rare attempts to argue for such a duty in the criminal law context tend to be wary of
claiming that it’s wrong to commit any crime. See e.g. S.P. Green, ‘Why It’s a Crime to Tear the Tag off
a Mattress: Overcriminalization and the Moral Content of Regulatory Offenses’, Emory Law Journal 46
(1997): 1533–1615; D. Markel, ‘Retributive Justice and the Demands of Democratic Citizenship’, Virginia
Journal of Criminal Law 1 (2012): 1–133. The only recent, full-blooded defence of this view of which I am
aware is S.P. Garvey, ‘Was Ellen Wronged?’, Criminal Law and Philosophy 7 (2013): 185–216.
or collective action. In such cases, legal regulation can turn
otherwise permissible conduct into wrongful cheating or free-riding:
consider tax evasion, insider trading, or driving on the hard
shoulder.80 By contrast, the present argument doesn’t just claim that there
are some such cases. It’s more ambitious than this, in two respects.
First, it claims that justified criminalisation always creates reasons
against the targeted conduct. And second, it claims that these reasons
are always decisive against that conduct. Only if these more
ambitious claims are true will the argument save the wrongness
constraint, as an all things considered principle.
At first glance, however, these claims simply seem too ambitious.
Of those crimes that target otherwise non-wrongful conduct, many
are unlike the classic examples just mentioned: Their aim is not to
give citizens new reasons against engaging in the relevant conduct.81
To illustrate this, return once again to the example of sexual activity
with a child. As we saw, this offence is over-inclusive, relative to the
wrong of exploitation that it targets: It catches some conduct that is
not otherwise wrongful. But the point of defining it in an
overinclusive way is not to give citizens new reasons against this
nonwrongful conduct. Rather, it is to deter citizens more effectively
against the pre-existing, underlying wrong, and to improve our
response to that wrong. Hence, not only can one commit this crime
without committing the underlying wrong; one can commit it
without endangering the values pursued by its over-inclusive
definition.82 The potential for such cases of ‘harmless disobedience’,
even of justified regulations, suggests that the present argument is
80 See e.g. Duff, Answering for Crime (n. 1), pp. 172–174; Green, ‘Why It’s a Crime to Tear the Tag off
a Mattress’ (ibid.), pp. 1583–1586; C.H. Wellman, ‘Rights Forfeiture and Mala Prohibita’ in R.A. Duff et
al. (eds.), The Constitution of the Criminal Law (Oxford: Oxford University Press, 2013). There may also be
other relatively clear cases: for example, laws aimed at solving problems of assurance. See e.g. S.
Dimock, ‘Contractarian Criminal Law Theory and Mala Prohibita Offences’ in R.A. Duff et al. (eds.),
Criminalization: The Political Morality of the Criminal Law (Oxford: Oxford University Press, 2014);
Tadros, ‘Wrongness and Criminalization’ (n. 1) pp. 165–172.
81 For further discussion of this point, see Husak, Overcriminalization (n. 1), pp. 103–119.
82 Compare Kit Wellman’s discussion of such offences in Wellman, ‘Rights Forfeiture and Mala
Prohibita’ (n. 80). Ostensibly, Wellman agrees with the present objection: It’s wrong to disobey just
laws. In the end, however, his discussion implies that ‘just laws’ are those grounded in obligations of
fairness. Crimes like sexual activity with a child are unjust because they lack any such grounding: Those
who don’t commit the underlying wrong should not be criminally liable.
83 Moreover, for legal rules of this kind, the potential is ever-present. As we saw in the previous
section, the very features of such rules that make them attractive for legislators are likely to result
in cases where breach is permissible for citizens. See further Alexander and Sherwin, The Rule of
Rules (n. 76), ch. 4; Schauer, Playing by the Rules (n. 56), ch. 6.4.
Why might one think that it’s wrong to commit justifiably
enacted crimes, even in cases of harmless disobedience? One possible
answer is that the criminal law has moral authority: It has a
normative power over citizens, such that, by justifiably enacting new
crimes, legislators obligate citizens morally not to commit those
crimes. Some advocates of the wrongness constraint appear to
endorse this answer.84 By itself, however, it is unsatisfactory: It doesn’t
explain how the criminal law gets this power or why citizens would
have the corresponding obligation to comply. Moreover, in the
context of legal authority and obligation more generally, these things
have proved difficult to explain. Indeed, they’ve proved difficult to
explain partly because of the ever-present potential for harmless
disobedience.85 It’s therefore unlikely that we can solve this problem
simply by invoking the authority of the criminal law.
Nevertheless, citizens may yet have other good reasons to avoid
committing justifiably enacted crimes. Most obviously, a system of
just criminal laws, with which citizens generally comply, has great
social value. By failing to comply with such laws (one might think),
citizens endanger this value – even when they do not endanger the
values underlying the specific crime that they are committing. For
one thing, such non-compliance arguably displays an objectionable
arrogance towards one’s fellow citizens.86 But more significantly, it
tends to endanger the system itself – and correspondingly, to erode
citizens’ confidence that others will comply with the relevant rules.87
Such damage to citizens’ expectations of security and just treatment
is bad, and it is wrong to risk its infliction. Therefore (the argument
goes), it is wrong for citizens to commit justifiably enacted crimes,
even when such commission is otherwise harmless.
Unfortunately, however, this argument still can’t save the
wrongness constraint, because it fails to establish the required
conclusion. Remember how ambitious the argument needs to be in
order to do this: It needs to show that citizens always have reason to
avoid conduct that has been justifiably criminalised, and that these
reasons are always decisive. Plausibly, citizens do have some reason
to avoid undermining a system of just criminal laws, of the kind that
the argument suggests.88 But even if so, these reasons are neither
always applicable nor always decisive: It is possible to commit
justifiably enacted crimes without undermining that system, and
without one’s conduct being wrongful on that ground.
To illustrate this, return to our example from the previous section, of
the relatively mature teenage couple who have a non-exploitative sexual
relationship. We’ve already seen that this couple needn’t endanger the
values underlying the crime of sexual activity with a child. But might
their conduct be wrongful on the basis that it tends to undermine a
system of just criminal laws, with which citizens generally comply?
Surely this is a contingent matter. First, it’s unlikely that the couple’s
conduct risks undermining that system. We’d need to establish a causal
link from their non-compliance to the required undermining effect –
which seems difficult, given that their conduct presumably takes place in
private. Second, even if their conduct does carry this risk, this doesn’t
suffice to make it wrongful. Probably, any such risk would be relatively
small. And the couple might have good reasons for their conduct – such
as expression of their feelings or their sexual autonomy – that justify their
non-compliance. In short, despite the fact that our couple are
committing a justifiably enacted crime, their conduct is not necessarily
wrongful. Even though criminalisation sometimes makes conduct
wrongful, the wrongness constraint thus remains false.
These responses to the present argument won’t convince
everyone. Whether this argument succeeds depends on the extent of the
law’s ability to obligate our compliance. And we can’t hope to
resolve such a contested issue in the space available here. However,
the responses should convince many advocates of the wrongness
constraint. For as we’ve noted, these advocates tend to deny that
88 Although even this might be disputed. Such reasons to comply with just rules arise most
obviously in cases where the rules are designed to co-ordinate subjects’ behaviour – and thus, to facilitate
expectations of compliance. It’s harder to see how they would arise in relation to rules of other kinds.
Compare Alexander and Sherwin, The Rule of Rules (n. 76), pp. 61–68.
there is any general obligation to comply with the law. If they are
correct to deny this, then citizens can commit crimes without acting
wrongly – without endangering either the values underlying the
specific crime, or the more general value of a system of just criminal
laws. Coupled with the discussion in the previous section, this
implies that conduct can permissibly be criminalised, even though it is
non-wrongful both before and after its criminalisation. Such
advocates of the wrongness constraint, as an all things considered
principle, should therefore rethink their commitment.
Orthodox thought holds that criminalisation should be subject to a
wrongness constraint: that is, that conduct may be criminalised only if it
is wrongful. In this article, I’ve argued that this claim is probably false.
Criminalising non-wrongful conduct is indeed presumptively
impermissible. But it might yet be permissible, all things considered.
Moreover, there are examples of crimes targeting non-wrongful conduct –
such as the crime of sexual activity with a child – the creation of which
does seem justified. Nevertheless, we’ve also seen that the wrongness
constraint rests on solid normative foundations. To criminalise conduct
is to facilitate its condemnation and punishment; to coerce citizens
against it; and to portray it as wrongful. These actions are presumptively
impermissible if the conduct that they target is not wrongful. Thus, we
can grant that legislators may sometimes depart from the wrongness
constraint. But they must nevertheless have good reasons for doing so.
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29 This line between threats and offers is usually thought to mark the boundary between conduct that generally is and generally isn't coercive . For a summary of the literature , see S. Anderson , 'Coercion' in E.N. Zalta (ed.), The Stanford Encyclopedia of Philosophy ( 2011 ) https://plato.stanford.edu/ entries/coercion/, s. 2; accessed 26 January 2017 . Note, however, that offers may yet be troubling for other reasons: for example, because they are exploitative .
30 For accounts of this kind, see e .g. G. Lamond, 'The Coerciveness of Law', Oxford Journal of Legal Studies 20 ( 2000 ): 39 - 62 ; B. Sachs , ' Why Coercion is Wrong When It's Wrong' , Australasian Journal of Philosophy 91 ( 2013 ): 63 - 82 .
31 See e.g. M.N. Berman, 'The Normative Functions of Coercion Claims', Legal Theory 8 ( 2002 ): 45 - 89 , pp. 51 - 53 ; V. Haksar , 'Coercive Proposals', Political Theory 4 ( 1976 ): 65 - 79 , pp. 71 - 72 ; J.R. Shaw , 'The Morality of Blackmail', Philosophy and Public Affairs 40 ( 2012 ): 165 - 196 .
56 See F. Schauer , Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life (Oxford: Oxford University Press, 1991 ), especially ch. 2.
57 Advocates of similar claims about permissible coercion are often explicit in supporting the presumptive version of them . See e .g. Edmundson, ' Is Law Coercive?' (n. 34) , p. 93 .
58 In England, for instance, all that's required is that the prosecution is more likely than not to succeed, and that the public interest does not speak against it . For critical discussion, see J. Rogers, ' Restructuring the Exercise of Prosecutorial Discretion in England' , Oxford Journal of Legal Studies 26 ( 2006 ): 775 - 803 .
59 Thanks to two anonymous reviewers for suggesting this objection .
60 Some find this view plausible . For example, for many deontologists, it is generally impermissible intentionally to harm others in order to bring about the greater good . However , this constraint does not apply when the harm to be averted thereby is sufficiently grave . For critical discussion, see L. Alexander, 'Deontology at the Threshold', San Diego Law Review 37 ( 2000 ): 893 - 912 .
61 See D. Enoch , 'Intending, Foreseeing, and the State', Legal Theory 13 ( 2007 ): 69 - 99 , especially pp. 84 - 91 .
65 Sexual Offences Act 2003 s. 9 ( 1 ).
66 Home Office, Setting the Boundaries: Reforming the Law on Sex Offences , vol. 1 (London: Home Office, 2000 ), ch. 3. 6 ; Home Office , Protecting the Public: Strengthening Protection Against Sex Offenders and Reforming the Law on Sexual Offences (White Paper, Cm 5668 , 2002 ), paras. 48 - 50 .
84 See e.g. R.A. Duff and S.E. Marshall , ' '' Abstract Endangerment '', Two Harm Principles and Two Routes to Criminalization', Bergen Journal of Criminal Law and Criminal Justice 3 ( 2015 ): 132 - 161 , pp. 147 - 157 ; Simester and von Hirsch, Crimes, Harms, and Wrongs (n. 1), pp. 25 - 29 .
85 For comprehensive but helpful summaries of the debates , see e.g. W.A. Edmundson, ' State of the Art: The Duty to Obey the Law' , Legal Theory 10 ( 2004 ): 215 - 259 ; L. Green, 'Law and Obligations' in J. Coleman, S. Shapiro and K.E . Himma (eds.), The Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford: Oxford University Press, 2002 ). Both authors conclude from their surveys that a general duty to comply with the law is unlikely to exist. Their arguments are analogous to the one made in this section: any reason strong enough to ground such a duty is unlikely to apply to all citizens, for all laws , in all cases.
86 Duff, Answering for Crime (n. 1) pp. 170 - 171 .
87 See e.g. V. Tadros, ' Fair Labelling and Social Solidarity' in L. Zedner and J .V. Roberts (eds.), Principles and Values in Criminal Law and Criminal Justice : Essays in Honour of Andrew Ashworth (Oxford: Oxford University Press, 2012 ), p. 73 .