Abstract
It is widely accepted that (1) criminalization creates a prudential reason to refrain from the criminalized conduct in order to avoid punishment, and (2) prudence is the wrong reason to refrain from wrongdoing. According to Michael S. Moore, these facts should lead us to conclude that the criminalization of wrongful conduct corrupts motives by making some who would otherwise have refrained from wrongdoing for the right reason, refrain from wrongdoing only out of prudence. This paper argues that (1) and (2) provide no reason to believe that criminalization corrupts motives, but should instead lead us to conclude that the criminalization of wrongful conduct obscures motives by making it harder to identify those who refrain from wrongdoing for the right reason. The paper then goes on to argue that the badness of obscuring motives is a pro tanto reason against criminalizing wrongdoing.
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Notes
That offenders become liable to state punishment is often claimed to be the defining trait of criminal law (Douglas N. Husak, Overcriminalization: The Limits of the Criminal Law (Oxford University Press, 2008), 78; Joel Feinberg, The Moral Limits of the Criminal Law, Vol. 1: Harm to Others (Oxford University Press, 1984), 3–4). Though some think that the defining feature of criminal law is rather that it marks the conduct it prohibits as wrongful (R.A. Duff, The Realm of Criminal Law (Oxford University Press, 2018), 14–21; A.P. Simester and Andrew Von Hirsch, Crimes, Harms, and Wrongs: On the Principles of Criminalisation (Hart Publishing, 2011), 4–5), they too agree that “to criminalize a type of conduct is typically to render those who engage in it liable to punishment” (Duff, The Realm of Criminal Law, 36. See also Simester and Von Hirsch, Crimes, Harms, and Wrongs, 6).
Note that, unless the vast majority of people actually take themselves to have a prudential reason to avoid criminal punishment, the criminal justice system would almost certainly fail to promote its justifying aim effectively. Set aside such defective systems of criminal justice.
Husak, Overcriminalization, 92.
Simester and Von Hirsch, Crimes, Harms, and Wrongs, 14.
Victor Tadros, The Ends of Harm: The Moral Foundations of Criminal Law (Oxford University Press, 2013), 21.
Simester and Von Hirsch, Crimes, Harms, and Wrongs, 6.
H.L.A. Hart, “Prolegomenon to the Principles of Punishment,” Proceedings of the Aristotelian Society 60, no. 1 (1960): 4.
Immanuel Kant, Critique of Practical Reason (Dover Publications, 2004); Robert P. George, Making Men Moral: Civil Liberties and Public Morality (Oxford University Press, 1993), 43–44; Friedrich A. Von Hayek, The Road to Serfdom: Text and Documents, ed. Bruce Caldwell, The Collected Works of F.A. Hayek, vol. 2 (University of Chicago Press, 2007), 216; Michael S. Moore, Placing Blame: A Theory of the Criminal Law (Oxford University Press, 1997), 611, 747–748; S. Matthew Liao, “The Idea of a Duty to Love,” Journal of Value Inquiry 40, no. 1 (2006): 18, https://doi.org/10.1007/s10790-007-9013-8. Tadros claims “everyone agrees” that this is so, though this claim is probably too strong: utilitarians would deny that motives are relevant to the value of conduct (Tadros, “The Wrong and the Free,” in Legal, Moral, and Metaphysical Truths, ed. Kimberly Kessler Ferzan (Oxford University Press, 2016), 82).
Throughout the paper, conduct refers to both actions and omissions.
The paper is agnostic about what is the right reason to refrain from wrongdoing, except that the right reason is not prudential in the straightforward sense. The idea that there is value in doing the right thing for the right reason is strongly associated with the idea that the right reason is, in some sense, moral. Several of the authors that I shall discuss refer to the right reason to do the right thing as such (Moore, Placing Blame, 747; Tadros, “The Wrong and the Free,” 82). It is far from uncontroversial that the right reason to do what is morally obligatory is always moral even on the most plausible interpretation of what that means. It seems especially problematic in the case of personal relationships and the duties inherent in those, where the “content of the duty is just to be motivated for the other person’s sake” (Liao, “The Idea of a Duty to Love,” 18).
Simester and Von Hirsch, Crimes, Harms, and Wrongs, 6.
Moore, Placing Blame, 747–748; Michael S. Moore, “A Tale of Two Theories,” Criminal Justice Ethics 28, no. 1 (May 2009): 32, https://doi.org/10.1080/07311290902831284; Michael S. Moore, “Liberty’s Constraints on What Should Be Made Criminal,” in Criminalization: The Political Morality of the Criminal Law, ed. R.A. Duff et al., Criminalization Series 4 (Oxford University Press, 2014), 187–188, 202; George, Making Men Moral, 43–44; Von Hayek, The Road to Serfdom, 216ff.
Kant, Critique of Practical Reason; George, Making Men Moral, 43–44; Von Hayek, The Road to Serfdom, 216; Moore, Placing Blame, 611, 747–748; Liao, “The Idea of a Duty to Love,” 18; Tadros, “The Wrong and the Free,” 82.
As Moore also notes (Moore, Placing Blame, 747), it could be objected that it is possible to do the wrong thing for the right reason if one makes a mistake of fact. However, it seems to me that those who V due to a mistake of fact are neither V’ing for the right reason nor for the wrong reason; rather the mistake of fact disrupts the connection between motives and action such that these agents perform another action than the one they are motivated—rightly or wrongly—to perform.
Recall that the Saints are those who refrain from V’ing for the right reason.
Moore, “Liberty’s Constraints on What Should Be Made Criminal,” 187–188.
Since there are many other ways to exercise legal coercion, Moore might be making a more general claim about law; but since the quote is taken from a discussion explicitly concerned with our reasons not to criminalize wrongful conduct, it is not clear that Moore intends to make a claim about legal coercion more generally (Moore, “Liberty’s Constraints on What Should Be Made Criminal”).
Moore, Placing Blame, 747.
See also Tadros’ reconstruction of Moore’s argument (Tadros, “The Wrong and the Free,” 82).
Tadros, “The Wrong and the Free,” 82–83.
This might be denied on the grounds that the wrongness or rightness of motives is not an either/or question, but rather a matter of degree, such that motives can be more or less right. If this is correct, then the corruption thesis could be true in virtue of making Compliers refrain from V’ing for worse reasons than they otherwise would have, even though they would never have refrained from V’ing for the right reason. Nothing hinges on this question since the argument that (1) and (2) fail to support the corruption thesis, should also lead us to conclude that these facts fail to give us any reason to expect that anyone will refrain from V’ing for a worse reason if V is criminalized.
Imagine, for instance, a Saint who considers the criminalizing polity so horribly unjust that she considers the creation of a prudential reason to refrain from V’ing by that polity as an epistemic reason against believing that V is morally wrong of sufficient strength to convince them that V is permissible after all, which causes them to no longer refrain from V for the right reason.
Cf. Tadros, “The Wrong and the Free,” 82.
Moore, Placing Blame, 747.
Tadros, “The Wrong and the Free,” 83.
Kant, otherwise so strict about what counts as a rightful motive, seems to agree: “All that ethics teaches is that if the incentive which juridical lawgiving connects with that duty, namely external constraint, were absent, the idea of duty by itself would be sufficient as an incentive” (Immanuel Kant, The Metaphysics of Morals, Cambridge Texts in the History of Philosophy (Cambridge University Press, 1996), 21).
This is one way to understand Moore’s remark that making charitable giving legally obligatory through redistributive taxation corrupts motives because then “the virtue of benevolent giving has become the necessity of paying one’s taxes” (Moore, “Liberty’s Constraints on What Should Be Made Criminal,” 188).
Tadros, “The Wrong and the Free,” 83.
Cf. Corey Lang Brettschneider, When the State Speaks, What Should It Say?: How Democracies Can Protect Expression and Promote Equality (Princeton University Press, 2012).
It is worth noting that the state will often have reason to implement these measures anyway, since they are also likely to help reduce the incidence of V’ing.
Harold G. Grasmick, Robert J. Bursik, and Bruce J. Arneklev, “Reduction in Drunk Driving as a Response to Increased Threats of Shame, Embarrassment, and Legal Sanctions,” Criminology 31, no. 1 (February 1993): 61, https://doi.org/10.1111/j.1745-9125.1993.tb01121.x.
Empirical support for this claim can be found in Roland Bénabou and Jean Tirole, “Incentives and Prosocial Behavior,” American Economic Review 96, no. 5 (November 2006): 1652–1678, https://doi.org/10.1257/aer.96.5.1652.
Richard M. Titmuss and Ann Oakley, The Gift Relationship: From Human Blood to Social Policy (The New Press, 1997). See also Carl Mellström and Magnus Johannesson, “Crowding Out in Blood Donation: Was Titmuss Right?,” Journal of the European Economic Association 6, no. 4 (June 2008): 845–863, https://doi.org/10.1162/JEEA.2008.6.4.845.
Note that much of what this paper says about the prudential reasons created by criminalization also applies to prudential reasons outside the context of criminal law. Consider everyday prudential reasons for being nice to others. There are many such reasons. If I am nice to others, they are more likely to be nice to me. If I am nice enough to gain their friendship, they might do me various favors, invite me to their parties, speak highly of me to others, and benefit me in many other ways. All of these things provide me with prudential reasons to be nice to them. Like the prudential reasons created by criminalization, such everyday prudential reasons obscure motives. Moreover, there is at least some reason to regret this. Consider again the ordinary prudential reasons to be nice to others. There is at least something regrettable about the fact that it is so difficult to distinguish true friends from those who are only being nice out of prudence (though the existence of prudential reasons to be nice to others might be for the best, all things considered). This is expressed in the piece of folk wisdom that it is during times of personal crisis, when the prudential reasons to be a friend are weakest, that one will discover who one’s true friends are (see also Plutarch, “How to Distinguish a Flatterer from a Friend,” in Essays, Penguin Classics (Penguin Books, 1992), 62–63).
Hart, “Prolegomenon to the Principles of Punishment,” 4; Tadros, The Ends of Harm, 21.
Except those who can provide a legally valid excuse or justification.
Simester and Von Hirsch, Crimes, Harms, and Wrongs, 6.
As Feinberg points out, punishment brands the convicted with “society’s most powerful stigma and undermine his life projects, in career or family, disastrously” (Feinberg, Harm to Others, 3). See also Husak, Overcriminalization, 57; 77–103; Simester and Von Hirsch, Crimes, Harms, and Wrongs, 3–16; Jonathan Schonsheck, On Criminalization: An Essay in the Philosophy of the Criminal Law, Law and Philosophy Library, vol. 19 (Kluwer Academic Publishers, 1994), 1–6.
Simester and Von Hirsch, Crimes, Harms, and Wrongs, 14–16.
Husak, Overcriminalization, 145–153.
Tadros, “The Wrong and the Free,” 83.
Assuming V is a mala in se.
Cf. Simester and Von Hirsch, Crimes, Harms, and Wrongs, 15. Of course, if the punishment of wrongdoers rather than the prevention of wrongdoing is the point of criminalization, then there would still be a reason for criminal prohibitions to create these reasons as an inevitable side-effect of punishing wrongdoers (cf. Moore, Placing Blame).
It is possible for the criminalization of V both to increase the number of Saints and the number of Compliers by reducing the number of Scoundrels. Since the purpose of criminalization is often to reduce the incidence of the criminalized conduct, we should probably expect this to be the normal case.
Note that the obscuration thesis applies to the first-person case as well as the third-person case. The creation of a prudential reason to refrain from V’ing by criminalizing V not only makes it harder to know whether others who refrain from V’ing are Saints, but also whether we ourselves are Saints. Our motives are not perfectly transparent to ourselves. Any Saint would still be motivated to refrain from V’ing by the right reason, even if there was no prudential reason to do so. But when we do, in fact, have prudential reasons to refrain from V’ing, it is difficult know whether we would still have refrained from V’ing in the absence of any prudential reason to do so. It would be naive to suppose that we can discover the truth about this counterfactual through simple introspection. Our conduct in situations where the prudential reasons to refrain from V’ing are absent or weak might give us some insight in whether we generally refrain from V’ing for the right reason. However, since the prudential reason to refrain from V’ing created by criminalization is both fairly strong and always applicable, we do not encounter situations where the prudential reason to refrain from V’ing are absent or weak if V’ing is criminalized.
Kant, Critique of Practical Reason; George, Making Men Moral, 43–44; Von Hayek, The Road to Serfdom, 216; Moore, Placing Blame, 611, 747–748; Liao, “The Idea of a Duty to Love,” 18; Tadros, “The Wrong and the Free,” 82.
Moreover, it is likely to undermine the confidence with which the belief that someone is a Saint will be held, even when this is correct.
John Rawls, A Theory of Justice (Belknap Press, 2005), 105.
Aristotle, The Nicomachean Ethics, ed. W.D. Ross and Lesley Brown (Oxford University Press, 2009), 146–147, as well as Book VIII more generally.
Aristotle, The Nicomachean Ethics, 147.
Rawls, A Theory of Justice, 105.
G.A. Cohen, “Where the Action Is: On the Site of Distributive Justice,” Philosophy and Public Affairs 26, no. 1 (Winter 1997): 16.
For an excellent general discussion of the role and significance of such reasons, see Moore, “Liberty’s Constraints on What Should Be Made Criminal.”.
Though the obscuration thesis is not necessary, there are many good reasons not to compel people to bring their spouses flowers.
Cf. Bénabou and Tirole, “Incentives and Prosocial Behavior.”.
George, Making Men Moral, 44.
Note further that legislation rarely literally forces anybody to do anything. It just (heavily) incentivizes certain conduct. Cf. Joel Feinberg, The Moral Limits of the Criminal Law, Vol. 3: Harm to Self (Oxford University Press, 1986), 189–195.
George, Making Men Moral, 44.
S. Matthew Liao, “The Right of Children to Be Loved,” Journal of Political Philosophy 14, no. 4 (December 2006): 420–440, https://doi.org/10.1111/j.1467-9760.2006.00262.x.
Liao, “The Right of Children to Be Loved,” 423.
Referenced by Luara Ferracioli, “The State’s Duty to Ensure Children Are Loved,” Journal of Ethics and Social Philosophy 8, no. 2 (September 2014): 1.
Liao, “The Right of Children to Be Loved,” 426–430; Liao, “The Idea of a Duty to Love,” 1–9.
Patricia Olamendi Torres, “Delitos Contra las Mujeres,” (Unifem, 2007), Articulo 6.I, p. 17. The text is in Spanish. I am extremely grateful to Amneris Chaparro for bringing this example to my attention, as well as explaining the context to me and translating key passages (including the quoted one) from Spanish.
Moore, Placing Blame, 747.
Moore, Placing Blame, 747.
Moore, Placing Blame, 747.
Such as George, Making Men Moral, 43–44; Von Hayek, The Road to Serfdom, 216–219.
Acknowledgements
I am grateful to Andreas Albertsen, Thomas Ferretti, Siba Harb, Søren Flinch Midtgaard, Tim Meijers, Lasse Nielsen, Victor Tadros, Rasmus Uhrenfeldt, and Danielle Zwarthoed for useful comments. Special thanks to David Vestergaard Axelsen, Amneris Chaparro, Kasper Lippert-Rasmussen, and an anonymous reviewer for extensive and very useful written comments. I am also grateful to Jill Flohil for her very thorough and helpful editorial work.
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Thaysen, J.D. I Would Do Anything for Law (and That’s a Problem): Criminalization, Value, and Motives. Criminal Law, Philosophy 14, 169–188 (2020). https://doi.org/10.1007/s11572-019-09520-w
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DOI: https://doi.org/10.1007/s11572-019-09520-w