Defining the Wrongness Constraint

Abstract The idea that the wrongfulness of conduct is necessary for its criminalization to be permissible (or justified or legitimate), is widely endorsed, and even more widely discussed, in criminal law theory. However, there are significant variations in the formulations of the wrongness constraint used. Sometimes, these are explicitly addressed and defended against alternatives, but often they are not. The openness of such questions suggests that, when writing about the wrongness constraint, theorists are rarely discussing one precise, shared concept. This paper aims to remedy this situation. I examine the wrongness constraint and its constituent elements in detail to establish in what form the wrongness constraint is most consistent with the considerations that underlie it. I therefore begin by laying out the considerations I take to underlie the wrongness constraint: the impermissibility of states coercing individuals to refrain from non-wrongful conduct, and the impermissibility of states censuring non-wrongful conduct. Based on these considerations, I put forward a precise definition of the wrongness constraint: Legal officials may permissibly criminalize an act type X only if all tokens of X are extra-legally wrong, where ‘wrong’ is defined as morally wrong and ‘criminalization’ includes both the valid criminal norms created by recognized law-creating institutions and patterns of enforcement. I then defend the constituent elements of this definition against alternatives and argue that the wrongness constraint represents one duty which is borne by every official in a legal system.