Jens Damgaard Thaysen
HAMBURGER-HATING
The Wrongness Constraint
TERRORISTS,
THE
DUTY
VIEW
OF
PUNISHMENT, AND THE WRONGNESS CONSTRAINT
This version is a draft, please do not cite or circulate without author permission
According to the wrongness constraint, it is permissible to criminalize some conduct, X, only if
anyone who breaks a law against X’ing does something morally wrong. In this article, it is first
argued that Tadros’ duty view of punishment suggests an alternative version of the wrongness
constraint, according to which it is permissible to criminalize some conduct only if anyone who
attempts to evade punishment for breaking a law against that conduct does something morally
wrong. Second, it is argued that both versions of the wrongness constraint are vulnerable to
counter-examples. This suggests that a mix of the two versions is preferable. According to this
version of the wrongness constraint it is permissible to criminalize some conduct, X, only if it is
either morally wrong to break a law against X’ing, or morally wrong to attempt to evade
punishment for breaking a law against X.
KEYWORDS: Tadros; The Ends of Harm; Limits of the Law; Criminalization; The Necessity Thesis; The
Duty View of Punishment
INTRODUCTION
The wrongness constraint is an important principled limit of the criminal law. If the wrongness
constraint is accepted, a large number of actions are principally excluded from being criminalized.
1
Jens Damgaard Thaysen
The Wrongness Constraint
Some form of wrongness constraint is widely endorsed as a limit of the criminal law.1 In an
excellent discussion Victor Tadros distinguishes between two versions of the wrongness constraint:
The Strong Wrongness Constraint. It is permissible to criminalize some conduct only
if that conduct is wrong independently of its being criminalized.2
The Weak Wrongness Constraint. It is permissible to criminalize some conduct only if
that conduct is wrong either independently of its being criminalized or as a result of its
being criminalized.3
There is some discussion about which constraint is preferable.4 This discussion is not addressed
here. Instead our starting point is the observation that both the weak and the strong wrongness
constraint are false unless the following is true:
The Wrongness-of-Conduct-Constraint. It is permissible to criminalize some conduct,
only if anyone who breaks a law against engaging in that conduct does something
morally wrong.
See Robert P George, Making Men Moral: Civil Liberties and Public Morality (Oxford; New York: Clarendon Press ;
Oxford University Press, 1993), 71; Michael S. Moore, Placing Blame: A Theory of the Criminal Law, 1st published in
paperback (Oxford ; New York: Oxford University Press, 1997), 662; Antony Duff, Answering for Crime:
Responsibility and Liability in the Criminal Law, Legal Theory Today (Oxford ; Portland, Or: Hart Pub, 2007), 81;
Douglas N Husak, Overcriminalization: The Limits of the Criminal Law (New York: Oxford University Press, 2008),
72ff; A. P. Simester and Andrew Von Hirsch, Crimes, Harms, and Wrongs: On the Principles of Criminalisation
(Oxford ; Portland, Or: Hart Pub, 2011), 23–29; A. P Simester, “Enforcing Morality,” in The Routledge Companion to
Philosophy of Law, ed. Andrei Marmor (New York , NY: Routledge, 2012), 483ff. Though, of course there are
dissenters, like Jeremy Horder, “Bureaucratic ‘Criminal’ Law: Too Much of a Bad Thing?,” in Criminalization: The
Political Morality of the Criminal Law, ed. R. A Duff et al., Criminalization Series 4 (New York, NY: Oxford
University, 2014), 101–31.
2
Victor Tadros, “Wrongness and Criminalization,” in The Routledge Companion to Philosophy of Law, ed. Andrei
Marmor (New York , NY: Routledge, 2012), 158.
3
Ibid.
4
For arguments against the strong wrongness constraint see Tadros, “Wrongness and Criminalization”; Victor Tadros,
The Ends of Harm: The Moral Foundations of Criminal Law, First paperback edition, Oxford Legal Philosophy (Oxford
United Kingdom: Oxford University Press, 2013), 322–325; Simester and Von Hirsch, Crimes, Harms, and Wrongs, 24–
30.. For defenses of the strong constraint against these arguments, see Moore, Placing Blame, 72–73; Duff, Answering
for Crime, 166–174; R. A. Duff, “Towards a Modest Legal Moralism,” Criminal Law and Philosophy 8, no. 1 (January
2014): 221, doi:10.1007/s11572-012-9191-8.
1
2
Jens Damgaard Thaysen
The Wrongness Constraint
Because criminalizing conduct is equivalent to instituting punishment for that conduct, justifying
the criminalization of X is equivalent to justifying the punishment of X’ing without excuse or
justification. Accordingly, the wrongness-of-conduct constraint is often grounded in a justification
of punishment.5 Retributivism grounds the wrongness-of-conduct constraint because criminalizing
conduct that is not morally wrong will not cause the suffering of wrongdoers.6 The expressive
theory of punishment can ground the wrongness-of-conduct constraint, because criminal
punishment (unlike non-criminal legal disincentives such as a tax) communicates blame7 of the
punished conduct, and such blame can only be expressed, or is only appropriate, if the punished has
done something morally wrong.8 Because punishment expresses that the punished has done
something morally wrong it is an impermissible act of ”moral defamation by the state”9 to punish
what is not morally wrong.
The aim of this article is twofold. First, this article argues that unlike retributivism and
the expressive theory of punishment, the novel theory of punishment defended by Victor Tadros in
his recent book10 cannot ground the wrongness-of-conduct constraint. Instead it can ground an
alternative constraint, namely:
The Wrongness-of-Evading-Punishment Constraint. It is permissible to criminalize
some conduct only if anyone who attempts to evade punishment for breaking a law
against that conduct does something morally wrong.
According to the wrongness-of-evading-punishment constraint, the focus should be on whether it is
wrong to attempt to evade punishment if one has engaged in the criminalized conduct, rather than
5
Duff, Answering for Crime, 81; Moore, Placing Blame, 79, 662; Simester and Von Hirsch, Crimes, Harms, and
Wrongs, 17; Joel Feinberg, “The Expressive Function of Punishment,” The Monist 49, no. 3 (1965): 397–423.
6
Moore, Placing Blame, 70; 662; 754.
7
Alternatively “condemnation” or “censure” is used.
8
Duff, Answering for Crime, 81; Simester and Von Hirsch, Crimes, Harms, and Wrongs, 20.
9
Simester and Von Hirsch, Crimes, Harms, and Wrongs, 20.
10
Tadros, The Ends of Harm.
3
Jens Damgaard Thaysen
The Wrongness Constraint
whether the criminalized conduct is morally wrong in itself. Second, this article argues that both the
wrongness-of-conduct constraint and the wrongness-of-evading-punishment constraint are
underinclusive. This raises the question of whether we should prefer a mixed wrongness constraint
or abandon the wrongness constraint altogether. In the conclusion some considerations are raised in
favour of the former option.
This paper proceeds on the basis of two assumptions. First, it is assumed that it is a
necessary and sufficient condition of a statute being part of the criminal law that the statute warrants
imposing legal punishment on those who break it.11 Second, the paper does not adopt a definition of
punishment beyond the thin understanding of punishment as intentional harm inflicted on the
punished in response to some conduct which the punished is believed to be responsible for. This
follows Tadros both in the sense that no thick definition of punishment is adopted12 and by focusing
on punishment as intentional harming of others.13 A critic might object that this falls short of
providing sufficient criteria for something qualifying as punishment.14 This cannot undermine the
first aim of this paper, since that aim concerns the implications of Tadros’ view. Later in the paper I
explicitly discuss and dismiss the objection that something is not punishment unless it is imposed in
response to (perceived) moral wrongdoing by the punished, which seems the strongest objection to
the thin definition of punishment. Thus, the achievement of the second aim of this paper is
safeguarded from that objection.
Section I argues that Tadros’ duty view of punishment cannot ground the wrongnessof-conduct constraint, and instead grounds the wrongness-of-evading-punishment constraint.
11
Cf. Husak, Overcriminalization, 78., but see Moore, Placing Blame, 23ff. for sceptical comments on identifying
criminal laws with laws that punish simpliciter.
12
As Tadros writes in response to Uniacke: “what is punishment? I am not sure of the best answer to this question,
and I am not too sure we should try to answer it.” (Victor Tadros, “Answers,” Criminal Law and Philosophy 9, no. 1
(March 2015): 100, doi:10.1007/s11572-013-9292-z.)
13
Tadros, The Ends of Harm.
14
Cf. Suzanne Uniacke who pursues this line of attack against Tadros (“Punishment as Penalty,” Criminal Law and
Philosophy 9, no. 1 (March 2015): 37–47, doi:10.1007/s11572-013-9215-z.)
4
Jens Damgaard Thaysen
The Wrongness Constraint
Section II refutes the conceptual argument for the wrongness-of-conduct constraint. Section III
argues that the wrongness-of-conduct constraint and the wrongness-of-evading-punishment
constraint are both vulnerable to counterexamples made on the basis of each other. Section IV sums
up and discusses the viability of a mixed wrongness constraint.
I.
THE DUTY VIEW OF PUNISHMENT AND THE WRONGNESS CONSTRAINT
This section argues that the duty view of punishment cannot ground the wrongness-of-conduct
constraint and instead grounds the wrongness-of-evading-punishment constraint can be grounded in
the duty-view of punishment. The duty view of punishment cannot ground the wrongness-ofconduct constraint because the duty view of punishment as such does not provide any reason in
favour of the wrongness-of-conduct constraint. None of this implies that the duty view of
punishment is incompatible with the wrongness-of-conduct constraint, for the wrongness-ofconduct constraint could be grounded in something other than the justification of punishment.
However, this alternative grounding would then need to be explicated, and looking at other theories
of punishment would be unhelpful, since they need no external source of grounding for the
wrongness-of-conduct constraint. It is unclear whether Tadros would embrace these conclusions, as
Tadros’ commitment to the wrongness-of-conduct constraint.15 However, since rejecting the
wrongness-of-conduct constraint in favour of the wrongness-of-evading-punishment constraint has
no negative implications for the general theory, I do not see the argument as a critique of the duty
view.
First, the duty view of punishment is summarized. Second, a quasi-formal argument
that the duty view cannot ground the wrongness-of-conduct constraint and instead grounds the
15
5
Tadros, “Wrongness and Criminalization,” 172; Tadros, The Ends of Harm, 325.
Jens Damgaard Thaysen
The Wrongness Constraint
wrongness-of-evading-punishment constraint is presented. Third, the central premise of the
argument is defended.
A. The Duty View of Punishment
The duty view of punishment can be summarized as the position that punishment is justified by the
enforceable duties of the punished. Punishing A is permissible only if A has an enforceable duty
whose discharge involves punishment. According to Tadros the purpose of punishment is general
deterrence.16 The problem with justifying punishment for the purpose of general deterrence is that
punishing for the purpose of general deterrence involves using the punished as a means to deter
others from causing criminal harm, but it is normally impermissible to harm other people as a
means of avoiding harm to others.17 Tadros tackles this problem by arguing that it is permissible to
harm A as a means of avoiding harm to B, when A has an enforceable duty to suffer the harm in
order to avoid harm to B.18 As Tadros writes:
The right to punish offenders, like the right to force wrongdoers to compensate their victims, is
grounded in the duties that they incur as a result of their wrongdoing. 19
By committing a criminal offence, the criminal incurs certain duties, and punishment is simply the
enforcement of these duties. According to Tadros, the duties incurred by offenders are the duty to
recognize they have done wrong and the duty to protect their victims from further harm.20 I focus on
the abstract claim - that punishment is justified by the enforceable duties incurred by offenders –
and set aside Tadros’ account of the concrete duties incurred by criminals. This is compatible with
16
Tadros, The Ends of Harm, 113.
Ibid., 114.
18
Ibid., 131.
19
Ibid., 3.
20
Ibid., 3–4.
17
6
Jens Damgaard Thaysen
The Wrongness Constraint
holding that in the great majority of cases it is the two enforceable duties focused on by Tadros that
justify punishment. I now move on to present two quasi-formal arguments to the effect that the duty
view cannot ground the wrongness-of-conduct constraint and that it grounds the wrongness-ofevading-punishment constraint, respectively.
B. Two Quasi-Formal Arguments
Both arguments have the same two starting premises:
1) It is permissible criminalize some conduct, X, only if it is permissible to punish those who
breaks a law against X’ing without justification or excuse.
2) It is permissible to punish some person, A, only if A has an enforceable duty whose
discharge involves suffering punishment.
The reader will recognize 1) as the link between punishment and criminalization. This is treated as
uncontroversial and not defended here. After the two first premises the two arguments diverge:
3) A can incur an enforceable duty whose discharge involves suffering punishment by
engaging in conduct that is neither morally wrong nor made morally wrong by
criminalization
4) If 1), 2), and 3) then it can be permissible to criminalize some conduct, X, even though X is
neither morally wrong nor made morally wrong by being criminalized
5) It can be permissible to criminalize some conduct, X, even though X is neither morally
wrong nor made morally wrong by being criminalized
According to 3) enforceable duties whose discharge involves suffering punishment can be incurred
without having done anything that is either morally wrong or made morally wrong. This is the core
7
Jens Damgaard Thaysen
The Wrongness Constraint
premise of the argument. If 3) is false there will never be a practical difference between the
wrongness-of-conduct constraint and the wrongness-of-evading-punishment constraint and the duty
view will be able to ground the wrongness-of-conduct constraint. I take 4) to be uncontroversial. 5)
is the negation of the wrongness-of-conduct constraint, since it states that it can be permissible to
criminalize conduct that is neither morally wrong, nor made morally wrong by being criminalized.
Since the argument is valid, and 1) and 4) are uncontroversial, the only realistic way to deny 5) is to
deny either 2) or 3). Since denying 2) is denying the duty view itself, and when discussing the
implications of the duty view, the duty view should be taken for granted, denying 3) is the only way
to deny that the duty view cannot ground the wrongness-of-conduct constraint. The second
argument is as follows:
6) If A has an enforceable duty whose discharge involves suffering punishment, then A would
do something morally wrong by attempting to evade punishment.
7) If 1), 2) and 6) then it is permissible to criminalize some conduct, X, only if anyone who
attempts to evade punishment for breaking a law against X does something morally wrong.
8) It is permissible to criminalize some conduct, X, only if it would be morally wrong to evade
punishment for breaking a law against doing X.
6) seems far less controversial than 3), if one has a duty to do something, then failing to discharge
that duty is morally wrong. 7) seems wholly uncontroversial. 8) is simply the wrongness-ofevading-punishment constraint. If the argument is valid, there is no way to deny 8), without denying
one of the premises. Thus, the duty view of punishment – stated in 2) – along with the other
premises grounds the wrongness-of-evading punishment constraint. The second argument is hard to
deny, without denying the duty view. The main challenge will consist in denying 3). Though it is
not a premise of the argument, denying 3) undermines the relevance of distinguishing between the
wrongness-of-conduct and the wrongness-of-evading-punishment constraints. This is so since if 3)
8
Jens Damgaard Thaysen
The Wrongness Constraint
is false, the two constraints will be perfectly coextensive. As denial of 3) is the only realistic way to
deny that the duty view cannot ground the wrongness-of-conduct constraint, and the best way to
deny that the wrongness-of-evading-punishment constraint is interestingly different, the remainder
of this section will be spent justifying 3).
C. Incurring Duties Whose Discharge Involves Suffering Punishment without Wrongdoing
Tadros often writes as if enforceable duties whose discharge involves suffering punishment can
only be incurred through wrongdoing.21 This section defends 3) by arguing that enforceable duties
whose discharge involves suffering punishment can be incurred by engaging in conduct that is
neither wrong nor made wrong by criminalization.22
Though Tadros mostly writes as if the duties whose discharge involves suffering
punishment can only be incurred through wrongdoing, some of his own cases23 illustrate that his
need not be the case:
Pond Rescue: A child is drowning in a pond. [Ronald is] the only person who can
rescue the child.24
Tadros argues that Ronald has a duty to rescue the child in Pond Rescue at some cost to himself,
like the loss of a finger, and that this duty is enforceable. Thus, the bystander, Bertha, is permitted
to force Ronald into the pond in order to save the child if Ronald refuses to discharge this duty.25
Certainly Ronald does something wrong if she refuses to save the child at the cost of his finger.
21
Cf. Ibid., 188, 276, 280, 291.
This section also provides some reasons for thinking that Tadros cannot in fact think that enforceable duties whose
discharge involves suffering punishment can only be incurred through wrongdoing.
23
Tadros, The Ends of Harm, 127–137.
24
Ibid., 130. Tadros refers to the person as “me”. I have replaced this with “Ronald” for more elegant reference.
25
Ibid., 130–132.
22
9
Jens Damgaard Thaysen
The Wrongness Constraint
However, crucially Ronald must have had incurred the enforceable duty to rescue the drowning
child at the cost of his finger before doing anything wrong, because the moral wrong consisted
precisely of Ronald’s refusal to carry out his enforceable duty! Thus, here Ronald incurs an
enforceable duty which can only be discharged by suffering harm.
One could object that Ronald may have a duty prior to any wrongdoing, but that this duty
becomes enforceable only after Ronald has done wrong by refusing to save the drowning child.
After all it is plausible that Ronald should have the opportunity to do the right thing of his own
accord. However, Tadros also considers a variation of Pond Rescue, where Ronald can only rescue
the drowning child “by blocking a rivulet flowing into the pond, preventing the water from rising
above the child’s head”26. Doing so will cost Ronald his finger. There is a bystander Bertha who
cannot rescue the child herself, because she is too small to block the rivulet. Ronald is unconscious,
but Bertha can push Ronald into the stream and thereby save the child.27 Plainly Ronald has done
nothing wrong here, since Ronald is not conscious. Yet Tadros concludes that Bertha is morally
permitted to push Ronald into the stream, because Ronald would have an enforceable duty to rescue
the drowning child were he conscious.28 Here Ronald incurs enforceable duties which can only be
discharged by suffering harm are incurred without having done anything, which is morally wrong or
made morally wrong by being criminalized.
Tadros (rightly) sees the intentional infliction of harm as the main obstacle of
justifying punishment,29 and indeed the examples discussed above show that Ronald incurs
enforceable duties which can only be discharged by suffering harm are incurred without having
done anything, which is morally wrong or made morally wrong by being criminalized. But while
26
Ibid., 132–133.
Ibid., 133.
28
Ibid., 135. Note that Tadros explicitly rules out that the hypothetical consent of Ronald to be pushed into the stream
is relevant for the permission of Bertha to do so.
29
Ibid., 21.
27
10
Jens Damgaard Thaysen
The Wrongness Constraint
some features of punishment are present in the example, like the fact that the harm to Ronald is
inflicted by someone other than Ronald, other features of punishment – even on a thin account – are
lacking. For one thing the harm inflicted on Ronald is not inflicted in response to Ronald’s conduct,
but in response to the need of the drowning child. Furthermore, we might desire an example where
the state inflicts the harm, rather than a private person, since we are ultimately interested in state
punishment. Could one provide an example where Ronald incurred an enforceable duty whose
discharge involves suffering state punishment by engaging in conduct that is neither wrong nor
made morally wrong by being criminalized?
It seems that one can. Imagine the following case, Terrorists:
Terrorists plant a series of small bombs all over a major city, and now threaten to
detonate them unless eating hamburgers is criminalized, those who eat hamburgers are
sentenced to 14 days in prison, and the sentence is carried out. It is impossible to stop
the terrorists. The government has had time to evacuate the population, so detonating
the bombs will not kill anyone. However, every building in the city will be severely
damaged. Furthermore, these attacks will keep happening until the government
accepts the demands made by the terrorists. Suppose that Ronald consumes a
hamburger even though he knows all these facts. He just loves hamburgers that much.
I will argue that in Terrorists Ronald does nothing which is morally wrong or made morally wrong
by being criminalized, Ronald incurs an enforceable duty whose discharge involves suffering the 14
days in prison, and those 14 days in prison qualifies as punishment. If I am right about this, then
Terrorists shows that 3) is true.
Before moving on to argue those things, two remarks should be made about
Terrorists. First, according to threshold deontology, deontological constraints should be respected
11
Jens Damgaard Thaysen
The Wrongness Constraint
despite the bad consequences of doing so, as long as these bad consequences fall below a certain
threshold of severity. When the bad consequences reach a certain degree of severity it becomes
morally permissible to violate the deontological constraint.30 The wrongness constraint is a
deontological constraint. Terrorists is constructed in such a way that the damage the bombs will do
if detonated falls below the threshold. To see this, imagine that these consequences could only be
avoided by torturing an innocent. To do so seems obviously impermissible. Second, some may be
inclined to react to the case by asserting that one should never negotiate with terrorists. This is
implausible in a case where it (unlike in the real world) is impossible to stop the terrorists. Note also
that Terrorists is fairly close to the world we live in, and certainly a no more fantastic example than
the harmless burglaries31 and harmless rapes32, which are widely discussed counterexamples to the
harm principle.
1. Ronald’s Conduct is not Morally Wrong
If consuming hamburgers is morally wrong, we need a reason why that is so. I will argue that no
such reason can be found. That there is nothing intrinsically wrong about eating hamburgers is
obvious.33 Anyone who rejects this would also be committed to the view that consuming
hamburgers is morally wrong regardless of the terrorists’ threat, since an external factor cannot
make some conduct intrinsically wrong. Below I argue that consuming hamburgers is neither wrong
in virtue of causing direct harm, nor because it risks causing harm, nor in virtue of causing remote
30
Moore, Placing Blame, 723.
Arthur Ripstein, “Beyond the Harm Principle,” Philosophy & Public Affairs 34, no. 3 (June 2006): 218.
32
John Gardner and S Shute, “The Wrongness of Rape,” in Offences and Defences, ed. John Gardner (Oxford
University Press, 2000).
33
The reader should bracket any concerns about the morality of eating hamburgers unrelated to the case, e.g. whether
there are issues of animal rights involved.
31
12
Jens Damgaard Thaysen
The Wrongness Constraint
harm, nor does it become wrong by being criminalized. Therefore Ronald does nothing morally
wrong in Terrorists by consuming hamburgers.
Consuming hamburgers does not cause direct harm because for the harm to
materialize a “free intervening act of a third party” 34 is required, i.e. the terrorists must detonate the
bombs (and besides Ronald also needs to make a further choice to not turn himself in). As Simester
and von Hirsch points out this “ordinarily relieves the original actor of causal responsibility, on the
basis that informed adults of sound mind should be treated as autonomous beings who make their
own decisions about how they act, so that their free, deliberate, and informed interventions are not
treated as caused by others.”35
Nor is consuming hamburgers wrong because it risks causing harm, like “round a
blind on the wrong side of the road”36 does. While the person who drives around a blind corner on
the wrong side of the road acts wrongly because she risks colliding with another driver coming the
other way, and she cannot know or control whether this risk will materialize. Ronald has full
control over whether the terrorists will detonate the bombs, since he can guarantee that it will not
materialize by turning himself in.
One could argue that even though eating hamburgers will not cause harm unless both
the terrorists and Ronald each makes a further autonomous choice consuming hamburgers is wrong
because it causes remote harm.37 However, that is not the case either. In their discussion of whether
one can criminalize conduct for causing remote harm Simester and von Hirsch argues that the key
question is whether the conduct is morally wrongful.38 According to them “[s]omething more than
34
Simester and Von Hirsch, Crimes, Harms, and Wrongs, 61.
Ibid.
36
Duff, Answering for Crime, 163.
37
This would make consuming hamburgers equivalent to what Simester and Von Hirsch calls prophylactic crimes
(Crimes, Harms, and Wrongs, 75.)
38
Ibid., 73.
35
13
Jens Damgaard Thaysen
The Wrongness Constraint
predictability or correlation” is needed to make it morally wrongful for A to do X because this will
lead B to do Y (thus, the fact that Ronald knows that the terrorists might detonate the bombs if he
consumes hamburgers and refuses to turn himself in is not enough to make consuming hamburgers
count as wrongful.) What is needed is for Ronald to incur “some form of normative involvement” in
the choice of the terrorists to detonate the bombs by consuming hamburgers, which is roughly the
case, when consuming hamburgers “in some sense affirms or underwrites the intervening actor’s
[i.e. the terrorists’] subsequent choice”39 to detonate the bombs. If Ronald does not become
normatively involved in a subsequent decision to detonate the bombs by consuming hamburgers,
then consuming hamburgers cannot be morally wrong on grounds of causing remote harm. Simester
and von Hirsch mention four types of normative involvement: Advocacy, encouragement40 and
imitation, supply of products used to do harm, and supply of advice.41 I challenge the reader to find
any reasonable understanding of these types of normative involvement where consuming a
hamburger in Terrorists advocates, encourages, supplies products necessary for, or advises the
terrorists to detonate the bombs, or where one would imitate the consumption of a hamburger by
detonating bombs. The authors do not claim the list is exhaustive, but pending any suggestion for a
type of normative involvement, which makes Ronald normatively involved in the detonation of the
bombs by consuming hamburgers, I tentatively conclude that it cannot be morally wrong for Ronald
to consume hamburgers because it causes remote harm either.
Last, one could object that I have characterized the conduct which makes Ronald
liable to punishment incorrectly. What makes Ronald liable to punishment is not the consumption
of hamburgers, but attempting to avoid going 14 days to prison if one has consumed hamburgers,
39
Ibid., 81.
Presumably the authors have “encouragement by example” in mind, since any other form of encouragement would
constitute advocacy.
41
Simester and Von Hirsch, Crimes, Harms, and Wrongs, 81–85.
40
14
Jens Damgaard Thaysen
The Wrongness Constraint
and that conduct is morally wrong on the grounds of causing remote harm. 42 It seems to me that not
even attempting to avoid going 14 days to prison if one has consumed hamburgers fulfils of the
criteria for normative involvement.43 But a stronger reply can be made. Suppose that immediately
after consuming hamburgers Ronald passes out – after all hamburgers are not healthy.44 If the
relevant wrong is attempting to avoid going 14 days to prison if one has consumed hamburgers (and
one accepts the wrongness-of-conduct constraint) then it is not permissible to punish Ronald in this
scenario, but then the state can do nothing but let the terrorists detonate the bombs. But this cannot
be right!
Could we say that consuming hamburgers becomes wrong by being criminalized?
Prima facie a more plausible argument could be made here, for instance one could argue, that we
have a duty to obey the law just because it is law. The problem with this argument is that it
trivializes the wrongness-of-conduct constraint, because if one accepts this sort of argument then
the wrongness-of-conduct constraint rules out no otherwise justified laws. This is so because the
argument for the post-criminal wrongness of consuming hamburgers applies with equal force to all
conduct which is merely pre-criminally morally permissible. In other words, this is just as much an
argument that singing in the bath becomes morally wrong by being criminalized, as it is an
argument that consuming hamburgers does. Unless we discount a possible duty to obey the law
merely because it is law when assessing whether the wrongness constraint is violated, only morally
obligatory conduct which we have a duty to engage in, which can outweigh the duty to obey the law
42
This move is analogous to Duff’s reply to Tadros’ argument against the strong wrongness constraint on the basis of
the example of criminalizing the possession of a knife in public, which Tadros argues is permissible even though such
possession is not pre-criminally wrong (Tadros, “Wrongness and Criminalization,” 169–172.) Duff defended the strong
wrongness constraint against this example on the grounds that “what makes a defendant liable to conviction and
punishment is not that he carried a knife in public, but that he did so even though this was not a necessary or
reasonable defensive measure”, which is pre-criminally wrong (Duff, “Towards a Modest Legal Moralism,” 221.). This
is not to say a variation of my answer to the charge that the relevant moral wrong is not just consuming hamburgers
will suffice as an answer to Duff’s reply to Tadros.
43
One could escape this by denying that the terrorists are “informed adults of sound mind.” (Simester and Von Hirsch,
Crimes, Harms, and Wrongs, 61.
44
My example is analogous to the variation of Pond Rescue discussed above( The Ends of Harm, 133–135.)
15
Jens Damgaard Thaysen
The Wrongness Constraint
merely because it is law will fail to fulfil the wrongness-of-conduct constraint. Regarding that
conduct it is surely the case that whatever reasons ground the duty to engage in the conduct, also
explain why criminalizing the conduct is impermissible, so the wrongness-of-conduct constraint
makes no difference anyway. I take this implication to be unacceptable. Note that this above
objection applies to all arguments that consuming hamburgers becomes morally wrong by being
criminalized, according to which consuming hamburgers is not different from (most) other precriminally permissible conduct in that regard. Nor can the post-criminal wrongness of consuming
hamburgers be explained by the fact that consuming hamburgers is morally wrong if, and only if,
other people refrain from consuming hamburgers, and that Ronald can be sure that other people
refrain from consuming hamburgers only if the consumption of hamburgers is criminalized.45
Suppose ex hypothesi that criminalizing the consumption of hamburgers assures Ronald that others
refrain from consuming hamburgers. This changes nothing, since none of the arguments against the
pre-criminal wrongfulness of consuming hamburgers relied on an assumption that other people ate
hamburgers too. I conclude that there are no plausible grounds for thinking that Ronald’s conduct is
either morally wrong or becomes morally wrong by being criminalized.
2. Ronald Incurs an Enforceable Duty which can only be Discharged by Spending 14 days in
Prison
Yet it is natural to think that by consuming hamburgers in Terrorists Ronald incurs a duty to
prevent the bombs from being detonated owed to the owners of those buildings which would be
ravaged if the bombs were detonated (or maybe he always had this duty, but by consuming
45
This is the way Tadros (convincingly) explains the post-criminal wrongness of mala prohibita like carrying a knife, tax
evasion and not vaccinating boys against rubella (Tadros, “Wrongness and Criminalization,” 165–167; Tadros, The Ends
of Harm, 323–325.)
16
Jens Damgaard Thaysen
The Wrongness Constraint
hamburgers Ronald made going to prison for 14 days become the only way to discharge this duty).
Ronald incurs this duty because he is perfectly equipped to prevent the bombs from being
detonated, the severe damage the bombs will cause to a large number of homes is a much greater
evil than going to prison for 14 days, and Ronald could easily avoid incurring this duty by not
making the choice of consuming hamburgers46 which is hardly a great sacrifice.
Is the duty enforceable when its discharge involves 14 days in prison? Yes it is. For
Tadros the enforceability of a duty depends on “the moral significance of the duty” and “the harms
that will typically be imposed on the duty bearer through enforcement” among other things. 47
Tadros thinks that in Pond Rescue the duty to rescue the child at the cost of one’s finger is
enforceable.48 Though the life of a child is much more morally significant than severe damage to a
great number of buildings, 14 days in prison also seems a much smaller cost than permanent (if
minor) dismemberment. This supports the thought that the duty to prevent the bombs from being
detonated at the cost of going 14 days to prison is enforceable. One cannot object that this duty only
becomes enforceable after Ronald commits the wrong of not discharging it49 by refusing to go 14
days to prison, because it has the implication that it is impermissible to imprison Ronald if he faints
immediately after consuming hamburgers, since he has not yet committed a moral wrong at that
point. In the variation of Pond Rescue where Ronald was unconscious Tadros clearly stated that this
did not change the permissibility of pushing Ronald into the rivulet,50 so Tadros cannot support this
objection anyway.
46
Tadros places great weight on the importance of choice for one’s liability to be harmed, and it seems to justify some
of his protections against punishment (The Ends of Harm, 52–59; 329.).
47
Ibid., 132.
48
Ibid.
49 I treat it as self-evident that it is morally wrong not to do what one has a duty to do
50
Tadros, The Ends of Harm, 135.
17
Jens Damgaard Thaysen
The Wrongness Constraint
3. The 14 Days in Prison Qualifies as State Punishment
Sentencing Ronald to 14 days in prison for consuming hamburgers qualifies as punishment on the
thin definition adopted above. The sentence is in response to conduct which Ronald can be held
responsible for, consuming hamburgers, and 14 days in prison is harm. The big question is whether
it is not recognizable as punishment solely on the grounds of not being imposed in response to
morally wrong conduct. Because I aim to say something about the duty view in this section, it
suffices for my purposes that Tadros rejects this claim,51 and thus this cannot be an objection
internal to the duty view.52 To be sure, Tadros considers that it may be “conceptually necessary for
some act to be an act of punishment that it is imposed for something which the person […]
instructing the punishment disapproves”53 but that criterion is fulfilled here, since the terrorists
surely disapprove of the consumption of hamburgers. Furthermore, the punishment in the example
is state punishment Furthermore, since the duty Ronald incurs is something akin to a duty to rescue,
and Tadros grounds the duty of the state to punish in this duty, 54 it is also noteworthy that Tadros
would not object to the permissibility of state punishment in Terrorists.
Tadros unsurprisingly subscribes to the principle “no punishment without law”.55
Therefore we may surmise that only if there are some set of reasonably general circumstances under
which punishment of the conduct X is permissible, then criminalizing X is permissible. Since we
previously concluded that in Terrorists one incurs a duty which can only be discharged by going 14
days in prison by eating a hamburger and this qualifies as punishment, punishment is permissible
according to the duty view. Since in Terrorists it is generally the case that one incurs a duty which
can only be discharged by going 14 days in prison by eating a hamburger, criminalization is also
51
Tadros, “Answers,” 100.
Later, in Section II I shall discuss the objection at length.
53
Tadros, “Answers,” 100.
54
Tadros, The Ends of Harm, 299–302.
55
Ibid., 316.
52
18
Jens Damgaard Thaysen
The Wrongness Constraint
permissible according to the duty view. Since consuming hamburgers in Terrorists is neither
morally wrong nor made morally wrong by being criminalized, 3) has been defended, and the
conclusions of the arguments follow. Since criminalization is permitted by the duty view even
though it is neither morally wrong nor made morally wrong by criminalization the wrongness-ofconduct constraint cannot be grounded in the duty view.56 Since it is not possible to fail to discharge
an enforceable duty without doing something morally wrong, the duty view of punishment grounds
the wrongness-of-evading-punishment constraint.
The argument so far has been internal to Tadros’ duty view of punishment. I have thus
not argued that it is permissible to criminalize the consumption of hamburgers in Terrorists, but
only that if it is impermissible this is in spite of, not because of, the duty view of punishment. I have
also not addressed the objection that 14 days in prison is not punishment unless it is imposed in
response to morally wrong conduct, because this is not Tadros’ view. I think these conclusions
drawn about the implications of the duty view for the wrongness constraint are interesting enough
in themselves. However, section III provides an argument that it is permissible to criminalize the
consumption of hamburgers in Terrorists, which is external to the duty view, thus showing that the
wrongness-of-conduct constraint is underinclusive. Before that I raise some severe problems about
an influential argument for the wrongness-of-conduct constraint and a corresponding objection to
the interpretation of Terrorists.
56
Though this could be no objection to the argument, one might wonder whether Tadros grounds, or could ground,
the wrongness-of-conduct constraint in something other than his view of punishment. As far as I can tell this is not the
case. Though he argues that “punishment is warranted only if a person has a high level of fault normally identified by
establishing that the offender acted intentionally or recklessly” (Ibid., 318.) these remarks are aimed at strict liability
offenses, and it seems that “fault” is employed in a sense which could apply to conduct, which is not morally wrong.
(Ibid., 318–320.) Even if Tadros intended that these remarks should ground the wrongness-of-conduct constraint, this
would contradict Tadros’ own remarks that it is permissible to harm Ronald manipulatively to save the child in the
variation of Pond Rescue where Ronald was unconscious (Ibid., 133–137.) since Ronald had done nothing morally
wrong in that case.
19
Jens Damgaard Thaysen
II.
The Wrongness Constraint
BLAMING AND NECESSITY: THE CONCEPTUAL ARGUMENT FOR THE
WRONGNESS-OF-CONDUCT CONSTRAINT
An argument for the wrongness-of-conduct constraint is that punishment expresses blame of the
punished conduct57 and blame can only be expressed for morally wrong conduct.58 Call this the
conceptual argument. On the basis of the conceptual argument a conceptual objection to the
interpretation of Terrorists can be made, namely that the 14 days in prison for consuming
hamburgers does not qualify as punishment, because consuming hamburgers in Terrorists is not
morally wrong. Therefore Terrorists has no implications for the wrongness-of-conduct constraint.
The conceptual argument rests on the following two claims:59
A) It is conceptually true that punishment expresses blame of the punished conduct
B) It is conceptually true that blame can only be expressed for morally wrong conduct
In what follows, I shall first argue that the conceptual argument fails spectacularly as an objection
against Terrorists. Second, I argue that a revised argument, which replaces the conceptual claims
with normative ones, fails as well. Though, I discuss the conceptual argument in the abstract, it is
very close to the account of Simester and von Hirsch,60 and at various places I identify the
conceptual argument with Simester and von Hirsch.61 Though in fairness it is unclear whether
57
One can phrase this differently, as a communication of “censure” or “condemnation”. However, both censure and
condemnation seem conceptually tied to blame, censure being an authoritative expression of blame and
condemnation being serious blame.
58
Cf. Simester and Von Hirsch, Crimes, Harms, and Wrongs, 23; Simester, “Enforcing Morality,” 483. Closely related
accounts can be found in Uniacke, Feinberg and Duff (Feinberg, “The Expressive Function of Punishment”; Uniacke,
“Punishment as Penalty”; Duff, Answering for Crime, 81.).
59
In addition to a third claim, which I shall not dispute, about the link between punishment and criminalization.
60
Simester and Von Hirsch, Crimes, Harms, and Wrongs, 10–14; 19–20; 23–29.
61
Note also, that several other accounts only differ slightly from the one discussed here. Cf. Henry M. Hart (“The Aims
of the Criminal Law,” Law and Contemporary Problems 23 (1958): 404–406; 417–422.) Though it is hard to tell, since
she assumes it to be uncontroversial and does not argue for it, it might be on the basis of a conceptual argument that
Uniacke confidently asserts that “punishment is first and foremost a penalty for (alleged) wrongdoing” (Uniacke,
“Punishment as Penalty,” 37.). As mentioned Feinberg and Duff advance related arguments (Feinberg, “The Expressive
Function of Punishment”; Duff, Answering for Crime, 81.). They differ because Duff seems to reject a strict
interpretation of B (Ibid., 81.), while Feinberg is ambiguous on whether A is conceptually rather than just generally true
20
Jens Damgaard Thaysen
The Wrongness Constraint
Simester and von Hirsch affirm A and B, a reader could certainly be forgiven for thinking that
Simester and von Hirsch affirm A when they “take it to be conceptually true that punishment
connotes blame”62 and affirming B when they write “[o]ne cannot blame that person unless that
person does something morally wrong”.63 Later in this section I discuss an alternative interpretation
of Simester and von Hirsch’ arguments for the wrongness-of-conduct constraint and argue that they
fail to establish a wrongness-of-conduct constraint rather than a wrongness-of-conduct desideratum,
raising the suspicion that even if they do not make the conceptual argument, their actual argument
draws its rhetorical force from equivocating about their commitment to A and B. This justifies
treating them as token proponents of the conceptual argument.
A. The Conceptual Argument
In what follows I will argue that defending the wrongness-of-conduct constraint by denying that the
14 days in prison in Terrorists is punishment on the basis of A and B is a hopeless strategy.
However, it is worth remarking that the conceptual argument fares even worse as a positive
argument in favour of the wrongness-of-conduct constraint. If A and B are both true then it is
literally conceptually impossible to punish conduct, which is not morally wrong and by extension,
literally conceptually impossible to criminalize conduct that is not morally wrong. Though “ought
not” may not imply “can”, the conceptual argument makes the wrongness-of-conduct constraint as
irrelevant a constraint on criminalization as a don’t-destroy-the-universe constraint.64 It may be
and seems to reject B in favor a normative claim that one ought only to express blame for wrongful conduct (Feinberg,
“The Expressive Function of Punishment,” 402–405.). Note that to the extent that these differences make Duff and
Feinberg both less vulnerable to my rebuttal of the conceptual argument it makes them less able to argue that an
interpretation of Terrorists can tell us nothing about punishment.
62
Simester and Von Hirsch, Crimes, Harms, and Wrongs, 11. See also p. 13; 23.
63
Ibid., 23. My emphasis. See also p. 13
64
In fact it makes it even less relevant, since at least it is not conceptually false that criminal laws can destroy the
universe.
21
Jens Damgaard Thaysen
The Wrongness Constraint
technically true, but why should we care about a constraint according to which it is impermissible
for the criminal law to do, what the criminal law is by definition unable to do anyway? This is also
why Simester and von Hirsch could be interpreted as denying either A or B for unless either A or B
is false, their proposed truth-constraint on criminalization and their worries that criminalizing nonwrongful conduct will undermine the moral authority of the criminal law by weakening the
association of criminal law with culpable wrongdoing65 are superfluous. Why worry if neither
constraint is possible to violate anyway?
However, our main interest is in the conceptual argument as an objection to
Terrorists. As an objection the conceptual argument fares little better for two reasons. First, it relies
on what Hart scolds as a “definitional stop”.66 A definitional stop is essentially a “no true
Scotsman” on conceptual grounds, i.e. excluding counterexamples to a universal claim about X on
the grounds that the counterexamples does not say something about X, because it is part of the
concept of X that it cannot have the feature, which gives the counterexample its force. Hart
exemplifies with the sheriff example, which allegedly shows that consequentialist justifications of
punishment sometimes justifies punishing the innocent and imagines a consequentialist defense on
the grounds that one can by definition not punish innocents, and therefore this is no critique of
consequentialism as a theory of punishment. Hart writes:
Not only will this definitional stop fail to satisfy the advocate of ‘Retribution’; it would
prevent us from investigating the very thing which modern scepticism most calls in question:
namely the rational and moral status of our preference for a system of punishment under
which measures painful to individuals are to be taken against them only when they have
committed an offence. Why do we prefer this to other forms of social hygiene which we might
65
Simester and Von Hirsch, Crimes, Harms, and Wrongs, 19–20.
H. L. A. Hart, “Prolegomenon to the Principles of Punishment,” Proceedings of the Aristotelian Society 60 (1960
1959): 5.
66
22
Jens Damgaard Thaysen
The Wrongness Constraint
employ instead to prevent anti-social behaviour and which we do employ in special
circumstances with reluctance? No account of punishment can afford to dismiss this question
with a definition.67
Hart accuses definitional stops of not telling us what we want to know. His harsh words are directly
applicable to a defense of the wrongness-of-conduct constraints on conceptual grounds. Imagine
“Spunishment” which is exactly like punishment in every way, except that it is not conceptually
true that it expresses blame. Furthermore, it relates to the “Scriminal Law” exactly like punishment
relates to the criminal law. An argument from A and B cannot tell us why we should prefer the
criminal law and punishment to the Scriminal law and Spunishment. One reply is that Spunishment
can only have some of the other attractive features of punishment if it expresses censure, therefore
punishment and Spunishment will be much more different than my remarks suggest. However, we
then need to know what exactly those features are? Surely, what is often taken to be the other main
component of punishment, harsh treatment,68 can be imposed without expressing blame. Thus, the
objection from A and B leaves the most important questions unanswered.
The second problem is that both A and B seem obviously false. Consider A in light of
the following remark by Tadros’ that punishment must by definition be “imposed for something
which the person doing the punishment, or the person instructing the punishment, disapproves.”69
Call this A*. Set aside the difference between blame and disapproval for now. If we interpret
“instructing” in such a way that that the terrorists can be said to instruct the state to punish the
consumption of hamburgers by 14 days in prison, then no conceptual objection that there is no
punishment in Terrorists can be made on the basis of A, for surely the terrorists are motivated by
their conviction that eating hamburgers is morally wrong.
67
Ibid., 5–6.
Simester and Von Hirsch, Crimes, Harms, and Wrongs, 14.
69
Tadros, “Answers,” 100. [Emphasis mine]
68
23
Jens Damgaard Thaysen
The Wrongness Constraint
Unless we abandon A for A* interpreted in this way the crucifixion of Jesus Christ
was not punishment. For none of those who could be said to have actually crucified Jesus, the
Roman Empire, Pilate, or the Roman Soldiers thought Jesus had done anything morally wrong.
Rather, it was those who instructed the punishment, the Pharisees, the mob who set Barabbas free
rather than Jesus who thought that Jesus had committed the (alleged) wrong of blasphemy.70 As
another example, Cold War Finland had to align much of its policy with its much stronger
neighbour, the Soviet Union, for fear of the consequences of a provocation (though Finland
remained independent with a separate political system). One consequence was that several allegedly
“anti-Soviet” movies, such as the Manchurian Candidate, were banned.71 Suppose Finnish
authorities penalized screening of the movie with 14 days in prison. Unless A* is denied in favour
of A, this would not be punishment, for the Finnish government did not believe it to be morally
wrong, rather the essence of the “Finlandization” of Finland was that such laws were de facto
instructed from Moscow. However, both the crucifixion of Jesus and the penalization of the
screening of the Manchurian Candidate with 14 days in prison seem obvious instances of
punishment. Therefore A is false and should be rejected for A*. Note that under A* the criminal
law can still have a “distinctively moral voice”72, however, it need not be its own. It can be the
voice of ventriloquists holding the state hostage, be it terrorists or the Soviet Union.
Next consider B in light of the example of homosexuality. If it is conceptually true
that punishment cannot be imposed for conduct unless it is truly morally wrong then Oscar Wilde
was never punished for sodomy and gross indecency, he was merely found guilty by a judge in
accordance with a statute and subsequently imprisoned, and sodomy has never been criminalized in
England or anywhere else. Nor is homosexuality a criminal offence punishable by death in
70
I trust the readers agree that the actual truth or falsity of the New Testament is irrelevant to the point of the
example.
71
Note how much this real-life example resembles the Terrorists case.
72
Simester and Von Hirsch, Crimes, Harms, and Wrongs, 4.
24
Jens Damgaard Thaysen
The Wrongness Constraint
contemporary Iran. But surely those who affirm that Oscar Wilde was punished and homosexuality
was (and still is) criminalized in a number of countries are not afflicted with conceptual confusion
about punishment. At minimum this indicates that B should be rejected in favour of B* according to
which the person expressing blame must believe that the blamed conduct is wrongful73, rather than
a criterion of objective wrongfulness. This will allow that prison sentences for homosexuality could
be punishment if those doing the criminalizing believed homosexuality to be morally wrong, which
is certainly plausible. Thus, the argument from A and B leave the most important questions
unanswered, and even if it did provide interesting answers both A and B are false. This makes the
conceptual argument hopeless. Yet only on the basis of the conceptual argument can one deny that
the 14 days in prison in Terrorists are punishment at all.
B. Recasting the Conceptual Argument as a Normative Argument
The problem of the definitional stop can be avoided by dropping either A or B while keeping the
other one. However, since both A and B are false, both should be revised. The most promising
strategy is to recast A and B as the following normative claims:
C) Punishment ought never all-things-considered to be imposed without expressing
blame of the punished conduct.
D) Blame ought never all-things-considered to be expressed for conduct which is not
morally wrong.
Along with the conceptual link between punishment and criminalization, C) and D) will yield the
wrongness-of-conduct constraint. Call this the normative argument. Both C and D must be true for
73
Duff seems to deny B in favor of B*when he writes “criminal law must at least claim to define as criminal only
conduct that is morally wrong” (Answering for Crime, 81.)
25
Jens Damgaard Thaysen
The Wrongness Constraint
the normative argument to work. Note that even if they work this defense of the wrongness-ofconduct constraint is significantly weaker, because if successful the normative argument would not
establish that the 14 days in prison in Terrorists is not punishment, but only that it is impermissible
punishment, this would not demonstrate the irrelevance of Terrorists, and one will have to bite the
bullet that the consumption of hamburgers cannot be criminalized. This leaves any intuitive unease
about this conclusion intact. I noted above that the commitment of Simester and von Hirsch to A
and B were unclear, this is because on another reading the authors affirm D over B74, and may also
affirm C over A.75
The normative argument is a large step forward compared to the conceptual argument,
but it is still problematic. Consider the following:
C*) One ought pro tanto not punish without expressing blame of the punished
conduct.
I will not dispute D, but I shall argue that no argument for affirming C over C* can be extracted
from Simester and von Hirsch. Affirming C* and D is insufficient to show that “wrongfulness of
the [criminalized] conduct is an indispensable requirement of criminalization”76, i.e. to yield the
wrongness-of-conduct constraint, rather C* and D yields:
74
This is suggested by the remark “when labelling those it convicts as culpable wrongdoers, the state should get it
right.” (Crimes, Harms, and Wrongs, 19.) The state could not possibly get it wrong, unless B is false.
75
This is suggested by the remark that criminalizing conduct which is not morally wrong, risks “weakening the
association of the criminal law with culpable wrongdoing.”
76
Simester and Von Hirsch, Crimes, Harms, and Wrongs, 23. My emphasis.
26
Jens Damgaard Thaysen
The Wrongness Constraint
The Wrongness-of-Conduct Desideratum. It is a pro tanto reason against criminalizing
some conduct that one can break a law against that conduct without doing something
morally wrong.77
This is probably correct, but it is significantly weaker and less interesting than the constraint, and it
is compatible with affirming the wrongness-of-evading-punishment constraint or rejecting the
wrongness constraint altogether.
Setting aside arguments resting on A and B, Simester and von Hirsch seems to take
two lines of argument. First, that if conduct which is neither morally wrong nor made morally
wrong by criminalization is punished it “risks undermining the moral authority of the criminal law,
by weakening the association of criminal laws with culpable wrongdoing”. 78 Second, a revised
version of the argument for the truth-constraint79 based on the claim that punishment, as a matter of
tendency or non-conceptual truth, expresses blame and D argues that punishing non-wrongful
conduct amounts to “moral defamation by the state”80 since punishing Ronald will lead others to
widely perceive Ronald as a wrongdoer with all the associated stigma.81
77
Could one reject the relevance of Terrorists by arguing that we should just drop the talk of constraints and focus on
desiderata? After all, even if criminalizing the consumption of hamburgers is permissible, it is hardly desirable that the
terrorists are able to impose such a demand. I doubt this solution works, because the wrongness desideratum is not
very interesting, justifying criminalization is already an exercise in balancing a number of values (no work illustrates
this better, or takes this fact more seriously, than Moore’s legal moralism (Moore, Placing Blame, pt. III; 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 (New York, NY: Oxford University, 2014), 182–212.)) The
claim to fame of the wrongness constraint, like that of the harm principle, is to bypass the balancing process and act
as a filter on criminalization, which proposed legislation must pass through before we can even begin to discuss
balancing. This is what makes the wrongness constraint interesting and this would be lost if we focused on a
wrongness desideratum (for the virtues of filtering, see Jonathan Schonsheck, On Criminalization: An Essay in the
Philosophy of the Criminal Law, Law and Philosophy Library, v. 19 (Dordrecht ; Boston: Kluwer Academic Publishers,
1994), 23–101.)
78
Simester and Von Hirsch, Crimes, Harms, and Wrongs, 20.
79
Revision is needed because the original version relies on A – that it is conceptually true that the state cannot punish
without expressing blame – as argued A should be rejected. (Ibid., 19–20.)
80
Ibid., 20.
81
Note that these two lines of argument undermine each other. If the moral authority of the criminal law is
undermined, then criminal punishment will not be widely perceived as communicating censure. If the criminal law is
27
Jens Damgaard Thaysen
The Wrongness Constraint
Any criminalization of non-wrongful conduct creates one more criminal offense
which one can commit without culpable wrongdoing. If people have some basic mastery of
statistics, it is correct that this weakens the association of the criminal laws with culpable
wrongdoing. It is also correct that criminalizing too much non-wrongful conduct will undermine the
association of the criminal law with culpable wrongdoing. However, plainly the weakening of the
association of the criminal law with culpable wrongdoing brought about by a single instance of
criminalization of non-wrongful conduct will be miniscule in a statistical sense. It is just one law
among a host of others.
Either this trivial weakening counts as undermining the moral authority of the
criminal law, or a much more significant weakening of the association is necessary to undermine
the moral authority of the criminal law. If the former is the case, then it is false that the moral
authority of the law ought all-things-considered never to be undermined, it is only true that there is
a pro tanto moral reason against undermining the moral authority of the criminal law, but this can
only yield C*. If the latter is the case then the argument cannot yield more than C* either, because it
is false that a single instance of criminalizing conduct that is not culpably wrongful undermines the
moral authority of the criminal law. Of course people might attach irrationally much weight to the
single instance of criminalization of non-wrongful conduct, but why should people conclude that
the criminal law does not generally target morally wrongful conduct on the basis of a single, or a
few, instances where conduct, that is neither morally wrong nor made morally wrong by
criminalization is criminalized?
The second line of argument fails to yield C as well, even if criminal punishment
normally expresses blame, why should individuals have so hard a time understanding that this
widely perceived as communicating censure, then its moral authority must be relatively intact. This need not be a
problem insofar as either line of argument could potentially justify the wrongness-of-conduct constraint on its own.
28
Jens Damgaard Thaysen
The Wrongness Constraint
instance of criminal punishment did not brand the punished as a wrongdoer, even though criminal
punishment normally does that? It would underestimate people to think that they would
automatically conclude that because punishment often has the feature F then punishment P
necessarily has this feature. When people do not know the details of a particular instance of
punishment it is natural that they infer the details from what is generally true of punishment, i.e.
they could infer that the punishment expresses blame of the punished conduct because punishment
usually expresses this, but when people knows the details of the particular instance, they do not
need to fill them in by inferring from general facts like “punishment usually expresses blame of the
punished conduct”. Thus, the arguments cannot yield the wrongness-of-conduct constraint, though
the first can yield a wrongness-of-conduct desideratum.
In conclusion, the conceptual argument for the wrongness-of-conduct constraint fails
spectacularly. While more promising, the normative argument ultimately fails to establish a
wrongness-of-conduct constraint rather than a wrongness-of-conduct desideratum.82 Thus, the
challenge to the interpretation of Terrorists on the basis of the concept of punishment has been met.
Of course other objections could be formulated on the basis of the communicative theory of
punishment, and objections on the basis of retributivism have not been touched upon at all.
However, none of those objections would attack the interpretation of Terrorists as relevant to
criminalization they would rather seek to provide reasons for thinking that criminalizing
hamburgers is not permissible after all, regardless of the basis on which it is made, this will be a far
less serious objection, since presumably such critics would concede that not criminalizing the
consumption of hamburgers even though the terrorists will proceed to detonate the bombs is a
significant bullet to bite.
82
Furthermore, even if completely successful the normative argument is a much weaker objection to Terrorists since it
would leave the intuitive unease of not criminalizing the consumption of hamburgers intact.
29
Jens Damgaard Thaysen
III.
The Wrongness Constraint
THE WRONGNESS-OF-CONDUCT CONSTRAINT AND THE WRONGNESSOF-EVADING-PUNISHMENT CONSTRAINT ARE BOTH UNDERINCLUSIVE
In this section it is argued that both the wrongness-of-conduct constraint and the wrongness-ofevading-punishment constraint are underinclusive. A version of the wrongness constraint is
“underinclusive” if according to that version of the wrongness constraint, it would be impermissible
to criminalize conduct which it is permissible to criminalize. First it is argued that the wrongnessof-conduct constraint is underinclusive. That the adherent of the duty view must think so has
already been argued in the section I. This section aims first to provide reasons for thinking so
external to the duty view. Second it argues that the wrongness-of-evading-punishment constraint is
also underinclusive.
A. The Wrongness-of-Conduct Constraint is Underinclusive
In the previous section it was argued that the duty view could not ground the wrongness-of-conduct
constraint. This was done through the use of Terrorists. An adherent of the duty view would think it
pro tanto permissible to criminalize the consumption of hamburgers in Terrorists, since by
consuming hamburgers Ronald incurs a duty whose discharge involves suffering punishment. Will
the judgment that criminalizing the consumption of hamburgers is permissible remain once we take
a perspective external to the duty view?
I think it will. The severe damage to a large number of homes in the city is a rather
significant evil, which there is strong reason to try to prevent. But how can we prevent it other than
criminalizing the consumption of hamburgers? Criminalizing the genuine moral wrong of
30
Jens Damgaard Thaysen
The Wrongness Constraint
attempting to evade punishment if one consumes a hamburger will not solve the problem, for
suppose Ronald consumed a hamburger only to immediately pass into a coma, he would not have
attempted to evade punishment, thus, he could not be punished according to such a statute, yet if he
is not the bombs would be detonated. Perhaps criminalizing the consumption of hamburgers even
though it is neither morally wrong nor made morally wrong by being criminalized is impermissible
because it is too costly to important values compared to the benefit of avoiding the severe damage
to a large number of homes? But what exactly are those values? It cannot be because it violates the
wrongness-of-conduct constraint, for that presupposes what must be shown, that the wrongness-ofconduct constraint must not be violated. It is not rule of law values for consuming hamburgers is a
choice which Ronald can be held responsible for, neither is it plausible that it is values like freedom
or autonomy, though it is trivially true that there is a real loss in valuable freedom83, this loss must
be weighed against the evil of the bombs being detonated. In this balancing act the importance of
being free to consume hamburgers is unlikely to tip the scales in favour of non-criminalization. For
the freedom to consume hamburgers is neither fecund,84 in the sense that closing off this option
closes off many more options, nor is it something which is likely to be centrally important in the life
of even the most fanatical hamburger-lover.85 Thus, even when a perspective external to the duty
view is taken, the judgment that criminalizing the consumption of hamburgers in Terrorists is
permissible remains.
83
Moore, “Liberty’s Constraints on What Should Be Made Criminal,” 185–188.
For scholars who emphasize this criterion, see Joel Feinberg, The Moral Limits of the Criminal Law Vol. 1: Harm to
Others (New York; Oxford: Oxford University Press, 1984), 213, 217; Moore, “Liberty’s Constraints on What Should Be
Made Criminal,” 201.
85
For instance, the choice of consuming hamburgers clearly falls outside all of the areas mentioned by either Waldron
or Moore in their accounts of areas where free choice is especially important (Jeremy Waldron, “A Right to Do
Wrong,” Ethics 92, no. 1 (1981): 34–35; Moore, “Liberty’s Constraints on What Should Be Made Criminal,” 205.
84
31
Jens Damgaard Thaysen
The Wrongness Constraint
The argument that consuming hamburgers in Terrorists is neither wrong nor made
morally wrong by being criminalized made in section I was not internal to the duty view.86 Thus no
additional argument is necessary here. On this basis it is concluded that it is permissible to
criminalize the consumption of hamburgers in Terrorists even though consuming hamburgers is
neither wrong nor made morally wrong by being criminalized. Thus, the wrongness-of-conduct
constraint is underinclusive.
B. The Wrongness-of-Evading-Punishment Constraint is also Underinclusive
Does Terrorists show that the wrongness-of-conduct constraint should be abandoned in favour of
the wrongness-of-evading-punishment constraint? Not necessarily. A thought experiment will show
the wrongness-of-evading-punishment constraint to be underinclusive as well, Revised Terrorists:87
The terrorists now demand both that those who eat hamburgers are sentenced to 14
days in prison, the sentence is carried out, and that those who eat hamburgers
genuinely attempt to evade punishment. Otherwise the case is the same as Terrorists.88
Nothing relevant to the permissibility of criminalizing the consumption of hamburgers is different
in Revised Terrorists compared to Terrorists. Leaving consumers of hamburgers unpunished has
exactly the same bad consequences, and exactly the same freedom is infringed upon by
criminalizing the consumption of hamburgers. Thus, just like in Terrorists, it is permissible to
criminalize the consumption of hamburgers in Revised Terrorists. However, unlike in Terrorists the
consumer of hamburgers in Revised Terrorists does nothing morally wrong by attempting to evade
86
The main source of the discussion was Simester and von Hirsch (Crimes, Harms, and Wrongs.)
I thank Kasper Lippert-Rasmussen for suggesting this example to me
88
Revised Terrorists is more fanciful than Terrorists, yet it is true that a deranged person could conceivably make such
a demand in the world we live in.
87
32
Jens Damgaard Thaysen
The Wrongness Constraint
punishment, because not attempting to evade punishment will make the terrorists detonate the
bombs, and it was the fact that attempting to evade punishment for consuming hamburgers would
make the terrorists detonate the bombs that explained why it was wrong for the consumer of
hamburgers to attempt to evade punishment in Terrorists. Thus, in Revised Terrorists it is
permissible to criminalize the consumption of hamburgers, even though it is not wrong for those
who consume hamburgers to attempt to evade punishment. Thus the wrongness-of-evadingpunishment constraint is also vulnerable to an example which shows it to be underinclusive. If this
is correct, then both the wrongness-of-conduct constraint and the wrongness-of-evading-punishment
constraint are underinclusive, because they do not permit criminalizing conduct that it is intuitively
permissible to criminalize.
IV.
CONCLUSION: A MIXED WRONGNESS CONSTRAINT?
The two main contributions of this paper are first that Tadros’ duty view of punishment could not
ground the wrongness-of-conduct constraint, but instead suggested the wrongness-of-evadingpunishment constraint. Rather than being a weakness of Tadros’ view, the duty view of punishment
indeed pointed to a way in which the wrongness-of-conduct constraint was underinclusive. This was
illustrated through the thought-experiment Terrorists. However, the wrongness-of-evadingpunishment constraint was also vulnerable to an objection showing it to be underinclusive. Second,
the conceptual argument commonly invoked as grounding for the wrongness-of-conduct constraint
was refuted and some worries about the ability of normative arguments to ground a constraint
rather than a desideratum were raised. This met the objection that Terrorists has no implications for
criminalization, because the 14 days in prison did not qualify as punishment.
33
Jens Damgaard Thaysen
The Wrongness Constraint
Both wrongness constraints discussed were thus underinclusive, should we therefore
reject the wrongness constraint altogether? Not before considering:
The Mixed Wrongness Constraint. It is permissible to criminalize some conduct only
if it is either morally wrong to break a law against that conduct, or morally wrong to
attempt to evade punishment for breaking a law against that conduct.
The mixed wrongness constraint permits criminalizing conduct which either of the two constraints
permits criminalizing. If the wrongness-of-conduct constraint is not vulnerable to the
counterexample to the wrongness-of-evading-punishment constraint and vice versa, then the mixed
wrongness constraint can handle both counterexamples, and is thus a viable alternative version of
the wrongness constraint. Since part of the argument89 that the duty view of punishment could
ground the wrongness-of-evading-punishment constraint was to show that in Terrorists Ronald
incurs an enforceable duty which can only be discharged by suffering punishment and failing to
discharge one’s duties is morally wrongful, no further argument that the wrongness-of-evadingpunishment constraint can handle Terrorists should be necessary.
If consuming hamburgers in Revised Terrorists is morally wrong, then the wrongnessof-conduct constraint can handle the counterexample to the wrongness-of-evading-punishment
constraint too. It was argued at length that consuming hamburgers is not morally wrong in
Terrorists, so what is different in Revised Terrorists? What makes consuming hamburgers in
Revised Terrorists morally wrong is that if Ronald consumes hamburgers, the terrorists will
detonate the bombs unless it is both true that Ronald is sentenced to 14 days in prison and Ronald
genuinely attempts to evade punishment. But Ronald can only fulfil the requirement of genuinely
attempting to evade punishment by trying her best to make sure that the requirement of Ronald
89
Made in part I.
34
Jens Damgaard Thaysen
The Wrongness Constraint
being sentenced to 14 days in prison is not met. If Ronald does not genuinely attempt to evade
punishment, the bombs are detonated, but if Ronald’s genuine attempt is successful, the bombs are
also detonated. If Ronald makes sure her attempt to evade punishment fails, it is not a genuine
attempt. Thus, unlike in Terrorists, in Revised Terrorists Ronald cannot guarantee that the bombs
will not be detonated by turning himself in. If he consumes hamburgers he cannot know and does
not control whether the authorities will be able to punish him despite his best efforts to avoid
punishment, and thus, he does not have control over whether the risk the bombs being detonated
will materialize. Thus, consuming hamburgers in Revised Terrorists culpably risks harming others,
exactly like driving around a blind corner on the wrong side of the road does, and it is morally
wrong in exactly the same way crimes of endangerment are. Thus, Revised Terrorists can be
handled by the wrongness-of-conduct constraint, and therefore the mixed wrongness constraint can
handle both counterexamples.
Since it is not possible to formulate a counterexample which shows the mixed
wrongness constraint to be underinclusive without showing both the other constraints to be
underinclusive, and since criticizing the wrongness constraint on grounds of overinclusivity is quite
challenging, because no wrongness constraint excludes the existence of other constraints on
criminalization,90 the mixed wrongness constraint is preferable to both the wrongness-of-conduct
and the wrongness-of-evading-punishment constraints. Is the mixed wrongness constraint also
preferable to no constraint at all, or some even weaker version of the wrongness constraint? To
show that the mixed wrongness constraint is underinclusive, it must be shown that it is logically
possible that some conduct, X, exists, of which the following four things are true:
E) It is permissible to criminalize X
90
Note also that unless one subscribes to a version of legal moralism according to which all moral wrongs ought to be
criminalized all-things-considered, a claim not even Devlin would defend, the wrongness-of-conduct constraint would
be overinclusive if it was the only constraint on criminalization.
35
Jens Damgaard Thaysen
The Wrongness Constraint
F) It is not morally wrong to break a law criminalizing X
G) It is not morally wrong to attempt to evade punishment for breaking a law
criminalizing X
H) The consequences of not criminalizing X are not so severe that they exceed the
threshold beyond which it can be permissible to violate deontological constraints
With the possible exception of E), F), G),91 it is easy to find examples satisfying any three of the
four criteria, Terrorists and Revised Terrorists satisfy E), F), H) and E), G), H) respectively. An
example, where X is ‘singing in the shower’ as well as all sorts of pedestrian everyday behaviour
satisfy F), G), H). However, it seems to me that finding an example satisfying E), F), G) and H) is
much more difficult, though I have no argument showing it to be impossible.
Thus, the mixed wrongness constraint may be a viable principle. Though the
recommendations of the mixed wrongness constraint will always necessarily overlap with at least
one of the wrongness-of-conduct and the wrongness-of-evading-punishment constraints, this paper
has shown that there are both cases where it differs from the former and cases where it differs from
the latter. Even if there were one of the two constraints, which it never differed from, the question
of which version of the wrongness constraint should be accepted remains important because it
affects how one should justify criminal laws. It makes a difference whether legislators justifying
criminalization have to show that conduct is wrongful or would be made morally wrongful by being
criminalized; that engaging in the conduct makes it wrongful to try to evade punishment; or whether
they only have to show either of those two things.
91
Variations of Terrorists where the terrorists threaten to detonate a nuclear weapon killing millions unless people
with some unchosen feature (say the colour of their hair) are imprisoned for 14 days could qualify. However, here the
conceptual objection that that is not punishment is much more viable, since the prison sentence would not be
imposed in response to something the punished could possibly be believed to be responsible for.
36
Jens Damgaard Thaysen
37
The Wrongness Constraint