The Criminal Law of the Free Society: A Philosophical Exploration of Overcriminalization and the Limits of the Criminal Law

The criminal law is the most coercive institution of social control in the modern liberal state. It criminalizes conduct, prosecutes individuals, and treats offenders in ways that under other circumstance we would consider as serious violations of individuals’ rights. At a time when this institution has been described as a lost cause serving immoral ends, it is all the more urgent to provide a normative account of the criminal law’s limits and scope of action (ch.1). A starting point of this thesis is that any successful normative account of the criminal law must ground penal principles and practices in an explicit, and sufficiently delimited, political philosophy. This thesis does just that: it advances an account of the criminal law and criminalization that derive from central premises of classical liberalism. I contend that an account shaped by such liberal values and premises is capable of responding successfully to one of the most urgent predicaments of the criminal law today; that is, the abuse of coercive power by the state through the enactment of criminal statutes. This is the problem of overcriminalization (ch.2). The argument for such a liberal model of the criminal law proceeds in two general steps. First, I offer a general account of the state institutions of a free society; a free association of individuals committed to basic principles of equal liberty for all. I argue that, insofar as they are genuinely liberal, these institutions should serve the purposive nature of individuals and their basic interest in living their lives as they think fit (chs.3-4). This ‘service conception’ of the function of state institutions is specified further in terms of the principle of freedom of association – a sine qua non of free social coexistence. This is a general principle of political morality that holds that purposive individuals have a liberty-right to enter into associations with others for any purpose and duration in time, compatible with the same liberty for all, and with no constraints whatsoever on the voluntary benefits and obligations that may emerge from this association. Second, I argue that, within the sphere of the criminal law, our commitment to this general principle of political morality means using the coercive power of the state only to regulate conduct that violates at least one of two basic preconditions of free association. These preconditions are the claim-right to bodily ownership, and – derivatively – the claim-right to ownership in external things (ch.5). These two claim-rights represent the two juridical goods that the criminal law in a free society is to honour and protect and, thus, they constitute the limits of legitimate penal coercion in a free society. Finally, and in order to show the capacity that this abstract model has to respond to the concrete problem of overcriminalization, the thesis presents the two principles of criminalization that derive from the basic preconditions of free association: the principle of direct violation of bodily ownership and ownership in external things, and the principle of effective reduction of violations. Unlike other influential liberal principles of legitimate penal coercion considered in this work – namely, the harm principle, penal paternalism, penal moralism, and penal consequentialism – I argue that this two-principle model has the capacity to respond successfully to different forms of overcriminalization (chs.6-7).