On Criminalization: An Essay in the Philosophy of Criminal Law

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Springer Science & Business Media, Jan 31, 1994 - Law - 312 pages
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I begin by introducing the main issues of the work, and inviting their consideration; as enticement, I offer a sketch of their practical importance, and of the philosophical challenge they present. And I provide a preview of the work's organization and central argument. There is something so obvious that it is easily-and often-overlooked: the enforcing of criminal statutes is the most intrusive and coercive exercise of domestic power by a state. Forcibly preventing people from doing that which they wish to do, forcibly compelling people to do that which they do not wish to do-and wielding force merely attempting to compel or prevent-these state activities have extraordinarily serious ramifications. Indeed, no state institutions are likely to have more profound an impact on the lives of individual citizens than those of the criminal justice system. I endorse Herbert Packer's assessment: The criminal sanction is the law's ultimate threat. Being punished for a crime is different from being regulated in the public interest, or being forced to compensate another who has been injured by one's conduct, or being treated for a disease. The sanction is at once l uniquely coercive and, in the broadest sense, uniquely expensive. As a consequence, these state activities are in special need of moral warrant. Given the great potential for doing grave injustice, the power of the state embodied in the criminal justice system ought not be exercised in the absence of a complete and compelling moral justification.
 

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Contents

Balancing as a DecisionProcedure for Morally Justified Criminalization
29
The Topography of Actions Relevant to Criminalization
39
Filtering as a DecisionProcedure for Morally Justified Criminalization
63
Preface
101
Issues in Paternalism
107
Soccias Novel Condition for Justified Paternalistic Interference
142
Concerns about Feinbergs Voluntariness Tribunal
155
Parfit on Paternalism
175
Deconstructing Community SelfPaternalism
196
On the Criminalization of Bestiality and the Assumption of Compliance
215
The War on Drugs
227
A General Philosophical Critique of the War on Drugs
233
More Internecine Warfare
290
On the Alleged Racism of Drug Decriminalization
294
Overview and Review
301
Index
311

Some Hard Words about Soft Paternalism
179
Oblique Attempts to Expand the Criminalizing Authority of the State
183

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