Simester and von Hirsch vs. Cornford Type 2 Comparative Insight
The wrongness constraint is thoroughly discussed in articles by A.P. Simester and Andreas von Hirsch and Andrew Cornford. Simester and von Hirsch provide more of an explanation of and bit of an expansion upon using wrongfulness as a determinant of criminalization. They provide three theses that stand to support the wrongness principle, the first being the widely supported insufficiency thesis. It states that “classifying an action as being morally wrong is insufficient to justify criminalization.” (Simester 22) Simester and von Hirsch use the example of the failed prohibition laws during the twentieth century. They argue “that even an in-principle case for criminalizing something requires more than that something is morally wrong.” (Simester 23). The second thesis, deemed the necessity thesis, at first seems like the opposite of the insufficiency thesis but in fact builds upon it. It states “that something is wrongful is necessary to justify its criminalization.” (Simester 22) The authors explain that “one cannot blame a person unless that person does something morally wrong.” (Simester 23). While this is not the “requiring more” they previously mentioned, the necessity thesis sets a baseline for the wrongfulness constraint. The last thesis, deemed the non-qualifying thesis, just does that. It states “that something is wrongful is insufficient to establish even a pro tanto ground for its criminalization.” (Simester 22). The authors explain that this means “only certain kinds of wrongfulness qualify.” (Simester 29)
Following this explanation, Simester and von Hirsch state that they accept the non-qualifying thesis, and support its expansion with a harm-based constraint. However, they explain that their arguments should not be used as “handily-used criteria” and “lack the necessary specificity.” (32) Instead, Simester and von Hirsch’s combination of the non-qualifying thesis and harm-based constraint should be “offered as guides for the direction of argument.”
Cornford’s article argues that the wrongfulness constraint is false. He explains the arguments in support of the wrongfulness constraint, the first being “to criminalize conduct is to warrant the condemnation and punishment of that conduct.” (Cornford 617) The second argument is a normative claim about condemnation and punishment, stating “legislators may warrant the condemnation and punishment of conduct only if that conduct is wrongful.” (Cornford 617) Cornford argues that when the target of this condemnation and punishment is in fact not in the wrong, the wrongfulness constraint is impermissible. Some actions that are criminalized are not necessarily wrongful. One example Cornford uses is that of a consenting sexual relationship between two mature teenagers. (Cornford 647) Perhaps the couple could be violating a law prohibiting a sexual relationship with a child. (Cornford 647) Just because the couple may be violating this law, that does not make their action wrongful. This is an instance of when the target of wrongdoing was not in the wrong, therefore making the wrongfulness constraint impermissible. Cornford concludes by accepting that there may be some instances where “criminalization should be subject to the wrongfulness constraint: that is, that conduct may be criminalized only if it is wrongful.” (Cornford 648) However, he also justifies that “we can grant the legislators may sometimes depart from the wrongness constraint.” (Cornford 648).
A.P. Simester and Andreas von Hirsch’s article explains the wrongfulness constraint, with some modest objections. Nonetheless, their article is much more supportive of the wrongfulness constraint than Andrew Cornford’s. While Cornford accepts that there certainly are instances in which the wrongfulness constraint is permissible, he blatantly objects to it being permissible all the time. From these two articles, I think the wrongfulness constraint is necessary for deciding in which acts to criminalize, but should certainly be expanded upon and not be the end-all-be-all.
Cornford, Andrew. “Rethinking the Wrongness Constraint on Criminalisation.” Law and Philosophy, vol. 36, no. 6, 2017, pp. 615–649., doi:10.1007/s10982–017–9299-z.
Simester, A P, and Andreas Von Hirsch. “Crimes, Harms, and Wrongs : On the Principles of Criminalisation.” 2011, doi:10.5040/9781472560964.
