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Punishment and Permissibility in the Criminal Law

Law & Philosophy, Forthcoming

43 Pages Posted: 5 Dec 2012 Last revised: 17 Dec 2012

Vincent Chiao

University of Toronto - Faculty of Law

Date Written: December 4, 2012


The United States Supreme Court has repeatedly insisted that what distinguishes a criminal punishment from a civil penalty is the presence of a punitive legislative intent. Legislative intent has this role, in part, because court and commentators alike conceive of the criminal law as the body of law that administers punishment; and punishment, in turn, is conceived of in intention-sensitive terms. I argue that this understanding of the distinction between civil penalties and criminal punishments depends on a highly controversial proposition in moral theory — namely, that an agent’s intentions bear directly on what it is permissible for that agent to do, a view most closely associated with the doctrine of double effect. Therefore, legal theorists who are skeptical of granting intention this kind of significance owe us an alternative account of the distinctiveness of the criminal law. I sketch the broad outlines of just such an alternative account — one that focuses on the objective impact of legislation on a class of protected interests, regardless of the state’s motivations in enacting the legislation. In other words, even if the concept of punishment is unavoidably intention-sensitive, it does not follow that the boundaries of the criminal law are likewise intention-sensitive, because the boundaries of the criminal law may be drawn without reference to the concept of punishment. I conclude by illustrating the application of this view to a pair of well-known cases, and noting some of its ramifications.

Keywords: punishment, criminal law, ex post facto, intention, double effect

Suggested Citation

Chiao, Vincent, Punishment and Permissibility in the Criminal Law (December 4, 2012). Law & Philosophy, Forthcoming . Available at SSRN:

Vincent Chiao (Contact Author)

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5

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