Criminalization and Welfare

Abstract

A standard view about criminal law distinguishes between two kinds of offenses, “mala in se” and “mala prohibita.” This view also corresponds to a distinction between two bases for criminalization: Certain acts should be criminalized because they are moral wrongs; other acts may be criminalized (even though not morally wrong) for the sake of promoting overall welfare. This paper aims to show two things: First, that allowing for criminalization for the sake of promoting welfare renders the category of wrongfulness crimes largely redundant. More importantly, accepting welfare as a legitimate ground for criminalization implies a certain view about legitimate state action, which makes criminalization for wrongfulness more difficult to justify. If I am right, the view that keeps the two categories of criminalization as largely separate is untenable. I conclude with some remarks about the advantages of welfare (and not wrongfulness) as the basis for criminalization.

Keywords: criminal law, criminalization, mala prohibita, mala in se

JEL Classification: K14