Two Types of Legal Wrongdoing

Abstract

This article proposes a two-standard interpretation of Immanuel Kant’s Universal Principle of Right that tracks the two ways—civil and criminal—in which actions can be legally wrong. This article demonstrates in three ways that the principle is a plausible and resilient account of the essential distinction between civil and criminal wrongdoing. First, the Universal Principle of Right correctly identifies attempted crimes as crimes themselves even when they do not violate the rights of any individual. Second, it justifies our treatment of reckless endangerment as a crime by distinguishing it from ordinary negligence, which traditionally is not. Third, it justifies differences between the way in which we determine criminal punishments and the way in which we measure civil remedies. Moreover, as interpreted, the Universal Principle of Right offers a Kantian standard for criminal wrongdoing that is compelling enough to inform future philosophical inquiries into the nature and limits of the state’s criminal lawmaking authority.

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Keywords: Kant, Universal Principle of Right, Criminal Law, Legal Philosophy, Arthur Ripstein