Moral Innocence and the Criminal Law: Non-Mala Actions and Non-Culpable Agents
Cambridge Law Journal, Vol. 79, No. 3, pp. 549-577, 2020
47 Pages Posted: 22 Sep 2020 Last revised: 9 Dec 2020
Date Written: April 10, 2020
According to influential view, using the criminal law against innocent actions or agents is wrong. In this paper, I consider four related arguments against this view: a debunking argument that suggests that the intuitive appeal of this view may be due to a conflation of different ideas; a counterexamples argument that points out that there are many cases in which using the criminal law against innocent actions ("non mala" actions that are not even "mala prohibita") or agents is justified; a theoretical argument, according to which the force of the reasons for and against using the criminal law is a matter of degree and it is therefore implausible to hold that the latter always defeat the former; and an analogy argument, which holds that it is implausible to maintain that harming innocents is often justified in other contexts but (almost) never in the context of the criminal law.
Keywords: moral innocence, wrongdoing, blame, mala in se, mala prohibita, non-mala
JEL Classification: K10, K14,
Suggested Citation: Suggested Citation