Villainy and Felony: A Problem Concerning Criminalization

33 Pages Posted: 5 Feb 2003

See all articles by Leo Katz

Leo Katz

University of Pennsylvania Carey Law School


Etymology notwithstanding, not all seriously harmful villainies qualify as felonies. Or at least our moral intuition tells us that they should not. Traditional approaches to criminalization - like utilitarianism, the harm theory, legal moralism - have real trouble accounting for that, indeed have rarely even addressed it, and need to be revised somewhat to deal with it. But even if we know which harmful villainies we do not want to criminalize and why, we are still left with difficult and unexplored questions about whether we should let the non-criminalizable misconduct figure more indirectly in our application of criminal law doctrines, in determining for instance the scope of self-defense, or recklessness, or proximate causation, or necessity. Although this essay has dealt mostly with harmful misconduct, the analysis has implications as well for more familiarly hard-to-criminalize wrongdoing, like self-injurious behavior, and certain interactions between consenting adults.

Suggested Citation

Katz, Leo, Villainy and Felony: A Problem Concerning Criminalization. Available at SSRN: or

Leo Katz (Contact Author)

University of Pennsylvania Carey Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
215-898-9334 (Phone)

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