Mala Prohibita, the Wrongfulness Constraint, and the Problem of Overcriminalization

17 Pages Posted: 23 Mar 2022 Last revised: 4 Aug 2022

See all articles by Youngjae Lee

Youngjae Lee

Fordham University School of Law

Date Written: March 7, 2022

Abstract

The wrongfulness constraint, as a principle of criminalization, is supposed to preclude criminalization in the absence of wrongfulness. Crimes that look especially problematic from the perspective of the wrongfulness constraint are mala prohibita offenses. The aim of this Essay is to consider the question whether the wrongfulness constraint can serve as an effective tool to curb overcriminalization by looking at the case of mala prohibita offenses. This Essay defends the following propositions. First, because of the availability of an array of tools to defend various mala prohibita offenses as satisfying the wrongfulness constraint, it is often not a straightforward matter to demonstrate that committing a malum prohibitum offense is not wrongful. Second, as a result, the wrongfulness constraint is of limited use as a way of stemming the tide of overcriminalization. The Essay concludes by suggesting, more broadly, that the problem of overcriminalization is not that too many crimes violate the wrongfulness constraint but that criminal laws, even those that satisfy the wrongfulness constraint, can easily become a source of oppression, and that asking whether crimes violate the wrongfulness constraint may be counterproductive because the question misdirects our attention.

Keywords: malum prohibitum, legal moralism, criminalization, overcriminalization, wrongfulness

Suggested Citation

Lee, Youngjae, Mala Prohibita, the Wrongfulness Constraint, and the Problem of Overcriminalization (March 7, 2022). Law and Philosophy 2022, Fordham Law Legal Studies Research Paper No. 4051012, Available at SSRN: https://ssrn.com/abstract=4051012 or http://dx.doi.org/10.2139/ssrn.4051012

Youngjae Lee (Contact Author)

Fordham University School of Law ( email )

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