PUBLIC GOODS AND CRIMINALISATION

Abstract

Theories of criminalisation seek to identify the criteria by which behaviour is legitimately criminalised. This article believes that their success in so doing is best assessed if they examine the question of criminalisation in light of four desirable features for any such theory. These desirable features, which this article will term desiderata for short, are as follows: Desideratum 1: a theory of criminalisation should offer an evaluative framework that justifies the form of legal regulation known as the criminal law. Desideratum 2: a theory of criminalisation’s evaluative framework under Desideratum 1 should allow for a coherent and defensible account of the criminal law as morally censorious, thereby articulating something distinctive about the criminal law as a form of legal regulation. Desideratum 3: a theory of criminalisation should display a coherent understanding of how its evaluative framework under Desideratum 1 integrates with a theoretical account of the purpose, and legitimacy, of the state. Desideratum 4: a theory of criminalisation’s evaluative framework under Desideratum 1 should distil criminal from non-criminal behaviour in principled and defensible way. Given that the defence of each desideratum would arguably generate an article apiece, the aims of this article are consequently more modest. It is aimed at those who already accept one or more of them. It will demonstrate the success, in satisfying the desiderata, of a theory of criminalisation embedded in the notion of public goods. It shall call this theory the public goods account (the ‘PGA’). The PGA is not an entirely new theory, as elements of it can be found in the writings of a number of theorists. However, by expanding on, exploring and assessing these elements in light of the desiderata, this article offers further support to a theory of criminal law embedded in the notion of public goods. In order to understand the PGA, it is necessary to begin this article with a section outlining the nature of public goods. Subsequent sections will then address how the PGA satisfies each desideratum, in the order they are set out above.