Villainy and Felony: A Problem Concerning Criminalization

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.