Criminalization and Regulation

What ought to be the scope of the criminal law? The most familiar way to approach this question is to consider what moral constraints there might be on the decision whether to criminalize some conduct. It is not permissible to criminalize some conduct, it might be argued, unless that conduct is harmful, or it is publicly wrongful, or it is deserving of punishment, or some combination of these. Answers of this kind are likely to be highly indeterminate. The best efforts to produce principled constraints on the criminal law, even were they endorsed by policy makers, might do little to constrain its expansive and expanding scope. Even if we think that there are many constraining principles and each must be satisfied for criminalization to be permissible, our principles would warrant the criminalization of many things that we do not wish to see criminalized. There is another approach to the question of the scope of the criminal law which is both less familiar and less well developed. It is comparative. We investigate whether criminalization is permissible given the alternatives available to us. We ought to criminalize some conduct only if doing so is permissible given the other possible things that we could do in response to that conduct, including nothing. We might conclude that although some conduct is harmful, publicly wrongful and in principle deserving of punishment, we ought not to criminalize it because it is a disproportionate response to the conduct we are concerned with. It is disproportionate because some less draconian alternative is available to us. My aim in this chapter is to make some progress with this approach to criminalization by comparing criminalization of some conduct with civil regulation of the same conduct. By civil regulation I mean laws that are imposed by the state that impose some kind of liability on those who breach the regulation, but which are not criminal. Private wrongs, such as torts and breaches of contract, count as one kind of civil regulation. Private law typically regulates conduct by requiring citizens to compensate the person who has been harmed by breach of the relevant regulation. In order to claim compensation, the individual harmed must bring an action against the individual who has harmed her.