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no reason not to focus on the interest risked and the actor’s culpability regarding that risk rather than on the actor’s intention.

2. Which Interests?

The starting point for drafting our criminal code is determining which interests the law should protect against culpable risk impositions. Outside of our brief discussion in Chapter 1, we have had nothing to say about which risks the law should protect us from. Some risks are relatively straightforward. The law should protect us from inordinate risks of being killed, maimed, or even punched in the face. Beyond these obvious “harms to others,” however, lie a host of thorny questions about what interests the criminal law ought to protect. Although we do not have time to resolve these questions here, we do flag some of these issues.

a. Harm to Others and Beyond: Following Mill and Feinberg, one might catalog the various justifications for criminalization as harm to others, harm to self (paternalism), offense to others, and legal moralism.8 We discuss criminalization questions within each of these categories.

i. Harm to Others: Although preventing harm to others is the clearest justification for state interference, there are difficult issues even here. First, there are some potential harms that may be difficult to specify. That is, it is easier to criminalize the conduct than to articulate the precise harm. Of course, when one sees a crime like this, one immediately suspects that the crime stands on normatively shaky ground. But this is not always true.

Take public corruption crimes. Under section 1346 of the United States Code, it is a violation of the federal mail and wire fraud statutes to deprive another of your “honest services.”9 This honest services statute certainly should apply to a public official who takes a bribe. But does this apply to criminalize the conduct of the Internal Revenue Service

8See generally John Stuart Mill, On Liberty (1859); Joel Feinberg, Harm to Others (1984); Joel Feinberg, Offense to Others (1985); Joel Feinberg, Harm to Self (1986); Joel Feinberg,

Harmless Wrongdoing (1988).

9 18 U.S.C. § 1346 (2000).

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employee who improperly reads others’ tax returns?10 Must a state employee’s action violate state law to fall within the statute?11 Although the latter question raises federalism concerns, the underlying issues are the type of duty of “honest services” owed and to whom that duty is owed – two extremely difficult questions to answer.12 For our criminal code, it will no longer be sufficient to criminalize first and analyze later. Rather, an understanding of the precise interests threatened will be necessary in order to criminalize the conduct in the first instance.

A second difficult category of harms involves fear and other emotional injuries. Although the criminal law prohibits some actions that cause fear, it typically does not prohibit them because they cause fear but because that fear is incidental to some other harm. For example, having a gun pointed at you may cause fear, but it causes fear because it risks harm, and it is the risk of harm that the criminal law is actually targeting. Even tort law, which is often far more expansive than the criminal law, is unwilling to recognize all sorts of emotional distress as compensable harms. Although some theorists distinguish between public and private wrongs, we need more than this labeling in order to justify, say, not criminalizing cruelly breaking someone’s heart while simultaneously criminalizing the stealing of five dollars. Although there is room to argue that we are entitled to more liberty within self-defining spheres, the leeway to which any individual is entitled is relevant to the actor’s justifying reasons, not to whether the victim’s interest should be protected in the first instance.

Finally, we do not doubt that there will be particularly contested cases – such as whether fetuses should be protected by the law. Here, we only caution once more that the question of whether an interest is protected is not the question of whether risking harm to that interest may be justified.

10United States v. Czubinski, 106 F.3d 1069 (1st Cir. 1997).

11Cf. United States v. Sawyer, 239 F.3d 31, 42 (1st Cir. 2001) (no need to prove lobbyist’s giving of gratuities and gifts to state official violated state law) with United States v. Brumley, 116 F.3d 728, 734 (5th Cir. 1997) (“the official must act or fail to act contrary to the requirements of his job under state law”).

12For a recent attempt, see Joshua A. Kobrin, Note, “Betraying Honest Services: Theories of Trust and Betrayal Applied to the Mail Fraud Statute and § 1346,” 61 N.Y.U. Ann. Surv. Am. L. 779 (2006). For an analysis of white collar offenses generally, see Stuart Green, Lying, Cheating, and Stealing: A Moral Theory of White-Collar Crime (2006).

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ii. Paternalism: A second question is whether our code should protect individuals from themselves.13 Indeed, one might wonder how one shows insufficient concern for others when the only person the actor seeks to harm is himself. We find this objection to be significant.

Moreover, even if we could say that someone can be culpable for risking harm to herself, there is the question of whether the law should intervene to prevent such harms. Many theorists draw a distinction between hard and soft paternalism and would permit the law to step in when failures of information or rationality prevent an agent from choosing according to her own theory of the good. However, it may be doubted whether the distinction between hard and soft paternalism can be drawn. Let us explain.

One tenet of liberalism is that normal adults should not be prevented from acting as they choose merely because would-be preventers believe those choices will be harmful to the choosers. Yet liberals make an exception for cases labeled “soft” paternalism. Thus, if Joy does not realize that the bridge of San Luis Rey is dangerously weak, and if she has no desire to end her life, it is supposedly permissible to restrain her from crossing the bridge. Although Joy believes she wishes to cross the bridge at the time her choice is interfered with, her false belief about the bridge’s condition and her desire to live – a desire that trumps any desire she might have to cross this bridge at this time – justify the interference with her choice. Without undergoing any change in her stable values and commitments, Joy can be expected to welcome others’ interference with her choice to cross the bridge once she is made aware of the bridge’s condition.

As we said, the kind of paternalism exemplified in preventing Joy from crossing the bridge of San Luis Rey is termed “soft paternalism.” The soft paternalist argues that choices such as Joy’s can be interfered with on grounds of her good only when she lacks information that, given her values, she would deem material to those choices, or when she is too young or too defective in rationality to process that information correctly. The soft paternalist contrasts her position with that of the hard paternalist, who believes in overriding choices whenever they

13T his section draws from Larry Alexander, “Scalar Properties, Binary Judgments,” 25 J. Applied Phil. 85 (2008).

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are contrary to the chooser’s good and irrespective of why those choices were made. Most liberals endorse the position of the soft paternalist but for obvious reasons reject that of the hard paternalist.

The relationship between hard and soft paternalism is, however, a matter of degree rather than a difference in kind. People are more or less rational and more or less informed. They are on a smooth continuum in these respects, and there is no obvious threshold point marking a morally relevant difference.14

Consider Joy2, who wants to cross the bridge. The defect that makes the bridge unsafe not only is not apparent to her but requires years of study of structural engineering to discern. Perhaps in twenty years Joy will finally come to understand that the bridge really was unsafe. Perhaps she will never come to understand it and thus never thank – but always resent – those who in fact prevented her from falling to her death. Would the difficulty in getting Joy2 to understand the bridge’s condition cast doubt on the propriety of stopping her from crossing the bridge?

Or consider Joy3, who understands that crossing the bridge is unsafe but is in a suicidal frame of mind. She believes, erroneously, that her life is no longer worth living. If she is prevented, she may in several years come to see that she was wrong and be grateful to those who prevented her death. Or she may never come to see that she was wrong – though she was – perhaps because her capacity for understanding her good is impaired. Would these facts about Joy3 impugn the interference with her choice?

These examples are sufficient, we believe, to illustrate the problem of identifying a threshold point that distinguishes hard from soft paternalism. The hard paternalist can always maintain that if an agent is choosing contrary to her own good, she must have either an informational or a rationality deficit. And those deficits can be different only in degree and not in kind from the deficits that the soft paternalist relies on.15

14T his is not the only area of law with such problems. See generally id. For the view that the law must adopt sharp distinctions, see Leo Katz, “Why the Law Is Either/Or” (working paper, on fi le with authors).

15T he line-drawing problems in justifying paternalistic interferences with acts have a direct parallel in the free speech area, where governments are frequently motivated to suppress speech because it will mislead, factually or evaluatively, some of the audience to its or to others’ detriment.

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iii. Legal Moralism: Among the potential justifications for criminalization is legal moralism.16 Here, the critical question is whether a legislator should criminalize actions that are harmless but morally wrong – so-called harmless wrongdoings.17

Michael Moore is a contemporary defender of legal moralism. Moore argues that the point of criminal law is to see that wrongdoing (and culpable attempts and risks of wrongdoing) is punished.18 Moore does not believe that the criminal law should be limited to acts that cause or risk harm or offense. For Moore, if an act is morally wrong, there is always a reason to prosecute and punish it through the criminal law.

What is perhaps most striking about Moore’s brand of legal moralism is that to make it palatable, it must come with a variety of constraints. Indeed, Moore’s views would probably lead him to reach conclusions largely in line with those who would restrict the legitimate reach of the criminal law to acts that risk harm to others. For

On the scalar nature of autonomy, see, e.g., Lawrence Haworth, Autonomy: An Essay in Philosophical Psychology and Ethics (1986). For an optimistic view of our ability to nonarbitrarily set thresholds for autonomous action on smooth continua, but one that offers no theory for doing so, see Tom L. Beauchamp, “Who Deserves Autonomy, and Whose Autonomy Deserves Respect?” in Personal Autonomy: New Essays in Personal Autonomy and Its Role in Contemporary Moral Philosophy 310–329, 316–317 (J. S. Taylor, ed., 2004).

The first of these three conditions of autonomy – intentionality – is not a matter of degree: acts are either intentional or nonintentional. However, acts can satisfy both the conditions of understanding and absence of controlling influences to a greater or lesser extent. For example, threats can be more or less severe, and understanding more or less complete. Actions are autonomous by degrees, as a function of satisfying these conditions to different degrees. For both conditions, a continuum runs from fully present to wholly absent. For example, children exhibit different degrees of understanding at various ages, as well as different capacities of independence and resistance to influence attempts. This claim that actions are autonomous by degrees is an inescapable consequence of a commitment to the view that at least one of the conditions that define autonomy is satisfied by degrees.

For an action to be classified as either autonomous or nonautonomous, cutoff points on these continua are required. To fi x these points, only a substantial satisfaction of the conditions of autonomy is needed, not a full or categorical satisfaction of the conditions. The line between what is substantial and what is insubstantial may seem arbitrary, but thresholds marking substantially autonomous decisions can be carefully fi xed in light of specific objectives of decision making, such as deciding about surgery, buying a house, choosing a university to attend, making a contribution to charity, driving a car, or hiring a new employee.

16For the leading legal moralist defense, see Michael S. Moore, Placing Blame: A General Theory of Criminal Law ch. 16 (1997).

17T his section draws from Larry Alexander, “The Philosophy of Criminal Law,” in The Oxford Handbook of Jurisprudence and Legal Philosophy (Jules Coleman and Scott Shapiro, eds., 2002).

18Moore, supra note 16, at 70.

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Moore holds that although the immorality of conduct is always a reason for its prescription, the legitimate reach of the criminal law is tempered by three countervailing moral concerns. First, Moore refuses to equate what is immoral with what a legislative majority, or a majority of the populace, believes to be immoral. A criminal statute is legitimate for Moore only if the conduct it forbids is truly immoral; and whether conduct is truly immoral is a matter of moral reality, not moral belief.19

Second, Moore believes that the costs of criminalizing conduct – costs in terms of resources, erroneous convictions, loss of privacy, corruption, and disrespect for law – are reasons that weigh against criminalization and that in many cases dictate that immorality go unpunished.20 Additionally, there is what Moore deems the “presumption of liberty,” which treats the criminal law’s reduction of autonomy and acting from virtue as a moral bad that weighs against criminalization.21

Third, Moore endorses a right to liberty, a right that immunizes from punishment many types of immoral conduct.22 The right to liberty strongly protects “self-defining choices,” including choices that are immoral and otherwise legitimately subject to criminal proscription and punishment. In other words, Moore endorses a right to do wrong.23

One significant question for a legal moralist is why the state, as opposed to any other actor, should punish the moral wrong.24 For instance, Doug Husak argues that a state must have a substantial state interest that it seeks to advance.25 To Husak, the act of criminalization is itself a consequentialist – forward-looking – enterprise.26

We, on the other hand, believe that an actor’s negative moral desert is a valid reason for state punishment. That desert is, in turn, a function of the actor’s culpability. The question we would pose to the legal moralist would be whether an actor who imposes no risk of harm or

19Id. at 662–663.

20Id. at 103.

21Id. at 76–78, 747–748.

22Id. at 763–777.

23Id. at 765–767.

24See Husak, Overcriminalization, supra note 3, at 265.

25Id.

26Id.

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offense is truly culpable merely because his act violates a nonharm-, nonoffense-based moral norm – assuming there are such moral norms.

iv. Offense to Others: One final question is whether the criminal law should protect us not only from harm but also from offense.27 The case for criminalizing at least some offensive conduct is vividly set forth by Joel Feinberg when he takes his readers on “a ride on the bus.”28 In just over three pages, Feinberg describes thirty-one cases of conduct that might – and in most cases surely would – cause offense. His examples include a loud boom box, the public eating of vomit and feces, public acts of fellatio and cunnilingus (including with an animal), and a variety of religious, racial, and gender insults. We suspect that hardly anyone will fail to be convinced that at least some of these acts are justifiably punishable.

What is more difficult for liberals (such as us) is to justify punishment for these offenses. In our view, most of the conduct that offends us does so because it flouts moral norms. People are offended by public nudity because it violates a norm about how one should appear in public. People are offended by the desecration of a corpse because it violates a norm about how to treat the dead. Because it is the underlying immorality that justifies criminalizing offensive conduct, a liberal is required to give an account of liberalism that is consistent with punishing some truly sordid and degrading (but not harmful) conduct.

b. The Role of Consent: A final criminalization question that we cannot fully address here is the role of consent. For some crimes, it is indisputable that the absence of consent is required for there to be a legally protected interest. That is, the criminal law has no reason to protect individuals from acts of sexual intercourse; it has reason to protect individuals only from unconsented-to acts of sexual intercourse.

On the other hand, some theorists argue that other actions are prima facie wrongful and that consent serves only as an affirmative defense.29 That is, one might think that a boxing match, where each boxer suffers

27For further discussion of the issues set forth in this section, see Larry Alexander, “Harm, Offense and Morality,” 7 Canad. J. L. & Jurisp. 199 (1994).

28See Feinberg, Offense to Others, supra note 8, at 10–22.

29See Vera Bergelson, “The Right To Be Hurt: Testing the Boundaries of Consent,” 75 Geo. Wash. L. Rev. 165 (2007); see also George P. Fletcher, Rethinking Criminal Law § 9.2.2

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(consented-to) harm, differs in some significant conceptual way from consensual sexual intercourse (where there is no harm or injury at all). Yet, as we note in Chapter 4, our approach eviscerates the distinction between a prima facie norm violation and an affirmative defense. To us, this distinction is a bit of form over substance. If the victim has consented to the harm or the act risking the harm, the actor has not risked harming a legally protected interest. Once the victim consents, there is no interest to protect; the victim has in effect conveyed his right to legal protection from the actor, at least for some duration. At the end of the day, the actor’s culpability – with which the criminal law should be concerned – does not hinge upon whether we understand the criminal “act” as entailing the lack of consent.

Now, one might ask whether there are any limits on the types of acts to which one may consent. Can one give legally effective consent to sadomasochistic conduct, maiming, torture, killing, being eaten? One argument for prohibiting some of this conduct is that it is degrading to the actor and his “victim,” and this degradation is socially contagious and will therefore ultimately harm others. (Such a “harm to others” rationale may be thought to come close to effacing any otherwise clear line between harm to others and legal moralism.) Another argument is premised straightforwardly on paternalism.30 On the other hand, it seems that this sort of behavior is difficult to distinguish from the behavior we criminalize because it is offensive. Is there really any difference between the reasons why we criminalize consensual homosexual sodomy performed in public and consensual heterosexual sadomasochism behind closed doors? Both behaviors violate societal norms and thereby upset us. Naturally, where to draw the line between criminal and noncriminal offense will be exceedingly difficult. Moreover, if the true reason that we criminalize some consensual behaviors is because they cause offense, then the punishment should be proportionate to that offense and not to the nonexistent harm the “victim” suffers.

Our code needs a definition of consent, and it should, of course, be formulated so as to adjudicate when consent is rational and voluntary.

(1978) (discussing whether consent to sexual intercourse functions as an element of the definition or a justification for the conduct).

30 See Bergelson, supra note 29.