Criminalization, legitimacy, and welfare

A standard view about criminal law distinguishes between two kinds of offenses, ‘‘mala in se’’ and ‘‘mala prohibita.’’ This view also corresponds to a distinction between two bases for criminalization: certain acts should be criminalized because they are moral wrongs; other acts may be criminalized for the sake of promoting overall welfare. This paper aims to show two things: first, that allowing for criminalization for the sake of promoting welfare renders the category of wrongfulness crimes largely redundant. Second, and more importantly, accepting welfare as a legitimate ground for criminalization implies a certain view about legitimate state action, which makes criminalization for wrongfulness more difficult to justify. If I am right, the view that keeps the two categories of criminalization as largely separate is untenable. I conclude with some remarks about the advantages of welfare (and not wrongfulness) as the basis for criminalization. © Springer Science+Business Media B.V., part of Springer Nature 2017.