In the Wrongness and Criminalization reading by Victor Tadros, Tadros seeks to make claims and explain the importance of the relationship of moral wrongness and the appropriate content of the criminal law. He explains how harm is central to the justification of criminalization as conduct may be wrong in virtue of it being harmful and the characteristic of the conduct provides reason to criminalize it but that view does leave open places of exception. Tadros uses the example that it may be wrong to write racist books in private but because it doesn’t cause harm to anyone it cannot be criminalized. Tadros suggests that the mere fact that the conduct is wrong provides us with no reason at all to criminalize it.
Tadros takes his essay to explain and reflect on the following three principals: 1) The Wrongness Justification 2) The Strong Wrongness Constraint and 3) The Weak Wrongness Constraint. The Wrongness Justification is always a reason in favor of criminalization of some conduct that the conduct is wrong. The strong wrongness constraint is permissible to criminalize some conduct only if that conduct is wrong independently of its being criminalized. The weak wrongness constraint is permissible to criminalize some conduct only if that conduct is wrong either independently of its being criminalized or as a result of its being criminalized. The Wrongness Justification is false if there are some things that are wrong that there is no reason to criminalize. Philosophers Duff and Marshall view that there is a good reason to criminalize all things publically wrong is as public wrongs are those that the public ought to be concerned with in their role as members of a political community. If a person is guilty by the public then they must also answer to the public for the wrongdoing, but if they do not have to answer to the public then there is no reason for the state to justify criminalizing the action.
Tadros also reflects on Duffs and Marshalls view that there can be public wrong even if they are not to be criminalized. They believe that we should distinguish between wrongs that we should leave the parties merely to sort out between themselves and wrongs which the state should intervene with. Duff and Marshall use the example that dropping litter is a public wrong but not criminalization as criminalization can be independent as even though it may provide reason for it to be criminalized, it does not mean that it in fact has to be. Tadros states that if all considerations that determine whether a wrong is public are of the same kind as the consideration of cost in the example of litter-dropping, there is no important difference between Duff and Marshall’s view and legal moralism. A justification of criminalization will need to begin by specifying some value that can be claimed to be public as part of the polity’s self-definition and show how the conduct in question violates that value or threatens the goods that it protects.
Tadros also explores a different way of distinguishing between the practical considerations that defeat reasons against criminalizing some conduct and the principled considerations that might render some wrongs beyond the business of the state. This idea makes the point that the state must remain neutral about more comprehensive conceptions of good. Tadros also touches on the idea of the strong wrongness constraint and the two central functions of criminal law which are the condemnation and punishment of offenders, but Tadros explains that condemnation and punishment are justified only if the person has done wrong.
Overall Tadros concludes that if the strong wrongness constraint is false, we must evaluate the weak wrongness constraint. He states that the criminal law condemns and punishes, but condemning and punishing can only appropriately be done to wrongdoers, hence we should endorse the weak wrongness constraint. Rejecting the weak wrongness constraint Tadros believes to be much more controversial as the weak wrongness constraint is a valid principle but its implications are also less radical as it admits that forward-looking considerations may, within some limits, be decisive in the decision of what to criminalize.
The claim in the reading that I will argue is through the example they use that the possession of a knife may be wrong in a public place if enough people comply with the law that there is no possession of knives, but if not enough people comply then it may be justified to carry a knife. Tadros states that it is difficult to believe that it is wrong to criminalize knife possession if this set of facts obtains. He believes that everyone benefits from the criminalization of public knife possession. He states that criminalization in such circumstances can save many lives and everyone’s security is advanced. This statement is only true though if the criminal law is in fact adhered to. One can argue that the criminalization of knives in public places could in fact end up harming the innocent people that adhere to it. People who want to harm others are not going to follow the law so criminalizing it could actually hurt people who then do not carry the knives since they can’t protect themselves from the people who are not adhering to the law.