A Tale of Two Theories

Introduction My own mode of discussing Douglas Husak's excellent new book, Overcriminalization, (1) is by comparing the theory that book defends--what Husak calls "minimalism"--with a theory with which I am already familiar, namely, my own brand of legal moralism. (2) Both theories purport at least to be theories about the same thing: the proper aims and limits for criminal legislation in a liberal, democratic state. This topic is often called "the limits of the criminal law," which is indeed the subtitle for Husak's book. My motives for discussing Overcriminalization by comparing it to my own theory are not entirely narcissistic--as in, "enough about me, let's talk about you, namely, what do you think about my theory?" I have two more legitimate motives for the contrastive technique animating this essay. The first stems from Husak's observation that legal moralism is the "most important rival" to his own minimalist theory [196]. It may thus be a useful heuristic to understanding minimalism to contrast it to its closest real competition. Second, Husak regards his theory as being "vastly superior" to all other extant theories of criminal legislation, legal moralism included [159]. Comparing Husak's theory to its closest competitor may allow us to gauge the extent of this vaunted vastness. I shall do four things in the body of this essay. The first is to give some background for Husak's minimalist theory and for my own legal moralist theory. Both theories should be seen against a backdrop of two kinds of debates that for the past 150 years have preceded both of us on this topic. Second, I shall describe Moorean legal moralism and Husakian minimalism in terms of their essential tenets. Third, I shall highlight several of the many points on which the two theories agree. Fourth, I will then contrast the theories on the points on which they disagree, suggesting along the way why I (perhaps obtusely) refuse to see why minimalism is superior to legal moralism along each of these axes of disagreement. Earlier Debates on the Proper Reach of Criminal Legislation The proper reach of the criminal law has long engaged the interest of leading political philosophers and has not been the bailiwick of criminal law theoreticians alone. The Anglo-American debate began with the publication of John Stuart Mill's On Liberty in 1859, in which Mill defended his famous "harm principle." (3) The harm principle is both positive and negative. (4) Positively, it permits the use of the criminal law to prohibit behavior harmful to people other than the actor or those who consent to the behavior; negatively, it forbids the use of the criminal law to prohibit behavior that is merely offensive or that is popularly regarded as immoral, even if such behavior is not harmful to anyone, and it forbids the use of the criminal law to prohibit behavior that harms only the actor himself. Often unrecognized is that Mill pressed his harm principle into dual service: the principle both defines a sphere of action immune to state regulation, and it delineates the permissible aims of criminal legislation. (5) The first of these protects only some citizen actions from criminalization for any reason, whereas the second protects any citizen action from criminalization for only some reasons but not others. Mill's most famous critic in the nineteenth century was England's foremost expositor of the criminal law, Sir James Fitzjames Stephen. (6) Stephen argued that any attempt to limit the state's power to criminalize behavior was illegitimate in a democracy in which the majority's right to rule included the right to decide which conduct it would not tolerate. Stephen buttressed this argument of political theory with a famous conceptual objection: no behavior is truly without its harmful effects on others, and so the harm principle can provide no limit on the subject matter of criminal legislation. (7) This grand debate in political theory has continued into our own time, with Herbert Hart defending a version of Mill's view (8) and Lord Patrick Devlin echoing Stephen's majoritarian and socially conservative position. …