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OvercriminalizationThe Limits of the Criminal Law$
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Douglas Husak

Print publication date: 2007

Print ISBN-13: 9780195328714

Published to Oxford Scholarship Online: January 2008

DOI: 10.1093/acprof:oso/9780195328714.001.0001

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Internal Constraints on Criminalization

Internal Constraints on Criminalization

(p.55) 2 Internal Constraints on Criminalization

Douglas Husak (Contributor Webpage)

Oxford University Press

This chapter argues that the criminal law itself, and especially its so‐called “general part,” is the source of four internal constraints on the authority of the state to enact and enforce penal offenses: crimes must be designed to proscribe a harm or evil; criminal conduct must be wrongful; persons may only be punished according to their desert; and the state must bear the burden of proof to justify a penal offense. These constraints are derived from an understanding of what the criminal law is: that body of law that subjects persons to punishment and thus implicates valuable rights. Each constraint is given a novel defense and applied to a handful of examples. In particular, these constraints create difficulties in attempts to justify many of the mala prohibita offenses that have been enacted recently.

Keywords:   internal constraint, general part of criminal law, wrongfulness, desert, burden of proof, malum prohibitum

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