Jump to ContentJump to Main Navigation
OvercriminalizationThe Limits of the Criminal Law$
Users without a subscription are not able to see the full content.

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

Show Summary Details
Page of

PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2020. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 03 June 2020

External Constraints on Criminalization

External Constraints on Criminalization

Chapter:
(p.120) 3 External Constraints on Criminalization
Source:
Overcriminalization
Author(s):

Douglas Husak (Contributor Webpage)

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780195328714.003.0003

The internal constraints introduced in chapter two are supplemented by three external constraints derived from a political account of the conditions under which the state may infringe the important rights implicated by punishment: a criminal offense is unjustified unless the government has a substantial interest in enacting it; the statute must directly advance the government's purpose; and the law must be no more extensive than necessary to achieve its objective. These three constraints are defended, embellished, and applied to a handful of controversial examples, including laws designed to serve expressive functions, statutes with a paternalistic rationale, and drug and gun controls. To implement these constraints effectively, legal philosophers need an analysis of public wrongs, empirical data, and a theory of the objectives the state may legitimately pursue. The final section argues that many crimes designed to prevent risk will fail to satisfy these constraints, largely because they are overinclusive.

Keywords:   public wrongs, substantial state interest, overinclusive, expressive, paternalism, gun controls

Oxford Scholarship Online requires a subscription or purchase to access the full text of books within the service. Public users can however freely search the site and view the abstracts and keywords for each book and chapter.

Please, subscribe or login to access full text content.

If you think you should have access to this title, please contact your librarian.

To troubleshoot, please check our FAQs , and if you can't find the answer there, please contact us .