What is the proportionate punishment for conduct that is neither harmful nor wrongful? A likely response to that is that one ought not to be punished at all for such conduct. It is, however, common for the state to punish harmless conduct the wrongfulness of which is not always apparent. Take, for example, the requirement that those who give investment advice for compensation do so only after registering as an investment advisor. Advising a person on how to invest his or (...) her funds and accepting a fee for the advice without registering with the government does not seem harmful or wrongful, so long as no fraud is involved, the relevant parties understand the relevant risks, and so on. But practicing investment advising without registering is a crime for which one may be convicted and punished. When one thinks of crimes, paradigmatic offenses are crimes like murder, rape, and robbery, but offenses like failure to register as an investment advisor are different. But in what way? One standard explanation is the distinction between two types of offenses, malum in se and malum prohibitum. Some offenses, like murder, are wrongs “in themselves” whereas other offenses, like investment advising without registering as an advisor, are wrongs because they have been prohibited. The question this Essay asks is how we should think about proportionality of punishment when punishing such mala prohibita offenses. This Essay presents a framework for such proportionality determinations and raises some challenges such a framework would need to confront. (shrink)

The paper begins with the plausible view that criminal responsibility should track moral responsibility, and explains its plausibility. A necessary distinction is then drawn between liability and answerability as two dimensions of responsibility, and is shown to underpin the distinction in criminal law between offences and defences. This enables us to distinguish strict liability from strict answerability, and to see that whilst strict criminal liability seems inconsistent with the principle that criminal responsibility should track moral responsibility, strict criminal answerability is (...) not. We must ask, therefore, whether, when and why strict criminal responsibility is unacceptable. (shrink)

I will discuss the relationship between two different accounts of remedial duty ascriptions. According to one account, the beneficiary account, individuals who benefit innocently from injustices ought to bear remedial responsibilities towards the victims of these injustices. According to another account, the causal account, individuals who caused injustices ought to bear remedial duties towards the victim. In this paper, I examine the relation between the principles central to these accounts: the Beneficiary Pays Principle and the well-established principle of Strict Liability (...) in law. I argue that both principles display a strong yet unexplored similarity as they make certain kinds of causal connection sufficient for incurring liability. Because of this similarity, I suggest that insights into the Beneficiary Pays Principle can be gained from exploring its relation with Strict Liability. In particular, I examine two new positive arguments that could be adapted to support of the Beneficiary Pays Principle: the Minimising Injustice Argument and the Normative Connection Argument. However, I’ll show that only one of those arguments, namely the Normative Connection Argument, can truly support the Beneficiary Pays Principle. I conclude that, if you endorse the Normative Connection Argument for Strict Liability, you have at least a strong prima facie reason to endorse the parallel argument for the Beneficiary Pays Principle. (shrink)

With a focus on the Common Law jurisdiction of England and Wales and the Civil Law jurisdiction of Vietnam, this article provides an analytical framework to address the uncertain jurisprudence of minor offence processes. The article’s approach is to seek an account of crime and criminal process that is most suitable for practice and most compatible with the broad notion of ‘criminal charge’ under international human rights instruments. It is argued that minor offences should be considered forms of less serious (...) crimes that are subject to short periods of imprisonment or non-custodial punishments and dealt with by summary procedures. The fragmentation of minor offences demands an approach to procedural pragmatism and procedural proportionality; that is, the procedure for each type of offence should be proportionate to the severity of punishment and fair as a whole. (shrink)

For too long, criminal law scholars overlooked immigration-based offences. Claims that these offences are not ‘true crimes’ or are a ‘mere camouflage’ to pursue non-criminal law aims deflect attention from questions concerning the limits of criminalization and leave unchallenged contradictions at the heart of criminal law theory. My purpose in this paper is to examine these offences through some of the basic tenets of criminal law. I argue that the predominant forms of liability for the most often used immigration offences (...) are, at least in principle, controversial and depart from what is often presented as the paradigm in criminal law. Above all, immigration offences are objectionable because they fall short in fulfilling the harm principle and, given that criminal punishment as used against immigration offenders is often a secondary, ancillary sanction to deportation, they license excessive imposition of pain. (shrink)