Liberty's Constraints on What Should Be Made Criminal

This chapter asks whether there can be principled restraints on the subject matter of criminal legislation in a democracy, and if so, what those constraints are. The general answer is that liberty gives the content of such substantive constraints. It examines seven sub-topics. The first is to distinguish substantive restraints on legislation from procedural restraints. The second is the partly conceptual question of what is meant by ‘liberty’: the answer given is in terms of negative political liberty defined as the freedom from criminal sanctions. Third, enquiry is made as to the value of liberty in this negative, political sense. Fourth, a ‘derived right to liberty’ is described, it being the right of every citizen for criminal prohibitions to be motivated by some aims but not by others. Fifth, a second right to liberty is distinguished: even if some criminal prohibition is properly motivated, to be justified the good obtained by prohibition must outweigh the cost to the values that stand behind the presumption in favor of liberty. Sixth, the possibility of a third right to liberty constraining criminal legislation is examined. Seventh and lastly, the desirability of constitutionalizing any of these three moral rights to liberty is examined in light of American Constitutional history.