Abstract

In recent years, philosophers of law—led by Joel Feinberg—have made considerable progress in identifying the moral limits of the criminal law. Virtually all of this progress, however, has been achieved in the context of what might be called consummate offenses. According to the conception I develop here, an offense is consummate if the conduct it proscribes causes harm on each occasion on which it is performed. The paradigm, "core" examples of crimes in any jurisdiction, Anglo-American or otherwise, satisfy this description. But not all crimes are consummate. Some offenses proscribe conduct that does not cause harm on each occasion in which it is performed. Such offenses might be called nonconsummate. Relatively little progress has been made in identifying the moral limits of the criminal law in creating and enforcing nonconsummate offenses. In this paper, I hope to make some headway in identifying the moral limits of the criminal law in the context of these offenses. The end product is not a comprehensive theory of nonconsummate criminal legislation—no one purports to have such a theory for consummate offenses—but a set of principles that form a central part of such a theory. These principles help to establish the conditions under which the enactment of various nonconsummate offenses is a justifiable exercise of state authority.

In Part I, I will briefly describe the larger context in which a theory about the moral limits of the criminal law is needed. In Part II, I will recount the progress that has been made in identifying these limits. In Part III, I will argue that little of this progress is helpful when applied to the special problems that arise in the context of nonconsummate offenses. In Part IV, I will refine the concept of a nonconsummate offense in order to better understand the peculiar difficulties that arise in attempts to justify them. In Part V, I will distinguish two kinds of nonconsummate offenses. In Part VI, I will defend a number of principles that limit the authority of the state to create and enforce each of these two kinds of offenses. In Part VII, I will apply these principles to the specific area of drug offenses, where the justifiability of nonconsummate legislation is problematic.

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