CrimJur seminar: 'Why we need a normative theory of pro tanto criminal proscription'

Speaker: Mark Dsouza (Associate Professor of Criminal Law, UCL)

Abstract: Criminalization theorists aim to provide a normative account of when it is appropriate to use the substantive criminal law to shrink of our presumptive initial liberty. Standardly, they parse this project as requiring them to answer the question, ‘For what sorts of conduct may the state criminally convict a person?’. I argue that this is a misstep. There is, no doubt, value in answering this ‘standard question’, but a conviction only ensues after pleas of justification and excuse fail. Yet, the substantive criminal law’s coercive liberty-limiting power is already asserted well before conviction, when a pro tanto offence is identified. Someone who offers a defence to a pro tanto offence may escape conviction, but she was nevertheless already subject to authoritative guidance proscribing (or sometimes, requiring) conduct specified in the pro tanto offence. She was threatened with a conviction if she failed to satisfactorily answer for committing the pro tanto offence. The substantive criminal law has already shrunk her initial liberty by framing the pro tanto offence. Even if she can avail herself of any additional permissive guidance in a supervening defence, the fact remains that she was (also) subject to the pro tanto offence’s guidance. Accordingly, if, for whatever reason, she did not plead an available defence, she would appropriately be convicted of a crime. Therefore, I argue that for a normative account of the use of the substantive criminal law to limit liberty, we need a normative theory of pro tanto criminal proscription.

Please email Antje du Bois-Pedain (alp22@cam.ac.uk) if you would like to receive a copy of Mark’s paper or attend.

For those attending remotely, Antje will circulate a Zoom link in a separate message before the session.