THE DUTY TO CRIMINALIZE

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Abstract

The state has a duty to protect individuals from violations of their basic rights to life and liberty. But does the state have a duty to criminalize such violations? Further, if there is a duty on the part of the state to criminalize violations, should the duty be constitutionally entrenched? This paper argues that the answer to both questions is positive. The state has a duty not merely to effectively prevent violations of our rights to life and liberty, but also to criminalize such violations. Further, the duty to criminalize ought to be constitutionally entrenched. In the absence of criminal prohibitions on violations of the right to life and liberty individuals live at the mercy of others. In the absence of a constitutional duty to criminalize, life and liberty of individuals is contingent upon the judgments and inclinations of the legislature. In both cases citizens rights are at the mercy of others. I also show that the decisions of the German Constitutional Court concerning abortion can be justified on such grounds.

Original languageAmerican English
Pages (from-to)1-22
Number of pages22
JournalLaw and Philosophy
Volume34
Issue number1
DOIs
StatePublished - Jan 2014

Bibliographical note

Publisher Copyright:
© Springer Science+Business Media Dordrecht 2014.

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