Criminalization: A Kantian View


One problem in criminal justice theory is determining what kinds of acts ought to be criminalized. A related practical concern is the rampant overcriminalization in American law. In this Article, I propose to address both of these problems by positing a theory of criminalization based upon Immanuel Kant’s political theory. I begin by explaining Kant’s account of civic freedom. I show that free and equal citizens in a just political community must refrain from actions that violate the political freedom of other citizens. From this, I derive a definition of crime as an act that by its nature violates the political conditions of freedom, with the added requirement that the actor’s maxim is incompatible with Kant’s Universal Principle of Right. Finally, I apply this definition to modern criminal codes, concluding that the Kantian approach would result in a more limited criminal justice system based on reason rather than political happenstance.


criminal, law, criminalization, Kant



Jason R Steffen (Assistant Public Defender, State of Minnesota Board of Public Defense and Adjunct Professor of Law, Mitchell Hamline School of Law.)



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