type 2: Simester and Cornford
Simester and Cornford share similar arguments in their two articles. Simester in, Crimes, Harms, and Wrongs, states that, “ No one, including the state, should coerce others without good reason, all the more so when the measure involves censorious hard treatment of those who do not comply.” In general, anyone who is convicted or sentenced must be punished with a good reason, and the same guidelines for creation of criminal law. Cornford states that the wrongfulness constraint is incorrect all together. Cornford’s article carries a strong and bold argument with thorough explanation, while Simester’s piece is part of a larger book on criminalization. This aspect makes Simester’s article less focused and more broad. In this type 2, comparative analysis, I will summarize both of the articles and their claims, and then compare and contrast the two.
Simester rethinks the wrongfulness constraint. The article states that, “People have, we think, a moral right not to be censured falsely as criminals, a right that is violated when one is convicted and punished as a criminal without having perpetrated culpable wrongdoing.” In laymen's terms, the people have a right to not be tried falsely and not violated when not guilty. Simester cites other philosophers, such as Mills and Feinberg, misinterpreted the wrongfulness constraint. He states that an act’s harmfulness must be considered as well when a person is convicted and/or punished. Another interesting point on the wrongfulness constraint that arises in this article is, which comes first, the harm or the wrong? Simester answers that is always depends. Lastly, while Simester does go into detail with three thesis about the wrongfulness constraint, he discusses what I think is a more important aspect of the constraint. That aspect is wrongfulness vs. culpability. This question is more similar to Cornford’s article. Does doing a wrongful act make you guilty? Or is there other factors? Simester’s article offers many thinking points on the wrongfulness constraint, but does not fully disprove it.
Cornford claims that the wrongfulness constraint is overall incorrect. He goes through to analysis each aspect of the theory. Cornford first claims that conduct must also be wrongful as well to be criminalized. This claim means that any act made illegal must be wrongful. Personally, I can’t believe this is not in the wrongful constraint already. Cornford goes on to poke holes in the constraint. For example, he argues that the wrongfulness constraint also applies to punishment as well. Additionally, on an extreme point he states that some punishment in the criminal system is similar to slavery. This includes community service and labor done in prison. The most important point I think made is that criminal guilt and actual criminal conduct are logically independent: neither entails the other. Legally speaking, they are different and one may not commit criminal conduct and still be guilty. Overall, Cornford thoroughly goes through the wrongfulness constraint to prove it incorrect.
While Simester offers new thinking points on the wrongfulness constraint, Cornford outright states it as incorrect. The two share similar points, such as the people having a right to be falsely tried or convicted. Instead of offering thinking points like Simester, Cornford goes through those thinking points in his article and answers the question. The two work together almost like a puzzle piece for the wrongfulness constraint.
