Overcriminalization: The Limits of the Criminal Law

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311 Scopus citations


The United States suffers from too much criminal law and too much punishment. These two trends conspire to produce massive injustice. To rectify this injustice, we need to defend and implement a theory of criminalization: a set of constraints that limit the authority of states to enact and enforce penal offenses. Although the topic of criminalization is of enormous theoretical and practical significance, no Anglo-American theorist has yet developed such a theory. The central objective of this book is to defend a theory of criminalization, and to situate it within contemporary scholarship by legal philosophers. Many of the resources to reduce the size and scope of the criminal law can be derived from within the criminal law itself-even though these resources have not been used explicitly for this purpose. Several additional constraints emerge from a political view about the conditions under which important rights-such as the rights implicated by punishment-may be infringed. When conjoined, these constraints generate a minimalist theory of criminal liability. These constraints are applied to a handful of examples-most notably but not exclusively to drug proscriptions, which are the most significant cause of the growth in the criminal justice system. This book concludes by showing that the minimalist theory defended here is vastly superior to any of the competitive accounts of criminalization that legal philosophers have produced.

Original languageEnglish (US)
PublisherOxford University Press
Number of pages248
ISBN (Electronic)9780199869947
ISBN (Print)9780195328714
StatePublished - Jan 1 2008

All Science Journal Classification (ASJC) codes

  • Arts and Humanities(all)


  • Constraints
  • Criminalization
  • Drug proscriptions
  • Minimalism
  • Punishment
  • Rights


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