Criminalizing Disobedience: General Considerations

Abstract This chapter describes the main topic of this book—criminalizing disobedience. This chapter first discusses what it means to criminalize something, generally speaking. This chapter then discusses what disobedience is and what it means to criminalize it and relates it to the idea of the traditional distinction between mala in se and mala prohibita offenses. In short, to criminalize and punish disobedience is to criminally prohibit and punish acting, or failing to act, in ways that are counter to the law, when the relevant conduct is not morally wrongful, except for the fact that the law prohibits it. Under this definition, criminalizing and punishing murder would not count as an instance of criminalizing and punishing disobedience because murder is wrong whether the law prohibits it or not. Next, this chapter gives examples of criminalizing disobedience in different contexts and identifies the wrongfulness of disobedience that can serve as a basis for its criminalization. Namely, disobeying the law can be blameworthy because there is a duty to support the state as it carries out its tasks, as the state cannot function and provide conditions for peaceful coexistence of strangers over a territory without cooperation of the governed. While each individual’s effort makes little difference for the state to function successfully, each person has an obligation to do their fair share as the state seeks to do its work. Finally, this chapter previews a later discussion on potential limitations on the power to criminalize and punish disobedience.