Limits on Criminalization I: Rights and Liberty

Abstract This chapter is one of the three chapters that explore several principles that provide sources of limitation on the state’s power to criminalize and punish disobedience. This chapter argues that while the state may set down all kinds of rules to make the project of living together possible in a way that is consistent with the principle of punishing only the morally blameworthy, the state’s power to criminalize and punish disobedience should be further limited in order to preserve a sphere of autonomy in which people can move about and pursue their ordinary life projects free of a state’s interference. Some limitations may take the form of constitutional rights, such as freedom of thought, freedom of speech and expression, freedom of association, right to privacy, privilege against self-incrimination, and so on, but they need not be, as the liberty interest of individuals does not disappear just because we are not dealing with fundamental rights recognized by constitutions.