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The Constitution of the Criminal Law$
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R.A. Duff, Lindsay Farmer, S.E. Marshall, Massimo Renzo, and Victor Tadros

Print publication date: 2013

Print ISBN-13: 9780199673872

Published to Oxford Scholarship Online: May 2013

DOI: 10.1093/acprof:oso/9780199673872.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2020. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 27 October 2020

Rights Forfeiture and Mala Prohibita

Rights Forfeiture and Mala Prohibita

(p.77) 5 Rights Forfeiture and Mala Prohibita
The Constitution of the Criminal Law

Christopher Heath Wellman

Oxford University Press

The rights forfeiture theory of punishment contends that a criminal may permissibly be punished only when he or she has forfeited his or her right not to be subjected to the hard treatment constitutive of punishment. This approach is particularly well-suited to explain the permissibility of punishing those who commit mala in se crimes. It is much less clear, however, whether this account leaves sufficient normative space for mala prohibita crimes. This chapter is organized as follows. First, it briefly outlines the rights forfeiture theory of punishment and its difficulties with the category of mala prohibita. Next, it explains how a rights forfeiture theorist might best solve this problem. The third section grapples with difficult questions about how severely one may be punished for committing a mala prohibitum crime. Finally, its comments briefly on what rights and duties stem from unjust mala prohibita laws.

Keywords:   criminal law, forfeiture theory, punishment, rights forfeiture, mala prohibitum crime

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