{"title":"Criminalisation as a Speech-Act: Saying Through Criminalising","authors":"J. P. Fassnidge","doi":"10.1007/s11572-024-09726-7","DOIUrl":null,"url":null,"abstract":"<p>The act of criminalising conduct has been understood by many theorists as a form of communication. This paper proposes a model, based on speech-act theory, for understanding how that act of communication works. In particular, it focuses on analysing how and where wrongfulness can appear in this speech-act, if one were to argue, as many theorists do, that part of what is being communicated through criminalisation is the wrongfulness of the target conduct. I argue that the act of criminalisation is best understood as an indirect speech-act, which both asserts and declares normative facts, the utterance of which makes it the case that a conduct is now criminalised. Within this speech-act, wrongfulness can appear as an implicit assertion of the wrongness of the conduct, which has to be inferred by hearers from the context of utterance. The paper then briefly discusses the upshots of this model, mainly that it allows a clearer picture of how criminalisation conveys meanings, as well as leaving open the question as to whether it makes sense to think that the wrongfulness being conveyed is specifically of a moral kind.</p>","PeriodicalId":45447,"journal":{"name":"Criminal Law and Philosophy","volume":"4 1","pages":""},"PeriodicalIF":0.7000,"publicationDate":"2024-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":"0","resultStr":null,"platform":"Semanticscholar","paperid":null,"PeriodicalName":"Criminal Law and Philosophy","FirstCategoryId":"1085","ListUrlMain":"https://doi.org/10.1007/s11572-024-09726-7","RegionNum":0,"RegionCategory":null,"ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":null,"EPubDate":"","PubModel":"","JCR":"Q2","JCRName":"LAW","Score":null,"Total":0}
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Abstract
The act of criminalising conduct has been understood by many theorists as a form of communication. This paper proposes a model, based on speech-act theory, for understanding how that act of communication works. In particular, it focuses on analysing how and where wrongfulness can appear in this speech-act, if one were to argue, as many theorists do, that part of what is being communicated through criminalisation is the wrongfulness of the target conduct. I argue that the act of criminalisation is best understood as an indirect speech-act, which both asserts and declares normative facts, the utterance of which makes it the case that a conduct is now criminalised. Within this speech-act, wrongfulness can appear as an implicit assertion of the wrongness of the conduct, which has to be inferred by hearers from the context of utterance. The paper then briefly discusses the upshots of this model, mainly that it allows a clearer picture of how criminalisation conveys meanings, as well as leaving open the question as to whether it makes sense to think that the wrongfulness being conveyed is specifically of a moral kind.
期刊介绍：
Rationale The philosophy of crime and criminal law has been undergoing a renaissance.Increasing numbers of lawyers and philosophers are researching, writing and teaching in the area. Lawyers who are exploring theoretical issues related to criminal liability and punishment find that they must turn to philosophy. Philosophers recognise the importance of the criminal law as a focus for both analytical and normative inquiry. The practical importance of the subject is also obvious, especially at a time when western governments are having to reconsider their rationales for criminalization and sentencing in the light of substantial changes in criminal justice systems and their social contexts. Until recently, there was no journal solely devoted to the philosophy of crime and criminal law. Criminal Law and Philosophy fills this gap, and provides a platform for the high quality work that is being done in this area.
High quality content; specific and inclusive in scope Criminal Law and Philosophy aims to publish high quality articles that take a philosophical perspective on any issues in the broad field of crime and punishment. The main areas and topics include: crime and criminalization; the content, principles and structure of substantive criminal law; criminal justice and the criminal process; punishment and sentencing. The journal is inclusive in its scope: it publishes articles with a historical focus on earlier philosophical discussions of crime and punishment, as well as articles with a more contemporary focus. It seeks contributions from a range of philosophical schools and approaches, in particular both from analytically oriented philosophers and from those who draw more on contemporary continental philoshophy. Readership Criminal Law and Philosophy is becoming essential reading for academics in philoso phy, in law and in criminology who take a philosophically informed critical, analytical or normative approach to the criminal law and criminal justice. It is also an important resource for students in those subjects, and for practitioners with an interest in philosophical approaches to their practice. Through this journal, readers can access the latest thinking by the best scholars in the philosophy of crime and punishment. Editorial Board The editors, editorial board and advisors constitute an impressive, international group of leading scholars working in the philosophy of crime and punishment. They represent a variety of systems of criminal law, including systems that cross national boundaries.
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