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34 Law & Phil. 1 (2015)

handle is hein.journals/lwphil34 and id is 1 raw text is: Law and Philosophy (2015) 34: 1-22 © Springer Science+Business Media Dordrecht 2014 DOI 10.1007/s10982-014-9209-6 ALON HAREL THE DUTY TO CRIMINALIZE* To be tortured would be terrible; but to be tortured and also to be someone it was not wrong to torture would be even worset (Accepted 3 March 2014) ABSTRACT. The state has a duty to protect individuals from violations of their basic rights to life and liberty. But does the state have a duty to criminalize such violations? Further, if there is a duty on the part of the state to criminalize violations, should the duty be constitutionally entrenched? This paper argues that the answer to both questions is positive. The state has a duty not merely to effectively prevent violations of our rights to life and liberty, but also to criminalize such violations. Further, the duty to criminalize ought to be constitutionally en- trenched. In the absence of criminal prohibitions on violations of the right to life and liberty individuals live 'at the mercy' of others. In the absence of a constitu- tional duty to criminalize, life and liberty of individuals is contingent upon the judgments and inclinations of the legislature. In both cases citizens' rights are 'at the mercy of others'. I also show that the decisions of the German Constitutional Court concerning abortion can be justified on such grounds. I. INTRODUCTION The state has a duty to protect individuals from violations of their basic rights to life and liberty. In fact such a duty is traditionally perceived to be the primary justification for the establishment of the state; the state is there to protect its citizens from violation of their basic rights.1 But does the state have a duty to criminalize such * I wish to thank Arthur Ripstein, Miri Gur Arye and two anonymous referees for very important comments on previous drafts of this paper. I have also presented at a conference Criminalizing and Criminalized States organized by Francois Tanguay-Renault at Osgoode Hall Law School. I am grateful for the comments of the participants at this conference. Nagel, Thomas, 'Personal Rights and Public Space', Philosophy and Public Affairs 24 (2005): 83-107. I do not wish to deny that the state may legitimately perform other functions or even that it may have additional duties such as to provide health and educational opportunities and to promote the welfare of its citizens.

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