Duties to Criminalize Overinclusively

Abstract The need for overinclusive offences (laws defined more broadly than the wrongful harm, or risk thereof, they are intended to target) is typically regarded as arising from consequentialist considerations. I argue that this is not only misconceived, but has led to a mischaracterisation of the tension between such offences and the wrongness constraint. States are morally obligated to criminalize certain acts and moreover face non-ideal conditions (such as epistemic limits and resource constraints). As a result, they must criminalize some acts overinclusively if they are to be substantively criminalized. The obligation to criminalize some acts thus entails an obligation to criminalize certain acts overinclusively. Understanding this duty as a deontological one is necessary for accurately conceiving of the tension between the wrongness constraint and the need for overinclusive offences as a moral conflict, and thus for fully acknowledging the existence and moral nature of the remainder left by this conflict.