A Philosophical Examination of the Arguments against Criminalization of Mere Thought

Document Type : Scientific-research


Assistant Professor of Philosophy and Wisdom and Logic Tarbiat Modares University


In the criminal jurisprudence, It­ is kind of an established and generally accepted maxim that we must never punish anyone for his mere thought (or thoughts) including his feelings, desires, fantasies, wishes, beliefs, and unexecuted intentions. Generally It seems that there are more or less convincing reasons that we must avoid punishing mere thought due to its unacceptable and undesirable consequences for both the individual and the society. In this paper, however, I will investigate into some discussions about the justification related to the maxim that any criminalization of mere thought is intrinsically (i.e., consequentially-independent) morally unjust and hence is culpably wrong. My investigation is here mostly confined to one kind of mere thought, that is, unexecuted intentions, leaving some important kinds such as fundamentalist or racist beliefs untouched. I will show that unexecuted intentions can be regarded as more or less harmful, culpably wrong, in section 3, and provable, in section 4, and hence we should find more uncontroversial grounds to secure our more or less common and shared intuition about the respected maxim that punishing mere thought seems to be altogether unacceptable. The paper doesn’t claim that provide convincing arguments for the criminalization of mere thought. Rather its modest claim is that some of the established arguments against the criminalization of mere thought need to be reconsidered.


Main Subjects

سعدی، مشرف الدین مصلح بن عبدالله (1396)، کلیات سعدی، بر اساس نسخه تصحیح ‌شدۀ محمد علی فروغی، تهران: نشر کانیار.
Alexander, Larry & Ferzan, Kimberly Kessler., (2009), Crime and Culpability: A Theory of Criminal Law, Cambridge: Cambridge University Press.
Black, Charles L, Jr., (1975), Impeachment: A Handbook, New Haven: Yale University.
Blackstone, Sir William., (1807), Commentaries on the Laws of England, V. 4, Thomas B. Wait & Company.
Brudner, Alan., (2009), Punishment and Freedom: A Liberal Theory of Penal Justice, Oxford: Oxford University Press.
Duff, R, A., (2007), Answering for Crime: Responsibility and Liability in the Criminal Law, Oxford: Hart Publishing.
Hart., (2008), Punishment and Responsibility: Essays in the Philosophy of Law, 2nd edition, Oxford: Oxford University Press.
Herring, Jonathan., (2012), Criminal Law, Text, Cases, and Materials, Oxford: Oxford University Press.
Husak, D., (2007), “Rethinking the Act Requirement”, 28 Cardozo Law Review, 2437–2460.
Husak, Douglas N., (1987), Philosophy of Criminal Law, Totowa, N.J.: Rowman & Allanheld.
Mendlow, Gabriels S., (2018), Why Is It Wrong to Punish Thought?, Yale Law Journal, 127(8), pp. 2342-2386.
Moore, Michael., (1993), Act and Crime: The Philosophy of Action and its Implications for Criminal Law, Oxford: Oxford University Press.
Schauer, Frederick., (2014), “On the Distinction Between Speech and Action”, University of Virginia School of Law.
Williams, Glanville., (1961), Criminal Law: The General Part, 2nd edition, London: Stevens & Sons Ltd.