GEORGIA LAW REVIEW - StephanKinsella.com

19791 HUMAN RIGHTS 1417
imposition of criminal sanctions, viz., the principles of punishment.
Generally, at least four relevant principles regulate the use of crimi-
nal sanctions to enforce moral obligations and duties.
First, the Kantian interpretation of treating persons as equals
importantly puts special constraints on the imposition of criminal
penalties for violations of moral duties and obligations, namely,
that sanctions be applied only to persons who broke a reasonably
specific law, who had the full capacity and opportunity to obey the
law, and who could reasonably have been expected to know that
such a law existed.Il0 In this way, each person is guaranteed a great-
est liberty, capacity, and opportunity of controlling and predicting
the consequences- of one's actions, compatible with a like liberty,
capacity, and opportunity for all. Such a principle can be agreed to
or universalized because it is a rational way to secure general respect
for and compliance with moral principles at a tolerable cost. Be-
cause criminal sanctions are a form of humiliating stigma, persons
in Rawls's original position or Gewirth's equivalent would limit the
application of such sanctions in order to secure a higher lowest than
that allowed by alternative principles; for, these conditions provide
the fullest possible opportunity for people to avoid these sanctions
if they so choose, or, at least, the fullest possible opportunity within
the constraint that some system of coercive enforcement is justified
to insure compliance with moral principles of obligation and duty.
This principle forbids the application of criminal sanctions to an
innocent who has not broken the law or to persons lacking the lib-
erty (the severely coerced), the capacity (the insane, infants, invol-
untary acts) or full oppbrtunity (those not reasonably apprised of
the law) to regulate conduct by the relevant principles, even where
the application of sanctions might have some deterrent effect in
better enforcing moral principles; it also tends to render immune
from criminal sanctions those unintentional actions that result from
quite unforeseeable and unavoidable accident, which there was no
fair opportunity to avoid. In general, forms of mental state (intent,
knowledge, and an individualized standard of negligence)ll' are re-
quired as necessary moral conditions of just punishment because
the presence of these mental states insures that the person may
fairly be said to have the capacity and opportunity to conform con-
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'I0 See id. at 128-29; H.L.A. HART, supra note 10, at chs. 1-11.
'I' See H.L.A. HART, supra note 10, at ch. VI; D. RICHARDS, THE MORAL CRITICISM
207-08 (1977).
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