Definition
In criminal law, to encourage means to instigate, incite, or otherwise contribute to another person's commission of a criminal act through words, conduct, or presence — without necessarily performing the act oneself. The term operates primarily in two legal contexts:
1. Accessorial liability. A person who encourages another to commit a crime may be liable as an accomplice, aider and abettor, or co-conspirator depending on jurisdiction and the degree of participation. Encouragement in this sense does not require physical assistance; words, gestures, or even presence under some circumstances may suffice if they contribute to the principal's will to act.
2. Constitutional spending power. In federal constitutional law, Congress may "encourage" states to adopt certain policies by attaching conditions to federal funding, provided the conditions do not cross into unconstitutional coercion. Here, encouragement is a term of art distinguishing permissible inducement from impermissible compulsion.
Common Language
Modern common usage (Wiktionary): To mentally support; to motivate, give courage, hope, or spirit; to spur on or foster.
Historical common usage (Webster's 1913): To give courage to; to inspire with courage, spirit, or hope; to animate; to incite; to help forward — the opposite of discourage.
The ordinary meaning of encourage is broadly positive and often passive — cheering someone on, offering support. The legal meaning in criminal law carries no such benign connotation. Legally, to encourage is to contribute to another's criminal act through influence on their will, which can establish culpability even without physical participation. A researcher who reads "encourage" in a historical indictment or jury instruction and interprets it in the common sense will underestimate the legal weight the word carries.
Common Confusion
Encourage, aid, and abet are frequently grouped together in criminal statutes and indictments, but they are not synonymous. Aid typically denotes material assistance. Abet denotes instigation or incitement with intent. Encourage sits closest to abet — it operates on the will of the principal rather than providing means. Bouvier's draws the grouping explicitly, noting that "encourage, aid or abet" together describe the conduct of one who, not performing the felonious act himself, contributes to or procures it by his will, thereby becoming a principal or accessory. In historical sources, these terms are often used interchangeably, which can obscure whether a court was analyzing actual assistance or mere psychological influence.
Why It Matters in Research
Researchers encounter "encourage" in at least three distinct legal registers within the Law Mind corpus, and conflating them distorts analysis.
First, in criminal law sources, the term is a term of art for a specific mode of accessorial liability. Historical indictments and treatises use encourage alongside abet and counsel — terms that tracked common law distinctions between principals in the first and second degree and accessories before the fact. Whether encouragement alone (without presence or material aid) was sufficient to establish liability varied by jurisdiction and era. Reading nineteenth-century criminal cases requires attention to whether the court is using encourage technically or loosely.
Second, in constitutional law, encourage appears as the approved zone of congressional spending conditions under the Spending Clause. The line between encouragement and coercion is the operative constitutional question in the spending power cases — what Congress may do versus what it may not. The Law Mind encyclopedia entry on Congressional Spending Conditions addresses this directly. Researchers working on federalism, Medicaid expansion, or highway funding conditions should treat encourage here as a constitutional term with a specific doctrinal meaning, not as a synonym for "recommend."
Third, in statutory drafting, encourage is sometimes deliberately chosen as a softer alternative to mandate or require, with real legal consequences for enforcement. A statute that "encourages" a practice creates a different legal environment than one that "requires" it.
Trap for historical research: Black's 1st edition and Bouvier's both cite 7 Q.B. Div. 258 for their definitions. Researchers tracing the lineage of the term into American case law should note that the doctrinal roots are partly English, and American courts adapted the concept with some variation in what level of contribution satisfied the encouragement threshold.
Historical Dictionary Support
Black's 1st and 2nd editions are substantively identical in their definition: to instigate, incite, give courage to, inspirit, embolden, raise confidence, make confident. Both treat encourage as a criminal law term of art for participation in a crime through influence on the will of the principal actor.
Bouvier's adds meaningful texture by embedding encourage within the phrase "encourage, aid or abet" and explaining the collective function of those terms: describing the conduct of a person who, not doing the act himself, contributes to or procures it by his will and thereby becomes a principal or accessory. Bouvier's framing is more precise than Black's in capturing why the term matters — it is the gateway concept for non-physical criminal participation.
Neither Black's nor Bouvier's addresses the constitutional spending power usage, which is entirely a twentieth and twenty-first century development. Historical dictionary entries are silent on this meaning, making them incomplete guides for constitutional research in this area.
Jurisdictional Note
Modern American jurisdictions vary in how much weight mere verbal encouragement — without presence at the scene or material assistance — carries for accomplice liability. Some jurisdictions require that the encouragement actually influence the principal's conduct; others treat knowing encouragement alone as sufficient. Federal criminal law and most state statutes now address this through aiding and abetting provisions rather than through the word encourage standing alone.
Encyclopedia Cross-Reference
Constitutional Law — Congressional Spending Conditions: Coercion vs. Encouragement (South Dakota v. Dole, NFIB v. Sebelius) (The Law Mind Constitutional Law Encyclopedia)