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HARM, SOVEREIGNTY, AND PROHIBITION

Published online by Cambridge University Press:  23 March 2011

Victor Tadros
Victor Tadros*
Affiliation:
School of Law, University of Warwick, Coventry, UK
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Abstract

What restrictions are there on the scope of the criminal law? One familiar suggestion is that it is wrong to criminalize conduct that is not harmful. Another suggestion is that it is wrong to criminalize conduct if criminalizing that conduct does not prevent harm. The first suggestion focuses on the conduct criminalized. The second focuses on the effects of the decision to criminalize. A third suggestion is that it is wrong to criminalize conduct if that conduct does not wrongfully interfere with the sovereignty of others. None of these suggestions points to a valid principle of criminalization, though each points to part of the truth. Versions of the harm principle can deal with some familiar objections but cannot explain why it is permissible to criminalize interference with some nonharmful conduct, for example, interference with self-sacrificial acts. The sovereignty principle can explain the cases that the harm principle struggles with. But it makes the permissibility of preventing harm through the criminal law depend on interference with sovereignty. This is not attractive either with respect to the protection of those who have the capacity for sovereignty but especially with respect to the protection of those who do not. I conclude that any valid principle of criminalization will be complex, drawing on two independent ideas: of harm and of interference with sovereignty.

Type
Research Article
Information
Legal Theory , Volume 17 , Issue 1 , March 2011 , pp. 35 - 65
Copyright
Copyright © Cambridge University Press 2011

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References

1. See Joel Feinberg, Harm to Others (1984), at 11–12.

2. Joel Feinberg, Offense to Others (1985).

3. See J.J. Thomson, The Realm of Rights (1990), at ch. 10. For a more modest critique of Thomson's view than I mount here, see Ellis, A., Thomson on Distress, 106 Ethics 112 (1995)CrossRefGoogle Scholar.

4. See, e.g., Simester, A.P. & von Hirsch, A., Rethinking the Offense Principle, 8 Legal Theory 269, 280–281 (2002)CrossRefGoogle Scholar.

5. See also Tasioulas, J., Crimes of Offence, in Incivilities: Regulating Offensive Behaviour 152–153 (von Hirsch, A. & Simester, A.P. eds., 2006)Google Scholar.

6. This is also the view of the criminal law. See, e.g., R v. Pagett, (1983) 76 Crim. App. Rep. 279.

7. Feinberg, Offense to Others, supra note 2, argues against an objective criterion for offensiveness. His view has been widely criticized. See, e.g., Tasioulas, J., Crimes of Offense, in Incivilities: Regulating Offensive Behaviour 152–153 (von Hirsch, A. & Simester, A.P. eds., 2006)Google Scholar; Duff, R.A. & Marshall, S.E., How Offensive Can You Get? in Incivilities: Regulating Offensive Behaviour 152–153 (von Hirsch, A. & Simester, A.P. eds., 2006)Google Scholar; and von Hirsch & Simester, supra note 4.

8. For an extended defense of the same view in the context of freedom of expression, see Cohen, J., Freedom of Expression, 22 Phil. & Pub. Aff. 207 (1993)Google Scholar.

9. For a discussion of other responses to offensive conduct, see Duff and Marshall, supra note 7.

10. Some doubt this. For example, Doug Husak thinks that the person must be at least negligent as to the use of a weapon to be guilty of an offence of possession of a dangerous weapon. See D. Husak, Overcriminalization: The Limits of the Criminal Law (2008), at 175. I doubt that this is necessary. If the use of the weapon is fully within the person's control, the person cannot be thought negligent as to its use. But would we really be required decriminalize possession of the most dangerous weapons, such as nuclear weapons, on this basis?

11. Gardner, John & Shute, Stephen, The Wrongness of Rape, in Oxford Essays in Jurisprudence (4th ser., Horder, J. ed., 2000)Google Scholar, at 196.

12. Ripstein, A., Beyond the Harm Principle, 34 Phil. & Pub. Aff. 215, 218 (2006)CrossRefGoogle Scholar.

13. See also Stanton-Ife, J., Horrific Crime, in The Boundaries of the Criminal Law (Duff, R.A., Farmer, L., Marshall, S.E., Renzo, M. & Tadros, V. eds., 2010)Google Scholar.

14. See T. Nagel, Death, in Mortal Questions (1979), J. Feinberg, Harm to Others (1984), at 79–95. For doubts, see Fabré, C., Posthumous Rights, in The Legacy of H.L.A. Hart: Legal, Political, and Moral Philosophy (Kramer, M., Grant, C., Colburn, B. & Hatzistavrou, A. eds., 2008)Google Scholar.

15. It is not clear exactly how Gardner and Shute would define the harm principle. Their analysis in Gardner & Shute, supra note 11, at 215–217, indicates that they believe that something like HP2 is the right definition.

16. For a related argument, see Ripstein, supra note 12, at 222–229.

17. See Tadros, V., Crimes and Security, 71 Mod. L. Rev. 940 (2008)CrossRefGoogle Scholar, for further discussion.

18. Though it is not a completely clear endorsement of the idea, see J. Gardner, Offences and Defences: Selected Essays in the Philosophy of Criminal Law (2007), at 243–244.

19. V. Tadros,. The Ends of Harm: The Moral Foundations of Criminal Law (forthcoming).

20. Tadros, Crimes, supra note 19.

21. See Joseph Raz, The Morality of Freedom (1986), at ch. 12. Even Raz, in fairness, acknowledges that there are some aspects of well-being–-namely, “biologically determined needs and desires”–-that may not fit this account. See id. at 290.

22. In id. at 296, Raz seems to endorse this revisionist idea of self-sacrifice.

23. This is a common theme in the philosophy of self-sacrifice. See, e.g., S. Darwall, Welfare and Rational Care (2002), at 53.

24. This interpretation of the implications of Raz's view is encouraged by Raz, supra note 23, at 293.

25. See id. at 295.

26. See F.M. Kamm, Intricate Ethics: Rights, Responsibilities, and Permissible Harm (2007), at 244–248.

27. Raz, supra note 23, at 253–254; J. Raz, Free Expression and Personal Identification, in Ethics in the Public Domain: Essays in the Morality of Law and Politics 149–153 (1994).

28. For an excellent defense of this view, see Cohen, supra note 8.

29. See id.

30. For an excellent account of this distinction in a different context, see J. McMahan, The Ethics of Killing: Problems at the Margins of Life (2002), at 241.

31. I am grateful to a referee for Legal Theory for raising this possibility.

32. Ripstein, supra note 12; A. Ripstein, Force and Freedom: Kant's Legal and Political Philosophy (2009), at ch. 2.

33. See Ripstein, Force, supra note 34, ch. 2.

34. See, further, V. Tadros, Independence without Interests? Oxford J. Legal Stud. (forthcoming).

35. See Antony Duff, Answering for Crime: Responsibility and Liability in the Criminal Law (2007), at 138–140.

36. Ripstein believes that touching a person while she is unconscious does co-opt her powers. This view is odd, for a person in a coma surely lacks the power to do anything. See Ripstein, Force, supra note 34, at 45–46.

37. See id. at 40–42.

38. Mill, John Stuart, On Liberty (Oxford University Press, 1991)Google Scholar, at 14.

39. This is a familiar objection to moral and political theories that ground justice in capacities that are exclusive to some human beings. See, for a good example, Jeff McMahan's critique of John Rawls in J. McMahan, supra note 30, at 251–254.