HARM AND THE VOLENTI PRINCIPLE

2011 ◽  
Vol 29 (1) ◽  
pp. 309-321 ◽  
Author(s):  
Gerald Dworkin
Keyword(s):  
Criminal Law ◽  
The State ◽  
The Other ◽  
Legal Moralism ◽  
Great Work ◽  
Joel Feinberg ◽  
Offense Principle ◽  
Moral Limits

AbstractThis is an essay on the limits of the Criminal Law. In particular, it is about what principles, if any, determine whether it is legitimate for the state to criminalize certain conduct. Joel Feinberg in his great work on the moral limits of the criminal law argues that we need only two principles. One is a principle regulating harm to other people and the other is an offense principle regulating certain kinds of offensive conduct. I explore various aspects of his argument. In particular I concentrate on his use of the Volenti Principle: He who consents cannot be wrongfully harmed by conduct to which he has fully consented. Feinberg uses the principle to argue that certain kinds of consensual conduct cannot be forbidden unless we adopt some kind of legal moralism, i.e., conduct can be forbidden on the grounds that it is immoral even though the conduct harms no other person. I explore the possibility of avoiding legal moralism by limiting the use of the Volenti Principle.

Bastard Feudalism and the Framing of Thirteenth-Century England

2018 ◽  
Author(s):  
Peter Coss
Keyword(s):  
Middle Ages ◽  
Thirteenth Century ◽  
Twelfth Century ◽  
The State ◽  
The Other ◽  
Great Work ◽  
Early Middle Ages ◽  
The One ◽  
The Relationship

In the introduction to his great work of 2005, Framing the Early Middle Ages, Chris Wickham urged not only the necessity of carefully framing our studies at the outset but also the importance of closely defining the words and concepts that we employ, the avoidance ‘cultural sollipsism’ wherever possible and the need to pay particular attention to continuities and discontinuities. Chris has, of course, followed these precepts on a vast scale. My aim in this chapter is a modest one. I aim to review the framing of thirteenth-century England in terms of two only of Chris’s themes: the aristocracy and the state—and even then primarily in terms of the relationship between the two. By the thirteenth century I mean a long thirteenth century stretching from the period of the Angevin reforms of the later twelfth century on the one hand to the early to mid-fourteenth on the other; the reasons for taking this span will, I hope, become clearer during the course of the chapter, but few would doubt that it has a validity.

Toward a Contemporary Concept of Criminal Justice

1969 ◽  
Vol 4 (4) ◽  
pp. 479-493
Author(s):  
Helen Silving
Keyword(s):  
Criminal Justice ◽  
Criminal Law ◽  
Canon Law ◽  
The State ◽  
Penal Code ◽  
The Other ◽  
Model Penal Code ◽  
National Socialist ◽  
American Law ◽  
The One

The state of our “criminal law” in 1905 was described by William H. Taft as “a disgrace to our civilization”. This state had not changed much almost half a century later, when Justice Frankfurter quoted Mr. Taft's statement. Several major modern reform projects formulated since 1952 introduced some noteworthy modifications. I have in mind particularly the American Law Institute Model Penal Code, on the one hand, and the German Draft of a Penal Code, both of 1962, on the other. In the former I should like to draw attention to the serious attempt at a systematization of punishment scales, and in the latter to the effort at a systematic structuring of the “guilt principle”. The German Draft incorporated results of various revisions introduced since the collapse of the National Socialist régime, by either statutory or judicial legislation—revisions born out of the growing concern in Germany with “guilt”. Prominent among these revisions, of course, is adoption of the defence of “error of law” of ancient origin, derived from biblical, talmudic and canon law teaching. Nevertheless, these two projects have but touched the surface of the profound problems that are involved in formulating truly modern penal legislation.

Re-formulating the Observable Inadequacy of the Prevalent Approaches Followed by Islamic Jurisprudence and Statute Law in Dealing with Mens Rea

2016 ◽  
Vol 80 (4) ◽  
pp. 254-263
Author(s):  
Fatemeh Ahadi
Keyword(s):  
United States ◽  
Criminal Law ◽  
Common Sense ◽  
The State ◽  
The Other ◽  
Mens Rea ◽  
Islamic Jurisprudence ◽  
State Of Mind ◽  
Criminal Intent

The present paper constitutes an attempt towards questioning the adequacy of the prevalent approached employed by Islamic jurisprudence and statute law in dealing with mens rea and its manifestations. It also provides a kind of reinterpretation of the concept since it attaches itself to the perspective that the concepts employed in criminal law need evolution in order to preserve their function and practicality; the conditions appertaining thereto necessitating adaptability of the concepts with the contextual conditions as well as the principles of the criminal law. Under criminal law, mens rea is referred to as ‘criminal intent or the state of mind indicating culpability which is required by statute as an element of a crime’ (see, for example, Staples v United States, 511 US 600 (1994)). Under Islamic jurisprudence it is defined as ‘rebellion intent’. These conceptualisations of the mens rea may be subject to evolution as well as the other concepts. The present paper provides a reformulation of these definitions wherein mens rea is considered to be ‘the culpable linkage of mind with the forbidden conduct’. Through this reformulation the author replaces the ‘state’ with ‘linkage’ presupposing that the interpretation of the term ‘culpable’, as an independent constituent, shall vary according to the provisions of common sense and the contextual conditions.

Canons of Evasion in Constitutional Criminal Law

2017 ◽  
Author(s):  
Sharon Dolovich
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Judicial Review ◽  
The State ◽  
The Other ◽  
State Action ◽  
The Supreme Court ◽  
The Face ◽  
The One ◽  
The Right

In this chapter, Sharon Dolovich argues that the Supreme Court deploys three “canons of evasion” that undermine core constitutional principles: deference, presumption, and question substitution. The chapter shows how the Court on the one hand affirms basic constitutional principles—such as the right to counsel or the right against cruel and unusual punishment—that courts are to enforce against the state for the protection of individual penal subjects. Yet on the other hand, the doctrinal maneuvers of deference, presumption, and substitute question encourage judges in individual cases to affirm the constitutionality of state action even in the face of seemingly egregious facts. As a result, judicial review delivers almost automatic and uncritical validation of whatever state action produced the challenged conviction, sentence, or punishment. Dolovich identifies troubling questions raised by pervasive use of these canons for the legitimacy of the state’s penal power.

scholarly journals PROBLEMS OF CRIMINAL LAW REGULATION OF PRIVATE (COMMERCIAL) BRIBERY

2020 ◽  
Author(s):  
Mariya Mihaylova ◽  
Keyword(s):  
Economic System ◽  
Criminal Law ◽  
Public Interest ◽  
State Regulation ◽  
The State ◽  
The Other ◽  
Private Interest ◽  
Normal Functioning ◽  
The Public ◽  
The One

The Bulgarian legislator is faced with the challenge and the need to re-evaluate its punitive policy to protect the normal functioning of the economic system. When regulating such a matter, it is necessary to look for a balance of values and interests, as on the one hand there is the public interest requiring a stable and workable economy and on the other hand the private interest requiring certain limits of the state regulation.

Risking One’s Life: ‘Soft Paternalism’ and Feinberg’s Account of Legal Liberalism

1995 ◽  
Vol 8 (2) ◽  
pp. 311-324 ◽  
Author(s):  
Ian Hunt
Keyword(s):  
Political Philosophy ◽  
Criminal Law ◽  
The Other ◽  
Joel Feinberg ◽  
Moral Basis ◽  
Soft Paternalism ◽  
Legitimate Concern ◽  
Harm To Others ◽  
Social Gain ◽  
Personal Harm

In his The Moral Limits of the Criminal Law: Harm To Self, one volume in what is arguably the most impressive and thorough statement of liberal political philosophy to date, Joel Feinberg claims that there is a problem of reconciling the reasonableness of our concern for people who endanger themselves with our repugnance for paternalism:preventable personal harm (setback interest) is universally thought to be a great evil, and... such harm is no less harmful when self-caused... If society can substantially diminish the net amount of harm to interests from all sources, that would be a great social gain. If that prospect provides the moral basis underlying the harm to others principle, why should it not have application as well to self-caused harm and thus support equally the principle of legal paternalism?... On the other hand, we are challenged to reconcile, somehow, our legitimate concern with diminishing overall harm with the threatened proliferation of criminal prohibitions enforcing a “Spartan like regime” of imposed prudence

JOEL FEINBERG AND THE JUSTIFICATION OF HARD PATERNALISM

Legal Theory ◽  
2005 ◽  
Vol 11 (3) ◽  
pp. 259-284 ◽  
Author(s):  
Richard J. Arneson
Keyword(s):  
Criminal Law ◽  
Moral Philosophy ◽  
Good Reason ◽  
Joel Feinberg ◽  
Voluntary Choice ◽  
Moral Limits

Joel Feinberg was a brilliant philosopher whose work in social and moral philosophy is a legacy of excellent, even stunning achievement. Perhaps his most memorable achievement is his four-volume treatise on The Moral Limits of the Criminal Law, and perhaps the most striking jewel in this crowning achievement is his passionate and deeply insightful treatment of paternalism. Feinberg opposes legal paternalism, the doctrine that “it is always a good reason in support of a [criminal law] prohibition that it is probably necessary to prevent harm (physical, psychological, or economic) to the actor himself.” Against this doctrine Feinberg asserts that when an agent's sufficiently voluntary choice causes harm to herself or risk of harm to herself, this category of harm-to-self is never a good reason in support of criminal law prohibition of that type of conduct.

FEINBERG AND THE FAILURE TO ACT

Legal Theory ◽  
2005 ◽  
Vol 11 (3) ◽  
pp. 237-250 ◽  
Author(s):  
Patricia Smith
Keyword(s):  
Criminal Law ◽  
Joel Feinberg ◽  
Harm To Others ◽  
Moral Limits

In Chapter 4 of his famous work, Harm to Others, Joel Feinberg, with characteristic clarity and insight, outlined the major problems associated with analyzing the foundations of responsibility for the failure to act. In that chapter he made a number of controversial claims supported by arguments that have generated debate ever since he made them in 1984. His analysis led him to conclude that liability (or responsibility) for the failure to act falls within the moral limits of the criminal law in cases in which a random bystander could easily rescue a seriously imperiled stranger.

Sign in / Sign up

Export Citation Format

Share Document