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.

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.

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.

Legal Moralism and Public Wrongs

2018 ◽  
Author(s):  
R A Duff
Keyword(s):  
Criminal Law ◽  
Professional Ethics ◽  
Good Reason ◽  
Civic Life ◽  
Legal Moralism ◽  
Preliminary Discussion ◽  
Familiar Form ◽  
Public Wrong

This chapter provides a preliminary discussion of ‘legal moralism’. It distinguishes ‘negative’ from ‘positive’ legal moralism; it defends negative legal moralism (we may not criminalize conduct that is not wrongful prior to its criminalization), and shows why positive legal moralism (the wrongfulness of a type of conduct gives us reason to criminalize it) is attractive. It criticizes the most familiar form of positive legal moralism, according to which we have good reason to criminalize all morally wrongful conduct, as being implausibly over-expansive, and argues for a modest legal moralism according to which criminal law is concerned only with public wrongs. The idea of a public wrong is explained through a discussion of professional ethics, and an analogy between codes of professional ethics, dealing with wrongdoing that falls within a particular practice, and criminal law, as concerned with wrongdoing that falls within the distinctive practice of civic life—of a polity.

Offense to Others: The Moral Limits of the Criminal Law.

1989 ◽  
Vol 98 (2) ◽  
pp. 239
Author(s):  
Gerald Dworkin ◽  
Joel Feinberg
Keyword(s):  
Criminal Law ◽  
Moral Limits

Harm, Offense, and Morality

1994 ◽  
Vol 7 (2) ◽  
pp. 199-216 ◽  
Author(s):  
Larry Alexander
Keyword(s):  
Criminal Law ◽  
Individual Autonomy ◽  
Respect For Autonomy ◽  
Governing Principle ◽  
Moral Limits

Joel Feinberg’s magnificent four volume work, The Moral Limits of the Criminal Law, represents a sustained and comprehensive argument regarding what conduct is appropriately regulated through criminal prohibitions and sanctions. Feinberg’s conclusions are essentially those of the Millian liberal: Conduct that causes harm or offense to others may be criminalized, but conduct that is harmful only to the actor or that is a harmless immorality may not be. Feinberg’s governing principle, however, is not Mill’s maximization of utility but is instead respect for individual autonomy. For Feinberg, respect for autonomy delimits the legitimate boundaries of concern with others’ conduct insofar as the concern is expressed through criminal prohibitions.

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