From the harm principle to harm decisionism: Hart, Feinberg, and the eclipse of Millian ambiguity

2015 ◽  
Vol 36 (1) ◽  
pp. 185-211
Author(s):  
Bernard E. Harcourt
Keyword(s):  
Criminal Law ◽  
Harm Principle ◽  
Simple Sentence ◽  
Anglo American ◽  
The Harm Principle

This simple sentence from John Stuart Mill’s “Introductory” to On Liberty—pulled out of context and denuded of Mill’s sophisticated philosophical treatment—became a foundational reference of Anglo-American criminal law and helped shape the course of penal legislation, enforcement, and theory during the twenteith century.

scholarly journals ‘Smoke gets in your eyes …’: the criminalisation of smoking in enclosed public places, the harm principle and the limits of the criminal sanction

Legal Studies ◽  
2011 ◽  
Vol 31 (2) ◽  
pp. 259-278 ◽  
Author(s):  
Pamela R Ferguson
Keyword(s):  
Criminal Law ◽  
Harm Principle ◽  
Criminal Sanction ◽  
Public Places ◽  
Parliamentary Debates ◽  
The Future ◽  
The Creation ◽  
The Harm Principle

Legislation has been enacted in both England/Wales and Scotland which criminalises smoking in certain places. This paper uses these prohibitions as a way of exploring two prominent theories of criminalisation which were employed in the parliamentary debates on the legislation, namely legal paternalism and the liberal ‘harm principle’. The paper argues that the creation of these offences cannot be justified by paternalism, and that the risk of harm to non-smokers from ‘passive smoking’is a preferable justification. This latter rationale could be used in support of more extensive smoking prohibitions in the future. The paper recognises the desire of many to limit the use of the criminal sanction and concludes by suggesting that unwarranted criminalisation can only be avoided if legislatures proposing new offences clearly articulate their reasons for believing that the criminal law is the best mechanism for reducing or deterring the conduct at issue, and demonstrate that the behaviour cannot adequately be deterred by non-criminal measures.

2. What is ‘crime’?

2021 ◽  
pp. 27-53
Author(s):  
Steve Case ◽  
Phil Johnson ◽  
David Manlow ◽  
Roger Smith ◽  
Kate Williams
Keyword(s):  
Criminal Law ◽  
Harm Principle ◽  
Criminal Behaviour ◽  
Social Construct ◽  
Socially Constructed ◽  
Over Time ◽  
The Harm Principle ◽  
What Matters

This chapter discusses what crime is. No matter how universally its ideas and regulations are accepted, it is important to understand and not lose sight of the fact that crime is a social construct. Because crime is socially constructed, ideas of unacceptable and criminal behaviour alter across cultures and over time. Many suggest that what is known as the ‘harm principle’ might be the best standard by which we should decide whether an activity should be criminal. This principle holds that if conduct is not harmful to others it should not be criminal, even if others strongly dislike it. The chapter also looks at the concept of deviance and identifies: what kinds of activities are disapproved of (seen as deviant) and why; which of these are criminalised and why; what the criminal law may reveal about society and what matters to it.

scholarly journals Criminalising fabricated images of child pornography: a matter of harm or morality?

Legal Studies ◽  
2010 ◽  
Vol 30 (2) ◽  
pp. 230-256 ◽  
Author(s):  
Suzanne Ost
Keyword(s):  
Sexual Abuse ◽  
Child Sexual Abuse ◽  
Criminal Law ◽  
Child Pornography ◽  
Harm Principle ◽  
Legal Moralism ◽  
Liberal Perspective ◽  
The Harm Principle

This paper addresses the criminalisation of fabricated images of child pornography. Focusing on the new offence of possessing ‘non-photographic pornographic images of children’ (NPPIC) under the Coroners and Justice Act 2009, it assesses whether harm- and morality-based arguments legitimate the extension of the criminal law to this activity. I contend that harm may be caused to children by NPPIC that are depictions of real child sexual abuse, and images that depict the fantasy sexual abuse of a real, recognisable child. However, it is extremely difficult to find a legitimate basis for prohibiting the possession of fantasy, completely fabricated NPPIC through a reasoned application of the harm principle and thus criminalisation of such images is not justified. Adopting a liberal perspective, I argue that moral harm-based arguments ultimately fail to convince, since legal moralism or moral paternalism should not be acceptable grounds for criminalisation. I conclude that a stronger case for criminalisation would have been made had the offence been limited to NPPIC depicting real child sexual abuse, or featuring real, recognisable children, or targeted at creators and distributors rather than possessors.

3. What is crime?

Criminology ◽  
2017 ◽  
Author(s):  
Steve Case ◽  
Phil Johnson ◽  
David Manlow ◽  
Roger Smith ◽  
Kate Williams
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
Harm Principle ◽  
Social Harm ◽  
International Human Rights ◽  
Social Construct ◽  
International Human ◽  
The Harm Principle

This chapter explains what crime is and what sorts of activities are criminalised and why. It begins by considering how society decides exactly which activities should be classed as crimes and goes on to discuss crime from an international human rights perspective. It then looks at crime as a social construct and its relation to deviance, the reasons why some actions are criminalised, the harm principle, and how crime differs from social harm. It also examines whether we need the criminal law in order to hold people to account and punish them, or whether a system designed to deal with any harm caused without apportioning blame would be more effective in ensuring safe and content communities.

HARM, SOVEREIGNTY, AND PROHIBITION

Legal Theory ◽  
2011 ◽  
Vol 17 (1) ◽  
pp. 35-65 ◽  
Author(s):  
Victor Tadros
Keyword(s):  
Criminal Law ◽  
Harm Principle ◽  
Valid Principle ◽  
The Harm Principle

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.

scholarly journals Rebuilding the Harm Principle: Using an Evolutionary Perspective to Provide a New Foundation for Justice

2020 ◽  
Vol 9 (3) ◽  
pp. 100-115
Author(s):  
Ed Gibney ◽  
Tanya Wyatt
Keyword(s):  
Criminal Law ◽  
Justice System ◽  
Harm Principle ◽  
Evolutionary Perspective ◽  
Principles Of Justice ◽  
Definition Of ◽  
Evolutionary Perspectives ◽  
The Harm Principle

Following Mill’s (1859) definition, the ‘harm principle’ came to dominate legal debates about crime and the appropriate response of the justice system, effectively replacing official talk of morality in modern secular societies. However, the harm principle has collapsed without an accepted definition of harm or a method to adjudicate between competing claims. To address this, we propose a definition of ‘good’ derived from evolutionary perspectives. From this, a universal goal for society can be recognised, specific objectives to reach that goal can be listed, and a new definition for harm can be used to repair the harm principle and restore its ability to underpin criminal law and the principles of justice in society.

4. Criminal law fabric

2019 ◽  
pp. 56-97
Author(s):  
Jeremy Horder
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
Harm Principle ◽  
Moral Autonomy ◽  
Business Activity ◽  
Criminal Offence ◽  
The Harm Principle

This chapter analyses the fabric of criminal law—rules, standards, and principles—giving examples of how each of these are used to construct the criminal law. A particular highlight, in the discussion of rules, is the importance of secondary legislation in creating offences, especially offences regulating business activity. The chapter also considers the values that the criminal law should respect, such as human rights, moral autonomy, and lifestyle autonomy. To that end, the chapter explains the harm principle, and the arguments for and against punishing ‘immoral’ behaviour. There is also an analysis of important principles of criminal offence construction and interpretation, such as the principle of strict construction, and the authoritarian principle.

The Limits of Criminal Misconduct

2018 ◽  
Author(s):  
Jeremy Horder
Keyword(s):  
Rule Of Law ◽  
Role Theory ◽  
Codes Of Conduct ◽  
Harm Principle ◽  
Moral Justification ◽  
Public Office ◽  
The Harm Principle

I turn my attention to the theoretical or moral justification for the offence of misconduct in public office. I argue that the offence of misconduct in office is only tenuously connected to the ‘harm principle’ justification for criminalization. I suggest that the offence is better explained by what I call the ‘role’ theory of criminalization. I also consider the legitimate scope of the offence: the kinds of misconduct that it should, and should not, cover. In that regard, we will see that codes of conduct that govern officials—a vital written element to the UK’s constitution—play a role not merely in setting boundaries but also in minimizing rule of law uncertainty about the kind of misconduct that may be found to fall within the scope of the offence.

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