The Impossibility of a Critically Objective Criminal Law

2011 ◽  
Vol 56 (2) ◽  
pp. 349-394
Author(s):  
Dennis J. Baker
Keyword(s):  
Criminal Law ◽  
Social Contexts ◽  
Harm Principle ◽  
Social Conventions

In this paper, I argue that principled criminalization does not have to rely on critical objectivity. It is not necessary to demonstrate that conduct is criminalizable only if it is wrong in a transcultural and truly correct sense. I argue that such standards are impossible to identify and that a sounder basis for criminalization decisions can be found by drawing on our deep conventional understandings of wrong. I argue that Feinberg’s harm principle can be supported with conventional accounts of harm, and that such harms can be identified as objectively harmful when measured against our deep conventional understandings of harm. The distinction that critical moralists make between truly harmful conduct and conventionally objective harmful conduct is unsustainable because many conventional harms impact real victims in social contexts. The best that we can do is to scrutinize our conventional conceptualizations of harm and badness, but that scrutiny is constrained by the limits of epistemological inquiry and our capacity for rationality at any given point in time. Many acts are criminalizable because they violate social conventions that are shareable by communally situated agents.

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.

Reasons to Criminalize

2018 ◽  
pp. 143-181
Author(s):  
Vincent Chiao
Keyword(s):  
Criminal Law ◽  
Subject Matter ◽  
Public Law ◽  
Point Of View ◽  
Harm Principle ◽  
The Political ◽  
Legal Moralism ◽  
The Public ◽  
Political Ideal ◽  
The Way

This chapter extends the public law conception to the theory of criminalization. The first half of the chapter is devoted to considering whether the criminal law has a privileged subject matter or “core,” focusing especially on Feinberg’s influential account of the criminal law as a system of direct prohibitions. The chapter argues that a subject-matter-based approach has difficulty coming to grips with actual criminal law systems in modern administrative states, in which so-called mala prohibita offenses predominate. The second half of the chapter turns to sketching how we might approach the question of criminalization from a public law point of view, both in general and with reference to the political ideal of anti-deference (sketched in Chapter 3) in particular. Along the way, the chapter argues that the (very popular) wrongfulness principle turns out to be either empty or implausible, and hence that we should reject any version of the harm principle, or of legal moralism, that presupposes 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.

1. Criminal law in context

Criminal Law ◽  
2019 ◽  
pp. 1-31
Author(s):  
Michael J. Allen ◽  
Ian Edwards
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
Social Contexts ◽  
European Convention ◽  
The Political ◽  
Criminal Process ◽  
Standard Of Proof ◽  
Key Aspects ◽  
The Impact

Course-focused and comprehensive, the Textbook on series provides an accessible overview of the key areas on the law curriculum. This introductory chapter answers the following questions: What is a crime? What purpose or function does the criminal law serve? What reasons are there for the criminalisation of some types of conduct? What are the purposes of punishment? What are the political and social contexts in which criminal law operates? The chapter provides an overview of key aspects of the criminal process, including mode of trial, the decision to prosecute, the burden and standard of proof, the functions of judge and jury, and sentencing. It also examines briefly discusses the impact of the European Convention on Human Rights on English law.

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.

scholarly journals ‘Irresistible impulse’: historicizing a judicial innovation in Australian insanity jurisprudence

2012 ◽  
Vol 23 (4) ◽  
pp. 454-468 ◽  
Author(s):  
Mark Finnane
Keyword(s):  
Twentieth Century ◽  
Criminal Law ◽  
Capital Punishment ◽  
Legal Discourse ◽  
Social Contexts ◽  
Frequency Of Use ◽  
Behavioural Factors

In twentieth-century Australian criminal law a distinctive departure from the M’Naghten Rules developed as a critique of the discourse of reasoning and verdicts applying in the relevant English trials from the 1880s. The English verdict of ‘guilty but insane’ was criticized by the leading jurists as contradictory. In a sequence of influential judgments, the jurist Owen Dixon articulated an approach to the insanity defence that made room for a medico-legal discourse which broadened the possible referents of what it meant to ‘know’ the legality of an act, and also acknowledged the complex behavioural factors that might determine an act of homicide. This paper explores the shaping and significance of this departure and its comparative judicial, medical and social contexts. A concluding discussion considers whether the more flexible interpretation of the insanity defence implied by the direction of Dixon’s decisions made as much of a difference to frequency of use of the defence as the contemporaneous decline and eventual abolition of capital punishment.

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 Los nuevos delitos contra la seguridad vial: una muestra 
de la Administración del Derecho Penal

2009 ◽  
Author(s):  
Raquel Montaner Fernández
Keyword(s):  
Criminal Law ◽  
Road Traffic ◽  
Administrative Law ◽  
Harm Principle ◽  
Law Reform ◽  
Seguridad Vial ◽  
Law System ◽  
Driving License ◽  
The Road ◽  
Derecho Penal

Tradicionalmente, los delitos contra la seguridad vial vienen considerándose como delitos de peligro. Sin embargo, con la última reforma penal en esta materia el legislador se aleja de la técnica de los delitos de peligro introduciendo tipos penales más formales. De este modo, el Derecho Penal cada vez se aproxima más a la lógica del Derecho administrativo sancionador, aparcando la relevancia de principios que tradicionalmente han inspirado el Ius puniendi como es el principio de lesividad. El delito de conducción a una velocidad excesiva (art. 379.1) y el delito de conducción sin permiso o licencia (art. 384) son dos de las manifestaciones de esta nueva orientación del Derecho penal. Traditionally, the road traffic offences are considered as dangerousness offences. Nevertheless, with the last criminal law reform in this area the legislator mover away from the dangerousness offences to get closer to more formal offences. In this way, the Criminal Law is coming closer so the sanctioning Administrative Law system, forgetting the relevance of some traditional principles in Ius puniendi like the harm principle. The offence of driving at an excessive speed (art. 379.1 CP) and the offence of driving without driving license (art. 384 CP) are two examples of this new Criminal Law orientation.


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