3. The Harm Principle Meets Morality Offenses: Human Rights, Criminal Law, and the Regulation of Sex and Gender

2019 ◽  
pp. 54-74
Author(s):  
Steve Case ◽  
Phil Johnson ◽  
David Manlow ◽  
Roger Smith ◽  
Kate Williams

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.


Author(s):  
Jeremy Horder

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.


2015 ◽  
Vol 36 (1) ◽  
pp. 185-211
Author(s):  
Bernard E. Harcourt

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.


2020 ◽  
Vol 20 (3) ◽  
pp. 387-411
Author(s):  
Lena Holzer

ABSTRACT This article explores the definition of ‘sportswoman’ as put forward in the Caster Semenya case (2019) and the Dutee Chand case (2015) before the Court of Arbitration for Sport (CAS). It analyses the structural and discursive factors that made it possible for the CAS to endorse a definition that reduces sex and gender to a matter concerning testosterone. By relying on the concept of intersectionality and analytical sensibilities from Critical Legal Studies, the article shows that framing the cases as a matter of scientific dispute, instead of as concerning human rights, significantly influenced the CAS decisions. Moreover, structural elements of international sports law, such as the lack of knowledge of human rights among CAS arbitrators and a history of institutionalising gendered and racialised body norms through sporting regulations, further aided the affirmation of the ‘testosterone rules’.


Legal Studies ◽  
2011 ◽  
Vol 31 (2) ◽  
pp. 259-278 ◽  
Author(s):  
Pamela R Ferguson

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.


Sociology ◽  
2020 ◽  
Author(s):  
Morgan Carpenter

Intersex people are described by United Nations institutions as born with variations of sex characteristics that differ from medical and social norms for female or male bodies (see, for example, the 2019 report “Human Rights Violations against Intersex People,” by the Office of the High Commissioner for Human Rights). These variations are diverse and innate. Intersex human rights defenders and human rights institutions challenge the stigma and discrimination that intersex people face because of their physical variations, but few jurisdictions so far have tackled the human rights violations that intersex people suffer. There are multiple additional, contested, and incommensurate lenses through which intersex people are viewed. These express different values and beliefs about the same people, including their meaning, treatment, concerns, and demands. Medical lenses view intersex traits as “disorders of sex development” (DSD), and people with those traits are viewed as female or male and subjects for treatment. Anthropology and queer and gender studies have viewed intersex as an illustration of fallacies that underpin subjective cultural norms for sex and gender. Law increasingly views intersex people as members of a third sex. Historical research shows that intersex people, often termed hermaphrodites, have always existed, and often been accommodated.


2021 ◽  
pp. 27-53
Author(s):  
Steve Case ◽  
Phil Johnson ◽  
David Manlow ◽  
Roger Smith ◽  
Kate Williams

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.


Legal Studies ◽  
2010 ◽  
Vol 30 (2) ◽  
pp. 230-256 ◽  
Author(s):  
Suzanne Ost

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.


Legal Theory ◽  
2011 ◽  
Vol 17 (1) ◽  
pp. 35-65 ◽  
Author(s):  
Victor Tadros

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.


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