Towards an Integrated (and Possibly Pan-European?) Prima Facie Legitimacy Test: Merging the Rechtsgut Theory, the Offensività Principle, and the Harm Principle

The Anglo-American harm principle, and its European counterparts – the legal goods theory and the offensività principle – attempt to provide an answer to the question of which conducts can be prima facie legitimately criminalised. Despite the historical, conceptual, and practical differences between these criminalisation approaches, they share important elements, particularly from a functional and operational perspective. By merging the key aspects of these theories, this work elaborates an instrument to assess the prima facie legitimacy of criminalisation – the Integrated Legitimacy Test – that embeds their essential elements and further conceptualises them. The Test strives to overcome some of the criticisms directed against the Anglo-American and European theories by narrowly defining their core elements and linking them to empirical evidence. Moreover, its transnational nature makes it suitable to feed the criminalisation debate at the European Union level.

The Harm Principle and the Nature of Harm

This article defends the Harm Principle, commonly attributed to John Stuart Mill, against recent criticism. Some philosophers think that this principle should be rejected, because of severe difficulties with finding an account of harm to plug into it. I examine the criticism and find it unforceful. Finally, I identify a faulty assumption behind this type of criticism, namely that the Harm Principle is plausible only if there is a full-blown, and problem-free, account of harm, which proponents of the principle can refer to.

Kymlicka’s Alignment of Mill and Engels: Nationality, Civilization, and Coercive Assimilation

John Stuart Mill claims that free institutions are next to impossible in a multinational state. According to Will Kymlicka, this leads him to embrace policies kindred to those of Friedrich Engels, aimed at promoting mononational states in Europe through coercive assimilation. Given Mill’s harm principle, such coercive assimilation would have to be justified either paternalistically, in terms of its civilizing effects upon the would-be assimilated, or non-paternalistically, with reference to the danger that their non-assimilation would pose to others. However, neither possible interpretation is plausible; Mill takes Europe’s civilized status to shield Europeans from paternalistic coercion, and he opposes coercive assimilation where it could conceivably be justified in the name of defense. Although this much suggests that Kymlicka misinterprets Mill by ignoring his definition of nationality, it leaves scope for Kymlicka to argue that Mill favors policies that promote mononationality through neglecting the languages and cultures of national minorities.

Paternalism: A Flawed Basis for Liberty-limiting Policies?

This article discusses coercive paternalism, a concept of liberty-limitations that has gained significant attention in recent decades. In opposition to the libertarian type of paternalism proposed by the well-known ‘Nudgers’ Richard H. Thaler and Cass R. Sunstein (2008), Sarah Conly (2013) advocates coercive interventions in Against Autonomy: Justifying Coercive Paternalism. Her influential work serves as a basis for scrutinizing the validity of coercive paternalism’s presuppositions as well as the internal coherence of the concept. Following the fundamental groundwork of especially Joel Feinberg and Gerald Dworkin, arguments against coercive paternalism are evaluated. They include the reciprocal (rather than unilateral) relationship between the ‘present self’ and the ‘future self’ in the paternalist’s account, the questionable legitimacy of punishment for self-harming behaviour and of coercion in general, the challenges of so-called ‘perfectionism’ and slippery-slopes, as well as a misconception about the alleged lack of rationality that serves as a justification for coercive paternalism. The article concludes by suggesting that – given the flaws of the concept – it may be reasonable to favour soft paternalism à la John Stuart Mill based on the harm principle over Conly’s proposal for a more extensive form of coercive paternalism.

On the Wrongness of Lies

Why are lies wrong? The Kantian answer sees lies as a close cousin to coercion; they are a violation of individual autonomy and a demonstration of contempt. By contrast, the utilitarian answer is that lies are likely to lead to terrible consequences, sometimes because they obliterate trust, sometime because they substitute the liar’s will for that of the chooser, who has much better information about the chooser’s welfare than does the liar. The utilitarian objection to paternalistic lies is akin to the utilitarian embrace of Mill’s Harm Principle. It is possible to see the Kantian view as a kind of moral heuristic, welcome on utilitarian grounds. The Kantian and utilitarian objections to lying have implications for the family, the workplace, advertising, commerce, and politics, and also for constitutional law.

The ‘Harm Principle’ and Information Disorder Online

Misinformation propagation in its current form is a global problem that requires urgent solutions. Historically, instances of misinformation publicly propagated can be found as far back as the sixth century AD.Scholars and researchers have generally settled for a definition of ‘information disorder’ that reveals three variants: misinformation, disinformation and malinformation. What should be of paramount importance, in the fight against information disorders, is the potential of false information to cause harm. The ‘harm principle’ was proposed by the British philosopher John Stuart Mill in 1859 and needs an upgrade for the social media age. One such upgrade is proposed by Cass Sunstein.

Making the ‘Harm Principle’ Central to Approaches Against Information Disorder

Misinformation online is an urgent global challenge. Such is the gravity of the challenge, and its effect on global collective behaviour, there are calls for social media/information disorder to be designated a “crisis discipline” along with medicine, conservation biology and climate science. Scholars have generally settled for a definition of ‘information disorder’ that reveals three variants: misinformation, disinformation and malinformation. What should be of paramount importance, in the fight against information disorder, is the potential of falsehood to cause harm. This potential for harm must be the litmus test distinguishing free speech and speech that should not be free. The ‘harm principle’ proposed by John Stuart Mill is more than 150 years old and needs an upgrade for the social media age. One such upgrade is proposed by Cass Sunstein. We summarize different approaches to analysing online information disorder. We conclude that approaches which emphasize analytical and critical thinking are important but have shortcomings. When analysing complex phenomena like conspiracy theories a ‘systems’ approach is more effective to reveal root causes of information disorder, provide actionable insight and long-term solutions.

2. What is ‘crime’?

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.