Abstract
In their excellent monograph, Crimes, Harms and Wrongs, Andrew Simester and Andreas von Hirsch argue for an account of legitimate criminalisation based on wrongfulness, the Harm Principle and the Offence Principle, while they reject an independent anti-paternalism principle. To put it at its simplest my aim in the present paper is to examine the relationship between ‘the harms’ and ‘the wrongs’ of the authors’ title. I begin by comparing the authors’ version of the Harm and Offence Principle with some other influential accounts. After examining the (considerable) role wrongfulness plays in their work, I ask what there is left for their Harm and Offence Principles to do. In the light of the understanding and foundations of the Harm and Offence Principles proposed by the authors, I suggest that the answer is little or nothing. The wrongfulness constraint the authors place on their Offence Principle comes close to swallowing it up entirely. Furthermore the part of their Offence Principle that is not thus swallowed by wrongfulness leaves the account with a commitment that is probably best dropped. As far as their Harm Principle is concerned I suggest that the authors’ account of ‘harm’ is so broad that it lacks the resources to distinguish harm-based reasons from wrongfulness- or immorality-based reasons in any principled way. Among other things, I ask in this context, first, whether one can be harmed as one’s character deteriorates and, secondly, whether one is harmed by virtue of the serious wrong one does to another. What really drives the authors’ account of legitimate criminalisation, I believe, is wrongfulness together with an important, amorphous set of potential defeating conditions. They themselves accept such a picture so far as paternalism is concerned. I conclude that their account, which I think has considerable force, would lose little of any significance were their Harm and Offence Principles simply excised. More generally I suspect that a strong role for wrongfulness in an account of legitimate criminalisation is likely to put into serious question the plausibility of an independent principled role for harm and offence.
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Notes
Simester and von Hirsch (2011). Citations from this work will appear in the text.
The edition of Mill to which I have referred is Mill (1991). However, when citing On Liberty I will follow the now common practice of citing the relevant chapter and paragraph number, so it does not matter which of the many editions of the work is consulted. The quoted words above are from Chapter 1, paragraph 9.
Mill states that the principle is (also) to apply to ‘legal penalties’ in general and to the ‘moral coercion of public opinion.’ (1991, Chapter 1, paragraph 9).
Unless otherwise indicated when discussing ‘Mill’s principle,’ I am referring to the canonical formulation of it he makes himself in Chapter 1, paragraph 9 of On Liberty. Possibly Mill’s argument in On Liberty as a whole or in his philosophy more widely may support a broader principle than the one he himself formulates, but I shall not consider that complex and interesting question here.
Feinberg (1985).
Raz (1986, 422).
On indirect utilitarianism see Gray (1996).
Mill (1991, Chapter 1, paragraph 11).
For example Sumner (2004).
Raz (1989, 1153, 1227).
Raz (1989, 1230). Emphasis added.
Raz (1989, 1230).
Raz (1986, 420).
Raz (1986, 418).
Raz (1986, 412–420).
I explore Raz’s arguments in detail in Stanton-Ife (2008). In short I doubt whether the damage that coercion does or may do to autonomy is a strong enough consideration to override in all cases the reasons that immorality or wrongfulness ex hypothesi give the legislator—and I doubt therefore that it is a strong enough consideration to vindicate the Harm Principle. On Raz’s first point mentioned in the text, the coercive aspect of criminalisation can indeed be a ‘global and indiscriminate invasion of autonomy’ but it need not be. For one thing, criminal punishment often does not involve imprisonment. It can involve fines, community service orders and electronic tagging orders. Moreover the criminal law can often successfully coerce persons without setting back their autonomy. Someone who, say, refrains from stealing simply because he wants to run not the slightest risk of being imprisoned has been coerced, but no damage has been done to his autonomy in the Razian sense. That is, the range of valuable options from which he has to choose is no less adequate than it would have been had theft not been made into an imprisonable crime (cf. Regan 1989, 995, 1082). As far as Raz’s second point mentioned in the text is concerned, coercion may indeed ‘express a relation of domination and an attitude of disrespect for the coerced individual.’ And that consideration indeed points to the high importance of strong justification for the use of coercion in criminalisation and elsewhere. However, it does not seem to show any reason for discriminating between otherwise valid reasons based on wrongdoing or immorality (which purportedly run afoul of the Harm Principle), and otherwise valid reasons based on harm, paternalistically or otherwise (which purportedly do not run afoul of the Harm Principle).
Mill (1991, Chapter 1, paragraph 11).
I say ‘on all fours with Raz’s perfectionism.’ This might be overcautious. The authors often cite Raz with approval and perhaps take it to be obvious they are adopting his position. Raz is in fact cited in the very footnote attached to this passage quoted in the text above, but the citation is not to Raz’s perfectionism, but to his notion of ‘exclusionary reasons.’
But there is no ground for saying they are thus committed if ‘immorality’ is understood as ‘bare immorality’ understood simply as ‘conventional immorality,’ a view sometimes associated with Lord Devlin, Devlin (1965). For, as Hart and others have shown, conventional immorality may fail to give good reasons for states or individuals in the first place: Hart (1963). For that matter Legal Moralism is also best understood in a way that avoids understanding immorality or wrongfulness as purely conventional. Simester and von Hirsch’s position, appears then to be that bare immorality and wrongfulness can, as in Raz’s account, count as good reasons for states as well as individuals in the first instance, provided they are genuinely wrongful or immoral. It is then for the Harm Principle to rule these reasons out further down the line.
See Sumner (2011, 17, 20).
Feinberg (1984).
On the categorical dimension, compare Darwall, ‘Criminal law is structurally analogous to the “moral law”; it creates obligations that are analogous to moral obligations period.’ Darwall (2013, xvi; see also 168–178).
Pettit (2012, 118).
Emphasis added.
‘[E]veryone agrees that the immorality of an action is not a sufficient reason for state coercion,’ Stanton-Ife (2008, sec. “Introduction”).
Moore (1997, 35). Emphasis added.
Moore (1997, 664).
For a recent treatment of the rule of law that among other things develops the classic account of Lon Fuller, see Kramer (2007).
Moore (2005, 9).
See for example Duff and Marshall (2010).
Some have thought the distinction between prima facie and pro tanto important in certain contexts, e.g., Hurley (1989, 125–138); Simon Blackburn explains (in the context of prima facie obligations rather than reasons): ‘The term prima facie can suggest a merely epistemological worry, as if on second appearance, or further thought, the obligation turned out to be illusory. Blackburn(1994, 301). Simester and von Hirsch, I take it, do not mean to suggest that the wrongfulness of which they speak may turn out to be illusory. The idea is that the wrongfulness may be defeated or overridden, not that it is a mirage that can mislead until one looks really hard at the phenomena. Blackburn continues, ‘A more modern usage prefers the title “pro tanto obligation”: an obligation inasmuch as there is this or that aspect of the situation, but again suspending the all-in verdict.’ I shall therefore assume that when they say prima facie, they mean pro tanto on the understanding just described.
Duff and Marshall (2010).
Lamond (2007, 609).
On this distinction see Duff (2007, 82).
Of course one difficulty in assessing the relative roles of wrongfulness and harm in the criminalisation of conduct is that the best known crimes, such as murder and rape, will on the understanding of most people always be both wrongful and harmful. But see the well-known essay by Gardner and Shute in Gardner (2007), in which Gardner and Shute try to isolate a case of harmless wrongdoing that they call ‘the pure case of rape,’ a rape on a drugged and unconscious victim who never discovers what has happened to her. Like Simester and von Hirsch, Gardner and Shute believe criminalisation requires a wrong and that the terms of the Harm Principle must be met (they believe indeed that both tests are passed by their ‘pure case’). As far as wrongfulness is concerned, Gardner and Shute’s argument, I think, would lead them to endorse what I call above the Non-qualifying Thesis B*. For they believe that the wrongness of rape has nothing to do with harm and everything to do with the ‘sheer use of another.’ The wrongfulness constraint therefore is not for them going to be passed by any claim that says rape is wrongful because it is harmful. In short I think they must believe that the sheer use of another, the mark for them of the wrongness of rape, gives a pro tanto positive reason for criminalisation, albeit one that is inconclusive because also subject to the Harm Principle. I comment on this argument in Stanton-Ife (2010, 138, 149 et seq). See also Tadros (2011, 35–65).
Feinberg (1986, 1).
Waldron (2012).
Waldron (2012, 105).
Waldron (2012, 105).
Waldron (2012, 107).
Waldron (2012, 107).
DPP v Woods [2002] EWHC 85 (Admin).
Margalit (1996, 9).
Margalit (1996, 9).
Dworkin (2000, 48–62).
Grant Lamond suggested to me that one might take (psychological) offence as a good barometer for determining whether the conduct that caused it ought to be criminalised. I agree that quite possibly one should. However, I take it Simester and von Hirsch have in mind something much stronger for their Offence Principle than this evidentiary role.
Feinberg (1986, 65).
Raz (1986, 414).
Raz (1986, 414).
I briefly consider some possible meanings of harm, such as ‘prospect harm,’ ‘dignitary harm’ and ‘experiential harm’ in Stanton-Ife (2010, 159–160).
Feinberg (1986, 107).
Feinberg (1986, 33).
See, for example, Hursthouse (1999, 163–192).
See also Annas (2011) likening virtues to skills.
Feinberg (1986, 65–70).
Feinberg (1986, 70).
Feinberg (1986, 67).
One must again point out that Raz, like the authors, is himself a defender of the Harm Principle, notwithstanding his Liberal Perfectionism and broadly Aristotelian understanding of well-being. See footnote 18 above.
Brown [1994] 1 AC 212.
Raz (1999, 247, 260).
Raz (1999, 260).
Wallace (2006, 300, 302).
Feinberg (1984, 27).
See also the sophisticated, though still subjectivist, account of well-being in Sumner (1996).
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Acknowledgments
Many thanks to Grant Lamond and Matt Matravers for their helpful comments.
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Stanton-Ife, J. What is the Harm Principle For?. Criminal Law, Philosophy 10, 329–353 (2016). https://doi.org/10.1007/s11572-014-9311-8
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DOI: https://doi.org/10.1007/s11572-014-9311-8