According to an influential and intuitively appealing argument, morality is usually continuous, namely, a gradual change in one morally significant factor triggers a gradual change in another; the law should usually track morality; therefore, the law should often be continuous. This argument is illustrated by cases such as the following example: since the moral difference between a defensive action that is reasonable and one that is just short of being reasonable is small, the law should not impose a severe punishment (...) when the action is almost reasonable and no punishment at all when the action is reasonable. In this Article, I consider two doubts regarding this argument. First, the premise that morality is continuous in such cases is incompatible with the common view that the moral status of actions is not continuous since there is an important difference between actions that are permissible and actions that are wrong— even if this difference is due to a difference that is very small, such as the one between an action whose consequences are the best and an action whose consequences are just slightly less good. This view extends also to the overall moral status of agents given the common assumption that it depends on the moral status of their actions. This is an important challenge that the Continuity Argument should confront. However, I argue that the best account of morality is more scalar than the common view in these respects. Therefore, I conclude that the first premise of the Continuity Argument is correct in this regard, although it is based on a minority view. The second doubt concerns the scope of the second premise: since there are reasons both in favor and against legal continuity, and the applicability and force of these reasons depend not only on various moral propositions but also on contingent non-moral facts, we often lack the evidence to determine the degree to which the law, at a certain place and time, should be continuous, and specifically that it should often be continuous. (shrink)

This paper explains how the practice of ‘no platforming’ can be reconciled with a liberal politics. While opponents say that no platforming flouts ideals of open public discourse, and defenders see it as a justifiable harm-prevention measure, both sides mistakenly treat the debate like a run-of-the-mill free speech conflict, rather than an issue of academic freedom specifically. Content-based restrictions on speech in universities are ubiquitous. And this is no affront to a liberal conception of academic freedom, whose purpose isn’t just (...) to protect the speech of academics, but also to give them the prerogative to determine which views and speakers have sufficient disciplinary credentials to receive a hearing in academic contexts. No platforming should therefore be acceptable to liberals, in principle, in cases where it is used to support a university culture that maintains rigorous disciplinary standards, by denying attention and credibility to speakers without appropriate disciplinary credentials. (shrink)

In this chapter, I consider the idea that physician-assisted death might come into question in the cases of psychiatric patients who are incapable of making autonomous choices about ending their lives. I maintain that the main arguments for physician-assisted death found in recent medical ethical literature support physician-assisted death in some of those cases. After assessing several possible criticisms of what I have argued, I conclude that the idea that physicianassisted death can be acceptable in some cases of psychiatric patients (...) who lack autonomy ought to be taken into account in assessing the moral and legal acceptability of physician-assisted death. (shrink)

Batman is allied with modern natural law in the way he relies upon reason to bring about his vision of ‘true justice’, operating as a force external to law. This vision of justice is a protective one, with Batman existing as a guardian—a force for resistance against the corruption of the state and the failures of the legal system. But alongside his rational means, Batman also employs violence as he moves beyond the boundaries of the civilised state into the dark (...) and violent world outside law’s protection. He thus sacrifices his own safety to ensure the safety of others—he is a Dark Knight, a sentinel, fighting the nasty and brutish underworld of criminality in his effort to bring rational order to the world and protect the people of Gotham from criminal harm. This fight for justice is fuelled by a deeply private trauma: the murder of Bruce Wayne’s parents: a private desire for vengeance that Batman transcends. In navigating Batman’s jurisprudential dimensions, we are ultimately reminded that private desires and motivations are enfolded within the public structures of justice. (shrink)

A number of companies including Google and BMW are currently working on the development of autonomous cars. But if fully autonomous cars are going to drive on our roads, it must be decided who is to be held responsible in case of accidents. This involves not only legal questions, but also moral ones. The first question discussed is whether we should try to design the tort liability for car manufacturers in a way that will help along the development and improvement (...) of autonomous vehicles. In particular, Patrick Lin’s concern that any security gain derived from the introduction of autonomous cars would constitute a trade-off in human lives will be addressed. The second question is whether it would be morally permissible to impose liability on the user based on a duty to pay attention to the road and traffic and to intervene when necessary to avoid accidents. Doubts about the moral legitimacy of such a scheme are based on the notion that it is a form of defamation if a person is held to blame for causing the death of another by his inattention if he never had a real chance to intervene. Therefore, the legitimacy of such an approach would depend on the user having an actual chance to do so. The last option discussed in this paper is a system in which a person using an autonomous vehicle has no duty of interfering, but is still held responsible for possible accidents. Two ways of doing so are discussed, but only one is judged morally feasible. (shrink)

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 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. (shrink)

In this article, I comment on Simester and von Hirsch’s theory of criminalization and discuss general principles of criminalization. After some brief comments on punishment theories and the role of moral wrongdoing, I examine main lines of contemporary criminalization theories which tend to focus on the issues of harm, offense, paternalism and side-constraints. One of the points of disagreement with Simester and von Hirsch concerns the role of the harm principle. I rely on a straightforward normative concept of “rights of (...) others,” not in the sense of rights granted in positive law but in the sense of rights which are to be justified in political philosophy. With a rights-centered rather than a harm-centered approach, a prima facie reason for criminalization is the violation of others’ rights. It is unnecessary to develop a separate category of “offense to others,” and paternalistic interventions can be criticized straightforwardly because rights can be waived. (shrink)

Whereas liberals tend to emphasize harm as the decisive criterion for legitimizing criminalisation, moralists take a qualified notion of wrongfulness as sufficient even when no harm is at hand. This comment takes up Andreas von Hirsch ’s “dual element approach” requiring both harm and wrongfulness as necessary conditions for criminalisation and argues that Joel Feinberg’s account of harming as violation of moral rights is perfectly compatible with it. Subsequently, two issues from the liberalism-moralism debate on criminalisation are examined: The difficulty (...) of how to determine wrongfulness beyond the scope of harming, and the so far disregarded question of whether the democratic legislator is free within the framework of constitution to criminalise whatever conduct he wants to prevent irrespective of philosophical constraints. (shrink)

Contemporary theories of criminalisation address, with varying emphasis, themes concerning the harmfulness and the wrongfulness of the conduct. In his article for the present issue, Antony Duff relies chiefly on notions of wrongfulness as the basis for his proposed criminalisation doctrines; whereas in their 2011 volume on criminalisation, Andrew Simester and Andreas von Hirsch invoke both wrongfulness and harmfulness as prerequisites for prohibiting conduct. The present article assesses the comparative merits of these approaches, and argues in favour of the latter, (...) two-element perspective. In this article, the author puts forward a number of reasons suggesting why the two-element approach is preferable. These reasons include, firstly, an inductive argument—that the kinds of wrongful conduct for which criminalisation seems a plausible response are those that include an element of harm or risk of harm. Secondly, a defining role for the state is one of resource-protection: of safeguarding the means and resources through which citizens can live good lives. Thus the concept of citizens’ living resources—and the related conception of harm—should be made a constitutive and explicit element of criminalisation theory, rather than subsuming resource-protection under a general rubric of wrongfulness. Thirdly, a two-element approach provides reciprocal limiting principles concerning the scope of criminalisation. One can, for example, employ wrongfulness requirements to limit the criminalisation of conduct that has remote harmful consequences; and, conversely, use a harmfulness requirement as means for restricting the criminalisation of wrongful acts. (shrink)

Joel Feinberg’s Offense to Others is the most comprehensive contemporary work on the significance of offense in a liberal legal system. Feinberg argues that being offended can impair a person’s liberty, much like a nuisance, and that it is therefore legitimate in principle to regulate conduct because of its offensiveness. In this article, I discuss some overlooked considerations that give us reason to resist Feinberg’s conclusion, even while granting this premise. My key claim is that the regulation of offense can (...) inadvertently increase the incidence of offense, by nurturing offense-taking sensibilities. In the course of defending this claim and spelling out its implications, I explain why concerns about the inadvertent nurturing of offense are now more pressing, given the identity–political character of contemporary offense-based social conflicts, and I discuss why a reluctance to legally regulate offensive conduct need not be insensitive to the identity–political issues that animate those conflicts. (shrink)

Andrew Simester and Andreas von Hirsch’s Crimes, Harms, and Wrongs: On the Principles of Criminalisation (Simester and von Hirsch 2011) is an important contribution to the philosophical debate over the nature and ethical limits of criminalisation. As they note in their reply in this symposium, one of the novel aspects of their account is that they do not advance one “unified, grand theory”. Rather, they analyse each ground of criminal prohibition—wrongfulness, harm-based, offense, and paternalistic prohibitions aimed at preventing self-harm—so as (...) to develop guiding principles for their use (or, in the case of paternalism, the absence of an independent principle that would underwrite its use).The result is a rich set of arguments that advance a number of debates across the field of criminalisation.However, that is not all: the participants share the view that, as Tatjana Hörnle puts it, “any theory of criminalization presupposes assumptions about the functions of the criminal law. The q. (shrink)

Current International Criminal Law suffers from at least four theoretical shortcomings regarding its ‘concept and meaning’, ‘ius puniendi’, ‘overall function’ and ‘purposes of punishment’. These issues are intimately interrelated; in particular, any reflection upon the last two issues without having first clarified the ius puniendi would not make sense. As argued elsewhere, in an initial contribution towards a consistent theory of ICL, the ius puniendi can be inferred from a combination of the incipient supranationality of the value-based world order and (...) the world citizens’ fundamental human rights predicated upon a Kantian concept of human dignity. On this basis, it is now possible to examine the overall function of ICL. Given the fact that ICL has not yet achieved the status of an autonomous discipline, the inquiry must start with a discussion of national theories of criminalisation. The article focuses on the two most important theories of criminalisation, namely the theories of protection of Rechtsgüter and the prevention of harm. Next, it examines whether and how these national theories can be transferred to ICL. (shrink)

This paper discusses what kinds of conflicts arise when a crime has been committed, and with whom—and in which of their possible roles—the offender should be seen as having such conflicts. The possible roles of the victim are in focus, as is the constitutive role of the act of criminalizing a certain kind of behavior. It is argued that while in the tort conflict the victim should be seen as a party qua him- or herself in a ‘fuller’ sense (and (...) with full freedom on how to handle the conflict, including dropping it), in the criminal law conflict it is community, the ‘we’, that should be looked upon as the party to the conflict with the offender. The victim should not be seen as excluded from the criminal law conflict, though: to the contrary, he or she is a member of community and has an important role to play. This role, however, needs to be strictly defined in a way that gives the victim the function of a certain kind of representative for ‘us’, the community. This role should not allow the victim much room to influence how the criminal law conflict is handled. The model I am suggesting presupposes—I think, at least—that criminal law conflict and tort conflict should be handled together at the same trial. (shrink)

This paper scrutinizes the tension between individuals’ rights and paternalism. I will argue that no normative account that includes rights of individuals can justify hard paternalism since the infringement of a right can only be justified with the right or interest of another person, which is never the case in hard paternalism. Justifications of hard paternalistic actions generally include a deviation from the very idea of having rights. The paper first introduces Tom Beauchamp as the most famous contemporary hard paternalist (...) by outlining his moral theory (principlism) and showing why it, as it stands, has to allow for hard paternalism. Secondly, the paper focuses on the notion of rights within principlism. I will employ traditional theories of rights to make sense of rights in principlism. Unfortunately, this attempt fails. In the third part, then, I claim that rights can only be limited with reference to the rights or interests of others. This structure is the very point of rights, it is their bite. I will argue for this claim and show its implications. The most important implication is that not only principlism, but every normative theory that includes rights of individuals, has to abolish hard paternalism. (shrink)

Imagine a citizen (call her Ellen) engages in conduct the state says is a crime, for example, money laundering. Imagine too that the state of which Ellen is a citizen has decided to make money laundering a crime. Does the state wrong Ellen when it punishes her for money laundering? It depends on what you think about the authority of the criminal law. Most criminal law scholars would probably say that the criminal law as such has no authority. Whatever authority (...) is has depends on how well it adheres to the demands of morality inasmuch as morality is the only authority we have. Thus if morality says that money laundering should not be a crime then the state wrongs Ellen when it punishes her. But if the criminal law as such does have authority, and if in the exercise of its authority the state has decided to make money laundering a crime, then the state does Ellen no wrong when it punishes her. (shrink)

The COVID-19 pandemic has raised many intriguing questions both in the EU and globally, from the critical task of safeguarding lives to technical legal issues about competences to regulate health as well as the boundaries of emergency laws. This paper is interested in the connection between non-domination theory and the EU’s constitutional structure in the context of emergency laws. A key theme of the paper is that risk and emergencies are nothing new in an EU context, but concepts used by (...) the legislator in a wide range of policy areas which give rise to a number of constitutional challenges. The paper sketches out the main characteristics of non-domination and republication theory and addresses the question of how and why the notion of non-domination may be useful for understanding the EU constitutionalism venture in the framework of risk and emergency laws. (shrink)

After distinguishing different species of Legal Moralism I outline and defend a modest, positive Legal Moralism, according to which we have good reason to criminalize some type of conduct if it constitutes a public wrong. Some of the central elements of the argument will be: the need to remember that the criminal law is a political, not a moral practice, and therefore that in asking what kinds of conduct we have good reason to criminalize, we must begin not with the (...) entire realm of wrongdoing, but with conduct falling within the public realm of our civic life; the need to look at the different processes of criminalization, and to ask what kinds of consideration can properly figure in those processes; the need to attend to the relationship, and the essential differences, between criminal law and other modes of legal regulation. (shrink)

In this paper, I critique one aspect of Simester and von Hirsch’s, Crimes, Harms, and Wrongs—their recognition of harm and offence principles, but failure to construct a paternalistic principle, despite their willingness to countenance some small measure of criminal paternalism. Construction of such a principle would have clarified the problems of as well as the limits to criminalising paternalism.

Journal Name: SATS Issue: Ahead of print.

This paper responds to Antje du-Bois Pedain’s discussion of the wrongfulness constraint on the criminal law. Du-Bois Pedain argues that the constraint is best interpreted as stating that φing is legitimately criminalised only if φing is wrongful for other-regarding reasons. We take issue with du-Bois Pedain’s arguments. In our view, it is neither a necessary nor sufficient condition of legitimate criminalisation that φing is wrongful in du-Bois Pedain’s sense. Rather, it is a necessary condition of legitimate criminalisation that φing is (...) what we call bare wrongful —that is, that the reasons in favour of φing are defeated by the reasons against. Though du-Bois Pedain is critical of this view, we argue that her criticisms do not convince. (shrink)

The essays in Waldron’s Torture, Terror, and Trade-Offs have important implications for debates about the criminalization of terrorism and terrorism-related offences and its consequences for criminal law and criminal justice. His reflections on security speak directly to contemporary debates about the preventive role of the criminal law. And his analysis of inter-personal security trade-offs invites much closer attention to the costs of counter-terrorism policies, particularly those pursued outside the criminal process. But is Waldron right to speak of a ‘welcome the (...) return to the criminal justice model’? This article considers the arguments in favour of prioritizing the prosecution of terrorist suspects and asks if their prosecution can safely proceed without undue hazard to the criminal law and criminal process. (shrink)

If conduct must be wrongful in order to be justifiably criminalised, how should its wrongfulness be established? I examine a conception of wrongfulness put forward by A. P. Simester, which makes wrongfulness turn on whether the reasons favouring the performance of an action are, all things considered, defeated by the reasons against its performance. I argue that such a view can only generate appropriate substantive constraints in the context of criminalisation if it can distinguish between the sorts of reasons that (...) a verdict of wrongfulness, as a concept distinct from stupidity or selfishness, should attend to, and the sorts of reasons it should leave out. Assuming that this conception of wrongfulness should operate as a constraint on criminalisation in a liberal-democratic state, the only reasons it should include are other-regarding reasons. What matters is whether the agent commits an other-regarding wrong. This conception of wrongfulness helps us further to resolve fundamental questions concerning mala prohibita and the legitimate reach of any duty to obey the law. (shrink)

If conduct must be wrongful in order to be justifiably criminalised, how should its wrongfulness be established? I examine a conception of wrongfulness put forward by A. P. Simester, which makes wrongfulness turn on whether the reasons favouring the performance of an action are, all things considered, defeated by the reasons against its performance. I argue that such a view can only generate appropriate substantive constraints in the context of criminalisation if it can distinguish between the sorts of reasons that (...) a verdict of wrongfulness, as a concept distinct from stupidity or selfishness, should attend to, and the sorts of reasons it should leave out. Assuming that this conception of wrongfulness should operate as a constraint on criminalisation in a liberal-democratic state, the only reasons it should include are other-regarding reasons. What matters is whether the agent commits an other-regarding wrong. This conception of wrongfulness helps us further to resolve fundamental questions concerning mala prohibita and the legitimate reach of any duty to obey the law. (shrink)

Several liberal philosophers and penal theorists have argued that the state has a reason to prohibit acts that harm individuals. But what is harm? According to one specification of harm, a person P is harmed by an act (or an event) a iff, as a result of a, P is made worse off in terms of well-being. One central question here involves the baseline against which we assess whether someone is ‘worse off’. In other words, when a person is harmed (...) he is worse off, certainly—but what is worse off a variation from? A central part of the paper critically discusses different answers to this question based on versions of what we can call: the temporal baseline, the baseline from mankind and the counterfactual baseline. Essentially, it will be argued that the counterfactual baseline leaves us with a better understanding of harming than the other baselines discussed. The final part of the paper will describe some of the implications of our investigation for the application and evaluation of the view that harm matters in the justification of which type of acts should be criminalized by the state. The overall conclusion of the paper is that adherents of a view like the harm principle face a dilemma. Either they can accept the counterfactual baseline but then, they can do without the harm principle. Or they can reject the counterfactual baseline—but then they will have to formulate an alternative baseline which, as will be shown in the paper, is no easy task. (shrink)

A central aim within criminal justice ethics is to give a plausible justification concerning which type of acts ought to be criminalized by the state. One of the principles of criminalization which has been presented and critically discussed in the philosophical literature is the Offense Principle. The primary aim of this paper is to argue that unless a rather special and implausible objective list theory of well-being is accepted, the Offense Principle should be subsumed in the Harm Principle.

This paper considers the justifiability of criminalising anti-social behaviour through two-step prohibitions such as the Anti-Social Behaviour Order (ASBO). The UK government has recently proposed to abolish and replace the ASBO; however, the proposed new orders would retain many of its most controversial features. The paper begins by criticising the definition of anti-social behaviour employed in both the current legislation and the new proposals. This definition is objectionable because it makes criminalisation contingent upon the irrational judgements of (putative) victims, and (...) its often modest preventive benefits come at a high cost to citizens’ liberty and autonomy. The paper then goes on to propose a new definition of anti-social behaviour that would meet these objections: that is, as a course of conduct that causes others to experience serious and justifiable anxiety about the safety of their local community. Whilst this definition identifies a serious form of wrongdoing, its precise scope is inevitably uncertain. The paper thus concludes that we have good reason to use two-step prohibitions such as the ASBO to regulate such conduct, so as to enable the use of the criminal law against it whilst minimising possible concerns of legality arising from the proposed definition’s uncertain scope. (shrink)