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Why Criminalize?Harm and Criminalization: On Why Harm Principles Are Redundant

Why Criminalize?: Harm and Criminalization: On Why Harm Principles Are Redundant [The starting point of this chapter is a critical discussion of versions of what is called ‘the harm principle’. But what is harm? According to one general specification, a person P1 is harmed by another person P2 doing C, if and only if P1 is made worse off in terms of well-being because of C. Two concepts here stand in need of clarification. First of all, what is the baseline against which we assess whether someone is ‘worse off’? When a person is harmed we can agree that he is worse off, certainly, but what is he worse off than? What is the depletion in well-being a variation from? Secondly, what exactly is well-being? A central part of this chapter critically discusses a range of answers to the first question, mobilizing versions of what I call ‘temporal baselines’, ‘baselines from mankind’ and ‘counterfactual baselines’. It is argued that the counterfactual baseline leaves us with a better understanding of when an individual is being harmed by another individual than the other baselines discussed, even though it has problematic implications of its own. The counterfactual baseline says, roughly, that a person P1 is harmed by another person P2 doing C, if and only if P1’s well-being, because of C, is worse, compared to the closest world where P2 did not do C. The final part of this chapter describes some of the implications of this investigation for the view that harm matters in the justification of which kinds of conduct should be criminalized by the state. The overall conclusion of the chapter is that adherents of a harm principle face a devastating problem. In their effort to narrow down the scope of harms that the state ought to prevent through criminalization, they resort to moral theory. However, once they do that, there is no need for harm principles, as the whole job of justifying what to criminalize can be done by moral theory. I discuss some possible objections to the claim that all plausible versions of the harm principle are redundant when set beside what can be specified as grand moral theory.] http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png

Why Criminalize?Harm and Criminalization: On Why Harm Principles Are Redundant

Part of the Law and Philosophy Library Book Series (volume 134)
Søbirk Petersen, Thomas
Why Criminalize? — Nov 29, 2019
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Publisher
Springer International Publishing
Copyright
© Springer Nature Switzerland AG 2020
ISBN
978-3-030-34689-8
Pages
17 –42
DOI
10.1007/978-3-030-34690-4_2
Publisher site
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Abstract

[The starting point of this chapter is a critical discussion of versions of what is called ‘the harm principle’. But what is harm? According to one general specification, a person P1 is harmed by another person P2 doing C, if and only if P1 is made worse off in terms of well-being because of C. Two concepts here stand in need of clarification. First of all, what is the baseline against which we assess whether someone is ‘worse off’? When a person is harmed we can agree that he is worse off, certainly, but what is he worse off than? What is the depletion in well-being a variation from? Secondly, what exactly is well-being? A central part of this chapter critically discusses a range of answers to the first question, mobilizing versions of what I call ‘temporal baselines’, ‘baselines from mankind’ and ‘counterfactual baselines’. It is argued that the counterfactual baseline leaves us with a better understanding of when an individual is being harmed by another individual than the other baselines discussed, even though it has problematic implications of its own. The counterfactual baseline says, roughly, that a person P1 is harmed by another person P2 doing C, if and only if P1’s well-being, because of C, is worse, compared to the closest world where P2 did not do C. The final part of this chapter describes some of the implications of this investigation for the view that harm matters in the justification of which kinds of conduct should be criminalized by the state. The overall conclusion of the chapter is that adherents of a harm principle face a devastating problem. In their effort to narrow down the scope of harms that the state ought to prevent through criminalization, they resort to moral theory. However, once they do that, there is no need for harm principles, as the whole job of justifying what to criminalize can be done by moral theory. I discuss some possible objections to the claim that all plausible versions of the harm principle are redundant when set beside what can be specified as grand moral theory.]

Published: Nov 29, 2019

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