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Why Criminalize?No Offense! On the Offense Principle and Some New Challenges

Why Criminalize?: No Offense! On the Offense Principle and Some New Challenges [In this chapter, I will critically discuss offense principles of criminalization whose adherents argue that it is always a good reason in support of a proposed criminal prohibition that it would probably be an effective way of preventing serious offense (as opposed to injury or harm) to persons other than the actor. The position I defend in this chapter is that the conduct referred to by the offence principle, depending on one’s theory of individual well-being, can easily be interpreted as a subset of the conduct referred to by another principle of criminalization—namely, the standard formulation of the harm principle given by Mill and Hart. This finding is contrary to both the formulation of the offense principle itself and the belief, held by prominent advocates of the principle, that the two principles are distinct principles of criminalization. Furthermore, I argue that the definition of harm, deployed by leading proponents of the offense principle such as Feinberg, A. P. Simester and Andreas von Hirsch, as a ‘setback to interests’ is both difficult to apply to the distinction between harming and causing offence and in itself inadequately supported.] http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png

Why Criminalize?No Offense! On the Offense Principle and Some New Challenges

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
43 –56
DOI
10.1007/978-3-030-34690-4_3
Publisher site
See Chapter on Publisher Site

Abstract

[In this chapter, I will critically discuss offense principles of criminalization whose adherents argue that it is always a good reason in support of a proposed criminal prohibition that it would probably be an effective way of preventing serious offense (as opposed to injury or harm) to persons other than the actor. The position I defend in this chapter is that the conduct referred to by the offence principle, depending on one’s theory of individual well-being, can easily be interpreted as a subset of the conduct referred to by another principle of criminalization—namely, the standard formulation of the harm principle given by Mill and Hart. This finding is contrary to both the formulation of the offense principle itself and the belief, held by prominent advocates of the principle, that the two principles are distinct principles of criminalization. Furthermore, I argue that the definition of harm, deployed by leading proponents of the offense principle such as Feinberg, A. P. Simester and Andreas von Hirsch, as a ‘setback to interests’ is both difficult to apply to the distinction between harming and causing offence and in itself inadequately supported.]

Published: Nov 29, 2019

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