Abstract
Dissatisfied with traditional principles of criminalization, including versions of the harm principle and the offence principle, some theorists who would not categorize themselves as legal moralists have proposed an alternative approach to criminalization based on respect for human dignity. This chapter discusses this approach. The relevant dignity principle is captured by the general idea that violation of human dignity is either a necessary condition of criminalization or gives us sufficient reason to criminalize conduct (or both). Although it is easy to sympathize with this idea, the primary aim of this chapter is to argue that recent attempts to justify fail. Several Kantian interpretations of the dignity principle of criminalization are outlined and criticized. A non-Kantian interpretation of a dignity principle of criminalization is also introduced and critically discussed.
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Notes
- 1.
- 2.
See e.g. Dan-Cohen (2002), Hörnle (2012) and Buchhandler-Raphael (2013). If you adhere to the view that legal moralism consists of a class of criminalization principles according to which the criminalization of a kind of conduct C depends on the moral wrongness (e.g. harm or non-harmful immoralities) of C, it seems fair to categorize dignity principles as versions of legal moralism. So, as different versions of legal moralism—for instance, those defended by Moore (1997) and Duff (2018), for whom dignity does only play a small part in their writings (as one value of several others)—dignity principles can be categorized as formulations of legal moralism that offer alternatives to those defended by some of the most famous defenders of legal moralism like Devlin, George, Kekes, Moore and Duff that were the subject of Chap. 4. However, as will be clarified in what follows (Sect. 5.3), Dan-Cohen’s dignity theory of criminalization can be interpreted as special in the sense that for him, contrary to all other legal moralists discussed in this book, harm does not matter as an independent factor in criminalization decisions. According to Dan-Cohen, all that matters, in criminalization decisions, from a moral point of view, is the idea—based on Kant—of defending the unique value of every individual. Dan-Cohen is thus defending a monistic type of legal moralism, whereas the above-mentioned legal moralists all defend a pluralistic type of legal moralism, according to which not only harmless immoralities but also morally wrongful harm matters.
- 3.
- 4.
Which is Baker’s (2011).
- 5.
Hörnle (2012).
- 6.
Waldron (2012).
- 7.
- 8.
Kant (1785/2002).
- 9.
Kamm (2013).
- 10.
In defining ‘deontology’, I follow several philosophers who categorise deontology as a moral theory which puts restrictions on certain kinds of conduct (e.g. lying or treating persons as mere means) even where such conduct promote the good. It is standard practice to divide deontology into absolutist and moderate versions. In absolutist versions we are never allowed to violate a moral constraint, M, no matter how good the consequences would be. This would be in line with a standard reading of Kant. In moderate versions, we are allowed to violate M, but only if the consequences are significantly good. See e.g. Kagan (1998), p. 79; Lippert-Rasmussen (2005), pp. 17–18 for this distinction. So, as a moderate you may, all else being equal, accept violating the dignity of one person in order to prevent e.g. 100 people from having their dignity violated. However, a moderate deontologist will not accept that the dignity of one person is violated in order to prevent two people from having their dignity violated. If they accepted the latter scenario, their position would collapse into consequentialism.
- 11.
Kamm (2013).
- 12.
Kass (2002).
- 13.
Kamm (2013).
- 14.
Bostrom (2009).
- 15.
- 16.
Dan-Cohen (2002), p. 150.
- 17.
Ibid.
- 18.
- 19.
Kant (1785/2002), p. 230.
- 20.
Dan-Cohen (2002), p. 160.
- 21.
See e.g. Duff (2018), Chap. 7, Section 2 for a fine discussion of reactions to moral wrongdoing that do not involve criminalization of wrongdoing.
- 22.
When we are considering what kinds of conduct the state should criminalize, goals other than defending dignity that we could obviously contemplate include those having to do with the economic costs of enforcing the criminal law. One could argue, for example, that the money spent on criminalizing conduct C would be better spent on criminalizing conduct A and B, in the sense that more crime or more severe crime would be prevented at the same monetary cost. Another goal of the criminal law would be to ensure that, from a democratic point of view, a majority of the public favour the existing criminal law. For if, the vast majority of the population is against the criminal law, the law could be categorized as undemocratic. However, if protecting dignity is not the only goal of the criminal law, these other goals must be categorized as non-moral goals—at least if, like Dan-Cohen, we believe that all immorality consists, in the end, in violation of Kant’s dignity principle. I will not enter the debate over the sense in which we can understand these other goals as non-moral goals. However, I believe we can easily categorize the other goals I have mentioned as moral goals; e.g. that we ought (morally) to take into account how much crime prevention we get from the money spent, within the criminal system, and the criminal law ought (morally) to be accepted by the majority. These observations make it less obvious how we should understand the content of these other so-called non-morals goals of the KDPC.
- 23.
Dan-Cohen (2002), p. 160.
- 24.
- 25.
See e.g. Baker (2011), p. 157.
- 26.
The most famous exposition of a harm principle is Mill’s: ‘the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant’ Mill (1859/2003). However, harm principles of criminalization come, as was described in Chap. 2, in many different versions.
- 27.
This is a well-known type of objection raised against principles of criminalization: see e.g. Duff et al. (2010), pp. 49–51.
- 28.
- 29.
Dan-Cohen (2002), p. 157. From a reading of Dan-Cohen, it is clear that this quotation is just another way of saying that slavery violates dignity.
- 30.
- 31.
When Duff (2014), p. 231 gives an example of an act that ‘might not be straightforwardly harmful, but that seriously violates the dignity of those subjected to it … even if they freely consent to it … I think of “dwarf-throwing”.’ See also Chap. 4 Sect. 4.4.4 for a critical discussion of Duff’s illustration.
- 32.
See e.g. Gardner (2007).
- 33.
Apart from writing ‘a person’ instead of ‘humanity’, I here follow Hill and Zweig (2002), p. 76 in their interpretation of the principle as a formula that ‘expresses two closely related [moral] requirements: (a) we must always treat humanity as an end in itself, and (b) we must never treat humanity merely as a means’. See also Kamm (2007), p. 13 for this division of the categorical imperative into two components. Since, in his second version of the categorical imperative, Kant writes ‘Act in such a way that you treat humanity, whether in your own person or in any other person,’ it seems plausible to replace ‘humanity’ with ‘person’.
- 34.
For a similar case and argument, see Hill and Zweig (2002), p. 76.
- 35.
Kant has something stronger in mind. Remember the part of his principle which combines the two values with the words ‘but always at the same time’, a phrase which indicates that both values ought to be satisfied if one ought to act in accordance with this moral principle.
- 36.
Although it is possible for you to treat a person as a mere means without intending to do so—e.g. by saving yourself from drowning by standing on another person you take to be a stone lying under the water—I stick with the standard interpretation. The standard interpretation of treating a person as a mere means dictates that it is the intention of the actor that determines whether an act can be described as treating another person as merely a means. Kant himself focused on intention in this way: ‘he who intends a deceitful promise to others sees immediately that he intends to use another man merely as a means, without the latter at the same time containing the end in himself’ (Kant 1785/2002, p. 230).
- 37.
- 38.
However, we should be aware that although adherents of KDPC could argue that it is morally wrong to donate to strangers for egoistic reasons, it does not follow from KDPC that such conduct should be criminalized, since, as was argued in Sect. 5.3, KDPC only implies a necessary condition of criminalization.
- 39.
Remember that Dan-Cohen, for example, believes that the dignity principle is the only moral principle or that other moral principles, if there are any, can be derived from it.
- 40.
Parfit (2011), p. 217.
- 41.
Hörnle (2012).
- 42.
Hörnle (2012), p. 308.
- 43.
Ibid., p. 311.
- 44.
Ibid., p. 312.
- 45.
Ibid.
- 46.
This is true as both values (i) and (ii) have been violated.
- 47.
Ibid., p. 308. One way to understand why this interpretation of dignity is different from Kant’s dignity principle is this: imagine a case where a person is being humiliated, but where the intention is not to use the person being humiliated as a mere means to another person’s end, and where the person being humiliated is a rational person who voluntarily approves of the humiliation. In this case, Hörnle’s principle of dignity can be used to argue in favour of the prohibition of such conduct even though the conduct does not in any straightforward sense violate Kant’s dignity principle.
- 48.
Ibid., p. 315.
- 49.
Ibid., p. 316.
- 50.
Ibid., p. 318.
- 51.
Ibid.
- 52.
Ibid.
- 53.
Ibid., pp. 317–323.
- 54.
Apart, of course, from the objection that her critique of Kant’s categorical imperative, discussed in a later paragraph, is on the wrong track.
- 55.
So this implication of being able to deliver the so-called right answer in the happy slave case makes it clear that Hörnle is also subject to the criminological levelling-down challenge, as we at least have a reason to criminalize kinds of conduct that cause severe humiliation even though everyone (which is, of course, very unlikely) is better off because of these kinds of humiliations.
- 56.
Feinberg (1985), p. 1.
- 57.
- 58.
Ibid., p. 308.
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Søbirk Petersen, T. (2020). On Dignity Principles of Criminalization: A Critical Discussion. In: Why Criminalize?. Law and Philosophy Library, vol 134. Springer, Cham. https://doi.org/10.1007/978-3-030-34690-4_5
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