Abstract
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.
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Notes
Feinberg (1985, p. 1)—my emphasis. It is clear from Feinberg’s writing that he interprets acts that cause offense as unpleasant or disliked mental states (e.g., disgust or the feeling of insult) that are not in themselves necessarily harmful according to his definition of harm.
For an illuminating discussion of the metaphysics of disgust, see Husak (2006) and Tasioulas (2006). One central issue here is whether disgustingness is a property out there (e.g., a fact about conduct such as urinating on one’s food and then eating it) that exists independently of whether a particular person actually feels disgusted by it or whether disgustingness only exists if someone experiences it.
Feinberg (1986, p. xiii).
Mill (1859/2003).
In 2005 a Danish newspaper published 12 cartoons, most of which depicted the Islamic Prophet Mohammed. The best known of these pictures is the one showing the Prophet with a bomb in his turban. The cartoons were considered offensive by many Muslims and non-Muslims, for many reasons. Some objected, for example, to the satirical and insulting depiction of a religious minority in Denmark.
Feinberg (1985, p. 1).
Feinberg (1985, p. 2). I am not sure if Feinberg is right about the psychology of these feelings. There might be some moralists who take offense at something but who at the same time love to feel, say, disgust and share it with others. However, I will leave this kind of investigation and focus on some of the problematic implications of Feinberg’s interpretation of what it means to take offense at some act perpetrated by others.
Feinberg (1985, pp. 1 and 10–13).
The following examples are all from Feinberg (1985, pp. 10–13), or inspired by him.
von Hirsch and Simester (2006, p. 119).
von Hirsch and Simester (2006, p. 120).
The spectator to the maiming of the traffic accident victim can of course be rightfully offended if he knows that the victim is hit by a car driven in a morally blameful way.
To demonstrate that it is a misleading interpretation by Simester and von Hirsch, compare, for example, “the Offense Principle requires that the disliked state of mind … be produced wrongfully by another party” (Feinberg, 1985, pp. 1–2), with the following quotation from Simester and von Hirsch (2011, p. 97): “our, objection, in short, is that Feinberg’s portals to the Offense Principle are too wide. Affront to sensibility, by itself, should never suffice to invoke the Offense Principle”. Again, however, Feinberg has never said anything like this. Simester & von Hirsch (2011, p. 96, citing Feinberg 1985, p. 2) argue for their point by observing that Feinberg sidesteps this (the wrongfulness requirement) “with the assertion that ‘there will always be a wrong whenever an offended state is produced in another without justification and excuse’”. I think their interpretation is too strict. First, although the sentence referred to can be interpreted as a case of sidestepping the wrongfulness requirement, that requirement is mentioned several times in the introduction to Feinberg’s presentation of the Offense Principle. Second, the quotation to which Simester and von Hirsch refer can be interpreted as entailing a wrongness requirement, since it seems right to claim that affront to a person’s senses is morally wrong, for example, if it is, as Feinberg mentions, done without justification and excuse (or without a plausible justification or excuse).
Feinberg (1985, p. 2).
Thomson (1986, pp. 385–386).
At least if we observe these experiences in isolation. I am well aware of the fact that feeling shame, for instance, in one situation (X) may cause you harm, but in the long run (Y) may make you behave in a way that increases your overall well-being, as you have learned a valuable lesson from (X).
Apart from a theory of well-being, we also need to be clearer about the baseline from which the reduction in well-being is a variation. In other words, if being harmed is being made worse off, we need to know the baseline in comparison with which one is worse off. However, I shall not go into this in further detail; see Holtug (2002) and Bradley (2012) for a discussion of this problem.
Feinberg (1985, p. 2).
Adherents of the Offense Principle sometimes use other words when they define harm. As Tasioulas (2006, p. 166) has remarked, is it unconvincing when Simester and von Hirsch (2002, p. 288) claim that harming a person results in the diminution of (that person’s) cognitive or evaluative powers. Semantically, and according to common sense, it seems right to claim that you can be harmed without having your “cognitive or evaluative powers diminished.” Thus, as a counterexample, it seems to be true that I can be harmed by being declared bankrupt without any of my cognitive and evaluative powers being diminished. In fact, my evaluative powers may be increased by the personal insight into bankruptcy, just as some of my cognitive powers such as memory and concentration may be enhanced by this experience.
Feinberg (1984, p. 37). Compare p. 42, where Feinberg explicitly states that welfare interests are not framed within the terminology of a desire-satisfaction theory: “but in respect … to welfare interests, we are inclined to say that what promotes them is good for a person in any case, whatever his beliefs or wants may be”.
Feinberg (1984, p. 37).
Feinberg (1984, pp. 61–62).
See, for example, Feinberg (1984, p. 46): “if the unpleasant experiences are intense or prolonged enough, however, or if they recur continuously or occur at strategically untimely moments, they can get in the way of our (well-being) interests”.
Feinberg (1984, p. 46).
We should, of course, always keep in mind that two conditions should be satisfied in order to have plausible justification to criminalize acts, according to Feinberg. First, an act should set back interests (or, alternatively, cause serious offense to someone). Second, it should be a wrongful act, but for now we are trying to find out when an act causes harm or offense, not when it is wrongful. In what follows, we can take for granted that the offense or harm under discussion is caused by morally wrongful behaviour.
Feinberg (1984, p. 45).
Recall that the Offense Principle makes it clear that offense is different from harm.
See, for example, Feinberg (1985, p. 25). This distinction should not be conflated with what Feinberg calls “mere nuisance offenses” and “profound offenses” (1985, pp. 57–60). The former involve personally disliked repulsive sensory stimuli, which individuals experience and from which they may have a right to be free. In the latter, unpleasant states are not caused by the experience of disliked repulsive sensory stimuli, but instead by an affront to a higher order moral sensibility, from which people do not have a right to be free. So, for example, a mere nuisance offense can be a serious offense or a mere offense; it depends, for example, on the intensity and duration of the mere nuisance offense in question, as well as the number of people who are subject to it.
See, for example, Sumner (1996, pp. 42–44).
As we have seen, however, Feinberg has room in his theory of well-being for subjective attitudes because he believes that the satisfaction of the so-called “ulterior interests” is important for your well-being. When it comes to “well-being interests,” however, Feinberg’s theory is purely objective: your life is bad if some of these interests are missing even if you are fully satisfied with your life; and vice versa, your life is good if these interests are not missing even if you are unsatisfied with your life.
As suggested by Roberts (2006, p. 23).
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Petersen, T.S. No Offense! On the Offense Principle and Some New Challenges. Criminal Law, Philosophy 10, 355–365 (2016). https://doi.org/10.1007/s11572-014-9333-2
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DOI: https://doi.org/10.1007/s11572-014-9333-2