Abstract
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 (of wrongfulness and harm) 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.
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Notes
Feinberg (1984), 34–36, 105–125.
Ibid.
Ibid., chap. 5.
This is evident, for example, in Feinberg's treatment of 'imitative harms', where he addresses the question of criminal liability for fictional depictions of violence, in situations where such depictions might eventually lead to actual violence on others' part; see ibid., 232–243. He asserts that such depictions might be prohibited, if their authors intend the subsequent harmful results or contribute to them recklessly or negligently. However, he does not offer an imputation theory for such cases beyond such mens rea principles. Simester and von Hirsch (2011, chaps. 4 and 5), by contrast, propose a distinct set of imputation principles that would restrict criminal liability for such remote harms; see, “Harm and Wrong Doing as Reciprocal Constraints”, below.
Simester's and von Hirsch's analysis, following Feinberg's model, offer separate criminalisation principles regarding harm to others, offence to others, and harm to self. Each of these principles, I am suggesting here, involve (albeit in varying respects) the more basic conceptual elements of harmfulness and wrongdoing.
See more fully. “Harm and Wrong Doing as Reciprocal Constraints”, below.
In his article in the present issue, Duff (2012) distinguishes 'positive' from 'negative' legal moralism. Positive legal moralism holds that the wrongfulness of the conduct provides an affirmative prima facie reason for proscribing it. Negative legal moralism holds that wrongdoing gives a necessary but not sufficient reason for criminalisation. On that taxonomy, Simester's and von Hirsch's approach appears to qualify as a version of negative legal moralism, whereas Duff's own approach would constitute a kind of positive legal moralism.
Moore (1997), chaps. 3, 4, 16 and 17.
See Duff (2012).
Duff (2001), chap. 3. This work, however, bases punishment's general justification on censure as well as penance.
However, a legal-moralist stance on criminalisation would not necessarily require adoption of a penance-oriented rationale for punishment's existence.
See, Hart (1968), chap. 1 (“Prolegomenon to the Principles of Punishment”) on the role of differing rationales for differing levels of criminal-law theory.
Simester and von Hirsch (2011), 100.
Simester and von Hirsch (2011), 97–104.
However, by no means all forms of harmful conduct should be criminalised under the dual-element theory. See, for example, the limits on penalising remote harms discussed in “Harm and Wrong Doing as Reciprocal Constraints”, below.
Feinberg (1984), 37.
The term ‘resource’ for this purpose, would extend beyond proprietary interests—and would include such matters as physical and psychic integrity, and maintenance of a personal private sphere.
Simester and von Hirsch (2011), 37.
See, e.g., Rawls’ (1971, 90–95) discussion of ‘primary goods’.
See, Sen (2009), 231–241.
See, e.g., the definition of the offence of mayhem under German Penal Code § 226(1).
This analysis presupposes, of course, that the resource can be identified independently from the wrongdoing. Generally, however, that distinction can be drawn; see, Simester and von Hirsch (2011), chap. 3.
See n 26 (Rawls), and Feinberg (1984); 37–38.
See more fully, von Hirsch and Ashworth (2005), App. 3, at 196–197.
See, for example, the burglary prohibition of the German Penal Code, StGB § 123.
See more fully, von Hirsch and Ashworth (2005), App. 3, at 196–197.
See more fully, Simester and von Hirsch (2011), 220–221.
For fuller discussion of this point—that norms of equal treatment call for criminal prohibitions to be of general applicability—see ibid., chap. 12.
Space does not permit me to sketch the criteria for imputation here, but this is addressed in some detail in Simester and von Hirsch (2011), 79–85. The authors put forward various scenarios in which such implicit affirmation of the eventual risks or consequences can be inferred from the character of the original actor's conduct.
See more fully, Simester and von Hirsch (2009), where it is pointed out that the actor's intending or even being aware of the eventual consequences need not be a necessary condition for criminalisation the conduct. What should matter, instead, is the degree to which his present conduct gives normative support to the harmful choices subsequent intervening actors. Compare Husak (2008), 174–177.
See Simester and von Hirsch (2011). Normative involvement, however, would not be the only imputation ground; see, e.g., those authors' discussion of abstract endangerment; see ibid., 63–65, 75–79.
Ibid., chaps. 9 and 10.
Ibid., 92–104.
Ibid., 132–134.
For further reasons for adopting a dual-element criminalisation theory, making harm a necessary element, are outlined in Husak (2008), 66–72. The reasons he cites are derived from the principles of substantive criminal criminal liability. One example he refers to the criminal law's necessity defence. This exonerates the defendant when his conduct seeks to prevent ‚greater evil‘: when ‚the harm or evil sought to be avoided by [the criminal conduct] is greater than that sought to be prevented by the law defining the offence charged‘; see, Model Penal Code § 3.02(1)(a)]. This provision makes little sense, he argues, unless part of the point of having the prohibition at all is to prevent harm; see ibid., 66–67.
Simester and von Hirsch (2011), 44–46.
Simester and von Hirsch (2011), 100.
With insult, the wrong consists of the disrespectful treatment of others per se; see ibid., 97–98. [German law has a general prohibition of insult (see StGB § 185), although English law does not.] With exhibitionism, the wrong constitutes something like an inverse privacy violation; see Simester and von Hirsch (2011), 98. With the offences such as intrusive begging, the wrong is the infringement of someone's entitlement to anonymity in public space; ibid., 98–99. With pre-emptive public conduct (say, playing a portable radio at top volume in a public transport facility), the reprehensible conduct is interfering with other passengers' pursuing their own preferred activities (say, reading their newspapers) in peace; ibid., 105–106.
Moore (1997), chap. 4. However, he adds a proviso: that that the presumption favouring the criminalisation of wrongful conduct may be overridden on the basis of certain countervailing normative constraints (for example, those concerning liberty); id at 172.
Duff (2012).
See Duff and Marshall (2006).
Hart (1968), chap. 1.
Duff (1990).
Duff (1996).
See, e.g., von Hirsch and Ashworth (2005).
Duff (2001), chaps. 3 and 4.
Simester and von Hirsch (2011).
See text at n 50.
Duff and Marshall (2006).
Duff (2012).
A 2007 decision by the German Constitutional Court on the Penal Code's incest prohibition (StGB § 173) addressed its constitutionality under the German bill of rights. In upholding the statute, the Court majority made reference both to the supposed deleterious genetic effects of the behaviour, and to the country's 'moral heritage'. See BVerfG. 2BvR 392/07 Absatz 30ff.
Winfried Hassemer, the judge writing the sole dissent in the Constitutional Court's incest decision, had commissioned an empirical study by a leading German criminology institute, on incest's supposed harmful genetic effects—and cited that study in his dissenting opinion. The study had found little convincing evidence of any such effects. See Hassemer, BVerfG, 2BvR 392/07, Absatz 73ff.
It is true, of course that Simester’s and von Hirsch's dual-element view also requires wrongdoing as a precondition to criminalisation—and thus may face comparable difficulty obtaining public consensus on the wrongfulness of such conduct as incest among adults. However, those authors also require there to be harm or risk of harm, which arguably might create some additional common ground for the debate.
See “Harm and Wrong Doing as Reciprocal Constraints”, above; and Simester and von Hirsch (2011), chaps. 4 and 5.
An illustration is provided in Harcourt (1999), where that author contends that a very wide sweep of criminal prohibitions could become defensible by recourse to arguments about the long term harmfulness of the conduct. However, he does not consider how this result could be avoided by modifying and limiting the Harm Principle to include constraints regarding the fair imputation of harm; see, further, “Harm and Wrong Doing as Reciprocal Constraints”, above.
Feinberg (1988).
See “An Inductive Argument” to “Why the Emphasis on Resources?”.
Duff (2012).
Duff (in ibid.) mentions profound insult as such a possibility.
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I am indebted to Andrew Simester, Antje duBois-Pedain, Vivian Schorscher, Rebecca Schmidt and Alexander Hevelke, with whom I have had extensive discussions as I was struggling to formulate the ideas for this paper. I am grateful, also, to Antony Duff, who has provided me with detailed and most helpful comments on an earlier draft.
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von Hirsch, A. Harm and Wrongdoing in Criminalisation Theory. Criminal Law, Philosophy 8, 245–256 (2014). https://doi.org/10.1007/s11572-012-9192-7
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DOI: https://doi.org/10.1007/s11572-012-9192-7