Moral Limits Of Criminalisation

Question 0

Explain the Harm Principle.

Answer 0

As articulated by John Stuart Mill, in the absence of harm or risk of harm to others, the state may not intervene in D’s conduct (negative constraint).

Question 1

Criminal law is a remedy of last resort. What are the implications of this?

Answer 1

Criminal law should only be employed where necessary, so

1. The activity prohibited must be sufficiently serious to warrant criminalisation.
2. Criminal law must be better than other alternative means of sanction like tax.

Question 2

How does Feinberg built on Mill’s proposition in relation to criminal law?

Answer 2

Criminal legislation may be supported by evidence that

1. It would be effective in reducing harm to persons other than the actor and
2. There is no other means that is equally effective at no greater cost to other values

Question 3

Define harm.

Answer 3

Feinberg defines harm as the thwarting or setting back of an interest.

S&S - harm is prospective as by affecting the things that make a person’s life to well it diminishes one’s OPPORTUNITIES to live or enjoy a good life

Question 4

Hyman Gross’ four categories of harm?

Answer 4

1. Violating the interest in retaining or maintains what one is entitled to have
2. Offences to sensibility
3. Impairing collective welfare
4. Violation of governmental interests

Question 5

Von Hirsch and Jarenorg’s four generic interests?

Answer 5

1. Physical Integrity
2. Material support and amenity
3. Freedom from humiliation and degradation
4. Privacy and autonomy

Question 6

Von Hirsch and Jareborg’s four bands by which to assess the severity of a criminal setback to interests?

Answer 6

1. Subsistence
2. Minimal well-being
3. Adequate well-being
4. Significant enhancement

Question 7

When does Feinberg say a harm becomes a wrong?

Answer 7

When the invasion of another’s interest
1. Violates his right
2. Is indefensible
Then that invasion will be both harmful and wrongful.

Question 8

What rubrics do Feinberg’s “balancing requirements” use?

Answer 8

The balancing requirements balance the likelihood and extent of the harm against the implications of criminalisation.

Question 9

Balancing requirement 1: Gravity

Answer 9

The graver a harm, the less probable its occurrence needs to be.

Question 10

Balancing requirement 2: Probability

Answer 10

The more probable a harm’s occurrence, the less grave it needs to be.

Question 11

Balancing requirement 3: Magnitude

Answer 11

The greater the magnitude (extent and probability) of the harm the less reasonable it is to accept the risk of harm.

Question 12

Balancing requirement 4: Value

Answer 12

The more valuable a course of conduct to the actor and others, the more reasonable it is to risk harmful consequences.

Question 13

Balancing requirement 5: Reasonableness

Answer 13

The more reasonable the risk of harm, the weaker the case for prohibiting the conduct that creates it.

Question 14

Name the 5 balancing requirements.

Answer 14

1. Gravity
2. Probability
3. Magnitude
4. Value
5. Reasonableness

Question 15

What is remote harm?

Answer 15

Remote harm occurs when an act places the actor or someone else in a position with greater potential to harm others.

Question 16

When should remote harm be punished?

Answer 16

Where D’s act

1. Underwrites or facilitates later wrongdoing by others such that the link between the act and the harm is less remote
2. Manifests sufficiently severe wrongdoing to justify criminal sanction

Question 17

When is the criminalisation of remote harm tough to justify?

Answer 17

1. If the realization of the harm is predicated on the choice of a third party and D has no power to control his choice (why should D lose an otherwise lawful option just because of T’s free and independent choices?)
2. If D has not sought to assist or encourage T’s choice to commit a crime

Question 18

What is the relationship between resource allocation and criminalisation?

Answer 18

Scarce resources create a need for efficient allocation of resources and this makes the criminal law a blunt instrument dealing in terms of average cases, typical risks and generalizations. Thus the criminal law prefers to leave refinement to the realm of exceptions.

Question 19

How does Feinberg describe the Offence Principle?

Answer 19

It is always a good reason in support of penal legislation that it would be effective in preventing a serious offence to persons besides the actor and it is probably a necessary means to that end.

Question 20

How does Feinberg define an offensive act?

Answer 20

An offensive act is one which causes another to experience an involuntary, unpleasant and disliked psychological reaction in response.

Question 21

What factors might inform the parameters of the offence principle?

Answer 21

1. Reasonable avoidability
2. Value of the offending conduct to the actor
3. Social value of the offending conduct

Question 22

When does offensive conduct merit criminalisation?

Answer 22

An offensive act will only merit criminalisation if it constitutes moral wrongdoing, usually as a communicative wrong expressing a lack of respect and consideration for others.

Question 23

Differentiate legal moralism and the offence principle.

Answer 23

Legal moralism is concerned with legally enforcing the moral conventions of society while the offence principle is directed at regulating behavior in light of those conventions.

The offence principle is based on our treatment of others while legal moralism is based on regulating behavior in violation of the moral conventions of society. The conventions which found the latter may inform the former but they have different bases.

Question 24

What are free-floating evils?

Answer 24

Free floating evils are acts considered inherently wrong even though they neither harm people nor infringe their rights.

Question 25

How does Lord Devlin justify legal moralism?

Answer 25

He argues that immoral behavior may cause social disintegration (essentially bringing moralism within the ambit of the Harm Principle)

Question 26

Why does legal moralism have no place in a heterogenous society?

Answer 26

Moral stagnation enforced by the criminal law is undesirable in a society with wide-ranging cultural values and moral attitudes. The inconstant nature of moral conventions is not sufficient foundation for the intrusive and condemnatory tool that is criminalisation.

Question 27

Justify paternalism using the Harm Principle.

Answer 27

On a utilitarian conception, it is in society’s interests to reduce its net harm and paternalism helps to achieve this.

Question 28

What is the principal consideration weighing against paternalism?

Answer 28

The principle of autonomy means we must respect competent, responsible and adult human beings as capable of making their own decisions. Nozick says that to prevent someone from shaping his life according to his plan strips his life of meaning.

Question 29

When might paternalism be justified?

Answer 29

If the disvalue of infringing D’s autonomy is proportionately small in comparison to the harm avoided - e.g. Wearing seat belts. The state should refrain as much as possible from dictating the value of choices open to the individual.

Question 30

Why might tax be preferred to criminal law? Why might it not?

Answer 30

Tax is less coercive, but it is also less equitable in its effect on the poor.

Question 31

Why might tort be preferred to criminal law? Why might it not?

Answer 31

Tort is less coercive than criminal law.

However tort is less effective at apportioning moral responsibility (no moral signalling function + insurance)