Rethinking the offense principle

Legal Theory

Volumn 8, Issue 3, 2002, Pages 269-295

  Simester, A P ^a   Hirsch, Andrew von ^b  

^a UNIVERSITY OF NOTTINGHAM   (United Kingdom)

^b UNIVERSITY OF CAMBRIDGE   (United Kingdom)

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EID: 85014200917     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/S1352325202083015h     Document Type: Article

References (47)

1. In Feinberg's phrasing, “It is always a good reason in support of penal legislation that it would probably be effective in preventing (eliminating, reducing) harm to persons other than the actor (the one prohibited from acting) and there is probably no othermeans that is equally effective at no greater cost to other values.” Feinberg, HARM TO OTHERS (1984) 26 (hereafter cited as HARM).
2. Feinberg, OFFENSE TO OTHERS (1985) 1 (hereafter cited as OFFENSE).
3. Feinberg excludes certain physical discomforts (aches, nausea, etc.) and emotional states such as anxiety. See, e.g., HARM, 46.
4. OFFENSE, 36.
5. The full list of (six) weighting ingredients is set out by Feinberg in OFFENSE, 44.
6. Cf. HARM, 9: there is a “general presumption in favor of liberty.”
7. An early sign of this trend was Mayor Rudolph Giuliani's widely reported campaign in New York City against begging and other “quality of life” offenses. More recent signs include the drastic legal measures adopted in 1998 in England against “noisy neighbors”, which are discussed in Ashworth et al., Neighbouring on the Oppressive: The Government's “Anti-Social Behaviour Order” Proposals, 16 CRIM. JUST. 7 (1998).
8. OFFENSE, 1-2.
9. Cf. Dworkin, Liberty and Moralism, in TAKING RIGHTS SERIOUSLY 240 (1977) at 249ff. Admittedly, in ordinary language, V may loosely describe something that is disgusting (say, a foul stench) as “offensive”. But even in ordinary language this usage is peripheral; hence, without more, V may not describe herself as “offended”.
10. An earlier exploration of this point is found in von Hirsch, The Offense Principle in Criminal Law, 11 KING'S C. L. J. 78 (2000).
11. OFFENSE, 2.
12. Cf. von Hirsch, CENSURE AND SANCTIONS (1993) ch. 2.
13. Sometimes, as we see in Section II, there may also be a claim predicated on harm. We are concerned here with the core case.
14. As it happens, existing treatments of insult vary within Western Europe. Germany and Sweden both have general criminal prohibitions of insult (although the proceeding must ordinarily be initiated by private prosecution); England's provision on the subject is somewhat less sweeping. Compare the German Penal Code, s. 185, and Swedish Penal Code, ch. 5, s. 3, with the Public Order Act 1986 (UK), ss. 4A and 5.
15. Cf., e.g., Collin v. Smith, 578 F 2d 1197 (1978); R v. Keegstra, 61 CCC 3d 1 (1990). We revisit insult in Section II.
16. In German law, for example, this conduct would be punishable under Penal Code ss. 183 (exhibitionist behavior) and 183a (exhibitionism leading to public outrage). See also the Swedish Penal Code, ch. 16, s. 16.
17. For valuable discussion of the differences between expressive and other virtues (and vices), see Calhoun, The Virtue of Civility, 29 PHIL. & PUB. AFF. 251 (2000); see also Buss, Appearing Respectful: The Moral Significance of Manners, 109 Ethics 795 (1999). As Calhoun observes, communicating moral attitudes is not the same thing as having those attitudes; it matters, for example, not just that V is respected but also that he feels respected.
18. Cf. Nagel, Concealment and Exposure, 27 PHIL. & PUB. AFF. 3 (1998).
19. Indeed, they concern only one aspect of that relationship. It may be, for example, that conventions give shape to offensive wrongs in different ways, depending on the nature (coordinating, aesthetic, etc.) of the relevant convention.
20. Cf. the German Penal Code, s. 130(1) and the Swedish Penal Code, ch. 5, s. 5, which contain such prohibitions; see also, in the UK, the Public Order Act 1986, s. 19.
21. OFFENSE, 64-67.
22. HARM, 53. Cf. Kleinig's claim that, in the case of an abduction that has no lasting effects upon its victim, there can be interference with a welfare interest but no harm: Kleinig, Crime and the Concept of Harm, 15 AM. PHIL. Q. 27, 32 (1978); FEINBERG, HARM, 52-53.
23. Raz, Autonomy, Toleration, and theHarm Principle, in ISSUES IN CONTEMPORARY LEGAL PHILOSOPHY 313 (Gavison ed., 1987) at 327. Cf. Perry, Corrective v. Distributive Justice, in OXFORD ESSAYS IN JURISPRUDENCE 237 (Horder ed., 4th series, 2000) at 256: “The main reason that personal injury constitutes harmis that it interferes with personal autonomy. It interferes, that is to say, with the set of opportunities and options from which one is able to choose what to do in one's life.”
24. Cf. OFFENSE, 3.
25. HARM, 45.
26. Cf. Raz, HARM note 30, at 328: “Since ‘causing harm’ by its very meaning demands that the action is prima facie wrong it is a normative concept acquiring its specific meaning from the moral theory within which it is embedded.”
27. Cf. Gardner's and Shute's example, which they describe as “the pure case of burglary”: “Suppose an estate agent who has a key to my house lets himself in while I am on holiday and takes a pile of my old clothes from the attic, passing them on to a charity shop. I had long since forgotten that the clothes were there, and I had no further use, anyway, for loon pants and kipper ties. The burglary goes forever undiscovered.” The Wrongness of Rape, in OXFORD ESSAYS IN JURISPRUDENCE 193 (Horder ed., 4th series, 2000) at 201. The authors’ description is, we think, a little misleading; it is better characterized as a pure case of (burglarious) theft. See infra, note 37 and text thereat.
28. Cf. Simester and Sullivan, CRIMINAL LAW: THEORY AND DOCTRINE (2000) 507.
29. HARM, 107.
30. A similar error is made by Duff: see INTENTION,AGENCY AND CRIMINAL LIABILITY (1990) §5.3; see also Subjectivism, Objectivism and Criminal Attempts, in HARM AND CULPABILITY 19 (Simester and Smith eds., 1996) at 37 n. 68.
31. Hence Gardner and Shute rightly describe their burglary example (A similar error is made by Duff: see INTENTION note 35, at 202) as “the case of the wrong and nothing but the wrong.”
32. For fuller development of this argument, see von Hirsch, Extending the Harm Principle: Remote Harms and Fair Imputation, inHARM ANDCULPABILITY 259 (Simester and Smith eds., 1996).
33. See Coleman, RISKS AND WRONGS (1992) 350-354. Much the same can be said for breach of contract, which is a wrong in virtue of being a breach of D's promise, a voluntary (and reciprocated) obligation assumed to V. The harm, however, lies not only in a loss of expectation to P under the contract (a loss that does not always set P's interests back), but also in the consequent undermining of the practice of exchanging enforceable reciprocal promises. Even if this practice is imperfect, its reliability promotes our well-being.
34. Cf. Chaplin&Co. v.Westminster Corporation, [1901] 2 Ch 329 (obstructing the highway).
35. Cf. Chaplin&Co. v.Westminster Corporation note 35, at 216.
36. This claim is consistent with Feinberg's own formulation of the principle (HARM, 26): “It is always a good reason in support of penal legislation that it would probably be effective in preventing (eliminating, reducing) harm to persons other than the actor (the one prohibited from acting) and there is probably no other means that is equally effective at no greater cost to other values.” Feinberg's formula requires that criminalization of an action will prevent harm, not that the action itself be harmful.
37. Cf. Delgado, Words that Wound: A Tort Action for Racial Insults, Epithets and Name Calling, 17 HARV. C.R.-C.L. L. REV. 133, 137-139 (1982).
38. Schwartz, Morals Offenses and the Model Penal Code, 63 COLUM. L. REV. 669 (1963).
39. Something long recognized in the law of tort: Wilkinson v. Downton, [1897] 2 QB 57.
40. See, e.g., Temkin, RAPE AND THE LEGAL PROCESS (1987) 1-6.
41. Wilson and Kelling, Broken Windows: The Police and Neighborhood Safety, ATLANTICMONTHLY (March 1982).
42. See Taylor, Crime, Grime and Responses to Crime, in CRIME PREVENTION AT A CROSSROADS (Lab ed., 1997).
43. Crime, Grime and Responses to Crime, text at note 42.
44. Lawrence, If He Hollers Let Him Go: Regulating Racist Speech on Campus, DUKE L.J. 431, 439 (1990).
45. “An obvious example of this type of devaluation would be that black political candidate whose ideas go unheard or are rejected by white voters, although voters would embrace the same ideas if they were championed by a white candidate.”, text at notes 42 and 54.
46. As Raz observes, “We cannot deny them sovereignty over defining for themselves what their way of life is, and what is integral to it.” Free Expression and Personal Identification in ETHICS IN THE PUBLIC DOMAIN 146 (revised ed., 1995) at 162.
47. Cf. Raz, id. at 153ff.