Abstract
We discuss and respond to the contributions of Tatjana Hörnle, John Kleinig, and John Stanton-Ife, and clarify some aspects of the arguments made in Crimes, Harms, and Wrongs.
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Notes
A.P. Simester and A. von Hirsch, Crimes, Harms, and Wrongs: On the Principles of Criminalisation (Oxford: Hart Publishing, 2011). (Hereafter cited as “CHW” in footnotes.)
T. Hörnle, “Theories of Criminalization”, this issue, § I (The Functions of the Criminal Law). (Hereafter cited as “Hörnle” in footnotes.)
CHW, § 1.1.
Hörnle, § I.
J. Stanton-Ife, “What is the Harm Principle For?”, this issue. (Hereafter cited as “Stanton-Ife” in footnotes.) See the discussion below in this reply.
Hörnle, § III (A Slightly Different Approach to Criminalization).
We use this phrase as an alternative to what Hörnle calls the “sphere of liberty” that citizens should have, because of ambiguity in the meaning of “liberty” here. (It is used by Hörnle to refer to freedom from interference, rather than freedom to act.)
For discussion, see CHW, § 3.1(a) on property rights.
Hörnle, § V (The Offence Principle).
For criticism on this point, see R.A. Duff and S.E. Marshall, “‘Remote Harms’ and the Two Harm Principles” in A.P. Simester, A. du Bois-Pedain and U. Neumann (eds.), Liberal Criminal Theory: Essays for Andreas von Hirsch (Oxford: Hart Publishing, forthcoming).
J. Feinberg, Harm to Others (New York: Oxford University Press, 1984) 26: “It is always a good reason in support of penal legislation that it would be effective in preventing (eliminating, reducing) harm to persons other than the actor (the one prohibited from acting) and there is no other means that is equally effective at no greater cost to other values.” See CHW, § 3.2(b)–(c).
Hörnle, § IV (The Extended Harm Principle).
Hörnle, § V.
See CHW, 98–99.
Ibid., 120–121, 125–126.
Hörnle, § V.
Ibid.
See the German Penal Code, § 185; CHW, 100 fn 20.
German Penal Code, § 177; see Hörnle, § VII (Countervailing Reasons).
See A.P. Simester et al., Simester and Sullivan’s Criminal Law: Theory and Doctrine, 5th edn. (Oxford: Hart Publishing, 2013) § 12.7.
Hörnle, § VI (Paternalism).
Ibid.: “However, it is doubtful that moral censure is permissible, provided that one differentiates between moral duties (which only exist towards other persons) and virtue ethics. Within virtue ethics, the judgment ‘wrong action’ is intelligible in the sense of ‘not recommendable for a good life’, however, it should not lead to censure of any kind—neither moral nor legal.”
J Kleinig, “The Paternalistic Principle”, this issue. (Hereafter cited as “Kleinig” in footnotes.)
Ibid., § III (A Paternalistic (Harm to Self) Principle).
Ibid., §§ III.3.b, III.5.
Ibid., § III.4: “I think that the central intuitive difference I have with Simester and von Hirsch concerns the weight that we accord ‘moral autonomy’ when making social policy.”
Kleinig, ibid.; citing CHW, 153.
Relatedly, Kleinig thinks that we paint too rationalistic a picture of people’s choices to take risks: ibid. We hope not. In our own account, grounds for (especially, indirect) paternalism often arise because people tend to be poor decision-makers. See CHW, §§ 9.2(b), 10.1. We also agree with Kleinig (in fn 30) that state responses to “misalignment” can be retributive as well as forward-looking; if this were not the case, the criminal law would not be in point at all. Our worry, as will become clear, is about how severe should be the condemnatory penal response in such cases.
CHW, § 9.4.
CHW, § 1.1. See further J.R. Edwards and A.P. Simester, “Prevention with a Moral Voice” in A.P. Simester, A. du Bois-Pedain and U. Neumann (eds.), Liberal Criminal Theory: Essays for Andreas von Hirsch (Oxford: Hart Publishing, forthcoming).
See, too, the nudge literature: famously, R.H. Thaler and C.R. Sunstein, Nudge: Improving Decisions about Health, Wealth & Happiness (New Haven, CT: Yale University Press, 2008): “a manifesto for the new paternalism”, according to T.C. Leonard’s review in (2008) 19 Constitutional Political Economy 356, although its efficacy has been doubted. See, e.g., the House of Lords Science and Technology Select Committee 2nd Report of Session 2010–2012, Behaviour Change HL Paper 179 (London: The Stationery Office, 2011).
“Freedom and Resentment” (1960) 48 Proceedings of the British Academy 1.
P. Alldridge, “Dealing with Drug Dealing” in A.P. Simester and A.T.H. Smith (eds.), Harm and Culpability (Oxford: Oxford University Press, 1996) 239, 245.
CHW, § 9.5.
For D or others, on Kleinig’s account: Kleinig, text at fn 23.
Stanton-Ife, § III (Wrongfulness).
See, e.g., M. Moore, Placing Blame: A Theory of the Criminal Law (Oxford: Oxford University Press, 1997) 664; Stanton-Ife, text at fn 29.
Pro tanto in the sense of being prima facie sufficient to warrant criminalisation before we consider the side-effects and other practical costs of using the criminal law to regulate φing (regarding which, see the discussion in Chapter 11 of CHW). As Stanton-Ife surmises (§ III, fn 33), we used prima facie and pro tanto interchangeably in CHW, since nothing there turned on that distinction.
See CHW, § 2.3.
In, e.g., R.A. Duff and S.E. Marshall, “Public and Private Wrongs” in J. Chalmers, F. Leverick and L. Farmer (eds.), Essays in Criminal Law in Honour of Sir Gerald Gordon (Edinburgh: Edinburgh University Press, 2010).
For the sake of simplicity, we disregard possible categories such as self-harming actions and wrongs to other living creatures.
This is what we meant by the assertion (CHW, 29; cf. Stanton-Ife, § III) that “only certain kinds of wrongfulness qualify” for criminalisation: i.e., those accompanied, directly or indirectly, by harm.
Stanton-Ife, text at fn 33.
It is in this sense that the Non-qualifying thesis can allow that preventing immorality is a reason to criminalise yet hold that preventing immorality fails to generate a pro tanto case for criminalisation—in as much as it always requires supplementation by some further reason to criminalise. In CHW, we now see, we needlessly obscured this by phrasing the principle as follows: “That φing is wrongful is insufficient to establish even a pro tanto ground for its criminalisation.” A more perspicuous articulation would be: “That φing is wrongful is insufficient to establish even a pro tanto case for its criminalisation.”
CHW, 118.
Even today in New Zealand’s Crimes Act 1961, sexual offences are classed among “Crimes against religion, morality, and public welfare”.
Cf CHW, 118, continuing: “The same conclusion is buttressed by an inductive argument. As we have seen, the kinds of offensive conduct for which criminalisation seems most plausible are those that also involve harm. Consider insult: the strongest case for its prohibition concerns racial insult. Yet the latter conduct not only conveys contempt but also has the potential adversely to affect V’s access to community life—which is a matter of harm. Similarly, consider exhibitionism: indecent exposure in public spaces, such as streets or parks, not only shows a lack of consideration and respect but may also restrict others’ access to and enjoyment of these public facilities—again, a matter of harm. From a liberal perspective, it is difficult to think of an attractive case for criminalising offence where, either directly or indirectly, no form of harm is involved.”
Stanton-Ife, § IV (Offence): “I believe that the authors are right to reject Feinberg’s Offence Principle because it is an overly psychological account.”
Ibid.
J. Waldron, The Harm in Hate Speech (Cambridge, MA: Harvard University Press, 2012).
Stanton-Ife, § IV.
The same applies to Hörnle’s example of rape of an unconscious person who never learns of the incident, quite apart from the possibility of indirect harms canvassed by Gardner and Shute. See Hörnle, text at fn 4.
Stanton-Ife, § IV.
We discuss the various kinds of harm that can result from offensive conduct in CHW, § 7.2.
CHW, 36.
Stanton-Ife, text at fn 56.
Noting our discussion of Lord Jauncey’s “corruption of young men” assertion in Brown, Stanton-Ife surmises that we accept in principle that such corruption could be a harm: Stanton-Ife, § V (Harm and the Exclusion of Moralism). We should clarify that we took “young men” to refer to underage males.
Ibid.
Above, n 26.
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Simester, A.P., von Hirsch, A. On the Legitimate Objectives of Criminalisation. Criminal Law, Philosophy 10, 367–379 (2016). https://doi.org/10.1007/s11572-014-9323-4
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DOI: https://doi.org/10.1007/s11572-014-9323-4