Criminal Law and Philosophy 4 (1):17-35 (2010)

The harm principle, understood as the normative requirement that conduct should be criminalized only if it is harmful, has difficulty in dealing with those core cases of criminal wrongdoing that can occur without causing any direct harm. Advocates of the harm principle typically find it implausible to hold that these core cases should not be crimes and so usually seek out some indirect harm that can justify criminalizing the seemingly harmless conduct. But this strategy justifies criminalization of a wide range of conduct on the basis of the fear, worry, and anxiety it generates among those who are not the direct victims of the conduct, and thereby undermines the limiting role of the harm principle by permitting the very move it was meant to prevent: the criminalization of harmless conduct on the ground of others’ feelings about it. The best way to avoid this dilemma is to recognize that people have rights, operating independently of the harm principle, to be treated in certain ways just because they are persons. The existence of such rights provides a ground for both criminalizing conduct and limiting the scope of criminalization because these rights point both to conduct that people must be permitted to engage in and conduct that might well be criminalized. A complete account of criminal law will therefore require the harm principle to work together with an independent account of rights
Keywords Harm principle  Rights  Criminalization
Categories (categorize this paper)
DOI 10.1007/s11572-009-9082-9
Edit this record
Mark as duplicate
Export citation
Find it on Scholar
Request removal from index
Revision history

Download options

PhilArchive copy

Upload a copy of this paper     Check publisher's policy     Papers currently archived: 68,908
External links

Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
Through your library

References found in this work BETA

The Morality of Freedom.Joseph Raz - 1986 - Oxford University Press.
The Metaphysics of Morals.Immanuel Kant - 1797/1996 - Cambridge University Press.
Natural Law and Natural Rights.John Finnis - 1979 - Oxford University Press.
Natural Law and Natural Rights.John Finnis - 1980 - Oxford University Press UK.
The morality of freedom.J. Raz - 1988 - Revue Philosophique de la France Et de l'Etranger 178 (1):108-109.

View all 37 references / Add more references

Citations of this work BETA

Towards a Theory of Criminal Law?R. A. Duff - 2010 - Aristotelian Society Supplementary Volume 84 (1):1-28.
Theories of Criminal Law.Antony Duff - 2008 - Stanford Encyclopedia of Philosophy.
Criminalizing Behaviour to Protect Human Dignity.Tatjana Hörnle - 2012 - Criminal Law and Philosophy 6 (3):307-325.
Abortion and Referrals for Abortion: Is the Law in Need of Change?Demian Whiting - 2011 - Journal of Evaluation in Clinical Practice 17 (5):1006-1008.

View all 7 citations / Add more citations

Similar books and articles


Added to PP index

Total views
343 ( #29,414 of 2,497,755 )

Recent downloads (6 months)
17 ( #48,214 of 2,497,755 )

How can I increase my downloads?


My notes