Offense to Others: The Moral Limits of the Criminal Law.

1989 ◽  
Vol 98 (2) ◽  
pp. 239
Author(s):  
Gerald Dworkin ◽  
Joel Feinberg
Keyword(s):  
Criminal Law ◽  
Moral Limits

Harm, Offense, and Morality

1994 ◽  
Vol 7 (2) ◽  
pp. 199-216 ◽  
Author(s):  
Larry Alexander
Keyword(s):  
Criminal Law ◽  
Individual Autonomy ◽  
Respect For Autonomy ◽  
Governing Principle ◽  
Moral Limits

Joel Feinberg’s magnificent four volume work, The Moral Limits of the Criminal Law, represents a sustained and comprehensive argument regarding what conduct is appropriately regulated through criminal prohibitions and sanctions. Feinberg’s conclusions are essentially those of the Millian liberal: Conduct that causes harm or offense to others may be criminalized, but conduct that is harmful only to the actor or that is a harmless immorality may not be. Feinberg’s governing principle, however, is not Mill’s maximization of utility but is instead respect for individual autonomy. For Feinberg, respect for autonomy delimits the legitimate boundaries of concern with others’ conduct insofar as the concern is expressed through criminal prohibitions.

HARM AND THE VOLENTI PRINCIPLE

2011 ◽  
Vol 29 (1) ◽  
pp. 309-321 ◽  
Author(s):  
Gerald Dworkin
Keyword(s):  
Criminal Law ◽  
The State ◽  
The Other ◽  
Legal Moralism ◽  
Great Work ◽  
Joel Feinberg ◽  
Offense Principle ◽  
Moral Limits

AbstractThis is an essay on the limits of the Criminal Law. In particular, it is about what principles, if any, determine whether it is legitimate for the state to criminalize certain conduct. Joel Feinberg in his great work on the moral limits of the criminal law argues that we need only two principles. One is a principle regulating harm to other people and the other is an offense principle regulating certain kinds of offensive conduct. I explore various aspects of his argument. In particular I concentrate on his use of the Volenti Principle: He who consents cannot be wrongfully harmed by conduct to which he has fully consented. Feinberg uses the principle to argue that certain kinds of consensual conduct cannot be forbidden unless we adopt some kind of legal moralism, i.e., conduct can be forbidden on the grounds that it is immoral even though the conduct harms no other person. I explore the possibility of avoiding legal moralism by limiting the use of the Volenti Principle.

The Moral Limits of Consent as a Defense in the Criminal Law

2009 ◽  
Vol 12 (1) ◽  
pp. 93-121 ◽  
Author(s):  
Dennis J. Baker
Keyword(s):  
Criminal Law ◽  
Human Dignity ◽  
Personal Autonomy ◽  
Human Being ◽  
Crucial Difference ◽  
Critical Morality ◽  
Moral Limits

In this paper I aim to examine the objective limitations of consent as a defense to criminal harmdoing. This paper starts by briefly outlining the idea of objective morality (critical morality) as the proper basis for criminalization decisions and argues that there are also objective rather than mere conventional reasons (positive morality) for limiting the scope of consent as a defense in the criminal law. The idea of consent is in itself an objective reason for excusing wrongful harmdoing to others. However, it can be overridden by other objective considerations of greater importance. In this paper, I argue that it is only wrongful harmdoing that is criminalizable, as we do not criminalize mere accidents. Furthermore, I argue that a person can as an exercise of her personal autonomy consent to certain harms. But I note that there is a crucial difference between waiving rights that are grounded in an exercise of personal autonomy and waiving rights that violate a person's human dignity: rational autonomy. I conclude that regardless of consent, certain grave harms violate a person's dignity as a human being and therefore are wrongful and criminalizable.

WHEN ARE WE RIGHTFULLY AGGRIEVED?

Legal Theory ◽  
2005 ◽  
Vol 11 (3) ◽  
pp. 325-332
Author(s):  
Larry Alexander
Keyword(s):  
Criminal Law ◽  
Mens Rea ◽  
Criminal Offenses ◽  
Special Part ◽  
Specific Substance ◽  
Actus Reus ◽  
General Part ◽  
Moral Limits

Joel Feinberg's four volume work The Moral Limits of the Criminal Law can, I believe, be accurately characterized as a normative treatise on what criminal law theorists call the “special part” of the criminal law. The “general part” deals with the basic elements of all criminal offenses—whatever is prohibited. Thus general part theorists analyze the notions of actus reus and mens rea, the conditions that negate voluntariness in acting, the distinction between acts and omissions, the nature of causation, joint participation in crime such as complicity and conspiracy, and the various defenses labeled justifications and excuses. Feinberg has little to say about these matters. His concern is with what conduct may be forbidden and punished—the specific substance rather than the general form of the criminal law.

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