Flashcards in Moral Limits Of Criminalisation Deck (32):
Criminal law is a remedy of last resort. What are the implications of this?
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.
Explain the Harm Principle.
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).
How does Feinberg built on Mill's proposition in relation to criminal law?
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
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
Hyman Gross' four categories of harm?
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
Von Hirsch and Jarenorg's four generic interests?
1. Physical Integrity
2. Material support and amenity
3. Freedom from humiliation and degradation
4. Privacy and autonomy
Von Hirsch and Jareborg's four bands by which to assess the severity of a criminal setback to interests?
2. Minimal well-being
3. Adequate well-being
4. Significant enhancement
When does Feinberg say a harm becomes a wrong?
When the invasion of another's interest
1. Violates his right
2. Is indefensible
Then that invasion will be both harmful and wrongful.
What rubrics do Feinberg's "balancing requirements" use?
The balancing requirements balance the likelihood and extent of the harm against the implications of criminalisation.
Balancing requirement 1: Gravity
The graver a harm, the less probable its occurrence needs to be.
Balancing requirement 2: Probability
The more probable a harm's occurrence, the less grave it needs to be.
Balancing requirement 3: Magnitude
The greater the magnitude (extent and probability) of the harm the less reasonable it is to accept the risk of harm.
Balancing requirement 4: Value
The more valuable a course of conduct to the actor and others, the more reasonable it is to risk harmful consequences.
Balancing requirement 5: Reasonableness
The more reasonable the risk of harm, the weaker the case for prohibiting the conduct that creates it.
Name the 5 balancing requirements.
What is remote harm?
Remote harm occurs when an act places the actor or someone else in a position with greater potential to harm others.
When should remote harm be punished?
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
When is the criminalisation of remote harm tough to justify?
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
What is the relationship between resource allocation and criminalisation?
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.
How does Feinberg describe the Offence Principle?
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.
How does Feinberg define an offensive act?
An offensive act is one which causes another to experience an involuntary, unpleasant and disliked psychological reaction in response.
What factors might inform the parameters of the offence principle?
1. Reasonable avoidability
2. Value of the offending conduct to the actor
3. Social value of the offending conduct
When does offensive conduct merit criminalisation?
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.
Differentiate legal moralism and the offence principle.
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.
What are free-floating evils?
Free floating evils are acts considered inherently wrong even though they neither harm people nor infringe their rights.
How does Lord Devlin justify legal moralism?
He argues that immoral behavior may cause social disintegration (essentially bringing moralism within the ambit of the Harm Principle)
Why does legal moralism have no place in a heterogenous society?
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.
Justify paternalism using the Harm Principle.
On a utilitarian conception, it is in society's interests to reduce its net harm and paternalism helps to achieve this.
What is the principal consideration weighing against paternalism?
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.
When might paternalism be justified?
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.
Why might tax be preferred to criminal law? Why might it not?
Tax is less coercive, but it is also less equitable in its effect on the poor.