Harms and wrongs
Two considerations:
1. Harm
2. Morality/wrongness
The harm principle comes from JS Mill. Took a utilitarian approach on
whether something should be criminalized.
His view is that the only warranted interference of action for
mankind is self-protection. The only purpose for which power can
be correctly used over any community, against his will, is to
prevent harm to others.
What is harm?
Joel Feinberg: set a threshold for what can be labelled as harm. Held
that harm is not momentary pain rather it is something which effects an
individual’s life, changing for the worse. Prospects of living a good life
are diminished.
- Harms are graded according to the effect that they have on a
person’s standard of living.
- The harm principle, as a limiting principles, is a moral principle.
Morally wrongful harm must be criminalized.
Collective harms – how they harm society?
Categories of harm
- Violations of interest in what one is entitled to as an individual –
physical harm, wellbeing and interest, financial etc.
- Offence to sensibility – offensive material, books etc.
- Impairment to collective welfare – affecting government, treason,
terrorism in some way
- Violations of government interest – tax offences, perjury
Not all harms are the same hence why weighting is needed.
Criminalization
Kaplan: looked at harm from two different forms: primary and secondary
harms. Primary harms surround direct acts, secondary surround indirect
harm to others.
‘secondary harms’
- Public ward (spending state funds for treatment)
- Non-support (leaving behind or ignoring family responsibilities)
- Modelling (may influence others, especially children)
- Categorial imperative (harm everyone if performed by many)
Joel Feinberg: Risk and probability: where harm may (but is not certain
to) result from a given kind of conduct, then a test could be that:
- The greater the gravity of a possible harm, the less probable its
occurrence need be to justify prohibition of the conduct and
- The more valuable the dangerous conduct, the more reasonable it
is to take the risk of harmful consequences.
Herbert Packer: Criteria for Criminalization
, 1. The behaviour in question is socially threatening behaviour, not
condoned by significant segment of society
2. Criminalizing such behaviour would be consistent with goals of
punishment. Whether criminal sanction of said behaviour/act is
consistent with the goals of punishment (such as deterrence).
3. Would the suppression of said behaviour inhibit socially desirable
conduct?
4. Can the law enforcement deal (enforce) with said behaviour in a
way which is even handed and non-discriminatory?
5. Would controlling said behaviour expose the criminal law system to
qualitative or quantitative strains?
6. Are there any reasonable alternatives to the criminal sanction for
dealing with it?
Criminalization structure:
Moral: Whether criminalizing ‘X’ will create a moral aversion and
therefore moral education. State punishment of an act is only moral if it
protects others from wrongful behaviour (Feinberg). Criminalization can
only exist when the harm is wrongful, this in order to undermine
individual autonomy.
There is/is not social utility in making moral aversion to
criminalizing… it should/should not be criminalized.
Harm: type of harm? Secondary or primary?
The harm seen here is (primary (direct)/secondary (indirect)). Is it
simply about doing X, or doing X, or doing X as not to harm someone (as
that is direct, in this situation they are managing risk).
Kaplans secondary harms describe the flow on effects caused by harm.
These include: public ward, non-support justification, modelling and
categorical imperative.
It is important to identify the category of harm which ‘x’ falls under. H.
Gross established categories of harm. These categories are grounds in
which people hold interest, which could be harmed if violated. Gross held
that “harm is an untoward occurrence by way of violation of some
interest of a person.”
X falls under (secondary or primary harm) as…
- Violations of interest in what one is entitled to as an individual. We
are all entitled to a right to life. To have this violated is a harm.
- Offences to sensibility surround acts/events which occur around an
individual which may harm people in some way. Such as drug
transactions or prostitution.
- Impairment to collective welfare. As a society we have a collective
interest in our welfare.
- Violations of government interest. Economic cost, government
interest in setting that X is controlled.
Risk and Probability: Feinberg developed three steps, which must be
observed into determining whether a harm should be criminalized (or a
new defence developed).
Two considerations:
1. Harm
2. Morality/wrongness
The harm principle comes from JS Mill. Took a utilitarian approach on
whether something should be criminalized.
His view is that the only warranted interference of action for
mankind is self-protection. The only purpose for which power can
be correctly used over any community, against his will, is to
prevent harm to others.
What is harm?
Joel Feinberg: set a threshold for what can be labelled as harm. Held
that harm is not momentary pain rather it is something which effects an
individual’s life, changing for the worse. Prospects of living a good life
are diminished.
- Harms are graded according to the effect that they have on a
person’s standard of living.
- The harm principle, as a limiting principles, is a moral principle.
Morally wrongful harm must be criminalized.
Collective harms – how they harm society?
Categories of harm
- Violations of interest in what one is entitled to as an individual –
physical harm, wellbeing and interest, financial etc.
- Offence to sensibility – offensive material, books etc.
- Impairment to collective welfare – affecting government, treason,
terrorism in some way
- Violations of government interest – tax offences, perjury
Not all harms are the same hence why weighting is needed.
Criminalization
Kaplan: looked at harm from two different forms: primary and secondary
harms. Primary harms surround direct acts, secondary surround indirect
harm to others.
‘secondary harms’
- Public ward (spending state funds for treatment)
- Non-support (leaving behind or ignoring family responsibilities)
- Modelling (may influence others, especially children)
- Categorial imperative (harm everyone if performed by many)
Joel Feinberg: Risk and probability: where harm may (but is not certain
to) result from a given kind of conduct, then a test could be that:
- The greater the gravity of a possible harm, the less probable its
occurrence need be to justify prohibition of the conduct and
- The more valuable the dangerous conduct, the more reasonable it
is to take the risk of harmful consequences.
Herbert Packer: Criteria for Criminalization
, 1. The behaviour in question is socially threatening behaviour, not
condoned by significant segment of society
2. Criminalizing such behaviour would be consistent with goals of
punishment. Whether criminal sanction of said behaviour/act is
consistent with the goals of punishment (such as deterrence).
3. Would the suppression of said behaviour inhibit socially desirable
conduct?
4. Can the law enforcement deal (enforce) with said behaviour in a
way which is even handed and non-discriminatory?
5. Would controlling said behaviour expose the criminal law system to
qualitative or quantitative strains?
6. Are there any reasonable alternatives to the criminal sanction for
dealing with it?
Criminalization structure:
Moral: Whether criminalizing ‘X’ will create a moral aversion and
therefore moral education. State punishment of an act is only moral if it
protects others from wrongful behaviour (Feinberg). Criminalization can
only exist when the harm is wrongful, this in order to undermine
individual autonomy.
There is/is not social utility in making moral aversion to
criminalizing… it should/should not be criminalized.
Harm: type of harm? Secondary or primary?
The harm seen here is (primary (direct)/secondary (indirect)). Is it
simply about doing X, or doing X, or doing X as not to harm someone (as
that is direct, in this situation they are managing risk).
Kaplans secondary harms describe the flow on effects caused by harm.
These include: public ward, non-support justification, modelling and
categorical imperative.
It is important to identify the category of harm which ‘x’ falls under. H.
Gross established categories of harm. These categories are grounds in
which people hold interest, which could be harmed if violated. Gross held
that “harm is an untoward occurrence by way of violation of some
interest of a person.”
X falls under (secondary or primary harm) as…
- Violations of interest in what one is entitled to as an individual. We
are all entitled to a right to life. To have this violated is a harm.
- Offences to sensibility surround acts/events which occur around an
individual which may harm people in some way. Such as drug
transactions or prostitution.
- Impairment to collective welfare. As a society we have a collective
interest in our welfare.
- Violations of government interest. Economic cost, government
interest in setting that X is controlled.
Risk and Probability: Feinberg developed three steps, which must be
observed into determining whether a harm should be criminalized (or a
new defence developed).
