No abstract

This paper explores the Offence Principle. It discusses whether two constraints, additional to the criteria stated in conventional analysis, ought to be met before the Offense Principle can be satisfied: (i) that offensive conduct must be a wrong, and (ii) that the conduct must also lead to harm. The nature of the Harm Principle, and its relationship to the Offense Principle, are also considered. The paper suggests that, even if all cases in which offense should be criminalized also involve harm, nonetheless there may be good reasons to retain a separate Offense Principle. One way of analyzing the moral limits on criminalization is to separate the issues into two groups. First are problems surrounding the nature and scope of the Harm Principle. 1 Assuming that the state sometimes has a legitimate interest in using the criminal law to regulate conduct that brings about harm to others, under what conditions is the prospect of harm sufficient to justify that use? There are many controversial questions here, but our concern in this paper is not with them. Rather, it lies within the second set of issues: Are there any varieties of conduct that may legitimately be criminalized where the justification for doing so does not refer to harm? To this question Joel Feinberg has answered "yes." There are instances of conduct, he says, that may rightly be made criminal even though they do not cause harm to others. Indeed, they may be criminalized even though they do not cause harm at all. Feinberg accepts, advocates, and elucidates an Offense Principle: 2 It is always a good reason in support of a proposed criminal prohibition that it would probably be an effective way of preventing serious offense (as op-269

No abstract

Law, 2nd ed., (Cambridge University Press, 1904) 39: "no external conduct, however serious or even fatal its consequences may have been, is ever punished unless it is produced by some form of mens rea." 2 [1970] A.C. 132, 148 (Lord Reid); see also at 153 (Lord Morris) and 162-3 (Lord Diplock). Cf. B v. DPP [2000] 2 A.C. 428. 3 Notably in under-age sexual offences: now the Sexual Offences Act 2003, ss. 5-8. 4 Nothing turns here on the vexed but semantic question whether negligence is a form of "mens rea" or mental state, in as much as it may be a fault element without involving any particular state of mind. For convenience of expression, we assume that it is.