Criminalising Harmful Conduct The Harm Principle, its Limits and Con
What are the limits to criminalisation? Is insult harmful or just offensive? What is wrong with criminalising disrespect to state symbols? Should criminal codes be moral codes? Criminalising Harmful Conduct addresses the issue of legitimate criminalisatio
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Nina Peršak
Criminalising Harmful Conduct The Harm Principle, its Limits and Continental Counterparts
Dr. Nina Peršak [email protected]
Library of Congress Control Number: 2006937530 ISBN-10: 0-387-46403-4 ISBN-13: 978-0-387-46403-9
e-ISBN-10: 0-387-46404-2 e-ISBN-13: 978-0-387-46404-6
Printed on acid-free paper. © 2007 Springer Science+Business Media, LLC All rights reserved. This work may not be translated or copied in whole or in part without the written permission of the publisher (Springer Science+Business Media, LLC, 233 Spring Street, New York, NY 10013, USA), except for brief excerpts in connection with reviews or scholarly analysis. Use in connection with any form of information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed is forbidden. The use in this publication of trade names, trademarks, service marks, and similar terms, even if they are not identified as such, is not to be taken as an expression of opinion as to whether or not they are subject to proprietary rights. 9 8 7 6 5 4 3 2 1 springer.com
Foreword
Dr. Nina Peršak’s work addresses the criteria for criminalisation – that is, the criteria that should be employed in determinations whether to prohibit conduct through the criminal law. It is explicitly normative in approach, examining what should be the proper basis for criminalisation, rather than what factors legislatures actually tend to consider in adopting criminal prohibitions. Its focus is on the Harm Principle, that has been developed in Anglo-American philosophy of criminal law and on how this principal might illuminate the Continental debate on criminalisation. As such, this is a work on normative criminal law theory. Hitherto, there has existed no extended English-language treatment, comparing Anglo-American and Continental theories of criminalisation. An important strength of Dr. Peršak’s analysis lies in success in integrating themes from the two bodies of theory, the Anglo-American and the Continental. She begins with the Harm Principle and scrutinises its main criterion: the conduct’s intrusion into the interests of other persons. She undertakes a careful dissection of this criterion: e.g., what constitutes ‘harm’ and what is the scope of ‘others’ (and whether and to what extent the latter includes collective interests). This discussion provides not only a thoughtful analysis of the Harm Principle itself; it also provides her with the basis of her critique, later in the volume, of Continental criminalisation theories. Much of English and American criminal law doctrines (as continental critics often note) tend to be strongly instrumental and ad hoc in character. However, a number of philosophers – and jurists with a background in analytical ethical theory – have written thoughtfully about criminal-law theory. One of the main topics of discussion has been the criteria for criminalisation. The central figure here has been the American legal philosopher, Joel Feinberg. In four influ
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