Published online by Cambridge University Press: 14 December 2011
This 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.
1 Joel Feinberg, Harmless Wrongdoing (New York, NY: Oxford University Press, 2000).
2 Arthur Ripstein, “Beyond the Harm Principle,” Philosophy and Public Affairs, vol. 34, no. 3, (2006): 216–45.
6 Joel Feinberg, Harm to Others (New York, NY: Oxford University Press, 1984).
7 Irving Kristol, “Pornography, Obscenity, and the Case for Censorship,” New York Times Magazine March 28, 1971. Reprinted in Gerald Dworkin, Morality, Harm, and the Law, (Boulder: Westview Press, 1994) 46–49.
8 Feinberg, Harmless Wrongdoing, 130.
9 John Stuart Mill, On Liberty (Oxford: Clarendon Press, 1980) chap. 7, Part 3.
12 Ripstein, personal communication.
13 Feinberg, Harmless Wrongdoing, 80.