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 examine 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, that is, unless conduct can be forbidden on the grounds that it is immoral even though the conduct harms no other person. The first section provides an overview of Feinberg's account of the limits of criminalization. The subsequent sections explore the possibility of prohibiting certain kinds of consensual conduct while avoiding legal moralism by limiting the use of the Volenti Principle.
Professor Cornish's pioneering textbook on Patents, Copyright, Trade Marks and Allied Rights first appeared in 1981. Its rather conservative title no doubt reflected the general lack of familiarity then with the term ‘Intellectual Property’. It was an important area of law, but left to the specialists and their clients; the wider world knew little of it or of its significance. Successive editions of the text have witnessed a transformation; the emergence of intellectual property from a backwater to feature prominently now as valuable property demanding attention from those involved in most forms of economic activity and from politicians and others involved in national and international affairs. There was a paucity of intellectual property literature then; today it is overwhelming.
IP laws, now, are stronger, more extensive, more pervasive, harmonized and globalized than ever could have been contemplated in 1981. TRIPS, introduced to ensure that the legitimate channels of exploitation of intellectual property were not undermined by inadequate laws or ineffective means of monitoring and enforcing them, projected the intellectual property image throughout the world. Thereafter, efforts were made to ratchet up the minimum standards of TRIPS to TRIPS-Plus by international conventions (such as the WIPO Copyright Treaties), international resolutions (such as those affecting trade marks and the internet and well known marks) and, as a surprising recent development, by means of an increasing number of bilateral Free Trade Agreements.
You should not act justly now for fear of raising expectations that you may act still more justly in the future.
Let us assume that we can find a plausible case for the view that it is permissible for medical care givers, under certain conditions, either to provide their patients with the means and/or information so that they can take their own lives, or to themselves kill their patients. Let us also suppose that, under certain conditions, care givers ought to provide such assistance in dying. We may think that this “ought,” while it grounds a claim, does not take the form of a right.
Having established this much still does not settle a number of different issues concerning public policy, questions such as: Should the law recognize such a right? Should the institutions of medical practice, such as hospitals, have rules that require action in accordance with such a right? Should the codes of the medical profession include such rules? Ought the profession sanction professionals who violate such claims? This class of questions is one about institutionalizing a right to die.
In general, the establishment of some moral claim or right is at most a necessary condition for the establishment of such an institutional right. That such claims are not sufficient is clear from the fact that although it is quite wrong of us to lie to you about many things, it is not illegal to do so (except for special cases such as commercial fraud).
It is not decent for society to make a man do this to himself.
Probably, this is the last day I will be able to do it to myself.
Among physicians the most frequently heard argument against physician-assisted suicide is one about the nature of the medical profession. It is argued that the norms of medicine prohibit a physician from ever acting with the intent to kill a patient or to aid him in killing himself. For this reason it is essential, they believe, to maintain a sharp distinction between allowing patients to die, say by the refusal to initiate cardiopulmonary resuscitation (CPR), and acts of assisted suicide.
Certainly the most important and influential article defending this view is one by Leon Kass. It is almost impossible to find an article opposing medically assisted dying in any of the major medical journals, such as the New England Journal of Medicine and the Journal of the American Medical Association, that does not cite this article as establishing the view that physicians must not aid patients in dying. We propose, therefore, to critically examine Kass's arguments.
Kass begins by considering “the question about physicians killing (as) a special case of – but not thereby identical to – this general question: May or ought one kill people who ask to be killed.” Note the phrase “may or ought,” which will assume some importance as Kass develops his argument.
We intend to argue that, under certain circumstances, it is morally permissible, and ought to be legally permissible, for physicians to provide the knowledge and/or means by which a patient can take her own life. This facilitation of suicide is what we shall mean by physician-assisted suicide. When we refer to euthanasia we shall mean cases in which the physician performs the last causal step leading to the death of the patient, and thus can be said to kill the patient.
The reasons for favoring physician-assisted suicide are not difficult to determine. They consist mainly of the interests that dying patients have in the process of dying being as painless and dignified as possible. They also rely on the interest of patients in determining the time and manner of their death. Autonomy and relief of suffering are values that we all can agree to be important. But it has seemed to many people that, important as these values are, there are significant objections to allowing physicians to serve these values either by facilitating suicide or by killing their patients. We believe that these objections are mistaken and that once they are seen to be mistaken, the reasons favoring medically assisted dying lead to our conclusions.
Our basic strategy of argument is essentially ad hominem; that is, we will claim that those who oppose medically assisted dying themselves favor policies that cannot be morally distinguished from the policies we favor and they oppose.
The moral and practical issue that is raised by proxy consent is the issue of when one individual may make decisions about, speak for, and represent the interests of another. In the case of a fetus, or a young child, or a mentally retarded person, or an unconscious person, or a person in great mental distress, or a person who has been found “unfit” to perform certain obligations and duties, the individual whose interests are to be secured and rights protected is viewed as not in a position to, not competent to, make certain important decisions. The issue of proxy consent is one of who shall be authorized to make those decisions and what criteria should guide the proxy in making such decisions.
The issue of proxy consent can arise in many different contexts. We might be concerned with the financial responsibility of a senile individual. We might be concerned with the legal powers of a guardian with respect to his or her ward. We might be concerned with who will be best able to look after the interests of a minor child. In this chapter we are primarily concerned with the issue as it arises in the biomedical context, and in particular, as it arises with respect to children and their parents. Thus we are concerned with third-party authority to make decisions about the use of children in medical treatment and research.
What is wrong with it [the world of Walden Two]? Only one thing: somebody “planned it that way.” If these critics had come upon a society in some remote corner of the world which boasted similar advantages, they would undoubtedly have hailed it as providing a pattern we all might well follow – provided that it was clearly the result of a natural process of cultural evolution. Any evidence that intelligence had been used in arriving at this version of the good life would, in their eyes, be a serious flaw.
A cultural practice is not the less effective in determining the behavior characteristics of a group because its origins are accidental. But once the effect upon behavior has been observed, the source of the practice may be scrutinized more closely. Certain questions come to be asked. Why should the design of a culture be left so largely to accident? Is it not possible to change the social environment deliberately so that the human product will meet more acceptable specifications?
In this essay I shall consider an argument that is often made in discussions of methods of influencing people's behavior. This argument states that control of one person by another is constantly taking place, but in an implicit and unconscious fashion, and that it would be preferable for control to take place on a systematic and explicit basis. Here is a small sample of these arguments.
In the past few years a number of criminal prosecutions have brought to public attention the issue of entrapment: Abscam, the DeLorean cocaine trial, Operation Greylord, various sting fencing operations. The investigative techniques used in, say, Abscam, although highly elaborate, expensive, and ingenious are only one example of the range of investigative techniques with which I shall be concerned in this essay. What these techniques have in common is the use of deception to produce the performance of a criminal act under circumstances in which it can be observed by law enforcement officials. I shall use the term “pro-active enforcement” to cover such techniques and the question I shall be discussing is under what circumstances, if any, is the use of such measures legitimate.
Let me begin by saying something more about the nature of proactive law enforcement and also by giving a fairly extensive sample of the use of such techniques. The sample will not only make clearer the nature of such operations but also provide a range of cases for testing judgments about the acceptability of such techniques.
Traditionally, law enforcement in our society has left most of the burden of reporting criminal offenses to private citizens. It is left to individuals, usually victims, to come forward with a complaint of criminal action and to provide much of the evidence in identifying and prosecuting the criminal. Government's role has been limited to various patrol activities and to reaction to complaint.
“I changed my mind.”
“Oh, yeah? Does it work any better?”
As seems appropriate for second thoughts, I shall begin at the beginning—the definition of paternalism. Elsewhere, I defined the concept as “interference with a person's liberty of action justified by reasons referring exclusively to the welfare, good, happiness, needs, interests, or values of the person being coerced.”
A number of critics have objected that confining the concept to interference with liberty is too restrictive in scope. Given the problem I was interested in, that is, the proper limits of state coercion, this restriction was reasonable, although even here one ought to be aware that the state has other ways of influencing people's behavior. It may refuse to enforce contracts, give in-kind rather than cash aid, set up licensing boards, require manufacturers to install seat-belts as original equipment, and so forth.
If, however, one wishes to consider the issue of paternalism in other contexts, for example, in the professions, one will need a broader definition. Not all paternalistic acts are acts of the state. Not all paternalistic acts involve interference with liberty. The doctor who lies to her terminally ill patients, the parent who stipulates in her will that a child may not inherit an estate before the age of thirty, the psychiatrist who tells his adolescent patient that he must inform her parents of her drug use, the professor who refuses to recommend her Ph.D. student to a certain university because he will be “out of his league” – these are all cases of paternalism that do not involve the use of coercion or force and, therefore, on standard views of liberty do not involve restrictions on liberty.
There are those who know from the start where they are going and those who only realize after the journey where they have been traveling. I am one of the latter. I wrote about issues, problems, theses, as they occurred to me, as they provoked or baffled me, seriatim. My Ph.D. thesis was on the nature and justification of coercion, and two of my earliest publications were based on that work. In one I considered why those who choose under coercive pressures should not be considered to be acting freely (in spite of the fact that they would prefer to choose as they do, given their circumstances). In the other I considered the kinds of interferences with people justified by reference to their own good and when, if ever, such interferences might be justified. In both cases I was dealing with the choices people make and the significance and value of their making those choices in accordance with their own standards and preferences. I had embarked, without being aware of it, on a voyage circling that territory which I later came to think of as “autonomy.”
My first actual use of the term was in an essay in applied ethics. It was written at a time when there was much concern about issues such as psychosurgery, aversive conditioning, subliminal advertising, and drug therapy. I was asked by the Hastings Center to participate in a working group considering the ethics of various ways of influencing persons and their behavior.
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