Crimes, harms, and wrongs : on the principles of criminalisation / A.P. Simester and Andreas von Hirsch.
2011
K5018 .S574 2011 (Map It)
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Author
Title
Crimes, harms, and wrongs : on the principles of criminalisation / A.P. Simester and Andreas von Hirsch.
Published
Oxford ; Portland, Or. : Hart Pub., 2011.
Call Number
K5018 .S574 2011
ISBN
9781841139401 (cloth)
1841139408 (cloth)
1841139408 (cloth)
Description
xix, 237 pages ; 24 cm
System Control No.
(OCoLC)738381015
Summary
"When should we make use of the criminal law? Suppose that a responsible legislature seeks to enact a morally justifiable range of criminal prohibitions. What criteria should it apply when deciding whether to proscribe conduct? Crimes, Harms, and Wrongs is a philosophical analysis of the nature, significance, and ethical limits of criminalisation. The authors explore the scope and moral boundaries of harm-based prohibitions, proscriptions of offensive behaviour, and 'paternalistic' prohibitions aimed at preventing self-harm. Their aim is to develop guiding principles for these various grounds of state prohibition, including an analysis of the constraints and mediating factors that weigh for and against criminalisation. Both authors have written extensively in the field. In Crimes, Harms, and Wrongs they have reworked a number of well-known essays and added several important new essays to produce an integrated, accessible, philosophically-sophisticated account that will be of great interest to legal academics, philosophers, and advanced students alike"--Provided by publisher.
Bibliography, etc. Note
Includes bibliographical references (pages [vii]-viii) and index.
Record Appears in
Added Author
Table of Contents
Preface
v
Acknowledgements
vii
Abbreviations
xiii
Table of Cases
xv
Table of Legislation
xvii
pt. I
Criminalisation and Wrongdoing
1.
The Nature of Criminalisation
3
1.1.
The Act of Criminalisation
6
1.2.
The Moral Voice
10
1.3.
Hard Treatment and Deterrence
14
1.4.
The Role of the State
16
1.5.
Conclusion
18
2.
Wrongfulness and Reasons
19
2.1.
A General Limiting Principle
19
2.2.
Wrongfulness as the Determinant of Criminalisation?
20
2.3.
Three Theses Concerning Wrongfulness
22
2.4.
Other Constraints
30
2.5.
Two Provisos
31
pt. II
Harm
3.
Crossing the Harm Threshold
35
3.1.
Harms, Wrongs, and Entitlements
38
3.2.
Non-constitutive Crimes and the Breadth of the Harm Principle
43
3.3.
Harm-independent Wrongs
50
3.4.
Conclusion
52
4.
Remote Harms: the Need for an Extended Harm Principle
53
4.1.
The Problem of `Remote' Harms
53
4.2.
The Standard Harms Analysis
54
4.3.
What are `Remote' Harms?
57
4.4.
Remote Harm and Fair Imputation
59
4.5.
What Practical Difference?
65
5.
On the Imputation of Remote Harms
70
5.1.
In-principle Constraints on Non-constitutive Crimes
71
5.2.
Types of Remote Harms and their Governing Principles
75
5.3.
Conclusion
88
pt. III
Offence
6.
Rethinking the Offence Principle
91
6.1.
Offence as Wrongdoing
92
6.2.
What Wrongs might Invoke the Offence Principle?
97
6.3.
The Multifarious, yet Unified, and Conventional Grounds of Offence
99
6.4.
Distinguishing Offence From Nuisance
104
6.5.
Conclusion
106
7.
The Distinctiveness of the Offence Principle
108
7.1.
Harmful versus Offensive Actions
108
7.2.
Criminalisation of Offence under the Harm Principle
111
7.3.
A Separate Offence Principle?
117
8.
Mediating Principles for Offensive Conduct
123
8.1.
Weighting Factors and Mediating Principles
124
8.2.
Protecting a Constitutionally-derived Interest?
134
8.3.
Concluding Thoughts
137
pt. IV
Paternalism
9.
Reflections on Paternalistic Prohibitions
141
9.1.
Three Absolutist Objections to Paternalistic Intervention (Civil and Criminal)
143
9.2.
Direct, and Indirect Coercion
149
9.3.
Direct Paternalism in the Civil Law
152
9.4.
The Distinctively Problematic Character of Paternalistic Crimes
156
9.5.
An Exception for De Minimis Interventions?
160
9.6.
Other (Non-paternalistic) Grounds for Intervention?
161
9.7.
In Closing: Autonomy and Respect
164
10.
Some Varieties of Indirect Paternalism
166
10.1.
Removing (Unwanted?) Options: Airbags and the Like
166
10.2.
Prohibiting Important Choices: Killing on Request and the Like
168
10.3.
Consent and Evidential Risks
171
10.4.
Appealing to P's Inhibitions: the Theory of Hemmschwelle
176
10.5.
Existence without Life-changes, and the Burden of Self-Reform
179
10.6.
Partial Decriminalisation and the Concept of the Living Standard
181
10.7.
Killing versus Other Forms of Self-injury
184
10.8.
In Closing
185
pt. V
Drawing Back from Criminal Law
11.
Mediating Considerations and Constraints
189
11.1.
Privacy
190
11.2.
Regulatory Alternatives
193
11.3.
Fair Warning
198
11.4.
Fair Labelling and the Multiplicity of Crimes
202
11.5.
Practical Constraints
208
12.
Two-step Criminalisation
212
12.1.
Constraining the Criminal Law
212
12.2.
The Nature of TSPs
214
12.3.
Bypassing Constraints and the Potential for Misuse
218
12.4.
Using TSPs in Specialist Contexts: The ACP
228
12.5.
Assessing the English ASBO Legislation
230
12.6.
Conclusion
232
Index
233