Pub Date : 2001-04-01DOI: 10.1525/NCLR.2001.5.1.103
H. Bedau
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Pub Date : 2001-04-01DOI: 10.1525/NCLR.2001.5.1.13
R. Duff
Feinberg’s Harm Principle is not Mill’s Harm Principle. Mill’s principle was exclusive: “[T]he only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” Feinberg’s principle, by contrast, tells us only that “it is always a good reason in support of penal legislation that it would probably be effective in preventing . . . harm to persons other than the actor,” and not whether there could also be other good reasons. It is one “liberty-limiting principle,” specifying one kind of consideration that “is always a morally relevant reason in support of penal legislation,” legislation that, by criminalizing conduct, limits citizens’ liberty. But for all we know so far, there could also be other such principles that specify other morally relevant reasons for thus limiting liberty. Feinberg would come closer to Mill if he held to the “extreme liberal position,” that the Harm Principle specifies the only kind of good reason for criminalization, but that is not his position, for three reasons. First, he hopes at best to sustain the “liberal position.” This means that only effective prevention of harm or “serious offense” to others constitute “good reasons for criminal
{"title":"Harms and Wrongs","authors":"R. Duff","doi":"10.1525/NCLR.2001.5.1.13","DOIUrl":"https://doi.org/10.1525/NCLR.2001.5.1.13","url":null,"abstract":"Feinberg’s Harm Principle is not Mill’s Harm Principle. Mill’s principle was exclusive: “[T]he only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” Feinberg’s principle, by contrast, tells us only that “it is always a good reason in support of penal legislation that it would probably be effective in preventing . . . harm to persons other than the actor,” and not whether there could also be other good reasons. It is one “liberty-limiting principle,” specifying one kind of consideration that “is always a morally relevant reason in support of penal legislation,” legislation that, by criminalizing conduct, limits citizens’ liberty. But for all we know so far, there could also be other such principles that specify other morally relevant reasons for thus limiting liberty. Feinberg would come closer to Mill if he held to the “extreme liberal position,” that the Harm Principle specifies the only kind of good reason for criminalization, but that is not his position, for three reasons. First, he hopes at best to sustain the “liberal position.” This means that only effective prevention of harm or “serious offense” to others constitute “good reasons for criminal","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"165 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2001-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132074713","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Concerns degrees of offensiveness of acts that are against the law, non-wearing of motorcycle helmets, homicide, etc.
涉及违法行为的冒犯程度、不戴摩托车头盔、杀人等。
{"title":"Introduction: Feinberg's Moral Limits, and Beyond","authors":"S. Green","doi":"10.1525/NCLR.2001.5.1.1","DOIUrl":"https://doi.org/10.1525/NCLR.2001.5.1.1","url":null,"abstract":"Concerns degrees of offensiveness of acts that are against the law, non-wearing of motorcycle helmets, homicide, etc.","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"109 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2001-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128781939","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2001-04-01DOI: 10.1525/NCLR.2001.5.1.47
Hamish Stewart
As a rough first approximation, one might divide the moral and political justifications for criminalizing conduct into two types: deterring harm-doing and punishing wrongdoing. While there are many ways in which a system of penal justice might accommodate both ideas, there will always be some tension between the two, in that deterring harm-doing may sometimes seem to demand the punishment of those who have done no wrong, while punishing wrong-doing may be, from the point of view of deterrence, too punitive or not punitive enough. This tension is closely related to a long-standing debate about the status of rights: Are our rights defined to serve purposes external to the system of rights itself and therefore vulnerable to redefinition as social and political goals change, or do some of our core rights trump other considerations and therefore indefeasible by
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Pub Date : 2001-04-01DOI: 10.1525/NCLR.2001.5.1.145
B. Harcourt
When I was originally approached to participate in this Symposium on the work and legacy of Joel Feinberg, I immediately began thinking about the influence of his essay The Expressive Function of Punishment on contemporary criminal law theory in the United States. That essay has contributed significantly to a growing body of scholarship associated with the resurgence of interest in expressive theories of law. In the criminal law area, the expressivist movement traces directly and foremost to Feinberg’s essay. As Carol Steiker observes, “Joel Feinberg
{"title":"Joel Feinberg on Crime and Punishment: Exploring the Relationship between the Moral Limits of the Criminal Law and the Expressive Function of Punishment","authors":"B. Harcourt","doi":"10.1525/NCLR.2001.5.1.145","DOIUrl":"https://doi.org/10.1525/NCLR.2001.5.1.145","url":null,"abstract":"When I was originally approached to participate in this Symposium on the work and legacy of Joel Feinberg, I immediately began thinking about the influence of his essay The Expressive Function of Punishment on contemporary criminal law theory in the United States. That essay has contributed significantly to a growing body of scholarship associated with the resurgence of interest in expressive theories of law. In the criminal law area, the expressivist movement traces directly and foremost to Feinberg’s essay. As Carol Steiker observes, “Joel Feinberg","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"281 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2001-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115998636","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2001-04-01DOI: 10.1525/NCLR.2001.5.1.279
P. Alldridge
I. THE PROBLEMATIC Clean money is worth more than dirty money. Clean money—money untainted by criminal association—can be invested in profitable activities or spent on consumption, more or less conspicuous, without risk of recrimination. Dirty money, generally speaking, can only be invested or spent less profitably, less visibly, and at a risk of punishment. It also carries the risk of being used as evidence of the initial crime. With the exceptions of small thefts of fungibles, like cash and the fantasy case of the criminal art collector who wishes to sit alone with a painting so famous that it could not be resold, virtually all income from criminal activities must be disguised to be of use to the criminal. Money laundering 1 is that process of disguise. Analysis of money laundering, in terms of criminal markets, holds that secrecy has value. 2 People will pay for secrecy because it costs less than disclosure. To the person in possession of money deriving from illegal sources, the dangers of disclosure relate to the possibility of prosecution and imprisonment. The process of money laundering holds out the prospect of gaining lasting secrecy for the information dealing with the provenance of the money. On the demand side, a person holding assets
{"title":"The Moral Limits of the Crime of Money Laundering","authors":"P. Alldridge","doi":"10.1525/NCLR.2001.5.1.279","DOIUrl":"https://doi.org/10.1525/NCLR.2001.5.1.279","url":null,"abstract":"I. THE PROBLEMATIC Clean money is worth more than dirty money. Clean money—money untainted by criminal association—can be invested in profitable activities or spent on consumption, more or less conspicuous, without risk of recrimination. Dirty money, generally speaking, can only be invested or spent less profitably, less visibly, and at a risk of punishment. It also carries the risk of being used as evidence of the initial crime. With the exceptions of small thefts of fungibles, like cash and the fantasy case of the criminal art collector who wishes to sit alone with a painting so famous that it could not be resold, virtually all income from criminal activities must be disguised to be of use to the criminal. Money laundering 1 is that process of disguise. Analysis of money laundering, in terms of criminal markets, holds that secrecy has value. 2 People will pay for secrecy because it costs less than disclosure. To the person in possession of money deriving from illegal sources, the dangers of disclosure relate to the possibility of prosecution and imprisonment. The process of money laundering holds out the prospect of gaining lasting secrecy for the information dealing with the provenance of the money. On the demand side, a person holding assets","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2001-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127234488","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2001-04-01DOI: 10.1525/NCLR.2001.5.1.255
Tatjana Höörnle
Several provisions of the German Penal Code deal with conduct perceived to be intolerable and offensive. Punished are public sexual acts, dissemination of certain obnoxious kinds of pornography, (e.g., pornography with children), public display of pornography in general, and incest. Also offensive are abusive statements against minorities, denial of the Nazi genocide, insults against religious denominations, disturbance of religious ceremonies, mistreatments of dead bodies, and desecration of burial sites. Attempts to justify the prohibition of such behavior within the framework of contemporary German penal theory has led to difficulties. Most of these acts do not result in tangible harm to a specific person. In the absence of obvious damages, it is difficult to reconcile these parts of the German Penal Code with general principles concerning the proper range of the criminal law. The most straightforward explanation would simply point to the fact that the actor violated a moral rule. It would be easy to make that claim for most of the listed acts; their prohibition, indeed, is compatible with prevailing moral standards. Such a moral justification, however, runs contrary to the premises of modern German penal theory.
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Pub Date : 2001-04-01DOI: 10.1525/NCLR.2001.5.1.173
P. Roberts
Stuart Green’s letter soliciting contributions to this Symposium Issue began by observing that “[a]mong moral and legal philosophers, Feinberg’s work has enjoyed enormous influence. In the legal academy, however, his work is less well known than it should be.” Professor Green is commenting on the American situation. From an English perspective, I would add only a slight gloss. Joel Feinberg’s writings on the philosophy of criminal law, particularly but not exclusively his magnum opus on the moral limits, are reasonably well known to English criminal law students and teachers, at least to those who make use of the more up-market, theoretically informed textbooks and periodicals. But although Feinberg is frequently quoted and cited in the introductory sections of English textbooks, his ideas and arguments are seldom used, that is, put to work in detailed doctrinal analysis or practical problem-solving. His
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Pub Date : 2000-04-01DOI: 10.1525/NCLR.2000.4.1.641
E. Lederman
A. Criminal Liability: Basic Trends of Development.......642 B. Models of Adaptation and Imitation: The Familiar Methods for Imposing Corporate Liability 650 1. The Doctrine of Vicarious Liability 651 2. The Doctrine of Direct Liability (The Theory of Corporate Organs) 655 C. The Aggregation Model: The Idea of Collective Knowledge 661 1. The Origin and Substance of the Model 661 2. The Boundaries of the Aggregation Model 666 (a) Collective Knowledge and Collective Criminal Intent 666 (b) Indeed Willful Blindness? 670 3. The Aggregation Model: Questions and Hesitations 672 D. The Model of Separate Self-Identity: Beginnings.......677 1. The Model of Self-Identity and Previous Models 678 2. Developing the Self-Identity Model: Background 683 3. The Model of Self-Identity: Assumptions and Characteristics 686 4. Self Identity and Criminal Culpability 690 (a) The Underlying Assumptions of the Model 690
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Pub Date : 2000-04-01DOI: 10.1525/NCLR.2000.4.1.341
Anthony M. Dillof
Begun in 1952 and completed in 1962, the drafting of the Model Penal Code (M.P.C.) constituted an unparalleled stride forward in the development of the criminal law. Since 1962 however, our society, crime, and our society’s perception of crime have changed. With the benefit of hindsight, certain provisions of the Model Penal Code appear ill conceived, or if not ill conceived, at least profoundly outdated. If the Model Penal Code is to be true to its name, some degree of remodeling is needed. But remodeling implies more than repair and renovation: It implies wholesale elimination of some provisions and whole-cloth invention of others. In this latter category of provisions to be added fall, first, those needed to address antisocial phenomena that were either unknown or
{"title":"Putting Hate in Its Place: The Codification of Bias Crime Laws in a Model Penal Code","authors":"Anthony M. Dillof","doi":"10.1525/NCLR.2000.4.1.341","DOIUrl":"https://doi.org/10.1525/NCLR.2000.4.1.341","url":null,"abstract":"Begun in 1952 and completed in 1962, the drafting of the Model Penal Code (M.P.C.) constituted an unparalleled stride forward in the development of the criminal law. Since 1962 however, our society, crime, and our society’s perception of crime have changed. With the benefit of hindsight, certain provisions of the Model Penal Code appear ill conceived, or if not ill conceived, at least profoundly outdated. If the Model Penal Code is to be true to its name, some degree of remodeling is needed. But remodeling implies more than repair and renovation: It implies wholesale elimination of some provisions and whole-cloth invention of others. In this latter category of provisions to be added fall, first, those needed to address antisocial phenomena that were either unknown or","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"151 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2000-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123406451","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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