He also states that the punishment should be dependent on the amount of harm caused rather than the severity of the offense. If the mental dislike does not carry an element of resentment then that act is not of offensive nature (Feinberg, 1985). In: R. Simon, ed. 1-2. Joel Feinberg THE ROCKEFELLER UNIVERSITY PRENTICE-HALL, INC. Englewood Cliffs, New Jersey r--L-.1 ~:~ CHAPTER THREE Hard Cases for the Harm Principle 1. Quite the contrary it is possible for both concepts to co-exist, but as for the harm principle being the only concept for limiting liberty is preposterous. Meeting the objections to the Danish Cartoons of Muhammed, VIII(1), p. 52. A, W., 2002. The first volume in Joel Feinberg's four-volume series "The Moral Limits of the Criminal Law, Harm to Others" focuses on the "harm principle," the commonsense view that prevention of harm to persons other than the perpetrator is a legitimate purpose of coercive legislation. the harm principle thus expanded and the GHP to explain why the rationale for free speech does not justify protection of bigoted insults, even though it justifies protecting the content of offensive opinions and viewpoints that may accurately be categorized as bigoted. Then if the harm principle does not count as a good enough reason to limit democracy’s most prized concept what should count as a reasonable purpose to interfere with one’s liberty? What is the justification for a liberal theory of the state? The Danish cartoon mocking Mohammed offended the Muslim community however at the same time the cartoon constituted a right of expression. 10 Commonwealth v. 307 ff. An entirely new principle? dominant theory of harm has been the counterfactual account, most famously proposed by Joel Feinberg.4 This determines whether harm is caused by comparing what actually happened in a given situation with the ‘counterfacts’ i.e. the harm principle? Feinberg clarifies the concept of an "offended mental state" and further contrasts the concept of offense with harm. Laing, A., 2011. the telegraph:. Feinberg clarifies the concept of an "offended mental state" and further contrasts the concept of offense with harm. C.L.Ten, 1980. In a world that treated offense as a sufficient ground to limit liberty then in that state people would claim to be offended and the case would be easily solved. The offense principle is a declaration that harm and offense serve different purposes. 71 P OSTEMA, Politics is About Grievance, pp. März 2004 in Tucson) war ein US-amerikanischer Philosoph. An example that is given is a person who smells very bad sitting in close proximity to others on a bus which is considered an affront to the senses. Change ), You are commenting using your Facebook account. In that same spirit of exploration, in Section III we reconsider the relationship between the Of- fense Principle and the Harm Principle. In this volume, Feinberg focuses on the meanings of "interest," the relationship between interests and wants, and the distinction between want-regarding and ideal-regarding analyses of interest and hard cases for the aplication of the concept of harm. For convenience I will use the word "offense" to cover the whole miscellany of universally disliked mental states (see Vol. One might state that although these cases could be offensive however they could lead to harm and therefore should limited at that stance. Feinberg explains that like the word ‘harm’, the word ‘offence’ has . Moreover the question of freedom of speech being exempt from liberty limitation raises an argument. Feinberg’s offense principle is the basis of the argument against Mill’s harm principle. To Feinberg there are forms of expressions that are flat out prohibited by law simply because they are of offensive nature and do not necessarily meet the standards set by the harm principle (Feinberg, 1985: 14). The government should not put in serious ramifications for mental offenses as it would with physical or economic offenses. The cartoon was a tragedy and led to the death of a magnitude of people (Laegaard, 2007) .If liberty would be limited to prevent such from happening then that would lay a sufficient ground for those that do not want hear their views critiqued to protest (Peter Singer, 2006). He believes that actions that disregard others rights should be focused on in the offense principle rather than the actions which negatively harm one’s mental state or cause emotional distress. Oxford University Press, Jul 5, 1984 - Philosophy - 288 pages. Harm to Others: Amazon.ca: Feinberg, Joel: Books. Feinberg believes that Mill’s idea of when liberty should be limited in terms of freedom of speech is very far fetched; the idea that freedom of expression should be limited only when it harms another does not seem legitimate. The criteria for assessing if an offense is viable or not is through looking at the extent, the duration, the social value of the speech, the motive of the defendant or speaker ,the extent to which the offense can be avoided and the intensity of the offense (Feinberg, 1985:2). In: A. New York: Oxford University Press Inc. Public users can however freely search the site and view the abstracts and keywords for each book and chapter. Feinberg presents a detailed analysis of the concept and definition of harm and applies it to a host of practical and theoretical issues, showing how the harm principle must be interpreted if it is to be a plausible guide to the lawmaker. Taking up the question of defining harm, this chapter looks at the conception proposed by Joel Feinberg, that harm is the wrongful setback to a person’s interest. Feinberg would agree to that; however he would state that before the acts became harmful it was offensive and thus under those conditions. Again Julius Malema the current leader of the Economic Freedom Front made the headlines for singing the ‘kill the Boer’ song (The telegraph, (Laing, 2011). Feinberg continues to argue the offense principle by establishing different scenarios in which a person can be easily offended by another. Feinberg states that the offense principle seeks to prevent people from wrongfully offending others as a reason for coercive legislation (Feinberg, 1985: 2). However the concept of offence will also be analysed, critiqued and evaluated before a conclusion can be reached on whether the act of doing what one wants can be restricted on any grounds. It is not enough for one to avoid being harmed in the physical aspect but consideration for the mental state should also be taken into account, this could be done in the form of applying the offense principle. The offense priciple. Feinberg’s offense principle is the basis of the argument against Mill’s harm principle. Joel Feinberg delineated principles for reconciling opposing views regarding permissible grounds for interference with someone’s actions for the sake of preventing harm. Thus acts such as those of perversion received harsher sentences than that of women and children abuse. In the seventh chapter of Feinberg’s Offense to Others, he discusses how offense or things which are considered unfavorable should only be outlawed in order to obstruct wrongdoing towards others. Joel Feinberg (* 19.Oktober 1926 in Detroit, Michigan; † 29. Joel Feinberg (* 19. Change ). Essays in honour of of Joel Feinberg. Change ), You are commenting using your Google account. Feinberg clarifies the concept of an "offended mental state" and further contrasts the concept of offense with harm. 1 Review. Feinberg continues to argue the offense principle by establishing different scenarios in which a person can be easily offended by another. Oxford Scholarship Online requires a subscription or purchase to access the full text of books within the service. Keywords: accumulative harms, aggregative harms, causation, Feinberg, harm principle, harmless wrongdoing, interest, risk, rules of the road, wrongful conception. s.l. Mill on Liberty. Harm to Others Joel Feinberg Moral Limits of the Criminal Law. The subjective route entails that a person must consider certain acts to be offending even if they are not necessarily offensive to him or her. Harm principle: To prevent harm to others John Stuart Mill's statement of harm principle in On Liberty (1859): "The sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. 1–2. The Spear painting of president Zuma’s exposed genitals was a controversial case of freedom of expression versus a case of defamation and offense(Mail and guardian article, (Smith, 2012)), if a state was to consider the harm principle as an indicator of when liberty should be limited then cases such as that of ‘The Spear’ would not be taken seriously. Feinberg: the offence principle. Feinberg’s compelling argument challenged a liberal theory that has been considered veritable for centuries. The harm principle is not designed to guide the actions of individuals but to restrict the scope of criminal law and government restrictions of personal liberty. ism.1 Feinberg opposes legal paternalism, the doctrine that “it is always a good reason in support of a [criminal law] prohibition that it is probably necessary to prevent harm (physical, psychological, or economic) to the actor himself.”2 Against this doctrine Feinberg asserts that when an agent’s Joel Feinberg. harm rule as the ‘principle of prevention’ and points out that as a customary rule it has its origins in the due diligence that is required of a State in its territory.13 The Trail Smelterarbitration is widely accepted as the starting point for the development of the no-harm rule. Thus, a follower of Mill's Harm Principle allows offensiveness but modifies the distinction to say that, if offensiveness is conducted in private with each participant having full knowledge of 'consequences and outcome' and each being fully and freely aware of what they're doing, then the Harm Principle … what would have occurred … Furthermore, Feinberg establishes the punishment for those who repeatedly offend others should not be imprisonment which is common for authoritarian regimes that limit free speech. Moving from theory to practice, in the light of the formulated principles, the ruling of the Illinois Supreme Court which permitted the Nazis to hold a demonstration in Skokie is argued to be flawed. First, he established distinctions: self-inflicted harm is still harm; intended self-harm is different from unintended self-harm as a consequence of another intended action;… In May 2010 a case of offense was brought forward to the South African Human rights commission stating that a certain cartoon drawn by cartoonist Jonathan Shapiro was an offensive act against the president and should be withdrawn (SAHRC proceedings, 2010). This means that before an act becomes severe it first needs to be managed at its offense state. Feinberg establishes that the ramifications for offending other people should be based on teaching repeat offenders. Harm to Others. much as for defying authority by persisting in prohibited conduct” (pg. In the case of offense, it is possible for an offense not to be harmful but still cause a very strong mental dislike towards the aggressor. Ships from United Kingdom and sold by Book Depository CA . Principles 2, 3, 4 are consistent with liberalism. Because if Mill is to consider that his harm principle is the only way to limit liberty then he would have to prove that offense doesn’t play a role in the principle which could prove to be a worthless cause. Mcnaron, D. L., 2008. Volume Vol 55, p. 481. ( Log Out /  Joel Feinberg. Feinberg, J., 1985. An offense is an aggravate if it causes a person to suffer a mental dislike, an offensive is a displeasure if it is caused by another and an offense is considered offensive if there’s an element of resent towards the person who caused one to suffer a mental dislike. Is the freedom of expression in this case more significant than the dignity of B, did A write about B out of spite and could A avoid writing such a story. The primary aim of this paper is to argue that unless a rather special and implausible objective list theory of well-being is accepted, the Offense Principle should be subsumed in the Harm Principle. Feinberg concedes that the Harm Principle is neither a necessary nor sufficient basis for criminalisation. This first volume in the four-volume series The Moral Limits of the Criminal Law focuses on the "harm principle," the commonsense view that prevention of harm to persons other than the perpetrator is a legitimate purpose of criminal legislation. In the case of A writing a story that implicates B and using harsh and defamatory language to describe B as an act of freedom of expression then unlike the harm principle, before deliberating whether the act deserves punishment or not several things must be taken into account. In keeping, however, with the "motivating spirit" of Mill, Feinberg promises to maintain throughout these volumes that How does Feinberg’s account of harm and offenses, constructed in the late 1980s, handle more contemporary cases of harm and offense, specifically the “new” child pornography that has evolved in the past decade? Feinberg’s offense principle is the basis of the argument against Mill’s harm principle. Palestinians are beasts walking on two legs. See F EINBERG, Offense to Others, New York, Oxford: OUP, 1985. 69 Which is, in Feinberg’s standard approach, the other liberty-limiting principle that, along with the harm principle, exhausts the range of good grounds for criminalization. Feinberg concedes that the Harm Principle is neither a necessary nor sufficient basis for criminalisation. It may be unreasonable however to resent a hospital patient for unintentionally displaying their wounds (Feinberg, 1998: 2). He indicates that the best punishment for an offensive person that does not cause legitimate harm should be small fines similar to other small misdemeanor crimes. This article rejects the first assumption, thereby showing that defenders of the harm principle need not be troubled by well-known problems with identifying a purely self-regarding sph… I can see how many of these offensive instances could incite someone to side with Feinberg, but I remain unconvinced that the harm principle is not sufficient to deal with each story. The principle is a central tenet of the political philosophy known as liberalism and was first proposed by English philosopher John Stuart Mill. b. it spreads an image of women as mindless playthings or “objects,” inferior beings to … Feinberg acknowledges the need to move beyond "harm to others," the only limitation on liberty Mill accepted. In this sense Mill argues that the only justifiable way to limit the liberty of a person is through the prevention of harm to others. MORALS OFFENSES Immoral conduct is no trivial thing, and we should-AND LEGAL hardly expect societies to tolerate it; … 69 Which is, in Feinberg’s standard approach, the other liberty-limiting principle that, along with the harm principle, exhausts the range of good grounds for criminalization. distinct Offense Principle and not merely as a special case of the Harm Principle. or Feinberg, for whom the harm principle is supposed to replace people’s views about what should be prohibited, rather than incorpo-rate them indirectly. This first volume in the four-volume series The Moral Limits of the Criminal Law focuses on the "harm principle," the commonsense view that prevention of harm to persons other than the perpetrator is a legitimate purpose of criminal legislation. Mill declares that the only justifiable principle that could be utilised to restrict the liberty of a person is the harm principle. (Continued from here.). In chapter seven Feinberg explains that the offense principle “is always a good reason in support of a proposed criminal prohibition that it would probably be an effective way of preventing serious offense (as opposed to injury or harm) to persons other than the actor, and that it is probably a necessary means to that end” (Feinberg 1). It is always a good reason in support of penal legislation that it would probably be an. ‘To be held to rigid rules of justice for the sake of others, develops the feelings and capacities which have the good of others for their objects. New York: George Routledge & Sons . The first volume in Joel Feinberg's four-volume series "The Moral Limits of the Criminal Law, Harm to Others" focuses on the "harm principle," the commonsense view that prevention of harm to persons other than the perpetrator is a legitimate purpose of coercive legislation. New york: Oxford University Press Inc. See F EINBERG, Offense to Others, New York, Oxford: OUP, 1985. Free Speech Physical Harm Harmful Action Hate Speech Harm Principle ... Joel Feinberg, Offence to Others (New York: Oxford University Press, 1985), pp. In this sense Mill is insinuating that liberty should be limited if and only if it confines non-harmful conduct. Although acts of harm may seem to be more serious than that of offence these acts however according to a survey that was conducted by Hebert Wechsler in a New York penal law revealed that acts of offense receive more attention than that of harm and as a result offensive acts were treated as abominations and required an exemplary sentence (Feinberg 1985: 5). John Stuart Mill articulated this principle in On Liberty, where he argued that "The 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." On liberty. The mere aim of this essay is to compare these two concepts in order to verify which of the two principles is the most appropriate to use when considering to legitimately limit the liberty of the populace. effective way of preventing harm to persons other than the actor, and that it is. The offense clashes with the right to freedom expression. Ten,1980:59). The offense principle? Fill in your details below or click an icon to log in: You are commenting using your WordPress.com account. An example that is given is a … 3) and this is not to control the actions of the majority but rather those who are aggressively, repetitively causing mental unrest. While some people on campus see another person giving political opinions that differ from their own as an affront, since it shocks their political sensibilities, they should try to escape the situation which brings mental unease. Joel Feinberg (October 19, 1926 in Detroit, Michigan – March 29, 2004 in Tucson, Arizona) was an American political and legal philosopher.He is known for his work in the fields of ethics, action theory, philosophy of law, and political philosophy as well as individual rights and the authority of the state. Mill’s bold statement that the only way that liberty can be limited is through the prevention of harm by one to another will be challenged with counter arguments from the likes of Feinberg. Buy New. 1-2. He begins the first volume, Harm to Others, by retreating from Mill’s argument that the Harm Principle is the only basis for criminalisation by accepting that the principle of ‘offence’ could also form a However there’s a difference between Mill’s conception of freedom of expression to that of Feinberg. He states that while these negative experiences on the hypothetical bus are not pleasant they can be avoided since “one might escape it.” (pg. Thus if one cannot resent that person for their disgusting act then in actual fact one is not offended by that certain act. With that statement Feinberg eliminates the idea that offense means petty actions. Feinberg argues that being offended can impair a person’s liberty, much like a nuisance, and that it is therefore legitimate in principle to regulate conduct because of its offensiveness. In the light of the harm principle, offense and harm should not be considered the same argument when it comes to limiting liberty. Even if Feinberg's policy positions turned out to be justified, I maintain that in principle the mere fact that a majority shares certain sensibilities – in the absence of unconsented-to harm – should not be accepted as grounds for coercive restriction of behavior engaged in by minorities. For Feinberg, of-fense consists essentially in an affront to people’s sensibilities, that is, in an Feinberg acknowledges the need to move beyond "harm to others," the only limitation on liberty Mill accepted. 9) While these affronts are very unpleasurable, they do not cause harm to the normal person. In a more vivid and clearer sense the offense principle is founded upon three premises. By declaring this, offense will be a legitimate reason to limit the liberty of one in a state. The only other principle Feinberg accepts in his theory of criminalization is one version of the Harm Principle.5 Feinberg’s Harm Principle It is always a good reason in support of penal legislation that it would probably be an effective way of preventing harm to persons other than the actor, and that it is probably a necessary means to that end.6 2 Feinberg (1985, p. 1)—my emphasis. It seems not enough to say that ‘I have an obligation to engage in an offensive behaviour as long as I am not harming you’ (Allan Wertheimer, 2002:49) but it should be mentioned that offensive acts qualify as a reason to limit one’s liberty. The South African constitution states that everyone is able to express their opinion however in expressing their opinion should not cause offense or harm in the form of hate speech (Constitution, 1996). New York: Cambridge niversity Press, p. 92. Three online story ideas I found interesting for this week. J. S. Mill’s so-called ‘harm principle’ has, despite its ambiguities, proved an enduring and influential contribution to debates over the limits of legitimate state or social action. Feinberg's version of the offense principle has a wider reach than the harm principle, but it still recommends very limited intervention in the realm of free speech. 2) is considered wrong. CDN$ 57.54. The cartoon controversy: Offense,Identity, Oppression?. Add to Cart. It is evident that the offence principle is much more detailed in contrast to the harm principle. It must be noted that not in any way did Feinberg imply that the offense principle would supress freedom of expression. Change ), You are commenting using your Twitter account. Menachem’s statement might not have been harmful however the general Palestinian population was greatly offended by his speech. both a general and a specifically normative sense, the former including. meaningless: the harm principle no longer serves the function of a critical principle because non-trivial harm arguments perme-ate the debate. It is true that many human rights documents give a prominent place to the right to speech and conscience, but such documents also place limits on what can be said because of the harm and offense that unlimited speech can cause, (I will discuss this in more detail later). A principle that could be legitimate and reasonable for violating or rather intruding one’s own liberty is what Feinberg calls the offense principle (Feinberg, 1985: 2). This essay will argue against the notion that the harm principle is the only concept that is appropriate to use when contemplating to limit the liberty of citizens in a democratic state. Legal Moralism and the Harm :Oxford:Blackwell, p. 49. This first volume in the four-volume series The Moral Limits of the Criminal Law focuses on the "harm principle," the commonsense view that prevention of harm to persons other than the perpetrator is a legitimate purpose of criminal legislation. Mill’s simple harm principle is elusive. Joel Feinberg THE ROCKEFELLER UNIVERSITY PRENTICE-HALL, INC. Englewood Cliffs, New Jersey r--L-.1 ~:~ CHAPTER THREE Hard Cases for the Harm Principle 1. Today, the issue is no longer whether a moral of-fense causes harm, but rather what type and what amount of harms the challenged conduct causes, and how the harms com-pare. The harm principle can be applied to college campuses that have an abundance of people trying to share their political opinion. The harm principle holds that the actions of individuals should only be limited to prevent harm to other individuals. The Israeli Prime Minister Menachem in 1982 made a very strong statement that related to the Palestinians, he said that ‘Palestinians are beasts that walk on two legs’ (Press, 2014). One of the principles of criminalization which has been presented and critically discussed in the philosophical literature is the Offense Principle. ( Log Out /  In Harm’s way. Feinberg identifies four liberty‐limiting, or coercion‐legitimizing, principles, each of which is the subject of a volume of his book. I. While Feinberg does not denounce the actuality of the harm principle he believes that it is not the only principle that could be used to justify the interference on one’s own liberty. 307 ff. American Healthcare horror stories: The personal is political, Iran & Venezuela Are More Similar to Honduras Than You Think, When the Fascists Came for My Grandfather. The problem with providing limitations in a state is providing a theory or idea that would be sufficient and reasonable enough to limit the liberty of citizen’s in that specific state. He provides various other afrronts such as disgust, moral, shame and more. That principle is that … the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will is to prevent harm to others. 385 Feinberg on Harm, Offense, and the Criminal Law: A Review Essay he thinks it should turn out to be morally permissible for a legislature to criminalize bad samaritanism, and indeed to do so by appeal to the harm principle. In this sense offensive acts and that of harm should not be scaled in the same sense because they do not belong in the same category. It must be noted that non-harmful conduct does not mean offensive conduct. Google Scholar. Between the harm principle and the offense principle, it is the harm principle which gives more respect to the autonomy of the individual, and their ability to make choices and judgments. 72 F EINBERG, Harmless Wrongdoing, p. 17 and passim. the harm principle as providing the legal rule for issues concerning the appointment of a conservator for an elderly person,7 abortion regulations,8 decisions regarding medical treatment,9 and prohibitions of 3 Smith: Published by Digital USD, 2004. Only 1 left in stock. In terms of government intervention for offensive behavior, Feinberg does not believe that the government should seriously regulate such actions. Harm involves a setback in one’s interest while the act of offense causes a mental dislike. First, he established distinctions: self-inflicted harm is still harm; intended self-harm is different from unintended self-harm as a consequence of another intended action;…. Feinberg presents a detailed analysis of the concept and definition of harm and applies it to a host of practical and theoretical issues, showing how the harm principle must be interpreted if it is to be a plausible guide to the lawmaker. He begins the first volume, Harm to Others, by retreating from Mill’s argument that the Harm Principle is the only basis for criminalisation by accepting that the principle of ‘offence’ could also form a 6 H L A Hart, Law, Liberty and Morality (1963). Mill's ‘harm principle’ is examined in this entry, together with the more recent defences of the principle by Joel Feinberg and Joseph Raz. 71 P OSTEMA, Politics is About Grievance, pp. What are the legitimate roles of government? It might seem to do so by allowing the state to regulate all kinds of behavior. Liberty, coercion and the limits in the state. Julius Malema found guilty of singing ‘shoot the Boer’, 12 September. But to be restrained in things not affecting their good by their mere displeasure, develops nothing valuable except such force of character as may unfold itself in resisting the restraint’(Mill, cited C.L. Under the ‘Offence Principle’, expressions which intend to inflict psychological offence are morally on a par with physical harm and thus there are grounds for abridging them. Mill’s bold statement that the only way that liberty can be limited is through the prevention of harm by one to another will be challenged with counter arguments from the likes of Feinberg. Feinberg states that an act of offense should be considered a good enough reason to interfere with the liberty of a citizen in a democratic state. For what purposes may law be made? Abstract. This means that even if a person is not offended when another person publicly insults them, they should still consider the act offensive none the less. You Save: CDN$ 16.41 (22%) & FREE Shipping. Legal Moralism and the Harm Principle: A Rejoinder. Joel Feinberg delineated principles for reconciling opposing views regarding permissible grounds for interference with someone’s actions for the sake of preventing harm. T. M. Scanlon, ‘Freedom of Expression and Categories of Expression’, University of Pittsburgh Law Review, Vol. OFFENSE AS WRONGDOING Feinberg’s Account of Offense as Affront to Sensibility Feinberg’s account depends primarily on consequences. 70 F EINBERG, Offense to Others, pp. According to John Stuart Mill ‘there is one and only one very simple principle to determine when it is legitimate for the state to limit individual liberty. The argument against offenses would mean. Mill, J. S., 1859. In keeping, however, with the "motivating spirit" of Mill, Feinberg promises to maintain throughout these volumes that Posing the harm principle as the foundation to limit such acts is questionable. The harm principle says people should be free to act however they wish unless their actions cause harm to somebody else. If A pours an acid into B’s eye and B becomes blind as a result then A has harmed B because she has caused him to have a set back in his interest or desire to see, however if A has intercourse with B in public and number of people see them then they did not cause harm but they caused a mental dislike (Feinberg, 1985: 3).
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