Criminalising Harmful Conduct 0387464034, 9780387464039

Table of contents :
0-387-46404-2_BookFrontmatter_OnlinePDF.pdf
Criminalising Harmful Conduct
Foreword
Preface
Acknowledgements
Contents
0-387-46404-2_1_OnlinePDF.pdf
Introduction
The Starting Point and Aim
The Method
The Structure
The Main Starting Hypotheses
0-387-46404-2_2_OnlinePDF.pdf
Criminalisation
0-387-46404-2_3_OnlinePDF.pdf
Grounds for (Principles of) Criminalisation
Anglo-American Legal System
Legitimisation of the State
Balancing Approach
Principled Approach
1. Harm Principle
2. Offence Principle
3. Legal Paternalism
4. Legal Moralism
Limitations on the Principles of Criminalisation
Continental Legal System
Evaluation
The Legitimate Grounds
0-387-46404-2_4_OnlinePDF.pdf
Harm Principle -- A Comparative Analysis
The Definition of the Harm Principle
Mill's `Principle of Liberty'
Feinberg's `Harm Principle'
The Elements of the Harm Principle
State Intervention
Causes or Likely to Cause (Harm)
(Harm) to Others
Mediating Maxims
The Notion of `Harm' and Translation Equivalents
The Anglo-American System
1. The Formulation (the Concept)
2. The Substance (the Conception) and the Categorising of Harm/Seriousness of Crime
3. Harm -- Victim
4. The a Contrario and Relational Definition
The Continental System -- with Emphasis on Slovenian and German Criminal Law
The Functions of the Harm Principle
Limiting and Delimiting
A Tool for Criminal Policy
An Aid to Other Criminal Legal Principles
A Post-Delictum Tool
The Nature of the Harm Principle
Problems and Open Questions of the Harm Principle
Problems with `Harm'
Relationship Harm -- Culpability
The Indeterminate Scope
1. Self-Regarding v. Other-Regarding Area
2. Not a `Sufficient' Reason
Potential for Abuse (Abusability of the Harm Principle)
Some other Criticisms
Limiting Factors/Principles
0-387-46404-2_5_OnlinePDF.pdf
Continental Counterparts to the Anglo-American Concept of the Harm Principle
The Continental `General Paradigm of the Criminal Offence'
0.2em plus 0.15em minus 0.09emMaterial Unlawfulness -- Wrong(ful)ness -- Rechtswidrigkeit
(Social) Dangerousness
Legal Goods (Rechtsgüter)
1. The Concept
2. The Juxtaposition with the Concept of Harm
3. The History
4. Various Schools of Rechtsgut Theorists
5. The `Legality' of Legal Goods
6. Additional Questions
7. Evaluation
Classical Criminal Legal Principles
The Legality Principle
The Ultima Ratio Principle
Proscribed Consequence
0-387-46404-2_6_OnlinePDF.pdf
Conclusion -- Final Evaluation
The Absence of a Counterpart
The Appeal of the Harm Principle
(In)Sufficiency of the Principle
Feasibility of Reception
The Mode of Reception
0-387-46404-2_7_OnlinePDF.pdf
Some Criminological Afterthoughts
0-387-46404-2_BookBackmatter_OnlinePDF.pdf
Bibliography

Citation preview

Criminalising Harmful Conduct

Nina Peršak

Criminalising Harmful Conduct The Harm Principle, its Limits and Continental Counterparts

Dr. Nina Peršak [email protected]

Library of Congress Control Number: 2006937530 ISBN-10: 0-387-46403-4 ISBN-13: 978-0-387-46403-9

e-ISBN-10: 0-387-46404-2 e-ISBN-13: 978-0-387-46404-6

Printed on acid-free paper. © 2007 Springer Science+Business Media, LLC All rights reserved. This work may not be translated or copied in whole or in part without the written permission of the publisher (Springer Science+Business Media, LLC, 233 Spring Street, New York, NY 10013, USA), except for brief excerpts in connection with reviews or scholarly analysis. Use in connection with any form of information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed is forbidden. The use in this publication of trade names, trademarks, service marks, and similar terms, even if they are not identified as such, is not to be taken as an expression of opinion as to whether or not they are subject to proprietary rights. 9 8 7 6 5 4 3 2 1 springer.com

Foreword

Dr. Nina Peršak’s work addresses the criteria for criminalisation – that is, the criteria that should be employed in determinations whether to prohibit conduct through the criminal law. It is explicitly normative in approach, examining what should be the proper basis for criminalisation, rather than what factors legislatures actually tend to consider in adopting criminal prohibitions. Its focus is on the Harm Principle, that has been developed in Anglo-American philosophy of criminal law and on how this principal might illuminate the Continental debate on criminalisation. As such, this is a work on normative criminal law theory. Hitherto, there has existed no extended English-language treatment, comparing Anglo-American and Continental theories of criminalisation. An important strength of Dr. Peršak’s analysis lies in success in integrating themes from the two bodies of theory, the Anglo-American and the Continental. She begins with the Harm Principle and scrutinises its main criterion: the conduct’s intrusion into the interests of other persons. She undertakes a careful dissection of this criterion: e.g., what constitutes ‘harm’ and what is the scope of ‘others’ (and whether and to what extent the latter includes collective interests). This discussion provides not only a thoughtful analysis of the Harm Principle itself; it also provides her with the basis of her critique, later in the volume, of Continental criminalisation theories. Much of English and American criminal law doctrines (as continental critics often note) tend to be strongly instrumental and ad hoc in character. However, a number of philosophers – and jurists with a background in analytical ethical theory – have written thoughtfully about criminal-law theory. One of the main topics of discussion has been the criteria for criminalisation. The central figure here has been the American legal philosopher, Joel Feinberg. In four influential volumes written in the mid-80s, Feinberg provides an analysis of the Harm Principle and certain alternative grounds for criminalisation, including an Offence Principle. Dr. Peršak’s discussion deals comprehensively and thoughtfully with Feinberg’s discussion of the Harm Principle and that of later commentators on his work. The Harm Principle permits conduct to be criminalised (subject to certain additional ‘mediating’ constraints) when it sets back, or risks setting back the interests of other persons. The principle, she points out, has the advantage of providing a substantive moral criterion for criminalisation: conduct should be criminalised, only if it intrudes in certain ways upon the interests of others. v

vi

Foreword

What, then, can the Harm Principle teach us? First, as she points out, it requires that the harm be to others. The conduct, in other words, must make other people worse off. This provides an important guarantee of liberty to both offenders and potential victims: the actor will remain free to act as he chooses, as long as he does not intrude upon or place at risk the interests of others; and those others have assurance that they are free to pursue their own interests without interference from the actor. The focus on ‘others’ also permits a distinction to be made between harmful conduct and conduct that is injurious to self. Criminalisation of self-injurious conduct is a species of paternalistic intervention; if it is permissible at all (and Dr. Peršak argues strongly that it should not be) the rationale must substantially differ from that of the Harm Principle, for what is at stake is the self-determination of the actor. Second, the interests of other to be considered under the Harm Principle should primarily be those of other human beings. Collective social interests may be considered in applying the Harm Principle, but only when these can be accounted for through the concerns of the human beings affected. In the absence of such a persons-oriented account, Dr. Peršak argues, the supposed ‘needs’ or ‘interests’ of social institutions (or of ‘society’ per se) are not good reasons for invoking coercive response of the criminal law. Third, the harmful consequences to others must be fairly imputable to the actor’s wrongful choices. If the harm or risk of harm would occur only through a chain of subsequent choices, the conduct of the original actor may be criminalised only if it is of a character that affirms or underwrites those subsequent choices. In other words, the conduct must not only lead to or risk harmful consequences, but those consequences must normatively be connected to the actor’s decisions. Where contemporary accounts of the Harm Principle remains incomplete, is in their account of what constitutes harm. Harm is said to involve a setback of an interest and (in some writings) an interest is said to be a ‘resource’ over which a person has a normative claim. Dr. Peršak analyses well the points at which such accounts need further elaboration. Dr. Peršak turns, next, to Continental criminalisation theory. Continental (particularly, German) criminal-law doctrines have been influenced strongly by academic writing and many of those doctrines (particularly, concerning the General Part) reflect an impressive degree of conceptual sophistication. The discussion of criminalisation, however, has been less well developed, from the standpoint of normative analysis. This discussion has depended, in large part, on the concept of the Rechtsgut: that the legislature should criminalise conduct only if it intrudes upon a legally-protected interest (a ‘Rechtsgut’). However, comparatively little progress has been made in developing normative criteria for determining when a legitimate Rechtsgut is present. As a result, the German doctrinal discussions in this area can from a certain circularity of argument – a notable example being the doctrine that prohibition of bigamy protects the Rechtsgut of monogamous marriage. Indeed, a number of German criminal jurists have thus suggested that the idea of the Rechtsgut no longer has much to contribute.

Foreword

vii

Dr. Peršak explains persuasively why the German Rechtsgutstheorie has not been so satisfactory: namely, its tendency to try to ground Rechtsgüter chiefly in positive law, rather than in more fundamental normative principles concerning what the scope of the criminal law ought to be. Some German commentators respond to this difficulty by seeking to derive Rechtsgüter from constitutional doctrines. However, human rights in national or international constitutional documents protect only certain minimum entitlements that citizens should have. Conceptions of criminalisation, including Rechtsgüter, should instead be drawn from substantive ethical norms: what interests should be protected through the criminal law. If the idea of the Rechtsgut is retained, she thus argues, it would be better to employ criteria drawn from the Harm Principle to help elucidate when legitimate Rechtsgüter are present. This would be facilitated by the structural similarity of the two conceptions – both employ the idea of an interest, good or resource of the person affected. What are the pitfalls, then, of relying on the Harm Principle to help decide the scope of the criminal law? The principal hazard, Dr. Peršak points out, is the dilution and extension of the idea of harm to include remote, contingent and speculative risks. Minor incivilities, for example, are proscribed because they might possibly contribute to decline of neighbourhoods and consequent increase of street crime. Criminalisation theory, including the Harm-Principle doctrines which she analyses so well in her book, can militate against such unwarranted extensions of ‘harm’. This hazard remains, however; she shows a keen awareness of criminalisation as ultimately a political process. Theory can, under favourable circumstances, help guide this process, but the risks of legislative overreach and populist criminal politics will always be present. This is a most interesting volume. It helps to synthesise two important traditions of criminalisation theory that long have disregarded each other but have important points of similarity. Dr. Peršak insists throughout her book that criteria of criminalisation should be based on normative and ethical considerations and not merely on existing positive law; and her analysis of the Harm Principle is a fine example of how such a normative analysis should proceed. Likewise salutary is Dr. Peršak’s strongly liberal approach to issues of criminalisation, in an era when criminal policy has been moving in authoritarian and populist directions. I learned much from reading this volume and commend it strongly to readers. by Andrew von Hirsch

Preface

This book aims to examine, elaborate upon and compare with other ideas (especially those in the Continental tradition), the so-called ‘harm principle’ – “one very simple principle”, to quote J.S. Mill, which turns out not to be so “simple” at all. It is mostly an exercise in criminal legal philosophy, but also in criminology and criminal policy in so far as I advocate the adaptation of this principle within the Continental criminal legal theory. The publication is a revised and updated doctoral thesis entitled, “Harm Principle and the Continental Criminal Legal System” (defended in July 2004). Various changes have been made to the text so to further clarify relevant points and to omit some aspects that were deemed unnecessary for my argumentation. Several footnotes have been updated as, at the time of my finishing the thesis, the cited articles were sometimes merely drafts of papers, in print or there has been some new material published. Consequently, the pagination if nothing else, but sometimes much more has changed. In the last two years or so, one could have noticed that Criminalisation as a topic of legal-philosophical discussion has been emerging in its own right on the Continent. Therefore, a part of the chapter on ‘Criminalisation’ (the complaining bit) may (and, hopefully, will), if the trend continues, become, in a few years time obsolete. June 2006

ix

Acknowledgements

I wish to express my gratitude to all those who have assisted in the preparation of this book. As it grew out of my Ph.D. thesis, I am grateful, first and foremost, to my mentors, Professor Alenka Šelih, Institute of Criminology, Ljubljana and Professor Andrew von Hirsch, Institute of Criminology, Cambridge, whose insightful comments have greatly improved my thesis. Their willingness to help and offer advice and their quick responsiveness is much appreciated. Next, I wish to thank the Centre for Penal Theory and Penal Ethics at the Institute of Criminology, University of Cambridge, UK (and its director, Prof. Andrew von Hirsch, personally) for kindly inviting me to spend time in Cambridge as a Visiting Scholar of the Centre. The two months in autumn 2003 and later, spring 2005 and 2006, during which many a valuable conversation with Prof. von Hirsch regarding this book took place, proved extremely useful and also with respect to the gathering of the relevant literature that would be, otherwise, difficult to obtain. I wish also to thank Wolfson College, Cambridge and its President, Prof. Gordon Johnson, for offering me the title of Visiting Scholar. Being at Wolfson on these occasions provided me with a really nice “shelter” to do my work in, not to mention the intellectually stimulating and cosmopolitan surroundings. I would also like to thank the organisers, other contributors and participants in the minicolloquium on criminalisation in Uppsala, Sweden (Sept. 2005), whose various ideas and questions have made me articulate some ideas further. Special thanks go also to my publisher, Springer and, in particular, to Welmoed Spahr for her patience and assistance. I am, of course, also greatly indebted to my family and friends for all the support, as well as to other people who have over the years influenced my thoughts and whom I continue to admire greatly.

xi

Contents

I.

II.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1

The The The The

1 2 3 4

Starting Point and Aim .................................................................... Method ............................................................................................... Structure............................................................................................. Main Starting Hypotheses .................................................................

CRIMINALISATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5

III. GROUNDS FOR (PRINCIPLES OF) CRIMINALISATION . . . . . .

9

Anglo-American Legal System.................................................................. Legitimisation of the State .............................................................. Balancing Approach ........................................................................ Principled Approach ........................................................................ 1. Harm Principle..................................................................... 2. Offence Principle................................................................. 3. Legal Paternalism ................................................................ 4. Legal Moralism.................................................................... Limitations on the Principles of Criminalisation ............................ Continental Legal System ......................................................................... Evaluation ................................................................................................. The Legitimate Grounds..................................................................

9 9 10 12 13 14 17 18 22 23 29 31

IV. HARM PRINCIPLE – A COMPARATIVE ANALYSIS . . . . . . . . . . 35 The Definition of the Harm Principle ...................................................... Mill’s ‘Principle of Liberty’ ........................................................... Feinberg’s ‘Harm Principle’............................................................ The Elements of the Harm Principle........................................................ State Intervention ............................................................................. Causes or Likely to Cause (Harm).................................................. (Harm) to Others.............................................................................. Mediating Maxims ........................................................................... The Notion of ‘Harm’ and Translation Equivalents................................ The Anglo-American System .......................................................... xiii

35 36 37 37 37 41 48 56 57 57

xiv

Contents

1. The Formulation (the Concept)........................................... 2. The Substance (the Conception) and the Categorising of Harm/Seriousness of Crime............................................ 3. Harm – Victim..................................................................... 4. The a Contrario and Relational Definition ........................ The Continental System – with Emphasis on Slovenian and German Criminal Law .............................................................. The Functions of the Harm Principle ...................................................... Limiting and Delimiting .................................................................. A Tool for Criminal Policy ............................................................. An Aid to Other Criminal Legal Principles.................................... A Post-Delictum Tool...................................................................... The Nature of the Harm Principle ........................................................... Problems and Open Questions of the Harm Principle............................ Problems with ‘Harm’ ..................................................................... Relationship Harm – Culpability..................................................... The Indeterminate Scope ................................................................. 1. Self-Regarding v. Other-Regarding Area ........................... 2. Not a ‘Sufficient’ Reason.................................................... Potential for Abuse (Abusability of the Harm Principle)............... Some other Criticisms ..................................................................... Limiting Factors/Principles ...................................................................... V.

57 60 63 66 69 71 71 72 72 73 74 77 77 79 84 84 86 87 89 91

CONTINENTAL COUNTERPARTS TO THE ANGLO-AMERICAN CONCEPT OF THE HARM PRINCIPLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 The Continental ‘General Paradigm of the Criminal Offence’ .............. 95 Material Unlawfulness – Wrong(ful)ness – Rechtswidrigkeit........ 97 (Social) Dangerousness.................................................................... 101 Legal Goods (Rechtsgüter).......................................................................104 1. The Concept......................................................................... 104 2. The Juxtaposition with the Concept of Harm..................... 105 3. The History .......................................................................... 106 4. Various Schools of Rechtsgut Theorists ............................. 107 5. The ‘Legality’ of Legal Goods ........................................... 109 6. Additional Questions ........................................................... 111 7. Evaluation ............................................................................ 116 Classical Criminal Legal Principles ........................................................118 The Legality Principle ..................................................................... 118 The Ultima Ratio Principle.............................................................. 121 Proscribed Consequence ..........................................................................124

VI. CONCLUSION – FINAL EVALUATION . . . . . . . . . . . . . . . . . . . . . . . . 127 The Absence of a Counterpart..................................................................128 The Appeal of the Harm Principle ...........................................................128

Contents

xv

(In)Sufficiency of the Principle.................................................................129 Feasibility of Reception ............................................................................131 The Mode of Reception.............................................................................133 VII. SOME CRIMINOLOGICAL AFTERTHOUGHTS . . . . . . . . . . . . . . . 135 VIII.BIBLIOGRAPHY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141

I Introduction

The enactment of the criminal legislation is from the individual’s standpoint one of the most intrusive and repressive acts of state power, for it not only restricts his freedom of action but also punishes infringements (often with deprivation of the individual’s liberty). In today’s liberal democratic societies, governed by the rule of law, it is presumed that the everyday communication between the individual and the state follows certain prearranged rules of fair play and that the state does not (and should not) have a completely free hand in proscribing conduct of its citizens. Apart from the system of checks and balances (the separation of powers), the concept of ‘civil society’ and the requirement of governmental transparency, which are all types of limitations on the state, the restriction of the state’s power in the sphere of criminalisation should involve requiring legitimate or justifiable reasons, principles for criminalisation. The Anglo-American harm principle, the subject matter of this book, can successfully act as such a restricting mechanism, and for that reason deserves a closer inspection and potentially some form of reception into the Continental criminal legal theory.

The Starting Point and Aim Every type of criminalisation requires an underlying public moral theory, since it is connected to the values and morality of society. The starting point of this volume, its philosophical/moral foundation, and its ethical outlook on the criminal law is liberal in the sense that it is committed to the individual’s liberty and supports a minimalist approach to criminalisation. As the criminal law is the most intrusive of the institutions of formal social control, with lasting and sweeping implications for the individual, it should be, therefore, kept to the minimum. The individual’s life and values take priority over the community’s or the state’s interests in this book’s approach to criminalisation. However, the individual is not presumed to be an isolated, “free floating atomistic self”;1 but

1

Digeser, p. 15. 1

2

Introduction

to be more outward-looking and distributive-justice oriented, perhaps more than ever before. Our analysis, therefore, assumes: (1) that the state should operate according to principles of Rechtstaatlichkeit that emphasise individual liberty, (2) that such a system can be made consistent with the Social State, and (3) that there should be parsimony and restraint in the use of criminal sanctions. The main goal of this book is to, first, explain the concept, the contents, the nature and functions of the harm principle, compare it to other possible principles of justified intervention, locate its possible weak points and propose some solutions. Second, it seeks also to find an appropriate continental-law counterpart to the harm principle or, in the absence of the counterpart, to try to introduce the principle to the Continental criminal legal system, or rather see what it can offer to the Continental criminal legal theory. The drawing together of the laws of the two major legal systems – the Anglo-American, on one side, and the Continental, on the other – is already occurring; it arises from various international documents2 and from growing trans-border crime, which demand cooperation in legal matters and certain harmonisation of the systems to efficiently tackle such crime. What is even more important, and hence favourable to different systems getting closer together, however, is that we are dealing with two legal cultures that nevertheless share certain basic values such as the respect for human rights and civil liberties, democracy, tolerance, pluralism etc. and can, therefore, compare their own experiences and, consequently, learn from each other. This work does not attempt to evaluate the existing legal systems across the globe and divide them into “good” and “bad” ones, or anything of the sort. It merely seeks to analyse an important criminalisation principle, the harm principle, and makes a de lege ferenda appeal to its use, also within Continental legal systems.

The Method The title of the book indicates the use of comparative legal method. The legal systems (and especially criminal legal theories) compared are the AngloAmerican legal system and its criminal law theory, the Continental legal system (the Continental legal system of Germanic legal circle, to be more precise) – within the latter, a reference will often be made to the Slovenian criminal law and its theory. The lines of comparison will thus be: Anglo-American versus the Germanic Continental, the Germanic Continental versus the Slovenian, and sometimes also the Anglo-American versus the Slovenian. No particular national legal system (with the occasional exception of Slovenia) will be discussed in detail. A greater emphasis shall be given to the criminal law theory in the 2

Not to mention the emergence of the European criminal law, alongside the institutions like the European Prosecutor etc., which is bound to bring at least the UK and the Continent closer together.

The Structure

3

various systems, than to its positive, black-letter law. Similarly, my interest in the Anglo-American criminal theory concerns the theoretical developments there, which have been largely developed by various liberal academics. The analysis does not, therefore, commit itself to the actual English or American penal practice or penal legislation, which has been recently influenced, to a considerable degree, by penal-populist perspectives. Within this comparative method, conceptual analysis will be used (the analysis of legitimate grounds of criminalisation, of the harm principle, of its Continental counterparts), while the conclusions drawn on the basis of the analytical findings will, of course, use synthesis and evaluation. I shall try to find Continental equivalents to the Anglo-American notion of harm primarily with the help of the linguistic interpretation, whose deficiencies we shall try to overcome by using the teleological and systemic interpretation, which is necessarily intertwined with the historical method. As criminalisation is much more than a mere nomothetical (legislative) exercise, it is also a formal social and public valuation of (attribution of the value to) a certain human conduct, a mere descriptive analysis would not suffice. The study will have a normative emphasis; I will be arguing in favour of some kind of reception of the harm principle into the Continental criminal legal theory, which is why a demonstration of why Continental theory ‘ought to’ consider this option, is necessary. Though the harm principle itself has been mostly (though not profusely)3 discussed in the Anglo-American legal literature, I have, for the rest of the thesis, also drawn on German, Slovenian, Croatian, and partly also on some Finnish, Swedish, Italian and French literature.

The Structure Structurally, the thesis is split into four major parts. The first part encompasses two chapters (Chs. II and III), where, first, the issue of criminalisation and the state is considered, and second, the Anglo-American as well as the Continental criminal legal theory is analysed in search for the methods, patterns and, hopefully, principles of criminalisation. The second major part (Ch. IV) is entirely dedicated to the Anglo-American harm principle: its definition, the principle’s various formulations, elements, especially the notion of ‘harm’, the harm principle’s functions, nature, problems and open questions, and also its external limiting principles. In the third part (Ch. V), we examine four

3

The mainstream Anglo-American criminal legal theory seems to be more practically oriented, less dogmatic than the Continental, and so it is not surprising that the majority of literature on the harm principle is written by social scientists, philosophers and legal theorists. There is, however, no historical account of how the principle came about, the history of the harm principle (apart from references to Mill and his Principle of Liberty, and Feinberg).

4

Introduction

Continental models (elements, concepts, principles) that prima facie appear to be possible Continental equivalents of the concept of harm and the harm principle. The last part (Ch. VI and VII) is dedicated to the final synthesis and evaluation of the preceding analytical findings and some wider criminological concluding thoughts.

The Main Starting Hypotheses The following are the main hypotheses of this study, to be examined and evaluated: The first hypothesis asserts that the criminalisation ought to be guided by the criminalisation principles that are consistent with the liberal values and, subsequently, that today, legality is not enough, that the emphasis should be put on moral or ethical legitimacy of laws. The second hypothesis maintains that the harm principle is, in its proper scope of application, the most helpful principle of criminalisation that is now available, for a variety of reasons (e.g. that it does away with paternalistic and moralistic legislation, that it provides a substantive concretisation of the ultima ratio principle etc. – to name just a few). The third hypothesis claims that, in the Continental legal system, it is possible to find prima facie approximations to ‘harm’ and the ‘harm principle’. And fourth, that, yet, in the light of the harm principle’s functions, counterparts which would completely overlap with the harm principle would be difficult, if not impossible, to find. If the fourth hypothesis proves to be correct, then fifth, the Continental legal system should consider adopting a principle akin to the harm principle (recognising that, at the end of the day, the success and actual usage of such a principle lies in the willingness of the legislator). This proposal will be dealt with carefully, for we are aware of the traps of uncritical transplantation of a concept, originating in one system, into another. Realising that a stretching of the original concept may do more harm than good, we would, in this case, also offer alternative approaches – approaches that would build upon the domestic, i.e. Continental, concepts and strive to develop them further or extend their functions in order to be able to perform roles similar to those of the harm principle.

II Criminalisation

“Making laws, breaking laws and the reaction to breaking laws”;4 that is, according to Sutherland, a subject matter of the discipline called criminology; a definition of the criminological science in a nutshell. Making the law, in the context of criminology, means, of course, making of the criminal law, i.e. criminalisation. It represents one third of Sutherland’s definition and yet there is comparatively little literature on the subject: there is an apparent disproportionality between the number of books and articles on this topic compared to the literature on each of the other two thirds of his definition. There is an abundance of material on the law-breaking topic (on the whys, the hows, the whos etc), there is much research done on the reaction to the law-breaking, but the literature on criminalisation is restricted to a small number of important articles and a few books. Usually, one finds the word mentioned in a paragraph or two of the first chapter of a textbook on (positive) criminal law or in the introduction of an article dealing with a particular positive-law issue. A reason for that could be, at least in part, attributed to the inherently “political” nature of criminalisation. Politics has never been popular with the criminal-law academics, especially on the Continent, since it so often denotes the victory of power over law. It is, therefore, largely conceived as something “unclean” and hence not to be meddled with. Criminalisation is, first and foremost, a political process; a process, through which the world of politics via criminal policy penetrates into the world of law – a process that can and should, nevertheless, be guided by legal principles, rules and standards.5 That it “should”, stems from the fact that the power to criminalise certain human conduct is an

4

“Criminology is the body of knowledge regarding crime as a social phenomenon. It includes within its scope the process of making laws, of breaking laws, and of reacting toward the breaking of laws.” Sutherland, E.H. (1934). Principles of Criminology, 2nd ed., Lippincott, Philadelphia (originally published as Criminology in 1924). 5 These principles are, however, essentially moral principles. By using the term ‘legal’, we, therefore, on this point ascribe to the more normative conception of what law is. Even a positivist, however, could argue the same, since “should” means the statement is deontological and, therefore, in no way conflicting with the ontology of ius positum. 5

6

Criminalisation

immense power that shapes our values, divides the population into criminals and non-criminals, limits people’s liberty of action and can make (via imposing certain sanctions on certain conduct) some people’s lives significantly worse. “[T]he enforcing of criminal statutes is the most intrusive and coercive exercise of domestic power by a state. Forcibly preventing people from doing that which they wish to do, forcibly compelling people to do that which they do not wish to do – and wielding force merely attempting to compel or prevent – these state activities have extraordinarily serious ramifications. Indeed, no state institutions are likely to have more profound an impact on the lives of individual citizens than those of the criminal justice system. [  ] As a consequence, these state activities are in special need of moral warrant.”6

What Schonsheck says about the enforcement of criminal statutes surely holds true also for its “previous stage”, i.e. the making of criminal statutes. Whether and how the criminalisation can be legally guided is the subject matter or task of this book and similar literature. What is criminalisation? The descriptive, non-normative answer to this question would simply be that it is defining certain human conduct (acts or omissions) as criminal offences and usually assigning to them a certain range of criminal-law sanctions. The normative or evaluative view would, however, divert the attention to its moral character, emphasising, for example, that “to make some action a crime is to declare that it should not be done”.7 One could perhaps divide the writing on the subject of criminalisation into two groups. The first one can be said to be interested mainly in the “material” side of criminalisation and the role of criminal law in general. It is perhaps more descriptive as it is interested in what the criminalisation does. Hobbes, with his famous sentence “civil law ceasing, crimes also cease”,8 could be said to be a member of this group. The second group is of a much more recent origin 6

Schonsheck, p. 1. Simester and Smith, p. 4. Another, criminological and undoubtedly normative, view would maintain that criminalisation is, in general, a method of protecting the interests of the powerful, disguising them as “societal” interests, i.e. interests of the society as a whole, while further marginalising, stigmatising, negatively labelling the already marginalised and powerless, poor, depraved, ill people that just do not fit into their picture of the ideal neighbourhood they would like to live in. For example, the so-called critical criminologists “saw law as bourgeois law, and therefore the legal order in a capitalist society existed to further the interests of capital by creating appropriate conditions for the pursuit of profit.” (Tierney, p. 195) That, however, required making laws defining “crimes” in such a way that they would regulate the workforce and surplus populations; making laws regarding private property, thereby underpinning the capitalist’s right to own the means of production; the use of law and penal sanctions against the least powerful who constitute a threat to the system. Tierney, ibidem. A similar view was taken by American conflict theorists – with the exception that they replaced the term ‘ruling class’ with ‘elite’. In their view, “those with economic power are able to exert direct influence on the state in the legal system. At the same time, they will use whichever ideological means available in order to present an image of law as neutral and even-handed – both ‘in the books’ and ‘in action’ – and in the process construct notions such as ‘the rule of law’.” (Tierney, p. 196) 8 Leviathan, ch. 27, p. 202: “Secondly, that the Civill Law ceasing, Crimes cease: for there being no other law remaining, but that of Nature, there is no place for accusation [  ].” 7

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7

and is more interested in the principles of criminalisation. The members of this group try to find moral justifications for criminalisation; they are predominantly interested in the general normative theory of criminalisation. It may be important to stress that the present thesis will not be directly discussing the notion or the phenomenon of criminalisation (despite its importance); it will, however, critically assess the criminalisation as a process and offer a principled9 approach – with emphasis on the harm principle as the primary10 justificatory reason for proscribing conduct, in a modern, liberal criminal-law system.

9

Schonsheck’s “filtering” approach, as opposed to “balancing” (“weighing of harms and benefits” – Melander). 10 Note two points: firstly, as it will become clear in the text below, we do recognise also the Schonsheck’s “third” filter, namely the pragmatic, cost-benefit analytical approach (connected to the denial of the “assumption of compliance”, p. 8) to be applied after a significant harm under the harm principle has been already established (thereby prima facie warranting criminalisation). However, the formulation on our account is somewhat different. We shall include it, under the general heading of ‘limiting factors/principles’, together with other factors that need to be considered and may possibly limit or prevent criminalisation despite the harm requirement having been already fulfilled. Secondly, legal paternalism will have been supported to a certain extent but not, I emphasise not, as a general principle of criminalisation, merely as some possible justification for minor state interventions, as long as their scope is limited and duration short.

III Grounds for (Principles of) Criminalisation

Anglo-American Legal System Legitimisation of the State A prefatory remark to the principles of criminalisation needs to address the larger picture or bigger enterprise, in which the search for the said principles occurs. The quest for good principles (as legitimisation) of criminalisation is namely very much connected to, or a part of, a larger quest for the legitimisation of the state. Criminalisation is, namely, an act by which the state interferes with (restricts) the autonomy of the individual by proscribing certain conduct. According to Mill “all restraint, qua restraint, is an evil”,11 a “prima facie wrong” (Brown).12 Criminalisation is an act of the state, an action, therefore, of that institution which “(successfully) claims the monopoly of the legitimate use of physical force within a given territory”.13 This widely accepted definition of the state by sociologist Max Weber focuses primarily on the ‘monopoly’ of physical force as the basic, key element of the state. While “it is fairly clear why power and the monopolistic claim to physical force should be so basic to the existence of the state”,14 the legitimacy element of the definition remains rather unexplained. Weber himself does not specify the grounds which warrant the state’s monopoly of physical force, which is why, as one commentator on Weber

11

Mill, p. 105. Brown (p. 137, in Ten) formulates this as: “All interference with the liberty of action of the individual is prima facie wrong.” This perspective, although not explained in detail by Mill himself (in fact he treats the above assertion as self-evident), is grounded on Aristotelian and Humboldtian account of happiness, as expounded in the third chapter of On Liberty, that speaks of the person’s individuality as being one of the elements of well-being. See also Brown, p. 139, fn. 5. 13 Weber, in Gerth and Mills, p. 77. 14 Lewis, p. 413. 12

9

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notes, “the requirement of legitimacy and the need to transform ‘physical force’ into ‘authority’ seem to be assumed”.15 Some suggest that the issue of legitimacy is much more apparent in political systems that arose from revolution.16 Yet, this is not to say that other political and legal systems do not need justification of the state (and its use of force). On the contrary, modern liberal criminal legal systems, irrespective of their origin, very much need to be justified.17 Criminal law is also “a bluntly coercive system, directed at controlling the behaviour of citizens”18 and so, we agree with Simester and Sullivan that: “[n]o-one, including the State, should coerce others without good reason. The manipulation of people’s conduct calls for justification, especially when it is accompanied by censorious and punitive treatment of those who do not comply. Unless there are compelling reasons the criminal law should not be deployed by Parliament.”19 The rights of the state incorporated into the criminal law should be, therefore, constantly checked upon to keep the balance from tilting too much to the state’s side, allowing the state to coerce without any good reason.

Balancing Approach Looking at the criminalisation in practice or, more generally, trying to discern principles and techniques in the systems where there is no theory on criminalisation, one sooner or later stumbles upon the idea of ‘balancing’ or ‘weighing’. In balancing, as Schonscheck points out, “one is to ‘weigh’ all the reasons in favour

15

Lewis, p. 413. It may be interesting to note, as Bialer suggests, that the issue of legitimacy seems to be much more important in political systems established by revolution. Napoleon’s awareness of the transience of his rule serves Bialer as an example, an example he then extends to explain the situation in the Soviet Union, a regime that, similarly, “arose from a revolution guided by a small minority”. One could perhaps extend this to other (now former) socialist states in Eastern Europe, for example, that were brought about by, and maintained as a motto thereinafter, “a revolution of the working class”. In Slovenia, for example, there was an extensive research (Bavcon et al.) done on the issue of “political delicts” (i.e. criminal offences against the State) and “criminal policy” in the 70’s, when Slovenia was still very much under the communist regime. This observation (coupled with the lack of similar research in today’s liberal democratic regime in Slovenia) seems, however, quite counter-intuitive. Communism, namely, falls under the text-book category of totalitarian regimes, where the powerful State is supposed to show no tolerance on any civil disobedience or criticisms of the state (the abundance of political prisoners proves the point) and yet, we see that research on the legitimacy of the State was far more important and frequent in the period of communism. Perhaps, as has been suggested, the reason for this lies in that the view of the communist system as not being legitimate or being less legitimate than it purported to be, was much more widespread, albeit not made public. 17 See Lahti, p. 149. 18 Simester and Sullivan (2003), p. 5. 19 Simester and Sullivan (2003), p. 5. 16

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of criminalising a particular action, and ‘weigh’ all the reasons against criminalisation; the ‘weightier’ set of reasons is to prevail.”20 Conflicting interests “are all matters to be taken into consideration, and somehow a ‘balance’ emerges.”21 Balancing of reasons pro and contra is often echoed in the criminalisation process in the Continental legal system, as one of the principles22 or the main rule by which to go about criminalising, discernible in public debates and introductions to the proposed law.23 But balancing as a ‘principle’ of criminalisation is actually problematic, unless it is a ‘principle of no-principle’. Balancing is a technique, a ‘decision-procedure’ (Schonsheck), not a principle. In fact, it seems almost the opposite. ‘Principle’ usually presupposes some structure, some hierarchy. When one describes something as being “a matter of principle”, one means that various techniques of weighing, counting pluses and minuses etc. are not an option. A ‘principle’ is designed to override certain other considerations as it is normative24 (“a normative criterion”)25 by nature. The flaws of this decision-procedure (or “this metaphor masquerading as a decision-procedure”)26 called ‘balancing’ are several. First, as Schonsheck points out, the metaphor of ‘balancing’ includes no specification of which ‘weights’, that is, of which reasons that are to be placed on the two pans.27 Second, the reasons in favour of criminalising are of many different sorts and so are the reasons against it. It is, therefore, a mistake to “mix apples and oranges” or “compare 20

Schonsheck, p. 25 (emphasis omitted). Ashworth (1998), p. 306. 22 See for example, Melander. Balancing or “weighing of harms and benefits” is expressly recognised as a principle (sic!) by the Finnish Ministry of Justice in their Memorandum (‘On Criminal Policy and Criminal Legislation’, 1999). Finland is, a propos, one of the rare countries with the Continental (Germanic) legal system that has, in theory and practice, worked out a theory of criminalisation and has, in general, shown quite significant scholarly interest in this field. Similar applies to Sweden. See the SOU 1992 Ett reformerat åklagarväsende. Betänkande av Åklagarutredningen – 90. Del A (governmental document listing the principles of criminalisation), works of Lernestedt (2003), Jareborg (2005), the mini-colloquium on criminalisation (organised in Uppsala in September 2005 by Prof. Asp) etc. 23 Any White Paper (draft law) on the proposed new law in Slovenia, for example, will reveal this reasoning. 24 Ashworth (1998, p. 307) is of the same opinion when, describing the principled approach to criminal justice, says: “The principled approach [  ] is explicitly normative. It sets out various rights and principles that ought to be safeguarded.” Ronald Dworkin’s definition of a ‘principle’ could also be of use here, as he describes it as “a standard that it is to be observed [  ] because it is a requirement of justice or fairness or some other dimension of morality.” Dworkin, p. 22. 25 Pavˇcnik (1991), p. 90. The author stresses that it is precisely this characteristic which provides the main qualitative difference between the legal rule and the legal principle. “[A] legal rule expresses the type of behaviour and conduct, [while] a legal principle stipulates “only” a normative criterion (e.g. diligence, fairness) how to behave in legal relationships [  ]” Pavˇcnik (1997), p. 79. On the definition and division between ‘rules’, ‘principles’ and ‘policies’ see also Dworkin (1978), ch. 2. 26 Schonsheck, p. 7. 27 Ibidem. 21

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the incomparables”28 and perform a comparative exercise (i.e. weighing) without distinguishing the quality of reasons. All these briefly sketched problems with ‘balancing’ only emphasise the need to find an alternative approach, namely, to look for the appropriate principles of criminalisation and subsequently take full account of any other considerations, limiting principles29 that may quash the criminalisation, even if the initial requirement or grounds for criminalisation, has been fulfilled (e.g., in the case of harm principle, when “harm to others” has been already established). Some balancing can, however, justifiably occur within a given principle. Within the harm principle, “[a] conscientious Parliament ought normally to decide whether or not to prohibit particular behaviour by considering the probability and magnitude of the harmful consequences of that behaviour, and by balancing these factors against the social value of the behaviour itself.”30 Feinberg also introduces “mediating maxims” within his exposition of the offence and harm principle. Similarly, some balancing necessarily occurs at Schonsheck’s third ‘filter’ called the “Pragmatics Filter”, where one “investigates the consequences of enacting and enforcing a prohibitory statute, and performs a cost/benefit analysis of those consequences.”31 The idea, then, would be to, first, adopt a ‘principled approach’ (not ‘balancing’) and choose a principle (or principles) that would morally justify the state in exercising its powers in the field of criminalisation, and only second(arily), within that chosen principle, if necessary, do some ‘balancing’ of the reasons – reasons that can be balanced against each other.32

Principled Approach As pointed out above, the power of the state to proscribe certain human conduct as criminal (with all the initial procedural infringements on one’s liberties, the stigma attached to conviction, and, of course, punishment, if one is found guilty) is one of the most dangerous powers there are and, therefore, needs to be justified in the society that counts itself to be liberal. A principled approach represents an attempt to set limits to this power and thus ensure that some basic standards are met. It seems to be favoured in contemporary Anglo-American legal philosophy, since, being a normative approach, it offers a chance of a critical analysis of the criminalisation in process or an ex post critique of the ius positum that does not reflect the legitimate principles. Of course the principled approach by itself does not ensure a good result; the principles utilised can be bad ones and hence produce bad criminal legislation.

28 29 30 31 32

Schonsheck, p. 15. ‘Limiting principles’ will be discussed in the main text below. Simester and Sullivan (2001), p. 7. See also Feinberg (1984), chapter V. Schonsheck, p. 25. See also the chapter on ‘Limiting principles’, infra.

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To ensure that the criminalisation and consequently new criminal offences are justifiable, one needs more than just a principle. One needs to choose the right principle, the principle (or principles) that would not contravene the basic Rechtstaat requirements and would, moreover, encompass values or normative criteria that are (independently) compatible with the liberal and democratic political system. Contemporary Anglo-American criminal legal philosophy in general recognises four basic principles of criminalisation. However, the consensus on which principles are to count as “good principles” has been harder to achieve. 1. Harm Principle Liberal political theory of the 19th century had a significant impact on criminal law in general, and criminalisation in particular, since it required those creating laws to justify state intervention, and introduced the ‘harm principle’ as the main justification for state intervention into the autonomous sphere of the individual. It has been first (under the name of the Principle of Liberty) expounded by J.S. Mill in his book On Liberty (1859). He asserts that “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. 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”.33

Mill’s view is the so-called ‘extreme liberal position’ which recognises only the harm principle as a legitimate ground for criminalising. The less extreme, ‘moderate liberal position’, taken by Joel Feinberg (and von Hirsch and Simester), maintains that “[i]t is always a good reason in support of penal legislation that it would be effective in preventing (eliminating, reducing) harm to persons other than the actor (the one prohibited from acting) and there is no other means that is equally effective at no greater cost to other values”.34

Feinberg’s harm principle, as can be seen, is different from Mill’s. Whereas Mill’s conception of the principle is exclusive of any other principles, Feinberg’s harm principle can coexist with other principles (particularly, the offence principle). For Mill, the harm to others is the sole legitimate reason for repressive state intervention, for Feinberg it is a good reason but not necessarily the only reason. Feinberg also distinguishes between the non-normative sense of ‘harm’ as “setback to interest” (an action that makes the harmed party “worse off ”) from

33 34

Mill, p. 14. Feinberg (1988), p. xix.

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the normative sense of ‘harm’ as a “wrong”, that is, a violation of a person’s rights. Harm under the harm principle is an overlap of the both senses, meaning that only ‘wrongful harm’, i.e. harm that sets back someone else’s interests and is wrongful, represents the proper “harm to others” that may be rightfully criminalised. The harm principle, however, is not entirely unproblematic or its application always smooth. There are “hard cases” such as remote harms that tap into questions of causality and fair imputation35 – i.e. to what extent can we hold a perpetrator liable, how far should we look for harm mediated through other actors that can still be legitimately imputed or assigned to the perpetrator? The main open question/problem with the harm principle, however, is the lack of a proper explanation what ‘harm’ really is, conceptually and substantively. There are also a number of adjacent questions, relating to the particular elements of the harm principle or the factors outside the principle, which nevertheless affect or should affect the scope and influence of the harm principle. 2. Offence Principle The so-called moderate liberal position recognises that there might be other good grounds for criminalising, for example, in cases of various human experiences that are “harmless in themselves yet so unpleasant that we can rightly demand legal protection from them even at a cost to other persons’ liberties”.36 Feinberg dedicates his second book (of his four-volume opus The Moral Limits of Criminal Law) to these cases of ‘offence’ and, what he calls, the ‘offence principle’. This principle asserts that “[i]t is always a good reason in support of a proposed criminal prohibition that it is necessary to prevent serious offence (as opposed to injury or harm) of persons other than the actor and would be an effective means to that end if enacted”.37

As to the notion of ‘offence’, he distinguishes between general and specifically normative sense of the ‘offence’. The former, which is not included in the offence principle, refers to “any or all of a miscellany of disliked mental states”, whereas the latter is referring to “those states only when caused by the wrongful (right-violating) conduct of others.”38 He, therefore, recognises the offence as a legitimate ground for criminalising only so long as it involves criminalising offensive conduct which is (1) wrongful to some other party (violation of the other person’s rights) and (2) it is a cause of a severely offended mental state.39 He points out that the legislator has to keep in mind that “offence is surely a

35 36 37 38 39

von Hirsch (1996). Feinberg (1985), p. 10. Feinberg (1988), p xix. Feinberg (1985), p. 1. Usually defined by Feinberg as “an affront to senses, sensibilities   ”.

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less serious thing than harm”40 from which it follows that “law should not treat offences as if they were as serious, by and large, as harms”41 in fact, they are a different sort of thing altogether. He also introduces various balancing tests (borrowed from the nuisance law (in torts)) to weigh the seriousness of the inconvenience caused to the offended party against the reasonableness of the offender’s conduct.42 Recapitulation of Feinberg’s ‘offence principle’, would then read as follows: “If seriousness (intensity and durability; avoidability; volenti maxim) of the wrongful offence outweighs reasonableness (personal importance and social value; alternatives; spitefulness) of the wrongful offence, then state intervention is justified.” Although controversial and perhaps intuitively suspect to the “extreme” liberals who acknowledge only the harm principle (as the sole legitimate principle), the offence principle has been, nevertheless, recently further elaborated by Andrew von Hirsch and Andrew Simester, who have maintained that the offence principle is needed to prevent the harm principle from undue expansion via the broadening of the notion of harm.43 An expanded notion of harm, they argue, would make the harm principle – a “safeguard of personal freedom” – altogether too permissive.44 They, first, make a distinction between ‘being offended’ and ‘offensive’. Not every affronted mental state deserves criminal law protection because not everything that makes people offended is truly offensive. While ‘being offended’ or ‘offendedness’ means any affront to others’ sensibilities, the idea of ‘offensiveness’ or ‘offence’ contains in it also the “element of 40

Feinberg (1985), p. 2. Feinberg (1985), p. 3. That means that it (1) “[s]hould not, for example, attempt to control offensiveness by the criminal law when other modes of regulation can do the job as efficiently and economically” (ibidem); (2) “penalties should be light ones: more often fines than imprisonment, but when imprisonment, it should be measured in days rather than months or years” (p. 4); and if the offences are to be the concern of the criminal law at all, (3) “it should be only when they occur in open places and thereby inconvenience elements of the general public.” (p. 10) 42 On one side of the scales, on Feinberg’s view, we have seriousness of the offence determined by: (1) intensity and durability of the repugnance produced, and the extent to which repugnance could be anticipated to be the general reaction; (2) the ease with which unwilling witnesses can avoid the offensive display; and (3) whether or not the witness have assumed the risk of being offended themselves. On the other side we have reasonableness of the offending party’s conduct determined by: (1) its personal importance to the actor himself and its social value generally; (2) the availability of alternative times and places where the conduct would cause less offence; and (3) the extent, if any, to which the offence is caused by spiteful motives. 43 Von Hirsch is here referring, for example, to Louis B. Schwartz who claimed that offensive behaviour was psychologically harmful, which would imply that the notion of ‘psychic (psychological) harm’ would cover all the cases that would fall under the ‘offence principle’ – so no separate principle was needed. Von Hirsch, apart from criticising Schwartz’ utilitarian approach, argues also that since there is no “setting-back of a person’s definable, specific interests” (Feinberg’s non-normative description of ‘harm’), which means, that it does not make the offended “worse off”, offences, on his view, cannot be thought of as harms (of any kind). See also Harcourt. 44 von Hirsch and Simester, p. 2 and 4. See also Harcourt. 41

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wrongdoing”,45 and the latter, in their view, consists in “treating other persons with a gross lack of respect or consideration”.46 The element of wrongdoing is required for the justified criminal prohibition of such conduct.47 They have, secondly, limited Feinberg’s notion of ‘offence’ by introducing a requirement of “good reasons” that have to be produced by the offended party to warrant the conduct be deemed “offensive”. They have tentatively named four types of instances that would satisfy this requirement, namely; the insulting conduct, infringements of anonymity on public spaces, pre-emptive public behaviour and exhibitionistic behaviour. Further more, even if conduct is offensive, that does not mean it automatically deserves criminalisation.48 Von Hirsch and Simester suggest additional ‘mediating principles’ such as social tolerance,49 avoidability principle50 and immediacy requirement51 that could tip the balance in favour of liberty (i.e. non-criminalisation).

45

von Hirsch and Simester, p. 5. von Hirsch and Simester, p. 5. 47 A similar point – in terms of the criminalisation (the justification thereof) – is made by Feinberg, without the use of the mentioned distinction between offendedness and offensiveness. He says that, “[t]he offence-causing action must be more than wrong; it must be a wrong to the offended party, in short a violation of his rights. If his impersonal moral outrage [i.e. offendedness, on von Hirsch’ distinction – note added] is to be ground for legal coercion and punishment of the offending party, it must be by virtue of the principle of legal moralism [not the offence principle – note added] to which the liberal is adamantly opposed”. Feinberg (1988), p. xiv. 48 The good reason behind the insulting conduct is that “people have a claim, grounded on human dignity, against intentionally demeaning treatment” (von Hirsch and Simester, p. 6). As to infringements of anonymity in public spaces, von Hirsch and Simester believe that “people are entitled, when moving about in public space, to be left essentially alone”, i.e. that they have “entitlement of anonymity”, which is based on notions of privacy and autonomy, and this entitlement involves “being free to go about one’s business with no more than momentary and casual scrutiny by others, and no more than fleeting unsolicited requests from others for one’s attention or assistance.” (p. 7) In pre-emptive public behaviour one “makes use of the space or his preferred activity in a manner that leaves reduced scope for others there to pursue their preferences in peace.” (ibidem) Exhibitionistic behaviour, on the other hand, does more than just pre-empt common space in a sensory fashion, it violates a person’s entitlement against being “involuntarily included in the personal domain of others – particularly, to be spared certain private (especially intimate) revelations”. (p. 8) 49 If we take the idea of a plural society seriously, then it is desirable to use offence prohibitions sparingly, they argue. “This notion of sparing use can be given effect through a principle of social tolerance: that a significant margin of tolerance should be granted even to conduct that is disrespectful or inconsiderate”. von Hirsch and Simester, p. 11. (emphasis in original) 50 This principle is similar to Feinberg’s and basically means that “it speaks against criminalising offensive conduct that others could readily avoid witnessing or being confronted by it”. von Hirsch and Simester, p. 13. 51 “[T]he prohibited conduct should be offensive in itself, and not merely make it possible or likely that the actor (or someone else) engage in further behaviour that is offensive.” von Hirsch and Simester, p. 14. (emphasis in original) 46

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3. Legal Paternalism The third principle is called ‘legal paternalism’ and is sometimes confused or equated with the fourth one, i.e. ‘legal moralism’. Both principles are discarded by many liberals as being “none of the state’s proper business”. Their stances, however, become sometimes a bit diluted when it comes down to concrete examples like euthanasia, selling bodily parts and the like. Legal paternalism allows the criminalisation of self-harms (harms to self). Feinberg describes the principle in the following way: “It is always a good and relevant (though not necessarily decisive) reason in support of a criminal prohibition that it will prevent harm (physical, psychological, or economic) to the actor himself.”52

Criminalisation, on this account, is a form of “tough love”; it proscribes our selfharming conduct “for our own good”. ‘Good’ (or well-being) in this discussion is often juxtaposed with the individual’s ‘autonomy’ (his ‘personal sovereignty’). His ‘voluntary choice’ or ‘consent’ to the self-harming act plays on a paternalistic perspective no decisive role in determining legitimacy of state intervention. Voluntariness, or rather the legal relevance of it, is, however, an important criterion for distinguishing between ‘hard’ and ‘soft’ paternalism. The ‘soft’ version of legal paternalism (or ‘soft paternalism’) accommodates certain state intervention, when the actor is about to inflict harm upon himself (by himself or by action of others, to which he consented) when and only when the actor’s behaviour is “substantially nonvoluntary, or when temporary intervention is necessary to establish whether it is voluntary or not”.53 The main objections addressed to paternalism, as summed up by Mill, is that the individual “cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right.”54 In other words, “[s]omeone’s own physical, psychological or economic good should not be a basis for criminal prohibitions against voluntary behaviour.”55 But why? The attack is, as one can see, two-fold. One criticism is addressed to the very definition of ‘good’ or some preconceived hierarchy of values; what is good for somebody does not necessarily mean that it is good (or a good) to somebody else.56 This argument is similar to Kleinig’s ‘Argument from Oppression of Individuality’, which

52

Feinberg (1986), p. 4. Feinberg (1988), xvii. As will be explained later on in the main text, we endorse this kind of “paternalism” but only as a legitimate ground for milder state interventions, not criminalisation. 54 Mill, p. 14. 55 Mill, same Feinberg (1984), p. 149. 56 Mill, for example, argued that, “given differences among individuals, what is good for most people often is not good for everyone, and that people grow by learning through experience”. See in Greenawalt, p. 717. 53

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argues that an individual is a “project-maker in his own right”and has a right to “set his evaluations and determinations” himself.57 However, the most plausible argument against paternalism is grounded on the notion of ‘autonomy’ and then on the person’s voluntary choices (as expressions of this autonomy) or personal integrity (that encompasses only those voluntary choices, by which the persons express themselves58 ). The argument on autonomous choices soon turns into a debate on “voluntariness” in general, which, in turn, branches off into a myriad of categories (and subdebates) such as: a fully voluntary act, legal voluntariness, act that is “voluntary enough”, a “substantially nonvoluntary choice” etc. – mostly to accommodate some soft-paternalistic approaches, which, consequently, weakens the absoluteness of the notion of autonomy.59 The ‘Argument from Personal Integrity’, on the other hand, allows some degree of legal paternalism to quash some of our voluntary choices – only the ones, however, that are not constituent of ourselves, i.e. not forming our personal integrity. These are the ones that are less important as they are not a part of our apparent settled, longterm personal preferences. In addition – and this is important for it counters the possible objection of moralism –, the importance of choices and values is judged according to the actor, i.e. according to the actor’s own standards, not the state’s or anyone else’s. The legal paternalism thus conceived, it is argued, would not interfere with the “individual’s significant pursuits”.60 Regardless of this, however, it is important to bear in mind that there is (ought to be) a difference between the standards for a criminal and non-criminal state intervention: the legitimacy requirements for state’s penal intervention (i.e. criminalisation) ought to be different (stricter) than the ones legitimising its non-criminal(ising) interventions.61

4. Legal Moralism First of all, we have to clarify which kind of “morality” we have in mind when we talk about legal moralism. Many a dispute or misunderstanding has been, namely, caused by people using this word not realising that they are using it in a different way (that it holds a different meaning for them) and that therefore they are not, in fact, talking about the same thing at all. Because of this logical

57

Kleinig, p. 68. Kleinig, p. 72. 59 It also makes it easier for the critics to claim, as does Arneson (p. 102), that “soft paternalism tends to melt into plain old-fashioned paternalism” and that this is because “its core idea of a substantially nonvoluntary choice is elusive, and not clearly distinct from the straight utility-maximising notion of a choice that ought to be forcibly interfered with for the agent’s own good.” (Arneson, p. 102, 103). 60 Kleinig, p. 73. “It is for this reason that seat belt and safety helmet legislation has found considerable support.” Ibidem. 61 See more in the main text, infra. 58

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mistake or fallacy (of ‘ambiguity’, or sometimes even ‘equivocation’),62 there can really be no true consensus reached as, to put it differently, even though the signifier used, i.e. ‘morality’, remains the same, the signifieds are different. For our purposes, the most important distinctions are two. The first one is the dichotomy moral – amoral (or non-moral). It describes whether the subject matter of a discussion pertains to the sphere of morality, that is, whether is it a normative, value-laden subject. The second pair is moral – immoral (against morality) and the debate on this issue can only take place within the morality of the first kind. (For example: if cleaning up one’s socks drawer is not an issue of morality, but a non-moral task, then we cannot discuss whether separating white socks from the coloured ones is moral (in the second sense) or immoral, because it is not a moral (in the first sense) issue at all, that is, an issue of morality of the first kind.) Legal moralism has to do with this second kind of morality and it asserts that the perceived immorality of the conduct may be a good reason for criminal proscription of that conduct. Feinberg formulates the principle in the following manner: “It can be morally legitimate to prohibit conduct on the ground that it is inherently immoral, even though it causes neither harm nor offence to the actor or to others.”63

Liberals, most of whom discard it from the outset, do not mean to say that law has nothing to do with morality. Criminal law is inherently moral in the first sense of the word, it usually reflects (and should reflect) the morality,64 i.e. certain values and moral judgements; it is a normative65 set of rules proscribing certain human conduct. Furthermore, choosing a “good” principle of criminalisation is very much a “moral” process, since it means accepting a “criterion for determining which actions may morally be criminalised”.66 What in fact the liberals oppose is the standpoint of legal moralists (or those legal moralists)67 who claim that

62

‘Equivocation’ occurs “when a word or phrase is used inconsistently – that is, in more than one sense within a single argument – with the result that its various senses are confused.” (Toulmin et al., p. 179). Fallacy of ‘ambiguity’ (not to be confused with ‘vagueness’), on the other hand occurs, when “some crucial term is being used in different senses by the opposing parties in the discussion”. (Toulmin et al., p. 177, 178). 63 Feinberg (1988), p. xx. 64 Or at least that minimum of morality or “the ethical minimum” that every law, according to Jellinek, encompasses. See Jellinek, G. (1878). Die Socialistische Bedeutung von Recht, Staat und Strafe, Wien, p. 42. 65 I am using the word “normative”, unless otherwise specified, in the sense that something has to do with values, morality; not in the sense that first springs to the mind of a Continental lawyer, i.e. referring to the (legal) norm. 66 Schonsheck, p. 7. 67 For a more moderate account of legal moralism, see, for example, Cranor, who distinguishes the so-called ‘strong’ version of legal moralism from the ‘weak’ one, arguing that the weak or weaker form of moralism in much more plausible and should not be easily discredited by liberals.

20

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conduct that violates conventional social mores, even though it does not cause any harm (or offence), warrants criminalisation just because it violates such mores. Lord Devlin68 argues, for example, that a society’s existence depends on the maintenance of shared political and moral values.69 Violation of the shared morality loosens one of the bonds, which hold the society together, and thereby threatens it with disintegration (on his view, causes ‘tangible’70 and ‘intangible’ harm to society), so the criminal law may therefore be invoked to protect this shared morality.71 There is room for toleration of individual liberty even within legal moralism, yet, on Devlin’s view, for example, the “limits of tolerance” are reached when the feelings of the ordinary person towards a particular form of conduct reaches a certain intensity of “intolerance, indignation and disgust”. That, of course, rules out not only homosexuality72 but also various hair-styles, clothes, and quite possibly even showing physical deformities in public. Since the idea behind it is to justifiably proscribe “harmless wrongdoing” (Feinberg) or to justify legally restricting “acts others believe are immoral” (Greenawalt), there is no objection to targeting also the acts done in private – to which liberals would respond that what is done in the privacy of one’s own house (bedroom

68

Devlin, P. (1965). The Enforcement of Morals, London. This is, what Hart calls, a ‘disintegration thesis’, according to which a shared morality is what holds a society together, and hence the enforcement of this morality is necessary to prevent society from disintegrating or weakening. (The characterisation of the second, ‘conservative thesis’, Hart takes from Dworkin. This thesis maintains that “the majority have a right to follow their moral convictions that their moral environment is a thing of value to be defended from change”.) Hart, H.L.A, ‘Social Solidarity and the Enforcement of Morals’, in: University of Chicago Law Review, 35 (1967), p. 2. 70 The ‘tangible harm’ to society, as Ten (1980, p. 87, 88) shows, does not really happen as a result of breaches of the shared morality, “and hence their being harmful does not in any way support Devlin’s disintegration thesis”. (Ten, p. 86) ‘Tangible harm’ namely happens when certain activities which are quite harmless to society when only a few of its members indulge in them, suddenly become widely practised (i.e. “when the number of participants grows large”). As will be seen later on, we could have here a case similar to the one of a remote harm – an ‘accumulative harm’ (Feinberg) or ‘collective, aggregative harm’ (von Hirsch and Jareborg) to be precise – that could be therefore catered for by the harm principle. 71 Ten (1980), p. 85. H.L.A. Hart (1963) defended the individual’s liberty by responding that communities could observe other-regarding morality, while respecting wide variations in private life, similarly as they already do with variations in religious belief. He also pointed out that Devlin exaggerates the extent to which the preservation of a shared morality is necessary to the very existence of a society. In the area of sexual morality, for example, Devlin considered it permissible to criminalise sexual “immorality” (particularly, homosexual sexual relations) to maintain the necessary shared social morality, while Hart argued that it is implausible to think that a “deviation from accepted sexual morality, even by adults in private, is something which, like treason, threatens the existence of society”. Idem, p. 50. 72 “If, for example, it is the genuine feeling of society that homosexuality is “a vice so abominable that its mere presence in as offence” (Devlin, p. 17), then society may eradicate it.” Ten, p. 86.

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etc) is properly “none of the state’s business” (as long as it does not involve harming others, of course). And yet, even within liberal democracies, there are cases of prohibition that are largely, or solely, based on the perceived immorality. As Greenawalt points out, “human sex with animals, bestiality, is almost universally criminal, and the main reason is not animal protection.”73 Although one could (try to) find other grounds within the harm principle (e.g. health risks for the individual human participant) or within the offence principle (“the morally grounded offence felt by others”), however, “these justifications probably do not capture all the bases for prohibition; a sense of fundamental immorality independent of harm also contributes.”74 In these examples, he sees a proof that even in liberal democracies a “sense of objective immorality” shapes the feelings about legislation, but questions whether acting on these feelings is still consistent with liberal principles.75 If this is true, however, then it is clear that the “liberal principles” are lacking something, that they are insufficient, perhaps too anthropocentric, designed merely to protect human beings. But it may also be the case that his account of ‘liberalism’ is too narrow as it excludes, for example, the possibility of caring for (i.e. protecting) the animals’ well-being via the criminal law. ‘Liberalism’ can be, however, construed – as it is also on our account – somewhat differently. It can be construed to accommodate other values of an enlightened, free human being, such as the acknowledgement of the “liberty” as a natural condition (also) of other living creatures and hence the limiting of the absolute liberty of human beings in respect to the animals. In other words, “live and let live” mantra does not need to apply only to fellow humans; ‘liberalism’ need not be premised on the idea of homo sapiens’ (sapientis) superiority over everything and everybody else on the planet. Consequently, “liberal principles” should be able to accommodate the criminal-law protection of animals. The question, however, remains under which of the criminalisation principles should it be done? One option would be to open up the notion of ‘others’ in “harm to others” so as to include animals; the criminalisation could then be justified on the grounds of the harm principle. Another option would be to allow a certain kind of legal moralism to become an acceptable criminalisation principle in a liberal society – the kind that would, however, have nothing to do with the first (Devlin’s) type of moralism that justifies criminalisation of the mere infringement of conventional mores. The infringement under this “second type” of legal moralism would not be the infringement of some convention (which one may deem “immoral”) but of the core values we wish to protect. As the paradigm notion of ‘legal moralism’ has been traditionally attached to the Devlin’s account of legal moralism, the term will continue to be employed in our text only in this first, original sense. 73 74 75

Greenawalt, p. 723. Greenawalt, ibidem. Greenawalt, ibidem.

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The above division onto four grounds for state intervention via the criminal law, four principles of criminalisation, is derived from the American philosopher Joel Feinberg and his tetralogy on The Moral Limits of the Criminal Law. He distinguishes four main “liberty-limiting principles” and dedicates one book to each of them.76 In subsequent literature, two (of the Feinberg’s four) grounds are mainly discussed; the harm principle, on one hand, and legal paternalism, on the other. The offence principle has received less debate. The origins of this dualism, i.e. harm principle versus paternalism, can be perhaps traced back to Mill, who paid no particular attention to other grounds, especially the offence principle. The latter is also more controversial than the harm principle, which, as already stated, alone enjoys a wide support and recognition.

Limitations on the Principles of Criminalisation Now, above these principles there are, of course, additional rule of law limitations (principle of legality, ultima ratio principle) that may block the criminalisation of conduct even when the requirements of the harm principle have been satisfied. In other words, even if we establish some “harm to others”, the ultima ratio requirement puts a brake on the criminalisation if there are less intrusive, less repressive alternatives available (for example, in civil law). These limitations represent not separate, additional or competing principles of criminalisation but rather restrictions on the existing four principles. They are, namely, different from the above four in that they do not represent “channels” of criminalisation; they don’t show us “what” to criminalise, but instead, what not to, or rather, where to stop. If they are, however, categorised as “principles of criminalisation” (as they sometimes are (e.g. in Finland)), then one should differentiate between them and the above four – by saying that the harm principle, the offence principle, legal paternalism and legal moralism are “positive” (or material, substantive) principles of criminalisation, while the principle of ultima ratio (and possibly some other limiting principles) is a “negative” (formal) principle. A negative principle compels the State to desist from criminalising or to desist from going further, positive one(s) enable the State to criminalise but on a specific justificatory basis.77

76

Feinberg lists also other principles (e.g. moralistic legal paternalism, benefit-conferring legal paternalism, perfectionism etc.), which are, however, more or less merely variations or permutations of the four major ones. 77 But see Jareborg’s article on ultima ratio (2005), where he modifies the content of this principle to enable it to become a principle for the criminalisation, i.e. the positive principle. He criticises the principle in its original (negative) form claiming that as such it has “no independent normative function unless it is interpreted as a metaprinciple summarising (sufficient penal value) reasons for criminalisation.” (p. 521)

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Apart from the rule of law limitations there are and should be other limitations or constraints which will be explored later in the text.

Continental Legal System The Continental criminal legal system (of German as well as French legal circle) has not invested much effort in the study of (the legitimacy of) the grounds for criminalisation or, indeed, the legitimate grounds for any kind of state intervention in general. Among the principles of criminal law we find: “principle of legality”, “principle of restricted repressiveness” (ultima ratio), “principle of humanneness”, “principle of subjective responsibility” and “principle of the individualised sanctions”78 but no principle that would specify the nature or characteristics of the conduct that is to be rightfully legally proscribed, justifiably made criminal.79 The answer to the question why this is so, could partly be attributed to the already mentioned widespread lack of interest in the study of criminalisation. Moreover, from the quite noticeable belief on the part of legal scholars that the issue of criminalisation has much to do with distasteful party politics, where the particular interests of the power groups play a much more significant role in creating a law than any legal standards or values of the society as a whole, it would appear that there is not so much a lack of interest than a conscious avoidance of the topic. Understandable as this avoidance may be, it can become a problem when it steers the discourse into a certain direction as the only one possible or acceptable; when it de facto starts to monopolise the (appropriate) legal discourse. In this case, the silence or avoidance turns into “absentation”80 or even “closure” of thinking,81 which often, consequently, results in misoneism or hostile attitude that greets new paradigms82 or new ways of thinking.

78

See, for example the basic textbook on Slovenian substantive criminal law: Bavcon, Šelih et al., (2003), p. 147–150. The positive law, however, mentions only the first two principles. Similarly, in Croatia: principle of legality, of culpability, of limiting criminal law enforcement – see HEUNI publication on the criminal justice system in Croatia), in Italy (legality, personal, subjective responsibility), France (legality, individual culpability), in Finland (legality, equality, humanneness (respect for human dignity), principle of culpability, of proportionality in sentencing). See, for example, HEUNI publications entitled Criminal Justice Systems in Europe and North America for the said states. 79 For a more detailed discussion on criminal-law principles and other Continental concepts (e.g. legal goods) that to some extent address the issue of criminalisation, see the chapter on ‘Continental counterparts to the Anglo-American concept of the harm principle’, infra. 80 In the legal discourse, the absentation would mean that “the alternative as an object of knowledge is simply not there. And the encountering subject who might wish to present an alternative is, in that respect, silenced.” Steward, p. 20. 81 Closure is, according to Steward (p. 20), unconditional absentation. 82 Kuhn, Th., The Structure of Scientific Revolutions, University of Chicago Press, Chicago, 1970.

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An additional explanation may be derived from the difference in the structure of law (and its basic concepts)83 on the Continent, and hence in different structuring of legal theory and legal education that require, and in turn instil, a different legal thinking, a different pattern of thought, conditioned and dictated by the object of study itself. To employ Sevón’s distinction between practical reason and cognition, one could say the Anglo-American legal theory believes in “practical reasoning with principles”,84 while the law on the European continent is mostly analysed from the “cognitive perspective [  ], whereby primacy is given to [  ] “basic concepts of law.”85 Anglo-American theory is mostly principle-oriented,86 while Continental is more concept-oriented. In the former, it is also “generally difficult to identify distinct ‘norms’ [  ] it would be more accurate to identify ‘normative patterns’ [  ]. [T]hey think in patterns rather than propositions, [  ] they match more than infer.”87 On the Continent even the point of view is, therefore, different. Its positive law much more structured, its legal ordering “static”.88 Common-law legal orders, as some would say, do not even have a structure; they “are remarkable for their lack of structure; it is even difficult to identify them as ‘systems’.”89 The structuring of the civil-law (i.e. Continental) positive law, of course, mimics the “structuredness” of the Continental theory of law. The “structuredness” of the theory, in this case, means that it tends to dissect its objects of study (e.g. general notion of criminal offence), break them down into smaller components and look at them microscopically. It may, however, mean also something else. Every mainstream theory, theory that is predominant in a certain place and time, is pinned to the structure of the ruling institutions and its ideology. Of course,

83

For example, in the Continental criminal legal system of Germanic legal circle the structure of the so-called “general or structural concept of crime” (Sevón, p. 127) is tripartite (the fulfilment of the statutory elements of the offence, wrongfulness and culpability), while in Anglo-American system the structure is bipartite. The seriousness of criminal offence breaks down into harm, on one side, and culpability, on the other. There is also much of intertwining between the two, while the elements in the continental structure are much more rigid and categorically separated from each other. See, Eser (1992), von Hirsch and Jareborg, Simester and Sullivan etc. 84 Sevón, p. 127. 85 Sevón, ibidem. 86 We are taking our distinction between principles and concepts, as “two kinds of elements within the general doctrines of criminal law” after Sevón (p. 127). Principles, on his account, express values (central values in the case of “general principles”) and goals of the criminal law, while “[t]hrough basic concepts the type of facts are defined, to which attention basically should be given in all application of penal law [  ]”. “[L]egal principles could be described as giving guidelines for the solving of legal problems, whereas the concepts show where the problem is to be found.” Sevón, p. 127 and 128, respectively. 87 Steward, p. 7. 88 Kelsen’s distinction between the ‘static’ and ‘dynamic’ ordering refers to types of legal orders which are structured primarily either through deduction or through authorisation. See more in Steward, p. 6. 89 Steward, p. 6.

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the same is true for the individuals themselves. Every “[s]ocial being lives in structures and thinks in ideology, which is, of course, a form of social control, namely the control over the thought”.90 Moreover, as Mathiesen argues, the ruling ideology enables doxa or “the universe of the undiscussed and undisputed”,91 “a class of that which is taken for granted”,92 which precludes any unorthodox debate, or rather, “in western societies, the space of doxa does not preclude debate, but the debate [  ] will as a point of departure be orthodox, that is, it will accept and stay within the boundaries and basic conditions set down within the space of doxa. Those boundaries and basic conditions will still be taken for granted.”93 On the Continent, this phenomenon could perhaps be spotted in the way argumentation regarding new laws to be passed, is conducted. The argumentation for or against a certain proposal of a statute will often not stem from some general liberal mentality or, at least, will not (immediately and directly) employ the general phraseology of liberalism (i.e. the argumentation will not be primarily based on the issues of the individual’s liberty, autonomy etc.); the argumentation will, however, tend to resort to citing of the highest legal resources: the constitution, international treaties and conventions, general legal principles (usually only if made “positive”, i.e. laid down somewhere in the positive law).94 Another way of looking at this phenomenon – i.e. the reluctance (or uneasiness) of the Continental jurists to appeal directly to ‘liberalism’ and its values, when discussing or criticising certain piece of (proposed) legislation –, would be to go back to school, so to speak. It is certainly not the case that the German criminallaw doctrine, for example, would be less liberal than the e.g. English (perhaps just the opposite can be claimed), and certainly some influential German academic criminal-law writers are strongly liberal in their approach (e.g. Roxin). Rather, it is the “training”, the above mentioned legal education that makes Continental legal scholars less ready to reach out for the philosophical writings to aid their arguments. And this is an important additional factor to be considered, when searching for the reasons why the Anglo-American literature generated more discussion on criminalisation than the Continental one. The Anglo-American discussion of criminalisation does not primarily derive from traditional criminallaw scholarship, but comes, rather, from the moral philosophers that became interested in the criminal law or criminalisation issues.95 This is not true only for 90

Kanduˇc (2003), p. 81. Mathiesen, p. 461. 92 Bourdieu, p. 168. 93 Mathiesen, p. 464. 94 However, the situation in Slovenian criminological literature (not strictly criminal-law theory) is somewhat different. Here, I have to emphasise especially the work of Dr. Zoran Kanduˇc, who has been employing the term “harm” (škoda) and “harmful” (škodljivo) in many of his texts. See, for example, Kanduˇc (1994-II), p. 269. 95 I thank Prof. von Hirsch for averting my attention to this important point. He points out that Joel Feinberg was a philosophy professor, Anthony Duff and Douglas Husak are in philosophy departments, and others, such as Andrew P. Simester, have degrees in legal philosophy. 91

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the historical figures, such as Mill and Bentham, but largely also for the more recent authors, many of whom are in philosophy departments or have received some education (degree or teaching) in philosophy.96 If we return now to the Continental discourse surrounding the criminalisation and, in particular, the principles of criminalisation, we can observe that, with some rare exceptions,97 there are no “principles” of criminalisation as such known in the world of Continental legal system – neither in theory nor in practice. In the case of Slovenia, only two articles (art. 1 and 2) of the Criminal Code of the Republic of Slovenia – which correspond to the two classical criminal legal principles in the theory, namely the principle of legality and the ultima ratio principle98 – touch upon (at least indirectly) the issue of the legitimate criminalisation. The principle of legality is not a criminal law principle alone; it is most often a constitutional principle as well,99 since it is addressed to the legislator as well as to the judge. “[L]egality is an overriding constitutional rule that limits not only legislative power to criminalise certain actions but, more importantly, circumscribes judicial power in the adjudication and interpretation of criminal law.”100 The principle of last resort (ultima ratio) however, is only addressed to the legislator (and should, therefore, primarily (or solely) find its place in the constitution, not the criminal code).101 However, both of these two principles are not proper principles of criminalisation. They present rather the “limits” on the criminalisation or principles against criminalisation than principles for criminalisation.102 They are negative and rather formal103 or content-free, that is, empty of any independent content, from which one could draw any specific, detailed conclusions as to which conduct would be rightfully criminalised. Both,

96

See the previous footnote. To my knowledge, Finland and Sweden are the only two states in Europe where distinct “principles of criminalisation” can be found mentioned in the criminal-law theory as well as in the official, governmental documents. 98 Or the “repressiveness-limiting principle” (“principle of restricted repressiveness”) as it is called in the Slovenian criminal law theory. 99 It is included, for example, in the Constitution of Slovenia (Art. 27); similarly in the Constitution (Grundgesetz) of Germany (Art. 103, par. 2). See Binavince, p. 597, 598. 100 Binavince, p. 597. 101 Although one may argue that there is, perhaps, a room for declarative (symbolic) norms in the General part of the criminal code, for such a norm may serve a role similar to the one of “preamble” to the constitution – as a guiding norm for legislators to apply, that may also “spill over” onto the adjudicator herself (when passing a sentence, for example). 102 Their content is different from e.g. harm principle (or other three principles of (for) criminalisation described above) that enables criminalisation if certain conditions are met. If the term “principle of criminalisation” be used in relation to the e.g. ultima ratio principle (as it is in Finland, for example) at all, it should be clearly stressed that it is a negative principle of criminalisation. 103 The principle of legality in one of its aspects, for example, instructs the legislator to pass a law that is not too vague or ambiguous; that is, therefore, clear enough (lex certa). In other words, it gives the legislator instructions on nomothetical, formal matters. 97

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however, have a significant say on the issue of legitimacy of criminalisation as such. Well, how then, one may justifiably ask, is a new piece of criminal legislation passed? If there are no principles to guide the process and content of criminalisation, is the field left more or less to its own devices? A look at some recent examples would probably suggest an affirmative answer. Criminal policy in Slovenia has been left in the hands of “practitioners” for some time now. The proponents of the new criminal legislation are usually politicians with an agenda often focused on the gathering of votes for reelection. To propose a new incrimination is, namely, the cheapest, quickest, most memorable and media-inviting act the Member of Parliament can do – the most efficient for a legislator (securing re-election) and the least truly efficient, i.e. problem-solving. It conveys the message that he/she is serious, truly “cares” about the issue and is “doing something”, however, what he is doing is far from resolving actual problems because the issues are usually complex (crime, in general, is) and just raising the sentence may be ineffective or couterproductive.104 The drafters, on the other hand, are mostly employees of the Ministry of Justice and a particular Ministry that has the highest stake in the proposed legislation, and are driven by the mandates of “productiveness” (which in criminal substantive law often, unfortunately, translates into more severe and repressive criminalisation). The productivity or efficiency understood in this way is frequently the exact opposite of justice or fairness. Academics and criminal-law scientists are often either uninvited to participate or invited (in small numbers) and ignored.105 The reasons that have been recently triggering new criminalisation (and new legislation, in general) in Slovenia, for example, are: a) harmonisation of national laws with the laws of European Union, b) implementation of the signed or already ratified conventions,106 c) recent disclosure of criminal or deviant behaviour that becomes widely publicised, scandalised, and consequently, perceived as a major social problem, d) interests of the party proposing new legislation (including gathering votes for the upcoming election), e) comparative trends, especially in the neighbouring countries (that also have similar legal systems)107 and countries we aspire to (e.g. Germany or Finland). In our context (the context of ‘harm’), the

104

Similarly, Bavcon – discussing some already passed criminal offence that remained “dead” (unused by the prosecutors or judges) – claims that “this is a result of unqualified and demagogic pressures that are to persuade the public how some MPs care about (in the case of this particular offence) the environment.” Bavcon (1995), p. 30, 31. 105 See Bavcon (1995), p. 30. 106 Cf., for example, the Proposed amendments to the Criminal Code of the Republic of Slovenia (26.12.2003, website: http://www.dz-rs.si), in which the listed reasons for changes and new criminalisation are: a) UN Convention on organised crime, with Protocols, b) The Rome Statute, c) International convention on the financing of terrorism, d) Convention on corruption, e) other conventions… k) Directive 2003/6/EC of the European Parliament and of the Council. 107 For example, the case of decriminalisation of prostitution (not a violation (administrative-penal offence) any more). See more, infra.

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third (c) reason is especially interesting. It requires a certain political momentum, usually gained by some “triggering event”108 (like a public discovery of some heinous child rape case committed by a step-father, that becomes a “scandal”), within which certain deviances (e.g. not paying alimony – a part of the story turned scandal) become widely perceived as a “harm” (although often articulated in moralistic, not harm-principle language). Lacking properly worked-out criteria (based primarily on harm principle) for legitimate criminalisation, criminal scientists resort to objecting to the proposed new criminal legislation on the basis of “it not being in accordance with the modern criminal law and legislation in countries with similar legal systems” or “resembling past legislation that was widely abused”109 , “nomothetically inappropriate” (pleonasms, casuistic enumerations), “contrary to classical criminal law principles” (e.g. the principle of culpability), “potential for abuse” etc. They often appeal to “justice”, “humanity”110 and “social considerations”111 that ought to be respected when criminalising, yet their appeals come from liberal and social convictions, their own internal, intuitive Rechtsgefühl, which, however, often remains unarticulated.112 The above few passages described particularly the situation in Slovenia – the typical arguments or reasons for and against criminalisation. The nature of many of them is systemic (derived from the internal organisation of the Criminal Code

108

‘Triggering events’ are “those immediate factors in the political setting which provide the link between demands for action and public policy”. (Castellano and McGarrell, p. 314). The authors, describing a particular case of passage of tougher juvenile sentencing laws and gun control laws in New Your State in the 1970s, list as a key triggering event in the legislative precess a heated political debate (e.g. on capital punishment), coupled with factors such as media coverage of crime, political entrepreneurship, elections, and interest group activity. Ibidem. 109 For example, Bavcon used this argument to criticise the proposed new incrimination (more precisely, extended criminalisation) of “False Endangerment” (Navidezno ogrožanje – Article 312.a) that makes, for example, “dissemination of false information about dangerous substances that instils or could instil fear in people or disturb public peace, and therefore triggers action on the part of public authorities [  ]” a criminal offence. It resembled the once known incrimination of “Dissemination of False News” that has been “from time to time, whenever the political “need” arose, abused for the criminal persecution of political and presumed political opponents”. Bavcon (2003), ‘Pripombe k predlogu novele KZ Slovenije’ (Commentary on the proposed amendments), p. 7. 110 See more in Lahti; Bavcon. 111 Bele in his ‘Comments’. 112 There are, as always, exceptions. On the inter-department meeting between two criminal law departments of the two Slovenian universities (of Ljubljana and Maribor), that took place on the 14. Jan 2004, Prof. Bele appealed to the lack of a protected legal good (Rechtsgut) in the case of the new proposed offence of a “disclosure of a confidential document” and Prof. Šelih seemed to, indirectly (through ‘seriousness’ of crime), appeal to harm, or rather the lack thereof, in the case the new incriminations. She noticed that the White Paper in some places mentions “social dangerousness” (the concept that does not exists anymore, neither in practice not in theory) but, in general, “throughout the entire proposal there is no talk of how serious (huda, težka) these acts are – to justify their criminalisation”.

Evaluation

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or from looking at the criminal law as a system, where every change affects other parts), historical (drawing from past experiences), comparative (with other, similar legal systems, especially Germany, Austria, Croatia), harmonising with the EU law,113 derived from constitutional and classical criminal law principles (most frequently: the rule of law, democracy, imperatives of modern criminal law, legality principle and repressiveness-limiting principle), or appealing to authority (especially the jurisprudence of the Constitutional court and the ECHR court in Strasbourg). Legal goods (Rechtsgüter), or legally protected interests, do not seem to feature often in this debate, even though it is a concept well known to Slovenian (criminal) legal theory. In Germany, as Jareborg notices, this is not the case. “In German legal scholarship, ideas and doctrines about Rechtsgüter have played a central role in the discussion of the legitimacy and limits of criminal law.”114 The picture throughout the rest of Europe (that is, in civil law systems of Germanic circle) is, to my knowledge, more or less the same with regards to the nonexistent theory (principles) of criminalisation; the exceptions being Finland and Sweden, where – as already mentioned – efforts have been made to regulate the criminalisation by following a few principles as discerned in the Memorandum of the Finnish Ministry of Justice and in the Report by the Swedish Committee that inquires into the prosecutorial powers, respectively.115 In the case of Finland, their Ministry recognised three principles of criminalisation: the principle of protected interest, the ultima ratio principle, and the principle of weighing the harms and the benefits of criminalisation.116

Evaluation We would make a mistake if, after reading the above paragraphs, we concluded that in reality the Anglo-American approach to criminalisation is a principled, systematic operation, whereas the Continental approach (content-wise) is (at least in Slovenia) more disorganised, partial, unsystematic, more “primitive” etc. The today’s reality, namely, does not comport with the theory. However, the subject matter of our thesis is not primarily concerned with the (aberrations of) reality; it is mostly occupied with discussing of the criminal law theories – even though the lines of distinction are sometimes somewhat blurred due to the links between the theory and practice. Having discarded ‘balancing’ as an option for securing fundamental rights and liberties of the individual, and having chosen the principled approach as the 113

This ‘harmonising’ was done in the light of the near accession of Slovenia to the EU (in May 2004). 114 Jareborg (2005), p. 524, 525, fn. 6. 115 Memorandum ‘On criminal policy and criminal legislation’ (Finnish Ministry of Justice, 1999), “where a critical approach towards new criminalisations and certain principles of criminalisation are adopted”. Melander, p. 187, fn. 63. For more detailed information on the Swedish Report, see Lernesteadt, p. 20, 21. 116 Melander, p. 188.

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Grounds for (Principles of) Criminalisation

preferable approach, we still have to do an additional mental exercise before critically evaluating any particular system of criminalisation. Firstly, we should look at the established theory, i.e. whether there exists such a thing as a theory on criminalisation or, at least, any principles of criminalisation.117 Secondly, the preliminary (formal) scan for principles having been done, the next level would be the substantive or normative test, i.e. an enquiry as to whether the chosen principles are, in fact, good principles (i.e. compatible with modern criminal law – and with liberal assumptions). In our thesis, we propose that the harm principle is a good principle for the criminalisation in the liberal and just society we want to pursue.118 On the face of it, the Continent is found wanting on both counts, for it shows scant interest in the conditions that must be satisfied before conduct may be criminalised. It lacks in the coherent theory on criminalisation,119 which is why the question of which principles/techniques are “good” and which “bad”, does not even come to the fore. The theory itself – because of the partly political nature of (principles of) criminalisation – does not, of course, guarantee the actual following of the principles; principles are by nature of being principles more like guidelines and not rules than can be enforced and violations thereof sanctioned etc. However, even if, eventually, the application of the principles often comes down to politicians (their good will and belief in the rule of law) and the general political climate, theory remains important. The theorists, academics and scholars, can still play a significant role; in the short term, for example, when invited to draft a law or comment on the draft, and in the long run, by helping to generate a certain mentality or ideology. In the light of a wide-known fact that the academics have little say in the process of criminalisation in the UK or USA (usually, they are not even consulted) while on the Continent the situation is still somewhat different (for the time being), one could say that the said principles, despite their origin, have therefore more potential of being put into effect on the Continent; that, therefore, the European continental legal system seems prima facie to provide a better place for applying the (originally Anglo-American) principles. Of course, this by itself does not answer the question why we should (ought to) adopt such principles. The attempt at an answer to this question will be given in the following chapters. We shall highlight some of the positive functions of the

117

If there is no such theory, one might still find them in practice (from de facto argumentation in legislative proposals, for example). But even if there is such a theory, one should not feel relieved yet. Theory is, as they say, but a dead letter on paper, if it is not carried out in practice. Feinberg (1994, p. 16), similarly, believes that the principles “[m]ust be fleshed out; otherwise they are mere rhetorical slogans, empty of meaning” and, consequently, claims that his very abstract principles, nevertheless, aim to be practical. 118 See infra, for the further exposition of my standpoint. 119 Finland and Sweden, as we have emphasised on many occasions already, are – as far as I am aware – exceptional in this respect. Nevertheless, even in their cases it would be difficult to talk about a proper, developed, comprehensive theory (yet).

Evaluation

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harm principle, such as: limiting the scope of criminalisation and/or providing an additional criterion for the classification of crimes (and, consequently, the systematisation of penalties). It has been observed, that we count too often on the positive, well-intended “spirit” of the laws or of the constitution.120 The problem with “spirits” is that they function very well as long as the ones using them (the legislator, judges) are good-natured and trustworthy (just, fair, knowledgeable in law etc.); if, however, the legal culture is not “in tune” with “the spirit”, the spirit remains silent, ignored or interpreted too creatively and in the wrong spirit.121 In these cases, something more explicit, objective and substantial such as an elaborated principle (or principles) of criminalisation would be, indeed, very welcome. But first we have to look at the principle itself; what it is, what it does, what are its shortcomings and benefits. Even prior to going into a detailed analysis of the harm principle, it may be useful, however, to give a brief exposition of our views on certain other principles, to explain our standpoint, upon which we shall rely throughout the remainder of this work.

The Legitimate Grounds Not all of the four theoretical/political grounds for criminalisation, I have referred to above, are considered “legitimate” in today’s liberal, modern criminal legal systems and, therefore, not all of them are endorsed in this book. I shall advocate the harm principle as the only incontestably legitimate principle of criminalisation, whose reception into the Continental criminal legal theory should be welcomed, since it provides a much needed substantive (or internal)122 limit on the legislator’s decision to criminalise any undesired conduct. As to the offence principle, I do not wish to take a definite stand at this juncture. While the proponents of the principle certainly have a point in saying that the harm principle should not be overstretched by calling everything a ‘harm’ (which is the main reason, or one of the main reasons, for their promoting of the offence principle), there are certainly dangers lurking behind the adoption of such a separate principle, dangers that make me reluctant to unconditionally embrace such an additional ground for criminalisation. Apart from the fact that the Continental legal theory has no problem in considering, for example, the

120

“’Spirit’ or the ‘Foundations of the constitution”’ Lernestedt, p. 362. Or as Cesare Beccaria, warned us centuries ago: “Nothing can be more dangerous than the popular axiom that it is necessary to consult the spirit of the laws. [  ] Each man has his own point of view, and, at each different time, a different one. Thus the ‘spirit’ of the law would be the product of a judge’s good or bad logic, of his good or bad digestion [  ].” Beccaria, p. 15, 16. 122 As opposed to the ultima ratio principle, for example, which provides a merely formal (external) limit on criminalisation. 121

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Grounds for (Principles of) Criminalisation

insult as a ‘harm’ to one’s honour or dignity123 – while the Anglo-American legal theory would call it merely an ‘offence’ (for there has been a mere temporary setback to one’s interest) –, it is also questionable whether providing the legislator with a new principle would not merely take the non-harmful conduct that has been so far (incorrectly) criminalised under the harm principle and criminalise it under the offence principle, thus getting the same end result. What is even worse, it could give the legislator an additional opportunity to criminalise – not reducing the flow through the harm principle, but, instead, providing a new channel. These reasons are, admittedly, mostly socio-political reasons. On purely jurisprudential grounds, I could perhaps be persuaded to accept the offence principle as a legitimate criminalisation principle, but only if its necessity, and a link between the adoption of such a principle and the reduction of the abuse of the harm principle (through extending the ‘harm’), were sufficiently substantiated. In line with the ultima ratio principle (and the harm principle), the presumption in favour of liberty (in dubio pro libertate)124 allocates the burden of proof onto those who propose criminalisation, and that – at least in my view – includes the proponents of new channels (good reasons, legitimate grounds, principles) of criminalisation. I would reject the legal moralism125 and legal paternalism as possible legitimate principles for criminalisation126 from the outset. On my view, these are not appropriate grounds for criminalisation for all the already stated reasons, and especially for their denial of the value of the individual’s autonomy and forcing

123

As honour or dignity could not be considered as tangible resources (such as property, for example) – and as according to von Hirsch and Simester’s approach ‘harm’ is done only when resources are “diminished” – it is hard to see how they can be impaired (i.e. diminished, set-back) by human actions in the same way as the tangible (or more tangible) ones can be. Hörnle thus argues that if the ‘harm’, on von Hirsch’s account, is present only when there is a “setback of a resource”, then violations of ‘intangible resources’ (e.g. one’s sexual autonomy, inviolability of dwellings) could not really be considered as ‘harm’ (thus excluding also the employment of the harm principle) – “but this would not be a satisfying solution because to categorise them as ‘no harm’ understates their seriousness.” Hörnle (2006), p. 11. (A note on ‘intangible resources’: von Hirsch and Simester specifically assert that intangible resources – for example, reputation – may constitute ‘resources’, therefore maintaining that ‘tangibility’ itself is not a necessary requirement for the definition of a ‘resource’.) 124 Some see this (in dubio pro libertate) as an inherent element (principle) of the ultima ratio principle, others as a logical extension of the harm principle – which is another argument in support of the claim that the harm principle and the ultima ratio principle are indeed very intimately related. See more, infra, in the subchapter on the classical criminal legal principles, and especially, the ultima ratio principle. 125 In its paradigm (Devlin’s) conception of the principle – which is how it is usually understood and also referred to in this text. See the chapter on ‘Legal Moralism’ for a more detailed explanation. 126 Legal paternalism is rejected as a principle for criminalisation; it is not, however, rejected as a legitimate reason for any kind of state intervention.

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upon him other persons’ views on what is ‘right’, or ‘good’ for him,127 which is, in turn, incompatible with the liberal predisposition of the modern criminal law. However, I would endorse a certain amount of the so-called ‘soft paternalism’, if the use of the word paternalism is appropriate in this context at all, but only as justifying certain “milder” state interventions in the form of perhaps prescribing some procedures to be taken (to formally ensure that the informed consent was given), but not, however, warranting any kind of state intervention, and in particular, criminalisation.128 Moreover, even the ‘softer’ version must have a certain “expiry date”; the procedure of informing and checking for the validity of the actor’s consent (or his ability to give consent) cannot go on forever. As regards the issue of ‘taxing’ this behaviour – as an alternative to criminal prohibition – and its acceptability: in a way it is different than outright prohibition, since it does not foreclose choice, yet if taxes are a way in which the state tries to manipulate (discourage) behaviour for the actor’s (e.g. smoker’s) own benefit, the intrinsic right to autonomy is surely breached and this, on our view, would cross the limit of “legitimate” paternalism.129 It might stay within the limits, however, if the higher tax would be a result of actual, proved magnified risk of harm to others (e.g. non-smokers). If this were the case, then the justification could, of course, just as well be carried out by inducing the harm principle, not legal paternalism. Yet, as will be seen later in the text, the risk or endangerment issues are very problematic as regards the criminalisation on the grounds of the harm principle in its proper narrow sense. Rules of fair imputation and a proper choice of a theory of causality are needed (in order not to overstretch the principle). With this in mind, it might even be preferable to have some things regulated, or even criminalised for that matter, on admittedly paternalistic grounds (as a lesser evil) than have risks that are very distant and improbable “creatively” interpreted as ‘harm’, and, in turn, the harm principle (ab)used.

127

Of course, there is no hiding form the fact that often the separation line between the “good” and “bad” principles is hard to draw, for they often overlap; the individual can, with a single act, harm himself and at the same time others, and what is more, the views of society on what is harmful (or dangerous) change. Pornography, for example, used to be criticised solely on the grounds of its (alleged) immorality, today it is considered, at least by feminists, to cause significant (indirect) harm to everybody involved. 128 Needless to say, we disapprove of seat belt and helmet laws, especially if the violation of these laws is criminalised. 129 See Mill, p. 111, for a similar opinion.

IV Harm Principle – A Comparative Analysis

In the previous chapter we referred to four basic principles of criminalisation in the Anglo-American legal theory and among them briefly sketched the harm principle – its roots, its varying formulations, and its relationship to other principles. In this chapter, the harm principle will be examined further, first, by breaking the principle down into its constitutive elements and explaining their particular meaning (with special emphasis on the notion of harm) and, second, by addressing the principle’s main functions interrelated to the nature of the principle. We then discuss some open questions and criticisms addressed to the harm principle and try to offer some possible solutions, or at least, clarifications of the issues in question, with special emphasis on the (need for separate) limiting factors/principles to support the harm principle and, consequently, strengthen its theoretical foundations.

The Definition of the Harm Principle Let us, first, start with the definition of ‘principle’ as such. Principles express values and goals and are as such above (or even outside) other notions, rules, concepts. Legal principles are “guidelines for the solving of legal problems”.130 They “open legal application towards values and goals” (ibidem). “General Principles express the central values and goals of the criminal law in question”.131 It seems they have a static nature (i.e. they are something) when they “express values and goals” but also a dynamic, functional one (i.e. they do something) as they “open legal application towards goals and values”. A principle is different from a rule in that it is wider, more general and above the particular rules. “[R]ules specify what is distinctive in each crime”;132 130 131 132

Sévon, p. 128. Sévon, p. 127. Hall (1976-I), p. 616. 35

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Harm Principle – A Comparative Analysis

the principles, on the other hand, are “the basic ideas that are implied by that combined set of propositions”,133 the “ultimate categories to which the diverse elements of the rules qualified by the doctrines are referred and reduced”.134 Principles are, therefore, also different (broader) from doctrines that are, however, “more general propositions”135 than rules. All of these (rules, doctrines, principles) represent “principal concepts of a theory of penal law”.136 In the light of the process of criminalisation, however, one could also juxtapose ‘principles’ to ‘balancing’. Principles here represent a method, a means to achieving an end, i.e. criminalisation of some undesired conduct. In this respect, a principled approach, means bringing some “order” to the chaos of criminalisation; establishing “ground rules” (e.g. rules on basic human or societal values, on the criteria for designating which interests/goods are to be legally protected), upon which the legitimate criminalisation should proceed.

Mill’s ‘Principle of Liberty’ “[  ] 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. 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. His own good, either physical or moral, is not a sufficient warrant.”137

Mill introduces his Principle of Liberty as “one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion”.138 His principle is obviously not a mere principle of criminalisation nor is it addressed only to the state but to the society or general public. It delineates the sphere of liberty of the individual (self-regarding area) from the sphere that may rightly concern the society and in which the society has, therefore, the right to interfere with the individual’s conduct or rightfully exercise its power over the individual in any form – not only in the form of criminalisation but also as civil-law and administrative-law restrictions, prohibitions or impositions of duties of any sort, and even as nonlegal measures (e.g. “moral coercion of public opinion”), that is, informal social control. What Mill is asserting is that inside the self-regarding sphere what the individual does is properly none of the society’s business. “In the part which merely concerns himself [the individual – N.P.], his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.”139 133 134 135 136 137 138 139

Hall, ibidem. Hall, idem, p. 617. Hall, idem, p. 616. Hall, idem, p. 617. Mill, p. 14. Mill, ibidem. Mill, ibidem.

The Elements of the Harm Principle

37

Feinberg’s ‘Harm Principle’ Feinberg, who does not see the harm as the only legitimate ground for criminalisation, phrases the principle (now properly called the “harm principle”) in a somewhat different way: “[i]t is always a good reason in support of penal legislation that it would be effective in preventing (eliminating, reducing) harm to persons other than the actor (the one prohibited from acting) and there is no other means that is equally effective at no greater cost to other values.”140

The two variations of the harm principle, posited against each other, reveal some divergencies. For Mill, the harm is the sole legitimate ground for criminalisation, for Feinberg it is only one of the legitimate grounds (he endorses the offence principle as well). Mill talks of society (not exclusively the state) and any kind of interference with the individual’s liberty, whereas Feinberg focuses chiefly on criminalisation (“penal legislation”), and hence, only the state (this is not expressly mentioned, but since the state has exclusive jurisdiction over penal legislation, it is implied in the text). Feinberg also qualifies his principle by invoking so-called “mediating maxims” (e.g. the social value of the behaviour etc.) and in general, tries to further operationalise the basic (Mill’s) harm principle. Last, but not least, Mill’s principle is formulated as a negative constraint141 on criminalisation, i.e. in the absence of harm the state is not justified to interfere, whereas Feinberg’s principle is positively formulated as a reason supporting criminalisation; as a “positive claim”.142 On the other hand, the elements in the intersection, common to both of them, comprise: (a) (a conduct) causing or risking (“likely to cause” – Feinberg) (b) harm to (c) others as a justification for (d) the intervention of the state vis-àvis the individual – and these are the elements we shall explore. (As the element of ‘harm’ plays the pivotal role in the principle, it shall be explored in a separate subchapter (after the other elements).)

The Elements of the Harm Principle State Intervention We begin our analysis, following Feinberg, by considering the relationship between the state (not society in general) and the individual through the medium of criminal law. By “state intervention” we shall, for present purposes, mean only the intervention of the state in the form of the passing of criminal law statutes (making new criminal offences). It is important, however, to realise that

140 141 142

Feinberg (1988), p. xix. See also Simester and Sullivan (2003), p. 9. Ibidem.

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Harm Principle – A Comparative Analysis

illegitimate (non-legitimate) restrictions of liberty may be of different types. The danger of unjustified or disproportionate interference with the individual’s conduct is sometimes even greater outside the scope of criminal law. In the Continental systems (such as those of Slovenia or Germany) where there exists a separate law of violations143 (Ordnungswidrigkeiten) – a cross between the criminal and administrative law – much harmless conduct can be allocated into this separate but parallel law, which, on one hand, guarantees lesser procedural rights of the “defendant”,144 yet may impose significant penalties.145 As almost every new statute has a “violations” part at its end,146 the total list of violations is long and almost unintelligible. Because the law of violations usually involves greater ease of enactment, less media and scholarly attention, prohibiting some conduct as a violation, instead of making it into a “criminal offence”, can often mean taking a shortcut. In other words, the law of violations can be easily abused – in the sense that the conduct that should not be proscribed at all (not be made criminal even in the “broader sense”, i.e. as a violation) can be easily enacted under the law of violations,147 thus achieving a political compromise, a “win-win” situation, where the opponents of the criminalisation win by keeping the offence out of the Criminal Code, and the proponents by making it, nevertheless, “criminal” lato sensu.148

143

Law of violations (‘administrative penal offences’) together with the criminal law constitutes “kaznovalno pravo” (“criminal law lato sensu”) and has many similarities with the criminal law – several criminal law provisions, for example, are to be used subsidiarily. It is different from “regulatory offences” known also in the Anglo-American legal systems, in that it does pertain to the criminal law (in the broadest of senses) and envisages several procedural rights of the defendant, similar to those in the criminal procedure. 144 For example, the right to attorney. 145 The law on violations that was until recently in force in Slovenia imposed not only fines but also imprisonment (up to 2 months) for a few offences. New law, passed in 2003, that came into use on January 1, 2005, gradually did away with the prison sentence (in accordance with the EU requirements). There is, however, a new institute of the so-called “repentance imprisonment” (uklonilni zapor), which means that when the fine is not paid in due time, the court will impose a prison sentence (in order to make the actor pay up), lasting till the payment of fine but no more than 30 days (Art. 19). The situation is similar to Sweden and their administrative law: “In Sweden, for instance, administrative sanction fees are often more severe than punitive fines (despite the fact that the procedural safeguards are weaker). But the issues here are complicated by the use of imprisonment as a back-up sanction in cases of unpaid fines, and sometimes penalty scales refer to imprisonment as a possible sanction only in order to make it possible to use pre-trial detention and other security measures.” Jareborg (2005), p. 526. 146 There is no one and only “Violations Code” that would list all the specific violations, similarly to the Criminal Code. 147 Bavcon, similarly, notices that the phenomenon of “criminal law inflation” seems to be “more and more distinctive in the field of violations [  ]”. Bavcon (1995), p. 31. 148 Similar dangers lurk in the civil law. The abuse of civil law is possible also because “there is no obvious distinction between actions which are criminal and those which generate civil liability”. Simester and Sullivan (2001), p. 7.

The Elements of the Harm Principle

39

On the other hand, it is true, at least in the majority of cases, that violations are different from crimes proper, not only in its sanctions but also in the “censure”149 involved. The person who commits a crime and is subsequently sentenced is, namely, censured; the state expresses a disapprobation of his act (and of the actor).150 The person who is fined because of committing a violation, is purportedly free of censure.151 Violations, therefore, being “less serious” than criminal offences, one could argue that the harm principle as a limiting principle on criminalisation need not apply to the prohibitions under the law of violations. Hörnle, for example, argues – in the context of the offence principle – that “the scope of penal law in the narrow sense should be restricted to acts which are harmful to others or which at least endanger others. The introduction of violations, on the other hand, could be restricted to such conduct which is offensive, but not harmful.”152 There is much to be said for arguing that the criminalisation of “mere” violations need not be as parsimonious as the criminalisation of “true” crimes that carry with them also harsher sentences,153 yet in the light of the above mentioned dangers of “abuse”, there should probably be some limiting principles to the criminalisation or legislation of violations as well. The case is similar with tax laws or taxation. The state sometimes indirectly discourages some conduct on grounds which would be problematic in the criminal law, namely, paternalism. In fact, as Simester and Sullivan observe, “[o]ne of the standard modern functions of the tax system is to regulate behaviour by manipulating the cost of products in order to reduce (or sometimes, increase) demand.”154 By taxing spirits more severely, for example, it tries to discourage the conduct it deems contrary to the best interests of the consumer, i.e. excessive consumption. Is such a basis for limiting the individual’s autonomy, more concretely, making it harder for him (or everybody) to access the alcohol, justified, in the light of the fact that it is not a criminal-law matter? Surely, the

149

von Hirsch (1993), ch. 2. “When the Court finds an accused guilty of committing a crime, and purports to punish her through sentencing, there is a public implication that she is blameworthy.” Simester and Sullivan (2003), p. 25. The condemnation, however, is present even before the act is committed; it is there ab initio, when a conduct is being criminalised. “When the legislature marks some action as criminal, however, it condemns it and rules it out as an acceptable option for citizens.” Simester and Sullivan (2001), p. 7. See also von Hirsch and Ashworth, ch. 2. 151 The same views are taken by the German doctrine, which claims that ‘moral reprobation’ – an inherent element of the criminal offence – is lacking in the case of Ordnungswidrigkeiten. 152 Hörnle, ‘Legal Regulation of Offense in Germany’ (a paper presented at the Workshop on Offence Principle, Cambridge, 25–27 Oct 2003,), p. 1. For a more recent version of this paper, see Hörnle (2006). 153 Mill, of course, would not agree since he demands that any state intervention be justified by the harm principle to be deemed “legitimate”. See above. 154 Simester and Sullivan (2003), p. 21. 150

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Harm Principle – A Comparative Analysis

criteria for a legitimate state action vary (i.e. ought to vary) among the variety of types of laws. Husak, similarly, claims that “[t]he same standard should not be used to evaluate both criminal and non-criminal laws”.155 After all, there is a difference between prohibition and “mere” taxation, is it not? Yet, as Mill warns us, the difference might sometimes be only in degree. “To tax stimulants for the sole purpose of making them more difficult to be obtained, is a measure differing only in degree from their entire prohibition; and would be justifiable only if that were justifiable.”156 Even though the harm principle, as expounded by Feinberg, concerns only the process of criminalisation, it is obviously not just criminalisation, but any kind of repressive measure or intervention of the state that needs justification for interfering with the individual’s freedom of choice or, as Mill put it (justifying his principle), “to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion.”157 An establishment of ‘legitimacy’, separate and independent from the issue of ‘legality’, is therefore needed. The principle of legality, namely, demands that state actions be done in accordance with the “positive law” (ius positum, law as it stands), but takes no stance on the issue of the content of this law, on the substantive (im)moral fibre of this law; in other words, on its ‘legitimacy’. Even though the Continental criminal law theory is wedded to the principle of legality, so much so that it is often entrenched in the constitution, yet (possibly in the wake of the empirical reality that teaches us that “bad” laws can occur despite the principle of legality being adhered to) more and more emphasis is given to the issues of legitimacy.158

155

Husak, p. 33. Mill, p. 111. Simester and Sullivan also emphasise the lack of socio-economic justice or equity the tax law often displays. Since taxes affect options, a smoker will have less money left for other activities, if the price of his cigarettes is increased. “In the absence of offsetting income tax rebates, such measures tend to have a disproportionate effect on the poor. As such, tax measures are both an improvement on criminalisation in so far as they are less coercive and preserve more options for citizens and, at the same time, less equitable than criminalisation in so far as they are likely to affect different socio-economic classes differentially.” (2003, p. 21) 157 Mill, p. 14. 158 Bavcon echoes the convictions of Beccaria and Jelenc, that often the problem is not the legality itself (more precisely, with the lack of clarity of laws and too expansive interpretation of laws) but the legitimacy of criminal law intervention on the legislative and practical level. “The experience of the last 200 years has clearly shown what manipulations with the principles of legality and independence of judges can occur in the totalitarian political regimes. This is the reason why, nowadays, the demand for legitimacy is first to the fore in the civilised societies.” Bavcon (1990), p. 56. Of course, an action cannot be legitimate without being also ‘legal’, i.e. adhering to the principle of legality. However, the implication is only one-way; a law or an action can be ‘legal’ in the above sense without being legitimate (i.e. good, justified, moral).

156

The Elements of the Harm Principle

41

Causes or Likely to Cause (Harm) The element “causes or likely to cause” (Mill) or “prevent harm to others” (Feinberg) seems rather straightforward. Although Feinberg’s formulation of the principle expressly mentions only the causal relationship between the harm that a person does to others and the legislation criminalising that harm, the other (primary) causation, i.e. the causal link between the conduct of the actor and harm159 is of course implied. The requirement of causation is so “fundamental to our understanding of the actus reus in criminal law”160 and thus also a precondition to establishing guilt161 (and hence, blameworthiness of the actor) that it is, regardless whether in the Anglo-American or Continental legal system, taken for granted; and so needs no additional defence within the harm principle. Now, “likely to cause” is a slightly different story. It concerns endangerment (danger, risk, remote harm): not the harm itself, but the possibility of harm. The state does and may, according to Mill, properly interfere with the actor’s conduct, if it generates a likelihood of harm. If the actor causes this likelihood, the responsibility162 is imputed to him. It sounds fairly straightforward but it is not really that simple. For what constitutes likelihood? Which consequences are “likely” to occur? The “natural, proximate and reasonable” (Mueller) consequences of his act? It may depend on the chosen theory of causality163 – which, on the other hand, has more to do with the philosophical (ethical) question of

159

“Causation links conduct and harm.” Mueller, p. 178. To be more precise and correct, the causation establishes a link between the actor’s conduct and a proscribed consequence. The latter does not (although on the harm principle it ought to) always equal harm, since harm (on the harm principle) must be an extra-legal category to perform its (limiting) functions on criminalisation. The proscribed consequence (Erfolgsunrecht) is always to be found in the criminal legal norm (Bavcon, see infra), harm not necessarily. In other words, criminalisation based on legal paternalism or legal moralism (i.e. not on the harm principle), for example, still has every norm containing a certain proscribed consequence (to which a causal connection must be established), even though the consequence is not harm but, for example, self-injury. See more on this under the subchapter on ‘Proscribed consequence’. 160 Simester and Sullivan (2003), p. 86. 161 “[F]or the establishment of criminal liability only the establishment of mens rea after the establishment of conduct, causation and harm, can make for a sound law.” Mueller, p. 185. 162 This is not the (more narrow) Continental ‘criminal responsibility’ (mens rea), but responsibility in the sense of a (just) imputability of the authorship of the criminal act. See more in fn. 165. 163 And also the criminal law system. The Anglo-American system believes in fusing the categories of causation and mens rea to some extent, while the Continental theory prefers the objective theory (or objective-subjective) of causation, even though it has started off similarly to common law theory. Feuerbach, for example, treated causation in connection with intention and negligence. Similarly Mittermaier. Their theories did not, however, gain recognition in Germany in the 19th century. “Nearly from the outset, the scholars and courts of the Reich attempted to keep causation strictly apart from anything smacking of mens rea. So great, indeed, was the belief in the magic of mens rea that, so it was thought, causation could be handled strictly on an objective basis, since mens rea would provide the necessary corrective – and the result would be perfect justice!” Mueller, p. 189.

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fair imputation164 of criminal responsibility165 than with the mechanical, physical causation. The sine qua non theory (called also the “but for” theory or theory of condition)166 requires a “necessary” condition or cause (for the production of the harm) and that is every condition which cannot be imagined absent without a corresponding failure of the result”.167 The other two objective theories of

164

See also von Hirsch (1996), maintaining that the term ‘imputation’ lies beyond traditional legal causation; that it, namely, represents a “normative link, warranting attribution of fault, between the proscribed behaviour and the eventual resulting harm or risk”. (Idem, p. 289, fn. 25) However, one may add, causation is not entirely non-normative either. Firstly, the choice of the theory of causality is, in itself, a normative action, since it depends on this choice, who is to be imputable and who is not. Moreover, the contemporary theory on causation (adopted into the Slovenian criminal theory from the German theory) acknowledges the notion of “objective imputation” or “objective attribution” (Objektive Zurechnung) of a certain consequence to a certain conduct. The term somewhat resembles von Hirsch’s “fair imputation”, yet it is (treated as) a term belonging to the (theory on) causation. See Bavcon, Šelih et al. (2003), p. 184. 165 Hart and Honoré distinguish two meanings of the term “responsibility”. In the first one, responsibility is practically synonymous with liability, answerability for. “[I]n this use [  ] there is no implication that the person held responsible actually did or caused the harm. Example: the parents are “responsible” for what their underage children do. In the second sense, “to say that someone is responsible for some harm is to assert (inter alia) that he did the harm or caused it [  ]”. They explain this “double use” by the relationship between causality and liability. “This double use of the expression no doubt arises from the important fact that doing or causing harm constitutes not only the most usual but the primary type of ground for holding persons responsible in the first sense.” Hart and Honoré, p. 503. It is to be emphasised that they start off by examining the “moral judgments of ordinary life”, where this “double use” undoubtedly holds true (even in the Continental legal culture, see Bavcon, Šelih et al. (2003), p. 270, claiming the same). However, the Continental legal theory makes a sharp distinction between causality and criminal responsibility. In Slovenia, the latter is two-fold: it consists, first, of certain mental conditions of the actor (sanity) and, second, of the actor’s “certain [negative] attitude towards the norm and the act committed” (guilt). (See Bavcon, Šelih et al. (2003), p. 270.) It is thus synonymous with the culpability requirement (Schuld) that comes into play only after we have already established a causal link between the conduct and the harm. We shall examine in detail the distinction between these concepts and legal systems later in the text; at this point only one clarification is needed – the one concerning “our” responsibility as used in the text above. The responsibility is used in connection with the fair imputation of harm and is therefore a normative notion, more than causality, since “the rule of causation, unfortunately, tells us nothing about its limitations” (Mueller, p. 173), yet in the same ballpark. It is not the Continental “criminal responsibility” (culpability) we are discussing here, we are simply concerned with the liability in general, i.e. should someone (whether he caused the harm or not) be answerable (held responsible for) for the outcome. We are, therefore, using the term (for now) in the Hart and Honoré’s first sense of the word. (This type of responsibility is, in our view, very similar to von Hirsch’s idea of “fair imputation” of harm and has to do with the choosing of the (most fair) theory of causality or making rules to limit the chosen theory of causality.) 166 Mueller, p. 189. In Slovenian legal theory it is known also as a ‘theory of equality between all the conditions and causes’. Bavcon, Šelih et al. (2003), p. 186. 167 Mueller, ibidem.

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causation, the theory of the most effective cause and the theory of preponderance, focus among all causes, which contributed towards the creation of the result, on that cause which ranked foremost or the last, ultimate cause, respectively. Among the objective-subjective theories, the theory of adequate causation – counting as a ‘cause’ only those factors that regularly, as a rule, bring about a certain consequence168 – is most widely acknowledged.169 It came out as a reform of the proximate cause theory. Conceived by von Kries and ardently supported by Radbruch, it was consistently applied by the German Federal Supreme Court in tort cases but rarely in criminal cases; in the beginning of the 50’s the Court even expressly rejected it as “implying the inclusion of a guilt element in causation.”170 This theory, namely, allows for “a more subjectivistic evaluation of the causal relations, as opposed to the strictly objectivistic conditio sine qua non theory.”171 The Continental theory of Germanic legal circle has thus always preferred to keep the categories (of causation and culpability) separate, as opposed to the Anglo-American theory, which has been always inclined towards a more flexible, concept-intertwining approach.172 As the Slovenian criminal law stems from the so-called Germanic legal circle, it is only logical that it would be similarly devoted to careful distinguishing between causation and culpability,173 even though it (the theory more than the legal practice) accepts the theory of adequate causality as well – mostly as a correction on the sine qua non theory, where the latter would lead to absurd or unjust results.174 However, in addition to the question of which consequences are likely to occur, there is another issue that needs to be addressed. As the state of likelihood of harm is not yet a ‘harm’ proper, the question that remains is what kind of likelihood

168

Bavcon, Šelih et al. (2003), p. 187. In other words, only that conduct, which has a “general tendency” to lead to consequences that contain elements of crime, is legally relevant or “causal in the criminal-law sense”. Roxin (2005), p. 368. 169 Some claim that the theory of adequate causality is not (or should not be conceived as) a theory of causation (defining the latter in the strict empirical sense) but rather a theory of imputation, whose purpose is to ascertain whether the (empirically already established) link between the perpetrator‘s conduct and the proscribed consequence can be attributed to the perpetrator also in the normative sense. See, for example, Roxin (2005), p. 369; Jescheck, Weigend, p. 285; Ambrož. 170 1 B.G.H.St. 332 (1951), cited after Mueller, p. 193, fn. 98. 171 Mueller, p. 193. 172 Hall, for example, maintains that “the fact finding of a cause-in-law means the finding of a cause which is a substantial factor and includes certain voluntary conduct signifying a required mens rea.” Hall, Studies in Jurisprudence and Criminal Theory, p. 187, cited after Mueller, p. 184. But this is, on the other hand, quite understandable taking into account that the Anglo-American theory subscribes to a much wider notion of mens rea than the Continental theory, which narrows it down to the concrete “defendant’s awareness, of the required intensity, that what he is doing is not approved by the community”. Mueller, p. 184. Also, Hart and Honoré do not share Hall’s view, as does not Model Penal Code which also considers mens rea apart from the causation issue. Mueller, p. 185. 173 “[This means that] the questions about the perpetrator’s guilt should not be mixed up in the assessment of the causal link.” Bavcon, Šelih et al. (2003), p. 185. 174 See Bavcon, Šelih et al. (2003), p. 187.

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or dangerousness (as potential harm) is “harmful enough” to be legitimately criminalised under the harm principle. The answer to this seems to depend, to a large extent, on the degree of likelihood of harm (or/and the occurrence of at least some of the harmful consequences). On the so-called ‘Standard Harm Analysis’,175 if the degree of likelihood of the full-blown ultimate harm is very high and some harmful side consequences have occurred, then the degree of “harmfulness” present in a certain conduct is – despite being smaller than the harmfulness of the ultimate harm (harm that may occur), nevertheless – sufficient, i.e. harmful enough to be criminalised. A similar idea is espoused by Knowles176 who maintains that when risk is substantial or serious enough, it qualifies for “jeopardy” (which equals, on his assumption, “harm”). We are then faced with two cases: (1) if we are “aware”177 of the degree of risk that constitutes “jeopardy” and the future harm (envisaged harm) is “catastrophic”, then the criminalisation is warranted; (2) if, however, jeopardy (i.e. substantial risk) is present, while future, envisaged harm is “serious but not catastrophic”, it is the regulation (i.e. the imposition of safety mechanisms) or reparation which are more appropriate. Even this account is not entirely bulletproof or comprehensive, of course; apart from the fact that one needs to establish, which harm should qualify as “serious” and which as “catastrophic”, and, of course, what amount of risk qualifies as “jeopardy”,178 the very fundamental assertion that jeopardy equals harm can be contested. It is worth remembering that, if we follow Mill, we do not need (nothing but) ‘harm’ for the legitimate criminalisation under the harm principle; Mill allows us (as does Feinberg) to criminalise the “possibility” of harm, so the criminal code expressing that a particular norm does not prohibit ‘harm’ but its ‘likelihood’, would still be valid under the harm principle. However, not every risky situation should be treated as ‘harm’. We can and should, instead, call it as it is – a mere risk, endangerment, likelihood (of harm) – and thereby avoid the danger of extending the harm too much. It is important to take notice of a major problem of the harm principle, namely its possible open-endedness – via the gate of “remoteness” of harm. This difficulty looms large if we extend the harm too much and put any kind of danger, risk, endangerment or remote harm on a par with the actual, direct 175

For the description of the ‘Standard Harm Analysis’ see von Hirsch (1996), p. 261. Knowles, p. 245. 177 The awareness of the knowledge that one is in jeopardy is crucial, as “[n]o community can legislate against being exposed to risks of which it is unaware”. Knowles, ibidem. 178 Knowles is very much aware of this, as he himself realises that all the weight of his application of the harm principle rests upon “our determination of that function of probability and seriousness of harm which we designate as jeopardy, the object of which is valued security”. (p. 245) He envisages the question of those who may ask whether we have not just avoided the pitfalls of a harm theory allowing the prohibition of acts upon the ‘risk’ of harm only to be landed with a theory that relies heavily upon the vaguer notion of jeopardy, and replies: “Are we any better off? I claim that we are. Probable harm simpliciter is no harm at all; harm possible in worlds other than this is not the concern of the legislator or his constituents”. (ibidem, emphasis in original) This statement does not, unfortunately, go very far in explaining what degree of risk should constitute “jeopardy”. 176

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harm as an equally valid reason for criminalisation. The harm principle, as von Hirsch stresses, serves well as a limitation of state punitive power and helps to preserve personal freedom. However, “[o]nce a straightforward harms analysis is extended to include more remote harms [  ] matters change – because all sorts of seemingly innocent things I (or we) do may ultimately have deleterious consequences.”179 It certainly defeats the purpose of having a narrow principle (as the harm principle purports to be) if we let the risk of harm in the harm principle to expand without limitation. After all, as Husak warns us, the criminal laws most vulnerable to the problem of overinclusiveness are “those designed to prevent a risk of harm rather than actual harm.”180 So, how remote the harm may be, how abstract the endangerment – to still be rightfully criminalised? How far away should we look? It is clear that legal causality is different from natural, physical causality. The juridical causal link necessarily stops at some point. Which point that should be depends on the chosen theory of causality. Choosing a different theory may lead to a different outcome (and consequently exonerating offenders when on the another theory they would be held accountable – for the same act)181 and so it is a normative, value-laden choice.182 Yet, there must be some further limitations, side-constrains to the chosen theory of causality. After all the rule of causation, as Mueller notices, “tells us nothing about its limitations”. Some further rules of fair imputation, or fair ascription of authorship of action,183 are required. Apart from the more or less classical, well-established rules on the intervening acts that arrest the causal link or direct it to somebody else, there exists, on the Continent (at least in Slovenia), a rule, or rather, a notion that abstract endangerment (where the violation of some regulation or bylaw is enough for criminalisation) is and should be an exception,184 an exception to be allowed only in a higher-stake cases; otherwise, if endangerment is to be criminalised at all, the actual (concrete)185 endangerment is needed. In the Anglo-American system, the analysis (termed the ‘Standard Harms Analysis’ by von Hirsch), which focuses on “the likelihood and magnitude of the risk and on certain

179

von Hirsch (1996), p. 260. Husak, p. 37 (emphasis in original). 181 This is another example of how the law defines what is ‘criminal’. 182 As opposed to the causality itself, which is a rather objective straightforward application of the rules, selection of relevant causes or conditions, an almost technical, mathematical operation not involving any value choices (once the choice which theory to choose has been made). 183 See Sévon, p. 146–151. 184 “Only very exceptional circumstances and very good reasons may lead to the violation of a regulation being declared a criminal offence, even though it elicited neither any concrete endangerment nor harm to the legally protected good.” Bavcon, Šelih et al. (2003), p. 183. 185 The concept similar to the American concept of “clear and present danger”; supported also by Feinberg (1984), p. 214. 180

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countervailing concerns and constraints”,186 is not a sufficient safeguard for addressing remote harms, since, as von Hirsch points out, it only deals with empirical link between the prohibited conduct and the undesired harmful result, while the normative link (“imputational link”)187 – establishing “why and to what extent the defendant committing a given act should justly be held accountable for its remote consequences or risk – is not systematically addressed at all.”188 From the examples of ‘intervening choices’ and ‘accumulative harms’,189 he distills additional constraints of justice (or fairness), constraints that he names ‘fair imputation’, and are based on the “basic notion of separateness of persons as choosing agents”.190 This basic notion should be strictly observed for the criminal law to be fair. The criminal law, namely, embodies by its nature an element of blame (censure) and, as Simester and Sullivan put it, “it is unclear that D may properly be condemned for her non-harmful action, just because that action happens to be linked, through chains of complex social interaction, to the subsequent injurious behaviour of some separate and autonomous person, E. It seems unjust to impose penal censure on D, at least where D has no power to control the harmful choices of E, and where D has not sought to assist or encourage those choices.”191 ‘Fair imputation’ should, inter alia, prevent the cases of criminalisation of conduct that has “no ill consequences in itself, but which is thought to induce or lead to further acts (by the defendant or a third person) that create or risk harm”,192 or criminalisation of those cases of abstract endangerment, where the conduct is proscribed not because it is ordinarily dangerous, but “because some actors may endanger others”.193 The imputational link is weak (perhaps too weak to justify criminalisation) if it may only occasionally lead to harm (some kinds of abstract endangerment) or when 186

The Standard Harms Analysis has three steps. In the first one, the gravity of the eventual harm and its likelihood are considered (the greater the gravity and likelihood, the stronger the case for penal prohibition). In the second step, the social value of the conduct and the degree of intrusion upon actor’s choices are weighed against the result of the first step. In the final step, certain side-constraints (such as freedom of expression) that would preclude criminalisation are considered. See von Hirsch (1996), p. 261. 187 von Hirsch (1996), p. 267. 188 von Hirsch, idem, p. 263. 189 An accumulative harm is an injury that came about only when the actor’s conduct is combined with similar acts of others. von Hirsch, idem, p. 265. 190 von Hirsch, idem, p. 267. 191 Simester and Sullivan (2003), p. 14. 192 von Hirsch (1996), p. 264 (so-called ‘intervening choice’). He refers to the House of Lords’ decision in Brown [1993] 2 WLR 556, where the argumentation for the continued proscription of the sadomasochistic sex among adult males rested, in part, on the argument that “permitting such conduct might encourage the seduction of young boys unable to give proper consent”. von Hirsch, ibidem. 193 Von Hirsch (idem, p. 264) gives an example of Sweden’s recent prohibition of driving with quite low (0,2 0 /00 or more) blood alcohol levels. “Most people at that point can still drive reasonably safely, but a minority who hold their liquor badly, cannot. Many thus are barred from choosing conduct that involves tolerably low risks, in order that the less competent few are prevented from endangering others.”

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the contribution of the actor himself (whose conduct is being proscribed) is nul (intervening choices) or minimal (certain cases of accumulative harms). In the more recent article, von Hirsch elaborates on the above mentioned cases, especially two of them, focusing on the question of what exactly lies behind the idea of fair imputation, or, in other words, which kind of reasons might deny imputability, and concludes that there are two main ones. The reason, in the case of ‘intervening-choice’ situations, is the lack of responsibility on the part of the actor for the eventual result. The actor bears no responsibility for the outcome, had he not normatively involved himself in the subsequent choice that produces the harm. In the case of ‘accumulative harms’, the actor is co-responsible, even if his action alone would not have been sufficient to produce the harm. What makes such harm imputable, however, depends on the role the actors play. If they are ‘specialists’ (or involved in certain other ‘connecting roles’), then the imposition of a ‘burden of desistance’ (from contributing to harm) upon them may be warranted and, consequently, they could be imputed.194 However, as von Hirsch himself states, when the potential resulting harm is so grave and widespread, even the fair imputation requirement may have to be derogated from (i.e. be overridden or trumped) by the extent and severity of the injuriousness and thus legitimately criminalised.195 Yet, these cases – if warranted at all – should be exceptional, for, as von Hirsch notes, the exact measurement of the gravity of a conduct is extremely difficult as it is, and, moreover, the “estimates of the gravity and likelihood of harm tend to become progressively more indeterminate, when the envisioned harm becomes more remote”.196 The issue at hand is undoubtedly one of the most troubling ones. It is clear that the ‘Standard Harms Analysis’ (SHA) as it is described by von Hirsch is not enough; it does not, for example, even address the issue of (fair, legitimate) criminalisation. Prior to establishing any kind of causal link in a concrete case (which is what SHA is about), we have to ask ourselves, first, how far should we pursue this dangerousness business – how remote a harm is still a “harm” (which falls into the ambit of the harm principle), how grave or serious should

194

See more in von Hirsch; also Wohlers (2003). With his theory on fair imputation still evolving, von Hirsch now believes that the arguments about limiting liability to specialists are really arguments about liberty (namely, the burdensomeness of regulation) and that they really work more as mediating principles than as responsibility/imputability claims. In the draft paper, presented at the Colloquium on Mediating Principles for Criminalisation (Castelen Manor, Augst, Switzerland, Dec 3–4, 2004), he states that making penal impositions apply primarily to specialists in the conduct seems to him, now, on reflection, more a mediating principle (based on the normative reason of ‘Gerechtigkeitserwägungen’ (considerations of justice), “concerned with allocating compliance-burdens among those who do contribute to the harm and have the requisite responsibility”, instead of a question of fair imputation. 195 von Hirsch (1996), p. 271. He gives an example of gun control legislation – an example of a legislation concerning remote harms that arise upon the making of an intervening choice – that “could meet this special burden, given the widespread carnage that appears to result from the easy availability of guns”. Ibidem. 196 von Hirsch, idem, p. 274.

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this harm be (to attack the legitimate criminalisation appetites), how substantial the risk of harm, how likely to occur (if left unchecked) etc. These are all questions pertinent and very important to the issue of criminalisation, and these are some of the questions von Hirsch’ ‘fair imputation’ is addressing. However, we might have, intuitively, a bit of a problem with saying “fair imputation may be trumped when   ” as it sounds very much like saying “in some circumstances, fairness (of the imputation) may be trumped”, i.e. the imputation may be unfair. Regardless of the “when   ”, that is, regardless of the circumstances, the imputation should not be unfair; which means, that the concept of ‘fair imputation’ should undergo some further elaboration to accommodate such (so far called) “exceptions”, or, some other normative concepts or solutions found to justify such criminalisation (of the “exceptions”). In case that such a justification proved impossible to find inside the debate on the harm principle, the only logical (legitimate) answer would have to be in not criminalising (or decriminalising, if already criminalised) such conduct. Of course, “justifications” could also be offered outside the realm of the harm principle, i.e. by appealing to other criminalisation principles, for example, legal paternalism. It this case, however, it would be hard to see how the criminalisation on such grounds could still qualify as “legitimate” on the liberal account.

(Harm) to Others The harm principle does not support the criminalisation of just any kind of harm, or harm in general. When the lightning strikes into a house or a tree, it certainly harms them, yet this is obviously not the harm for the purposes of the harm principle. The harm should result from a harmful conduct. The harmful conduct towards one’s self (the harm done by a human being to himor her- self), however, does not qualify either. The latter would be a separate ground for criminalisation, were one to accept legal paternalism as a legitimate criminalising principle (and this author does not). The harm that is needed for the harm principle is the harm to others. Only the harm that the individual – his life, body, liberty, property, health, personal integrity etc. – causes to other(s) qualifies under the harm principle (not e.g. harm to self). There is an additional requirement, explicitly stated by Feinberg,197 that the harm be wrongful, but that is a separate issue, which will be addressed further on in the text. Who are the “others” then? The issue of the identification of ‘others’ in criminal law can be perhaps most easily approached via the notion, or rather, the identification of the ‘victim’ or victims.198 Grant-Stitt proposes drawing a 197

Mill does not seem to emphasise this requirement, yet it is undoubtedly implicit in his very notion of harm. Feinberg, having distinguished two meanings of harm (a normative and a non-normative one), has to stress the wrongness of the harmful conduct expressly, as the non-normative meaning of harm (the one he mostly uses, as do von Hirsch and Simester) does not eo ipso include the wrongness of the conduct. 198 ‘Harm’, or rather, a “harmed party” is, however, a much less “victimalised” term than ‘victim’.

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distinction between ‘suffering’ as a subjective experience and ‘victimisation’ as the legal appraisement of this experience.199 Victimhood is, therefore, a legal category. It is not, Bedau informs us, a subjective matter. “A person has been victimised whenever any of his or her rights have been violated by another.”200 But who are the victims? Are the victims only the other people or can the abstract entities such as the society, the state, the collective, the environment etc. qualify as well? And what about individuals; should they have some special characteristics such as being citizens or permanent residents? In the ambit of criminalisation (i.e. criminal law) we can without hesitation reply to the last question in a negative way. The criminal law itself uses the term “who” or “whoever” (does this or that), it addresses an individual as such (e.g. not merely a citizen). Yet, there are certain criminal offences that do specify the perpetrator or the victim (the ‘other’) in more detail (e.g. criminal offence of assassination of the highest representatives of the state (Art. 352 of the Slovenian Criminal Code) that can be committed only against certain officials). In general, however, the criminal offences are “general”, i.e. addressing all and everyone. What about the state? Is the state the ‘other’ as well? Ontologically speaking, it certainly seems so – there are offences, even chapters in the Special part of the criminal code that involve only misconduct committed against the state (crimina laesae maiestatis). The state, therefore, seems to qualify as a victim as well. Moreover, if one looks at the criminal procedure, there we have an accused sitting on one side of the courtroom and the state (in the form of the public prosecutor) on the other. Of course, there are cases where there is the harmed individual himself sitting on the other side (in those cases where prosecution is instigated by a so-called private action)201 thus making a criminal process more similar to the civil one. But this is how things are. To avoid the so-called Humean fallacy (or Hume’s law)202 of deriving ‘ought’ from ‘is’, we should, however, irrespective of the seemingly unquestioned place of these crimes in our criminal codes, inspect their legitimacy, i.e. legitimacy of their inclusion into the criminal codes, independently of the current positive-law practice. Should, in other words, certain undesirable acts against the state be really treated as ‘crimes’? Should the state

199

In Boutellier, p. 57. See also Grant-Stitt, B., ‘Victimless crime. A definitional issue’, in: Journal of Crime and Justice, vol. 12, no. 2, 1989, p. 87–102. 200 Bedau, p. 63, cited from Boutellier, p. 57. 201 In Slovenia, there are three ways to instigate criminal procedure. Most criminal offences are prosecuted ex officio, i.e. upon the state prosecutor‘s initiative. In certain cases (e.g. insult), envisaged in the Criminal Code, the victim can instigate the procedure as a ‘private prosecutor’. And then, there are also cases or offences where the victim’s “motion to prosecute” is the prerequisite for a criminal procedure, even though the procedure is then normally conducted by a state prosecutor (and the victim usually participates in it as an ‘injured party’). 202 See Freeman, p. 11, 12. Hume argued that the normative statement (‘ought’) cannot be inferred from a factual one (‘is’). His “law” has not remained unchallenged, though. For the literature on this topic, see Freeman, fn. 81–82.

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be considered a ‘victim’, in need of protection by criminal law?203 Mill himself was not very clear and specific on this issue. If it were not for some passages of his book On Liberty, we could easily conclude that what he had in mind was “other individuals”. After all, it would be more in tune with the spirit of his work, in which he juxtaposes the individual against the society; the society being the one who adjudicates, criminalises, intervenes, restricts his liberty. In the fourth chapter, however, he mentions “a definite damage, or a definite risk of damage, either to an individual or to the public”, “constructive injury which a person causes to society”204 etc. Mill, himself, never used the term ‘state’; the individual is always faced with the public or, even more frequently, with society (which wants to act against him), not the state as such. However, ‘society’ is a term often used as a synonym for the state. In totalitarian regimes the term was too often (ab)used as an euphemism for the state: so-called interests of society (“družbeni interesi”) were really the interests of the state205 (raison(s) d’etat), “danger to society”206 was a criminal law concept often abused to protect the rulers against their opposition etc. Feinberg, noticing that some crimes, regularly featured in our penal codes, concern conduct that “rarely causes clear and substantial harm to any specific person or group, but is said to cause harm to ‘the public’, ‘society’, ‘the state’, public institutions or practices, the general ambience of neighborhoods, the economy, the climate, or the environment,”207 distinguishes between ‘public harms’ (the above category) and ‘private harms’. Although he does not reject the legitimacy of the notion of “public” harms;208 he does, however, insert an explanation, which sounds more like a conceptual caveat; namely, that “[t]he harms [  ] can be labelled ‘public’ as opposed to ‘private’ harms provided it is kept in mind that the public is composed of private individuals standing in complex social and legal relations to one another”.209 He also emphasises that the term ‘public interest’ (which constitutes ‘public harm’ when set back or violated) is vague and its application difficult in non-obvious cases. Moreover,

203

Of course, the mere idea that the state needs to “defend” itself from its individual is quite peculiar, considering that “no government in history has ever really needed criminal law for its defence, since for that it has always had all the necessary means of direct violence available.” Bavcon (1985), p. 409. 204 Mill, p. 91. 205 Bavcon (1985), p. 395. 206 In Slovenia, ‘social (societal) dangerousness’ (“družbena nevarnost”) was even a separate element of the so-called “general paradigm of criminal offence” (see more, infra). The legal doctrine (and, subsequently, the new Criminal Code) later “abolished” it, for it was often abused by the totalitarian state to harass its opponents. More on the notion of ‘social dangerousness’ in a separate section in the main text infra. 207 Feinberg (1984), p. 11. 208 After all he regards himself as a ‘moderate liberal’ (as opposed to Mill, whom he calls hard-line liberal), and the train of thought which would too radically question the legitimacy of e.g. “the state” as a proper object of criminal law protection, would probably sound too anarchistic, that is, not “moderate” at all. 209 Feinberg (1984), p. 11.

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he, too, warns of its potential for abuse: “Advocates of legal coercion are always tempted to use the elasticity of the ‘public interest’ to stretch the harm principle so that it will justify criminal prohibition of disapproved conduct that is at first sight harmless to persons other than the actors [  ].”210 The ‘public interest’ as well as other similar notions such as ‘the state’, ‘the nation’ or even ‘the fabric of society’,211 are all abstractions and qua abstractions more or less unpersuasive and easily abused in criminal law.212 Montesquieu, who heavily influenced not only Bentham but also Beccaria, clearly focused on the individual and harmful deeds that infringed upon the individual liberty. Arguing for the proportionality between crimes and punishments, he wanted to confine substantial punishments to crimes which actually injured individuals. In this light, he criticised many of existing crimes against religion (e.g. offences of sacrilege, witchcraft, magic, and heresy), for which the traditional penalties in many societies, and particularly in France, were horrendous, and rejected them as not being crimes in so far as others’ individual liberty was not infringed.213 The very definition of offences ought to be, according to him, based on the idea of the individual liberty. As to the state as victim, one may argue that a mere individual cannot possibly “attack” the state in such a way that it would face extinction or be seriously harmed in a way comparable to harms that can be inflicted upon other individuals.214 But even if that were, arguendo, possible, unless there is some connection (i.e. some harm done) to other individuals, their interests wrongfully set back, the state (e.g. its symbols) ought not to be protected by the criminal law. The use of criminal law is not “morally neutral” (Cranor), it is an “evil” (Bentham) in itself, and its employment for the protection of an abstract entity (established, in the first place, by the people, against whom it is now being protected) is, at least in a liberal society devoted to the principle of parsimonious criminalisation, an inconsistency, to say the least. Such a criminal law can be nothing more but a pure expression of power, a tool of social control. If no real harm can be done to the all-mighty state (outside its ‘human element’, i.e. the people), the criminalisation of this sort cannot serve any legitimate purpose. Similarly, there hardly seems to be any substantial justification for making ‘society’ an object of criminal law protection, apart from its members. After all, in today’s western liberal systems, “the value of groups is the value that membership in groups has for individuals”.215 Moreover, are there really any values or protected interests that belong only to society and not to the individual as well; any “legal goods of general importance”216 that are separate and above 210

Feinberg (1984), p. 222. The ‘fabric of society’ is, similar to the ‘community spirit’, a particularly fuzzy or vague concept; and vague concepts should be, in matters of legislation, avoided. 212 Floud and Young, p. 56. 213 Rosen, p. lxv. (Montesquieu, J.-J., The Spirit of the Laws, Books XII, ch. 4, p. 189, and Book VI, ch. 16, p. 91–92.) 214 Needless to say, I see (acts of) terrorism as harming the individuals. 215 Buchanan, p. 7. 216 “pravne dobrine splošnega pomena” Bavcon and Šelih (1999), p. 202. 211

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the ones of (merely) individual importance?217 Are there really any common goals that were not, first and foremost, felt as goals by the individuals themselves?218 In the case of, for example, a healthy environment, which is, undoubtedly, a common goal – does not the individual have a (moral, if not legal) right or claim (himself) to have and live in a healthy environment? Would not the unhealthy environment not only ruin his interest in having a nice view but also affect his health, his children, his property? Similar reasoning can be found in Mill, when, in his Utilitarianism, he states that a human being is capable of apprehending a community of interest between himself and the human society of which he forms a part, such that any conduct which threatens the security of the society generally, is threatening to his own. What is society’s, is also his own. ‘Societal’ necessarily encompasses ‘individual’, and moreover, the ‘individual’ encompasses ‘societal’. The individual’s isolation from the society or community he lives in, and hence its values, cannot ever be complete. “[W]e experience life through our living with others and we are unavoidably the product, in part, of the culture, practices and social relations in which we are nurtured.”219 The community values are, in this sense, undoubtedly to some extent a part of human beings’ central sense of identity,220 the point, however, being that the community is a part of him and so the community values represent some of his own values. Hence, it could be argued that, if anything, the circle of self-regarding area should increase221 as the individual has become more outward-looking, and cares also about other (outside-of-him) goods, goods that are more “collective” in nature, for they are his as well – less intrinsically his than, for example, his body, but nevertheless

217

The former ones are in the German doctrine called “non-waivable” (“non-disposable”), for the victim may not give her consent to the injury (or her consent is not legally valid), may not waive or dispose with the violated legal good; while the latter ones are “waivable” or “disposable” (disponibel, freiverfügbar) since the victim may consent to the injury, thereby (via the volenti maxim) excluding the element of ‘wrongness’ (“material unlawfulness”) and hence the criminality of the “offence” committed. See more, for example, in Korošec (1997). The author also notices that the discussion in the German-speaking countries shows an expanding trend towards the disposable goods. Ibidem, p. 202. 218 The reasoning here is just the opposite of the reasoning (dominant in the 18th and 19th century criminal law) maintaining that all the interests of the individual are interests of society and that, similarly, the individual may often be a direct beneficiary of a particular legal good, yet even in this role “he acts more or less as a representative of the broadest collective, with a limited right of free disposal.” Korošec, idem, p. 197. 219 Horton, p. 117 (cited per Higgins, p. 144). 220 Feinberg (1988), p. 120. “The liberal no less than the communitarian can insist that the individual whose autonomous right of self-government is so important to him is a social being through and through, and that many of his more important interests he shares with others in communities large and small. His community memberships, his assigned roles, his group allegiances form an important part of his conception of who or what he is. In a familiar sense, therefore, they form a part of his identity, the “true self” that rightfully determines his lot in life.” Idem, p. 121 (emphasis in original). 221 As it already seems to be increasing – see fn. 217.

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his, i.e. a part of him. In this light, it could be maintained that collective interests or certain valuable social practices might then be considered upholding through the criminal law, but only when these can ultimately be accounted for through the concerns of the individual human being harmed. Admittedly, this conception of “his, his, his” or the reduction of the collective to the individual may sound too individualistic222 to those who appeal to ‘community spirit’223 or to those who perceive society (or community) as a more valuable entity than the individual, with its objectives and goals that supersede the individual’s. The latter views may be shared, to some extent, in those countries, which have truly functioning welfare states.224 Certainly some 222

Communitarians often voice criticisms against Liberalism saying that it “fails to take seriously the centrality of human life of participation in groups, and that the liberal preoccupation with justice, understood largely as respect for individual rights, both results from and reinforces this neglect.” Buchanan, p. 1. The author then continues to assert that Liberalism (understood as the view that the proper role of the state is, first and foremost, to uphold the fundamental civil and political individual rights) can and should recognise group rights, under certain conditions, but that nevertheless Liberalism ought to preserve a strong presumption in favour of individual, rather than group rights, even for purposes of protecting the goods individuals can only attain from participation in groups. 223 They may be in minority though, as in many of today’s western, pluralist, multi-cultural societies, some see little sign of the one and only, “true” or homogenous ‘community spirit’. At least, there are plenty of “outsiders” (Camus) or the “alienated” (“those who nominally belong but are disaffected” – Higgins, p. 48) from their community and, hence, its “spirit”; and they are “significant within, and to some extent definitive of, life in modern political communities.” Higgins, ibidem. The revival of the theories of social contract (neocontractarianism) also seems to imply a deep-seated distrust in the (institutionalised) society and the state. Similarly, the rising trend of voting abstention in modern states can be construed as a clear tell-tale sign of the people’s dissatisfaction with the government (i.e. the state), its functioning and the likelihood of change. Whether they abstain from voting out of resignation (they do not care or do not believe anything will change regardless of who they vote for) or highly political choice (categorically saying that choosing the least bad candidate is no choice, no option at all), it is clearly a sign of dissonance between the government and the governed. 224 For example, in Finland. The Finnish criminal law has traditionally been seen also as a tool of social policy, in a way, educating or enlightening people about the goods that are deemed “valuable” or worthy of protection. “In Finland, following the welfare state ideology, the acceptable function of government since the 60’s and 70’s, when the guiding principles of the reform of criminal law were set out, has been traditionally seen to not only solve conflicts between individuals or between the individual and the state but also to implement policies in different fields of life. This has been channelled into the use of the criminal law as well, in other words, the criminal law has been seen as an instrument of social change, a tool for social engineering.” (Ohisalo, p. 8) The criminal code, therefore, could be said to represent also a kind of a moral code, and criminalisation thus an expression of the societal value that is put on some good. This, combined with the fact that the State is perceived as being essentially “good” and that its people do not seem to feel as alienated from it (or their community) as they do perhaps in some other parts of Europe, could help explain the inclusion of collective or community interests, or rather the infringements thereof, into the criminal code and, more importantly, its perceived non-controversiality. In Scandinavian countries (and perhaps in Finland as well), one should also take into account the influence of their own, significant, legal thought.

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authors225 talk about the genuine ties existing between the individual and his community (community being understood in the broadest sense) and see no problem in protecting ‘collective interests’, separately from the individual’s. But perhaps their views are content-dependent and would, consequently, change if the state (or community) became less welfare-oriented, less “individual-friendly”. Also, despite the recognition of these interests as being “separate” from the individual, there are serious doubts expressed by some of the authors themselves as to the need to protect these interests by the criminal law.226 One could make a valid objection, saying that state institutions, “functioning of the system”,227 or its regimes and practices are rightfully criminally protected, since the conduct attacking their integrity “undermine State-implemented regimes

The Scandinavian Realists (e.g. Hägerström, Olivecrona, Lundstedt, Ross) have sought to espouse the idea of law as a primary factor influencing moral standards. They believed that “not only can legislation make mores, but [that] it is the prime mover in any change of sentiment or morality.” Freeman, p. 868, fn. 81. 225 See, for example, Lernestedt, p. 365. 226 See more below, especially Hassemer. The individual as the primary focus of the criminal law’s protection is also a characteristic of the “defensive model” (Jareborg, 1995) of criminal law policy, one of whose principles for criminalisation is that “a crime presupposes that a legitimate interest or value, capable of concrete specification, is violated or threatened” (p. 22) and “it could be added that the values or interests protected should primarily be values or interests of individuals”. (p. 35, fn. 5, emphasis in original) One of the methods in the “offensive model”, on the other hand, includes “a change in emphasis from offences against individuals to offences against the state machinery, its institutions, policies, transactions and undertakings, or against an anonymous public.” (p. 26) In conclusion, Jareborg adds that “the ambitions of the offensive approach are largely misguided, partly for reasons of principle but also because it is indefensible to try to reach important social goals with inadequate and costly means”. Idem, p. 32, 33. 227 Roxin claims that freedom of the individual and the functionality (functional ability) of the social system (“der Freiheit des einzelnen in einem freiheitlichen Staat noch der Funktionsfähigkeit eines auf solchen Prinzipien aufbauenden sozialen Systems”) are the only two goals (major groups of legal goods) that are worth being protected by the criminal law – when he argues e.g. that showing disrespect to a symbol of state authority (actually Geßlerhut, a hat put on some statue – see William Tell) should not be made into a criminal offence, for it does not protect either of these two groups of legal goods. Roxin (1997), p. 15. (“Willkürliche Strafdrohungen schützen keine Rechtsgüter und sind unzulässig. Es darf also z. B. nicht dem Bürger bei Strafe geboten werden, einem Geßlerhut oder irgendeinem sonstigen Symbol Reverenz zu zollen. Denn das dient weder der Freiheit des einzelnen in einem freiheitlichen Staat noch der Funktionsfähigkeit eines auf solchen Prinzipien aufbauenden sozialen Systems.”) Also: “Rechtsgüter sind Gegebenheiten oder Zwecksetzungen, die dem einzelnen und seiner freien Entfaltung im Rahmen eines auf dieser Zielvorstellung aufbauenden sozialen Gesamzsystems oder dem Funktionieren dieses Systems selbst nützlich sind.” Ibidem. In the latest edition (2005), his definition of Rechtsgüter seems somewhat changed, however, in that it does not explicitly mention the “social-ness” of the system anymore. The Rechtsgüter are now described as “alle Gegebenheiten oder Zwecksetzungen [zu verstehen], die für die freie Entfaltung des Einzelnen, die Verwirklichung seiner Grundrechte und das Funktionieren eines auf dieser Zielvorstellung aufbauenden staatlichen Systems notwending sind.“ Roxin (2005), p. 16.

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that exist for the benefit of us all”.228 The question is, however, whether we can without a doubt assume that a particular state regime really exists and works for the benefit of us all. What if they cease to benefit us, what if they start doing more harm than good (e.g. by not providing services the taxpayers pay for, but instead spending money on raising the officials’ salaries, abusing the (quite costly) institution of referendum, buying expensive, unnecessary military equipment instead of building much needed hospitals etc.)? Surely, the link between the existence of those regimes and the “benefit to us all” would then be broken. To put it differently, if criminal codes are presumed to protect the fundamental values or legitimate interests of more or less permanent nature, then the individual’s moral obligation to obey the (in this case, criminal) law – in particular, regarding crimes against the state, its institutions and regimes (or society, in general) – should be a content-independent obligation, i.e. the obligation should not arise only in those societies (or at those times) that institutionalise regimes or practices, which “benefit” us. If our obligation is, however, content-dependent, then there is no per se moral obligation to obey law qua law. We might, similar to Pogge (who holds that we have a duty to disobey the law if the law is Unrecht (immoral)), thus maintain that we have a duty to disobey (break) criminal law, when it protects state institutions and practices that are actually harmful to us. In these cases, especially, the criminal law could prove a most dangerous instrument to be used against those individuals who would rightfully, legitimately “attack” such practices. If the state is justified in being separately protected by criminal law at all, we concur with Bavcon that it has “meaning and substance only if it protects the weak and powerless against the almightiness, violence and arbitrariness of the powerful”,229 which, on the other hand and especially in the sphere of criminal law, may also mean, paradoxically, against the state itself. The problem is not really so much in the existence of ‘collective interests’ (Kollektive Rechtsgüter) or legal goods that protect other things than the individual, as in the mode of their protection. One might well argue that there are other values worth protecting, interests that cannot be derived solely from individual interests. The question is, however, whether these interests should be protected by the criminal law. Not all legal goods (Rechtsgüter), as Roxin points out, have to be protected by the criminal law.230 From the subsidiary nature of the criminal law, emphasised by its ultima ratio principle, one could conclude that only a selection of interests protected by law should be, in fact, protected by the criminal law; a selection, most probably comprising only the interests that either cannot be protected otherwise or are of a such high importance that need to be (or deserve to be) additionally protected in this way. Hassemer, for 228

Simester and Sullivan (2003), p. 11. Bavcon (1985), p. 409. 230 Roxin, in Lernestedt, p. 148. Jareborg (2005, p. 526), similarly, maintains that it is a “fact that not all interests that are worthy of protection are, or could practicably be, protected by the criminal law” (and that, therefore, the notion of the so-called fragmentary character of criminal law cannot have any independent normative importance for it merely describes this fact). 229

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example, believes that “criminal law should be narrowed down to protect only personal interests. But, on the other hand, to accommodate changes in the modern society, there should be a separate ‘intervention law’ (Interventionsrecht)”.231 He emphasises that “the state exists for the individual” and, in the modernisation of society, he sees no reason to expand criminal law to answer these new demands of society and steer away from protecting individuals as victims.232

Mediating Maxims The term ‘mediating maxim’ is an umbrella term Feinberg uses for “guides to the application of a liberty-limiting principle in practical contexts of special kinds and in conditions of uncertainty, and for maxims of fairness to serve as guideposts to mark moral boundaries”.233 Even though they do not represent an element or a component of the harm principle, which would be common to both of the above-expounded conceptions of the harm principle, they can be said to form an important part of the Feinberg’s conception of the principle. They are supplementary criteria, some of which represent “controversial moral decisions and maxims of justice”,234 without which, according to Feinberg, the harm principle cannot be applied in a plausible way in large ranges of circumstance, because harm is “a very complex concept with hidden normative dimensions”.235 The definition is intelligible enough, yet the remainder of his discussion (the list of these mediating maxims) is left in some uncertainty. Feinberg lists, instead of clearly stated maxims, a host of cases, from which one should derive the maxims. In the cases of aggregative harms, for example, Feinberg suggests that the “morally significant differences among the persons who engage in an activity should be treated differently by the law when it is practicable to do so”.236 In the cases where harm or the lack thereof is a less than certain consequence of a given kind of conduct, he gives a list of criteria (“balancing requirements”237 or “rules of thumb”238 ) the legislator should take into account : “(a) the greater the gravity of a possible harm, the less probable its occurrence need be to justify prohibition of the conduct that threatens to produce it; (b) the greater

231

Hassemer (1992), p. 383. (Also in Lernestedt, p. 149.) He does not explain in detail what is meant by ‘law of interventions’, except that it should lie somewhere between the criminal law (stricto sensu) and the law of violations (administrative penal offences, Ordnungswidrigkeiten), between civil and public law and that it should ensure lesser procedural guarantees but also less severe sanctions than criminal law. Ibidem. 232 Hassemer, in Lernestedt, p. 149 and (1992), p. 383. He also stresses that many of the problems of the criminal law would be much better solved by the law of violations, public law, civil law, but also by market mechanisms. (p. 383) 233 Feinberg (1984), p. 187, 188. 234 Feinberg (1984), p. 187. 235 Feinberg (1984), p. 214. 236 Feinberg (1984), p. 217. 237 Simester and Sullivan (2003), p. 12. 238 Feinberg (1984), p. 216.

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the probability of harm, the less grave the harm need be to justify coercion; (c) the greater the magnitude of the risk of harm, itself compounded out of gravity and probability, the less reasonable it is to accept the risk; (d) the more valuable (useful) the dangerous conduct, both to the actor and to others, the more reasonable it is to take the risk of harmful consequences, and for extremely valuable conduct it is reasonable to run risks up to the point of clear and present danger; (e) the more reasonable the risk of harm (the danger), the weaker is the case for prohibiting the conduct that creates it.”239 As minor or trivial harms, despite them being harms, “below a certain threshold [they] are not to count as harms for the purposes of the harm principle, for legal interference with trivia is likely to cause more harm than it prevents”,240 the de minimis rule is also one of the maxims. And so is volenti non fit iniuria. As Feinberg himself admits, the ‘mediating maxim’ is an umbrella term, an umbrella which, however, covers a myriad of different issues, and that, in turn, renders the maxims quite incomprehensible at times. It is, namely, clear that it encompasses some rules to be applied only in special cases but also more general (restricting and/or balancing)241 factors to be applied after the harm principle has done its work. (This latter type of limiting factors/principles that should limit the harm principle in all cases (as opposed to some Feinberg’s mediating factors) will be more closely inspected under a separate heading at the end of this chapter).242

The Notion of ‘Harm’ and Translation Equivalents The Anglo-American System 1. The Formulation (the Concept) ‘Harm’ as featured in the harm principle is a very elusive, “vague and ambiguous” (Feinberg), controversial term. Mill, in his work, expounds the harm principle (principle of liberty) without clarifying what harm is, and according to some, he himself gives it at least eight different meanings throughout his book, without telling the reader when he is shifting from one meaning to another.243 Feinberg

239

Ibidem. Feinberg (1984), p. 216. 241 The name would depend on the role they would play. If the mere existence of some, would automatically quash the criminalisation, then they would be rightly called ‘restricting’ or ‘limiting’ factors. Others may merely act as some weight to be put on the balance against criminalisation (when the prima facie case for criminalisation, i.e. the harm principle requirement, has been already satisfied) as so the term ‘balancing’ could be used to describe them as well. See more in the section on ‘Limiting factors/principles’, infra. 242 For a somewhat different (from Feinberg) account of mediating principles, see von Hirsch, Seelmann, and Wohlers (2006). 243 Elshtain, p. 642. 240

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distinguishes two244 meanings of ‘harm’; one normative (where ‘harm’ means ‘wrong’ and ‘wrong’ means “a violation of somebody’s rights”),245 and the second one, non-normative (where harm is “thwarting, setting back, or defeating of an interest”).246 He goes on mainly using the term harm in the second sense (referring to the first one as ‘wrong’), demanding, however, from the outset, that a harm within the harm principle be a wrong, or wrongful, as well. “The sense of ‘harm’ as that term is used in the harm principle must represent the overlap of [the two] senses: only setbacks of interests that are wrongs, and wrongs that are setbacks to interest, are to count as harms in the appropriate sense.”247

Harm in the non-normative sense, as a “setback to an interest”, requires, however, a closer look at a definition of an ‘interest’. If I have an interest in something, Feinberg says, then I have a “kind of stake in its well-being”248 and ‘stake’ is “the amount risked by a party to a wager, or match, or gamble, a thing whose existence, or safety, or ownership depends on some issue.”249 In the rest of his book Harm to Others, one finds a host of types of interests mentioned (private, public, welfare, sadistic and morbid, self-centred, self-confined, competitive interests etc.), there is, however, no further elaboration on the definition of an ‘interest’, and consequently of ‘harm’. Von Hirsch goes further by embracing Feinberg’s definition (of harm in a non-normative sense) but also trying to define more clearly, what an interest is. In his view, ‘interests’ are resources over which a person has a legitimate claim. A ‘resource’, in turn, he understands as “referring to the longer-term means or capabilities that someone possesses.”250 Whether, for the purposes of the Continental law possible adoption of the harm principle, one accepts Feinberg’s or von Hirsch’s definition of an interest,251 may not be – at least on the theoretical level – as important as choosing between the 244

He mentions also the third one, a derivative one, a ‘harm’ as is used in the ordinary (not legal) language, but only to dismiss it. In this third sense – irrelevant for the harm principle –, vandals who have smashed windows are said to have harmed people’s property. What they have, in fact, done is they harmed interests of the building’s owner; they have harmed windows only in a derivative way. The windows were “damaged”, “broken” etc. but they were not really “harmed” in any sense. See more, Feinberg (1984), p. 32, 33. 245 “One person wrongs another when his indefensible (unjustifiable and inexcusable) conduct violates the other’s right [  ].” Feinberg (1984), p. 34. 246 Feinberg (1984), p. 33. 247 Feinberg (1984), p. 36. 248 Feinberg (1984), p. 33. 249 Feinberg (1984), ibidem. 250 von Hirsch and Simester, p. 2. Also von Hirsch (2003) p. 16–17. 251 Perhaps (Feinberg’s choice of) the term ‘interest’ is even of more use to the Continental-law theory, since it is an already known term (legal goods or Rechtsguter are, for example, explained via ‘interest’), whereas ‘resource’ is a relatively unknown term, especially in criminal law. It is originally an Anglo-American term, which, of course, does not, by any means, mean it should be a priori rejected. Continental legal theory is simply more acquainted and used to dealing with the term ‘interest’. Hörnle (2006, p. 10, 11) also believes that the notion of ‘resources’ is “somewhat too narrow to cover the more serious

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normative and non-normative (Feinberg’s) definition of ‘harm’. We believe the non-normative formulation of harm is more useful (and should be adopted) for at least two reasons. First, it differentiates ‘harm’ from ‘wrong’ thus making it a bit more neutral or more objective252 category. There is less fear of the harm resulting in the widening of the ambit of what is considered ‘criminal’ (extending of the reach of the criminal law), since there is a separate requirement of wrongness that needs to be fulfilled for the harm to pass the test for the harm principle, and further on, a separate requirement of culpability (Schuld) to be addressed as well, to be able to convict a person. On the legislative plane, there are, therefore, in addition to the harm requirement, legal norms such as justifications and excuses, intent or negligence requirements and other norms that are designed to shape the outcome of criminal proceedings. Second, by conceiving the category of harm as a more objective category, a better capacity of categorising the harms253 follows. In other words, if the harm were a subjective category, there would be as many harms as there are perpetrators and acts committed, for there are a variety of ways, motives, mental states and other circumstances, in which one can e.g. kill somebody or steal something from another. And if we wanted to criminalise all of the harms thus (i.e. subjectively) conceived, that would on the legislative plane disable an efficient all-encompassing criminalisation of the harms we wanted to criminalise, since the language a criminal code uses, is (and ought to be) abstract, general and objective.254 In the Special part of the code, kinds of wrongdoing”, such as, for example, entering someone’s apartment without her permission while she was not there, as the illegal entering itself did not diminish the resources she has – even if it is possible to extent the notion of ‘resource’ beyond tangible objects to include intangible conditions, such as e.g. being able to determine who enters one’s home, as well. She proposes, instead, to define those offences, which should be a part of the criminal code, by using the criterion of ‘rights’. “If it violates a right of another person, there is no need to ask whether [the conduct] is harmful or offensive. The crucial question then is: Did the conduct violate a legal right the person afflicted by the action has?” (Idem, p. 11; emphasis in original) There is a question, however, as to how far the rights-approach takes us, especially if they (i.e. rights) are understood in a positivistic sense of the word. See, for example, Feinberg (1984), p. 109 et seq. For more on this issue, see infra, under the heading on ‘Legal goods’. 252 Even though defining what counts as ‘harm’ (i.e. defining the substance or content of harm) is never neutral or objective; the definition or the formulation itself, which only provides a frame to the substance, however, can be such or, at least, more so. It has to do with how wide a net should be cast into the ocean of possible harms. Of course, by doing this it thereby sets a limit to the harms that would possibly qualify as ‘harms’ for the harm principle. 253 Probably done on the basis of “interest-rankings” (Feinberg), the need for which was accentuated by Feinberg himself (p. 36). Also, see Gray and other commentators on Mill. Some attempts to classify harms have been done by Gross, by von Hirsch and Jareborg; Bentham himself made a list of pleasures and pains, Mill (Utilitarianism, p. 219, 220) further introduced qualitative differences among pleasures, Paley worked out which pleasures lead to happiness and which do not. 254 “To effectively communicate to the public, the code must be easy to read and understand. It must give a clear statement, in objective terms if possible, of the conduct that the law prohibits and under what conditions it is prohibited.” Robinson et al., p. 304.

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specific harms are listed, but the individuality and subjectivity of a particular criminal case is aided or supplemented by the simultaneous use of the General part of the code, where, inter alia, various justifications and excuses are listed, that “personalise” each and every concrete criminal case.255 In other words, the harm before a judge is a subjective, concrete harm with or without an excuse or justification present (and with a particular mens rea), the harm before a judge is already a melange of all these things, but the harm needed in the criminalisation phase needs to be abstract, general and objective (stripped of the wrongness and culpability element)256 to be prêt-à-criminaliser and allow to be juxtaposed and limited further on by the culpability requirement and other elements like ‘wrongness’ (Rechtwidrigkeit, materialna protipravnost). However, opting for the Feinberg’s non-normative formulation of harm does not in any way suggest that our analysis of the criminalisation and the harm principle is value-neutral. It is very much normative, for we are offering a principle (or theory) on how criminalisation should be based. Also, having in mind that harms (the substance) are normative by nature, the formulations themselves, which precede them, may, in fact, on closer inspection, prove to move much more along the axis of more/less normative than normative/nonnormative. However, with this in mind, we shall continue to use Feinberg’s notion of a ‘non-normative’ formulation of harm, meaning solely that we rely on Feinberg’s interest-based concept, instead of on his wrong-based (‘normative’) concept of harm. 2. The Substance (the Conception) and the Categorising of Harm/Seriousness of Crime Apart from the above problem with the form or the formulation of harm, there is, of course, also a problem with the contents or the substance itself. What kind of harm should legitimately fall under the harm principle? Some more traditional harms like harms to physical integrity or property, are rather straightforward and thus fairly uncontested, others, such as psychological harm, are more controversial. Mill left the notion of harm rather unclarified, yet, he is most frequently taken to mean only physical harms and more extreme forms of psychological harm.257 Should psychological harm be included as well? What is it? Since it 255

This especially applies to the Continental criminal law, of course. While American Model Penal Code very much mimics this structure, it is still criticised for e.g. having several offences that are merely variations on basically the same criminal offence (precisely for the reason of inserting the subjective element, i.e. variations of mens rea, into the description of the offence). See a very detailed critique regarding this issue in Robinson et al. The structure of the English criminal law (more correctly, of England and Wales), however, follows the above described structure even less. Its criminal law is rather scattered; leaving aside the common-law offences (not even codified, a part of ‘unwritten law’), the (criminal) positive law itself is divided among different statutes. 256 Wrongness and culpability elements are, however, assumed to play a limiting role on the (already established) harm (harmful conduct). 257 Himma (online source).

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is often a catch-all phrase258 for not only harms proper, but also offences and even plain hurt feelings, which should stay outside the scope of criminalisation, it is a potentially dangerous notion – in the light of the extending (and thus “collapsing”)259 of the harm principle via broadening the notion of ‘harm’. Take, for example, the cases of pornography and prostitution. Some view pornography as simply ‘immoral’. Feminists like Catharine A. MacKinnon claim that pornography is, in fact, ‘harmful’ in a variety of ways260 and should, therefore, be dealt with under the harm principle. For others what pornography produces is not ‘harm(ful)’ at all but “merely” an ‘offence’ – whose criminalisation is, again, controversial within the liberal society.261 For still others, however, it may not even be ‘offensive’. The case is similar with prostitution. While Netherlands with its red light districts and legalised prostitution is often used as an example of a progressive, liberal society we should all learn from, a society where regulation (not prohibition) is emphasised, Sweden, its neighbouring country, recently went in the other direction and criminalised the purchase of sexual services on the purported grounds that prostitution causes: 1) harm to the woman herself, 2) harm to male customers, 3) harm to family/society, 4) harm to human rights, 5) an increase in child prostitution, and 6) on the grounds that it restrains females from entering trade. It is, however, far from clear whether any of these grounds would qualify under the harm principle. Moreover, in line with the liberal presumption in favour of liberty (in dubio pro libertate), the burden of proof of harmfulness should lie on the proponents of criminalisation. That which is perceived as ‘harm’ varies, however, not only through space (between societies and even within a particular society) but also through time. In the case on Finland and its reform of criminal law, one of the asserted purposes of the “first stage of the reform” of criminal law in 1990 was to “bring the provisions on property and economic offences in line with developments in society: not only has the new technology and developments in the financial market created new opportunities for offenders (e.g. computer offences), it has increased the level of seriousness of certain already existing types of offences.”262 In the light of these differences, the question poses itself as to how far one can get by abstract, a priori defining the essence (i.e. the conception or meaning, as opposed to the concept or the understanding) of harm? Can thus anything intelligent be said on this issue at all? If we, first, limit ourselves to the western liberal societies, some consensus on the basic values that penetrate into criminal law can be found. Perhaps more than the values

258

See von Hirsch and Jareborg (2005), p. 207. See Harcourt. 260 Harcourt, p. 111. See also MacKinnon’s Only Words (1993); ‘Pornography, Civil Rights, and Speech’, in: Harv. C.R.-C.L. L. Rev, vol. 20, no. 1 (1985); In Harm’s Way: The Pornography Civil Rights Hearings (1998) – edited with Andrea Dworkin. 261 For the debate on the ‘offence principle’ see Feinberg, Hirsch and Simester, Duff, Hörnle, Narayan, Peršak (2000 and 2003). 262 Joutsen et al., p. 39. 259

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themselves, the similarity in ranking them (the values, and hence the harms) is obvious. One can, for example, rather safely say that, in general, crimes against sexual inviolability (e.g. rape) are everywhere within the said society perceived as more blameworthy, and hence more severely sanctioned, than crimes against property. Harm being one of the two dimensions of the seriousness of crime,263 classifying crimes’ seriousness – which, in turn, gives us also the tools to systematise sanctions, to “decide what level of punishment, if any, is appropriate”264 – requires the classification or ranking of harms (or interests or values, whose violations represent ‘harms’). Von Hirsch and Jareborg, using a ‘living standard’ criterion,265 thus attempt to rank harms by identifying four generic-interest dimensions of a person that crimes may intrude upon: (a) physical integrity, (b) material support and amenity, and (c) freedom from humiliation.266 Furthermore, they list three degrees of intrusion into such interests (standard effects of crime on the living standard of a person); those that affect a person’s: (a) subsistence (simple survival with maintenance of no more than elementary human capacities to function), (b) minimal well-being (maintaining minimal levels of comfort and dignity), (c) adequate well-being (maintaining adequate levels of comfort and dignity), and (d) standard wellbeing (maintenance of full life quality).267 The seriousness of offence (and prior to that, criminalisation) should be determined, first, by identifying which of the categories of protected interests has been infringed, and, second, by assessing the degree to which an offence affects the quality of life (living standard) of a typical victim. “Homicide attacks physical integrity in such a way as to undermine even subsistence; it is, thus, more serious than a typical robbery and much more serious than petty theft or a minor assault.”268 An additional question regarding harm concerns the substantiality of harm. How substantial must the harm be? Would any (wrongful) harm to others do? In the light of de minimis rule (in the Anglo-American law: de minimis defence), the answer would seem to be negative. The American Model Penal Code (s. 2.12(2))

263

The other one being ‘culpability’. See von Hirsch and Jareborg (2005), p. 186. Simester and Sullivan (2003), p. 11. 265 The criterion they take for assessing the interests involved in particular harms or particular crimes – ‘the quality of a person’s life’ or ‘living standard’ –, they understand, however, in the broader sense (after Amartya Sen’s essay), i.e. in the sense that includes “not only economic means but other, non-economic capabilities that affect personal wellbeing”. von Hirsch and Jareborg (2005), p. 191. 266 von Hirsch and Jareborg (2005), p. 205. In the first version (1991), they listed also a forth dimension – privacy/autonomy, which was subsequently dropped. They emphasise that the list may not be complete. Also they address only the harmfulness of the conduct already declared criminal, which “injures or threatens to injure identifiable victims.” Idem, p. 187 (emphasis in original). 267 von Hirsch and Jareborg (2005), p. 202. In the first version of the article (1991, at p. 17), the fourth living standard level was termed ‘enhanced well-being’, which represented a significant enhancement in quality-of-life above the mere ‘adequate’ level. 268 Simester and Sullivan (2003), p. 11. 264

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allows the defence when the defendant’s conduct “did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offence or did so only to an extent too trivial to warrant the condemnation of conviction”.269 It would seem that the harm need be significant, or at least, not trivial. However, this is the harm needed for conviction (i.e. in the post delictum stage), on the level of criminalisation (where our principle operates) this is not perhaps of such importance. [However, according to the theory of negative elements of Tatbestand,270 de minimis provision from the General part of the Code (as in Slovenia and Austria)271 would seem to suggest that the lack of triviality of harm is, as a negative element of the offence, included in the definition of offence, or taken into account, even at the criminalisation stage.] Last but not least, it is important to realise, that the notion of ‘harm’, as is represented in the harm principle, ought to be an extralegal term, or at least a term outside the criminal black-letter law. If it were – a positive-law term –, then the harm principle could not perform its main limiting function, because once a criminal legal norm has been established, the harm (in the latter sense) would necessarily be assumed. In other words, the harm would necessarily be always present in the prohibited conduct (thus giving the impression it satisfies the requirement of the harm principle) by way of being the positive law. Like the saying “The law has to be obeyed because the law says so”, the thing would be entirely circular.272 (Roxin makes a similar comment about the Rechtsgut. Realising that the notion has to have a critical dimension (i.e. not being a merely descriptive concept), he maintains that it is (ought to be) be outside the criminal (positive) law.)273 3. Harm – Victim As suggested above, the harm principle requires not any harm, but otherregarding harm, that is, harm to others. It would be logical to conclude that what is meant by ‘others’ are ‘victims’. If we merely harmed ourselves, we would not refer to ourselves, nor would others refer to us, as ‘victims’. We chose to harm ourselves, but we cannot blame any other as the one who harmed us. Under the

269

Husak, p. 39. In 1913, German criminal law theorist Baumgarten offered a two-partite conception of the general notion of criminal offence, arguing that self-defence, duress, necessity, consent etc. – even though they are not, for reasons of economy, expressly stated in the norm itself – form the so-called “negative statutory elements of the crime” (negative Tatbestandsmerkmale). On this theory Tatbestandmaßigkeit and Rechtswidrigkeit would become fused into one concept. See, for example, Korošec (2004-II), p. 96, fn. 50. 271 The majority of the systems solve de minimis cases procedurally, i.e. by using the principle of opportune prosecution. Fabjanˇciˇc, p. 588. 272 The same argument is employed later, when we try to explain why ‘harm’ cannot be equated with ‘proscribed consequence’ (Erfolgsunrecht, prepovedana posledica). 273 Roxin, in Lernestedt, p. 148. He, however, maintains that the concept, despite it being outside the criminal (positive) law, is not, however, outside the law; that it is, nevertheless, to be found in the legal system. See, infra. 270

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harm principle an actor has to wrongfully harm ‘other(s)’, otherwise even the prima facie274 requirement for criminalisation is not fulfilled. Since there always has to be the ‘other’, whether we interpret it narrowly (an individual) or more broadly (holders of certain social or collective interests), and if we equate ‘other’ with ‘victim’, it would seem to necessarily follow that there always has to be a victim. No victim – no ‘other’, no ‘other’ – no harm (the harm as is required by the harm principle). On this perspective, the answer to the question “who is a victim?” would be very much intertwined with the question “what is harm?” By finding out who the victim is, we could then proceed to establish what (and how much) harm has been done (or could be done – from the legislator’s perspective). The object (harm) would be, thereby, derived from the subject (the victim). Yet, no victim – no harm is, for some, a contestable claim.275 If it were true, then ‘victimless’ would equal ‘harmless’. Gross, for example, sees it differently. 274

The harm principle is only a necessary condition (for Feinberg not even necessary) not also sufficient. The criminalisation does not automatically become legitimate when the harm principle is met; there are other considerations, limiting factors to be considered also. See more below. 275 Does this also mean there is no crime then? No victim, no harm, no crime? Harm principle, on the Mill’s version (the sole reason), certainly confirms the latter relation, i.e. no harm – no crime. The Slovenian, much criticised though, positive-law conception of the bagatelle (de minimis) criminal offence would also suggest this, since, in the Art. 14, it states that “it is not a crime if” (Ni kaznivo dejanje tisto dejanje, ki) and then lists several conditions or elements that render the conduct non-criminal. Harm (i.e. “insignificant or no harmful consequences”) being one of the elements taxatively listed in this provision; no harm (i.e. harmful consequences) – no crime then. Harmless crime would then be an oxymoron, or rather something the legislator wishes to prevent and so gives the judge (in the shape of de minimis rule) a tool to “decriminalise” a conduct that would abstractly constitute harm and be a crime, yet – because of the particularities of the case – in the concrete case, it is not. However, the separation of powers might stand in a way of accepting such a solution as good (at least on the Continent), as it is the legislator, and only the legislator, who is entitled to criminalise or decriminalise anything. In civil-law systems the courts (except maybe for the constitutional court) do not make law (at least in theory), and thus do not have the power to decriminalise. As the criminal-code solution currently in force (in Slovenian and, similarly, in Austrian positive law) de facto gives the judge such a power, the part of theory who argue for the stance that such an offence is, in fact, a ‘crime’, but that because of some other element(s), which are defined in the criminal code as constituting a “bagatelle” (e.g. no harmful, external consequences resulted in this concrete case), it (or rather, the actor) should not be ‘punished’, may have a point. On the other hand, the problem with the separation of powers, or rather lack thereof, could perhaps be avoided if, like the rest of Europe (Continental legal system), we were to shift de minimis rule from the criminal substantive law to the procedural law, and make it into a justification for the public prosecutor to decide not to prosecute (to waive prosecution), if any of the factors which render the offence bagatelle, are present. The theory is, furthermore, unclear about which of the elements of the so-called ‘general paradigm of criminal offence’ is excluded by de minimis. This question is particularly hard to answer, since there is a host of different factors that may trigger de minimis rule (some objective, others subjective) – I believe the answer might lie in the fact that, because of their complexity, each disables a different element of ‘the general paradigm’, hence no one and only answer can be given – but that is another issue that is not pertinent to our topic at this point, which is why we shall not elaborate on it further.

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He claims that “we can be harmed without directly being the victim; and, indeed, when there is no victim at all. Hence, on occasion, it may be appropriate to enact “victimless” crimes.” This stance is grounded on the fact that the term ‘victim’ is used to designate (only) the person being directly attacked, that is, only the person whose interests have been set back directly, or whose rights have been directly violated. Victim is, therefore, defined rather narrowly.276 If there is no direct victim, there is no ‘victim’, yet a person is harmed nevertheless.277 This view requires a re-evaluation, or even modification or expansion of our views as have been expressed in the previous subchapter, where the victim has been equated with ‘other(s)’ as in “harm to others”, demanded by the harm principle. It seems now, that the ‘other’, especially when construed in the broader sense, i.e. not including only other individuals but also a group or society or the state, must be a broader term than ‘victim’. From this also follows that we can defend “victimless crimes” as not being an oxymoron, under the harm principle, since the principle requires only a qualified278 harm, not an existence of a victim. Even when ‘others’ are construed in the narrower sense (as I have preferred), encompassing only other individuals, there might be a discrepancy between the ‘other’ and the ‘victim’ as interpreted above (stricto sensu). The individual can be ‘other’ in the narrower sense when a perpetrator has committed an act that e.g. deteriorated the quality of a river or atmosphere, since he has an interest (not community or society – as in ‘others’ latu sensu) in living in a healthy environment, an interest that has been set back by the perpetrator’s deed; and yet, the individual, since he has not been harmed directly (the criminal has not, for example, poisoned his only well, from which he drinks), is not a ‘victim’ proper. A person may be harmed by another person’s tax evasion; notwithstanding he has not been deprived of his assets directly and is, therefore, not a ‘victim’.279 Victim, however, can also be understood in a different, much broader sense,280 which would, in turn, enable the overlap of categories ‘other’ and ‘victim’. The overlap would, nevertheless, be only in the abstract plane – abstract harm, abstract ‘other’, abstract victim – as are featured in the criminalisation stage. In the concrete case, the harm and other requirement(s) could be satisfied, yet the ‘other’ would lose the quality of being a ‘victim’ due to e.g. consent given to the harmful act. The so-called volenti maxim, volenti non fit iniuria, annuls, in the concrete case, the wrongness of the otherwise abstractly wrong criminal act.

276

Cf. Grant-Stitt’s and Bedau’s views, presented in the previous subchapter. Therefore, “[t]ax evasion is rightly a crime notwithstanding that it deprives no particular person of assets directly. [  ] The obligation to pay tax is a collective duty, one that each person owes to his fellow citizens and not merely to the State.” Simester and Sullivan, p. 11. 278 By ‘qualified’ we mean that it has to be (1) harm to others, and (2) wrongful. It also, as mentioned on several occasions already, only provides a good prima facie reason for criminalisation, not a sufficient condition. 279 Gross, cited after Simester and Sullivan (2003), p. 11. 280 There are are views, of course, that, especially in these cult-of-victim days, there is always a victim, if not a physical one, an individual, then a society, a community etc. 277

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Since the concrete action is not wrong, even though the harm was inflicted, the ‘other’ is not a ‘victim’. Harm has been done to her, but since she consented to it, the harm was not wrongful, not an “injury” proper.281 Being a ‘victim’, therefore, presupposes wrongfulness of the act,282 whereas being ‘other’ does not (on the non-normative version of harm). 4. The a Contrario and Relational Definition The (Millian) harm principle, and consequently the harm, could also be defined in a negative, a contrario way as “non-harm is not a legitimate ground for criminalisation”, thus excluding offence principle, legal moralism and legal paternalism as legitimate grounds. Perhaps the harm principle is the most powerful exactly in this negative form, when it can be said that when there is no harm, hence there can be no legitimate ground (no ‘need’ in the light of the ultima ratio) for criminalisation.283 Harm principle thus defined reflects the Millian formulation of the said principle, which is ‘negative’ as well.284 Mill, namely, states that to interfere with the liberty of action of any member of society “[h]is own good, either physical or moral, is not a sufficient warrant”.285 Mill mostly juxtaposes harm and paternalism; if, however, we included Feinberg’s categories, then harm, negatively defined, would read “that which is not offence nor moralism or paternalism”. A negative definition of harm would therefore be more than a negation; it would be relational to the substance of other three recognised grounds for criminalisation. It is much easier to spot the argumentation based on ‘harm’ and those that employ the language of moralism (“immoral”, “evil”, “violating the moral norms”) or paternalism (“good for the actor”, “in his best interest”), which is why we shall now mainly focus on the relational definition of ‘harm’ by its juxtaposition to the ‘offence’. The differentiation between these two categories is, namely, much more puzzling and the line between them sometimes hard to draw. The examination shall not, however, go into very much detail, as this book addresses primarily the harm principle and the present academic debate on offence will be drawn upon merely in those aspects that affect, or may affect, the harm principle.

281

‘Iniuria’ should be translated as wrong (not as harm). The ambiguity is logical, stemming from the double-meaning of harm. Similar to the ambiguities regarding the term ‘responsibility’ – see Hart and Honoré, in the footnote supra. 282 Cf. Bedau (cited in a footnote above): “A person has been victimised whenever any of his or her rights have been violated by another.” According to Feinberg, to name just one, a ‘wrong’ is a violation of the other’s right (see above), therefore, a person has been victimised whenever she has been wronged by another. A contrario, if she has not been wronged, she has not been victimised; she is not a ‘victim’. Similarly Feinberg: “One class of harms (in the sense of set-back interests) must certainly be excluded from those that are properly called wrongs, namely those to which the victim has consented.” Feinberg (1984), p. 35. 283 Cf. Jareborg (2005), p. 528. 284 See supra. 285 Mill, p. 14.

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While harm, any kind of harm, includes a ‘set-back’, that is, a detriment or loss with more lasting consequences or a more lasting change to worse, the ‘offence’ is merely an “affront to other person’s sensibilities” (Feinberg), or, on von Hirsch and Simester’s view, such an affront plus “good reasons” for the affront, that should be provided by the proponent of criminalisation.286 On the latter author’s view, the ‘offence’ is in itself wrongful (i.e. encompasses the element of wrongdoing)287 when it treats people with “gross lack of consideration or respect”.288 While insult would merely be an ‘offence’ (a typical ‘offence’, according to von Hirsch and Simester), because the change to worse in the psychological well-being of the offended party is only temporary (there is no “set-back”), defamation, on the other hand, would count as ‘harm’, psychological harm, for there has been a set-back to the individual’s legally protected interest in his “good reputation”.289 Von Hirsch and Simester emphasise also, that the concept of psychological harm consists of more than the state of being affronted: “The psychologically-harmed person’s personal resources or coping abilities need to be impaired in various ways – for example, through his having been traumatised, or having difficulty concentrating on his work or conducting normal social relations. These are not the standard effects of offensive behaviour. Mere affront is not a species of psychological harm.”290

Whereas Mill recognises psychological harm only as an exception (only in extreme cases), Feinberg and von Hirsch accept it as a rule, but they define it, on purpose, rather narrowly. They claim that many confound it with what is merely an offence.291 These “many” include American Professor Schwartz, as well as, so it seems, the Continental legal theory. Insult is, for example, a part of the Slovenian (also German) Criminal Code, the theory does not problematise it (the supposedly protected legal good is honour and good name, and behind those, the value of human dignity).292

286

von Hirsch (2003), p. 5. In this they differ from Feinberg who makes ‘wrongfulness’ a separate requirement for the criminalisation of offence, and keeps the definition of ‘offence’ itself more nonnormative. See Feinberg (1985). 288 See supra, under the heading ‘Offence principle’. 289 Of course the question is, whether the judges really do ask around, and test this claim of reduced good reputation, or do they just assume it. 290 von Hirsch and Simester, idem, p. 3. 291 This is bad because it expands the ‘harm’, which, consequently, stretches the harm principle beyond its limits – which could result in the “collapse of harm principle”. See Harcourt. 292 In the words of a Slovenian Supreme Court judge and the author of the Commentary on the Special part of the Criminal Code: “Insult represents an assault on one’s honour and good name in the form of an insulting value judgement, if it does not contain any element of some other criminal offence. With such insulting value judgement it will be clear from its very nature the underestimation of another person, disrespect of his human dignity and other forms of negative judgement about him.” Deisinger, p. 180. 287

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In general, it seems that in those legal systems, where there is a separate law of violations, some types of ‘offence’ are considered as harms and, consequently, criminal law in the narrow sense, and some others as less-than-harms, therefore, not criminal offences stricto sensu but mere violations (administrative-penal offences), and thus put into a different code altogether. As to those that should be made (or remain) criminal offences proper, Hörnle, for example, argues that some grossly disrespectful actions – which would constitute ‘offence’ for von Hirsch and Simester –, in fact, constitute ‘harm’ and not just mere offence.293 Looking at the Continental positive law it also seems that it is not necessarily a set-back of interest, that is considered a ‘harm’; a mere infringement of a protected legal good, albeit temporary, will do. And since legal goods (Rechtsgüter) are often couched in terms of protecting the mere state of things, e.g. the “physical or mental integrity”,294 therefore, every attack (infringement) upon such a state is per se considered a ‘harm’.295 Last but not least, a note should be added on the relationship between the harm and moralism/paternalism discourse. Despite the fact that it is, as we claimed before, fairly easy or much easier to spot the argumentation based on legal moralism or paternalism, for it is so different from the argumentation based on the harm principle, even this task is not completely challenge-free. Not only that some prohibitions can be defended from the moralistic/paternalistic as well as from the harm perspective (example: pornography, prostitution, drug use etc), some cases of the so-called “soft paternalism” seem to be quite compatible with the harm principle. Feinberg, in fact, calls soft paternalism “no paternalism at all” as it only allows minimal state intervention to make sure our choices are voluntary and informed, before we proceed and harm ourselves. This “paternalistic” state intervention, to put it differently, serves only to establish the true will of the potentially self-harming person; it grows out of “concern for others”, which is supported by Mill himself.296 Of course, there has to be a limit to this intervention

293

Hörnle (2006), p. 12. She mentions exhibitionism as an example. Classified as an ‘offence’ by von Hirsch and Simester, she argues that it represents harm as it violates another person’s sexual autonomy, or more specifically, their “right to choose sexual roleplay for themselves”. (p. 13) Hörnle also argues that the notion of ‘gross lack of respect or consideration’ is merely descriptive (what is needed, in her opinion, is a normative concept such as ‘rights’) and too broad to allow an even prima facie criminalisation. (p. 14) Moreover, she claims that the answer to the question of which kind of conduct is seen as treating others with gross lack of respect and consideration is also a matter of social conventions. (p. 9) 294 “telesna ali duševna celovitost” (physical or mental integrity). 295 For example, in Slovenia, the criminal offence of “grdo ravnanje” (maltreatment) defines in the Art. 146 of the Criminal Code the prohibited conduct as every ill- treatment that affects (or offends – “prizadane”) the physical or mental integrity of the other person. Inviolability of the individual’s bodily and mental integrity (nedotakljivost cˇ lovekove telesne in duševne celovitosti) is even a constitutional value, protected in the Art. 36 of the Constitution of the Republic of Slovenia. 296 Mill, while being a stern opponent to paternalistic criminalisation (or any other repressive state intervention based on the paternalistic grounds), believes that it is our

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as well – otherwise it may turn into a full-blown “hard paternalism”. In other words, the making sure that our will is free and our choices informed, has to stop at some point. Also, in assessing the legitimacy of state’s paternalism, the method or the form of state intervention is quite important. While the state may rightly sometimes demand some precautionary measures to be taken (such as attending a class, reading a brochure, consulting a doctor, submitting to a psychiatric evaluation, signing some informative papers etc), this does not by any means imply that it may also criminalise our conduct or impose any other sanctions.

The Continental System – with Emphasis on Slovenian and German Criminal Law Now, apart from these “internal” problems with the definition of ‘harm’, which represent a problem even inside its lieu de naissance, we on the Continent have additional problems with the translation of harm, arising from the lack of a word that would in one word encompass the wholeness of meanings of ‘harm’. Harm is the most literally translated as škoda in Slovenian (or Schaden in German), which also means “damage”297 – a typical civil-law term, which is as such found in civil law298 but not in criminal law (except when talking about the restitution to the victim (“povraˇcilo škode žrtvi”) in the so-called ‘adhesive (adjunct) procedure’ (adhezijski postopek), which is basically a civil law procedure incorporated, for reasons of economy, into the criminal law procedure. Sometimes it is also translated as poškodba (injury)299 or as nevarnost (danger(ousness)), ogrožanje (endangerment) – depending on the context.

duty to warn the potentially self-harming persons of the danger their decisions or their goals may lead to (p. 107). We may and should criticise them or point to them the wrongness of their ends or their conceptions of good; we (or Mill’s “society”), however, cannot go beyond dissuasion (p. 110). In the size of this room for criticism of another’s ends, Rawls, as (according to Sinopoli) a status-based liberal, very much differs from Mill and his interest-based account of liberalism, in that he seems to demand not just tolerance but affirmation of worth of other‘s ends and activities, in so far they have a major place in rational plans (“rational” being that which maximises the attainment of enjoyable ends and activities). On Mill’s view, however, respect for others does not necessarily entail the respect of their ends; it entails only that we take them seriously and let them ultimately make a case for themselves. See Sinopoli, for a more detailed comparison between the two. 297 Feinberg (1984), p. 32–33. 298 The term “civil law” is in the Anglo-Saxon legal system sometimes employed to denote the Continental law, or rather, the Continental legal system etc. vis-à-vis the “common law” which denotes the Anglo-Saxon legal system. In order to avoid confusion, we are going to employ it, henceforth, only to denote the areas of every legal system (under which topics such as tort law, contract law, intellectual property law, etc. fall) that are different from criminal law. 299 But the terms harm – injury are not entirely overlapping, as will be seen shortly. See also Feinberg, p. 106–109.

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‘Škoda’ is, therefore, an expression that can be somewhat misleading. Harm is, namely, a term, broader than ‘damage’, or ‘injury’, or ‘endangerment’. Harm is qualitatively different from civil-law ‘damage’, which is why it calls out for sanctions other than solely pecuniary ones (such as imprisonment, admonitions etc.), and when the imposed sentence does happen to be a fine, its amount does not represent ‘damages’ or some equivalence to the damage caused, but, instead, a response to the seriousness of the offence (arranged by the systematisation of penalties, incorporated into the criminal code) mediated by principles of equity (the amount depends also on the financial situation of the defendant) and humanneness (the fine being considered more humane a sanction than imprisonment). The difference between ‘harm’ and ‘injury’, on the other hand, is perhaps best explained by Feinberg himself: “We are apt to think of injury as specific damage done to the body – broken bones, lacerations, “internal injuries”. So conceived, injury is one kind of harm. In ordinary speech, persons are not said to be injured by inflictions of harm to interests other than that in physical health and bodily integrity, except by analogy. Psychological shock, for example, is a kind of harm analogous to physical traumas, and can be called an ‘injury’, though not without some linguistic strain. (A physician attending a dazed soldier might find it more natural to say that “he has not been injured, only shocked.”) The more distant the analogy to physical wounds, the less appropriate is the term ‘injury’.”300

Injury is, therefore, one class of harm; a “tangible and material detriment”, which “originally and for many centuries meant a wrong, or a violation of one’s rights, or an injustice.”301 Feinberg also explains that the term ‘injury’ “derives from the Latin injuria, which meant ‘unjust’ or ‘wrongful’.”302 ‘Danger’ or ‘endangerment’ is not an adequate term either, since it refers only to the (unacceptable)303 risk of harm. It is thus a much more weakened term than harm. Harm, at any rate, presupposes some empirical evidence, some past harmful consequences that were, on average or in standard cases, brought about by certain conduct. Similarly to risk, which is a measurement of the probability and severity of some harm,304 it is a matter of fact. Danger, on the other hand, is a “matter of opinion”305 and so almost every conduct can be deemed dangerous. ‘Škoda’, when mentioned as such (i.e. in this original form) in the Slovenian Criminal Code, is a civil-law damage. It refers to the concrete damage that arose

300

Feinberg, p. 106. Feinberg, p. 107. 302 Feinberg, ibidem. “Volenti non fit iniuria” thus means that the consent (or will) takes the ‘wrongfulness’ out of the conduct; what the person who consented suffered cannot be a wrong. See supra. 303 See Floud and Young, p. 4. 304 Floud and Young, ibidem. 305 Floud and Young, ibidem. “Risk is a matter of fact; danger is a matter of opinion. Judgments of danger are not objective in the sense of being perfectly commensurate with risk [  ].” (p. 4) “Dangers [  ] are subjectively determined [  ].” (p. 5) 301

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from the incident (and for which, for example, the court requires the defendant to pay compensation). And yet, in some cases, the derivatives of ‘škoda’ – ‘škodljive posledice’, ‘oškodovanec’ – show us that there is, in fact, ‘škoda’ in the sense of harm present in there as well. Slovene criminal law, namely, knows the concept of ‘oškodovanec’, which literally means the ‘harmed person’. What is meant by that expression, is, of course, the victim – who, in the trial usually plays a role of a witness, sometimes a party (as a so-called ‘subsidiary prosecutor’) –, yet the term used is not a ‘victim’ but a much less “victimalised” (Bedau) term, namely, a ‘harmed person’. The existence of the ‘harmed person’ surely presupposes the existence of the ‘harm’. Another incidence of ‘harm’ comes in the shape of ‘harmful consequences’ (škodljive posledice), which play an important factor in the de minimis provision (Art. 14 of the Code). Moreover, the term is quite well-known to the Slovenian criminology.306 As for the time being, it suffices (in fact, it is always better) – in order to understand the role and the importance of the harm principle – not to use the linguistic interpretation, but instead to look at it (the harm principle) systemically and teleologically. We should inspect the role, position and significance of the harm principle within the criminal law, and then try to find a similar response within the Continental legal system – which shall be our task in the next main chapter.

The Functions of the Harm Principle The harm principle is a dynamic concept, whose value lies in the functions it performs – what it does and how it does it. We have already mentioned them in passing, here we shall recapitulate and expand on them.

Limiting and Delimiting Harm principle performs various functions. As a principle requiring that (only) “harm to others” is a legitimate basis for criminalisation, it, first and foremost, presents a limiting factor on the state’s criminalising aspirations. By limiting the state, it protects the individual’s personal freedom, his autonomy. Furthermore, it is a delimiting factor, delimiting what crime is from what is not (as in the case of “bagatelle criminality” or de minimis rule).307 It sets limits on society’s impulse to retaliate, on reacting “in the heat of the moment” when shocking news of some new crime is revealed. More broadly speaking, together with the rule

306

See Kanduˇc, Jelenc, translation of Beccaria’s On Crime and Punishment. This is otherwise a controversial solution. The theory (at least a part of it) suggests that it would be a better solution to use the option “it shall not be punished”. The bagatelle crime should lack punishability (Strafbarkeit); it should, however, remain unlawful. The quantity of harmful consequences should not, therefore, change the quality of an act (it would remain a crime), merely the end result, the final outcome.

307

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of law constraints and principle of criminal law as a last resort (ultima ratio), it helps to frame the criminalisation process into a frame that is more appropriate in a modern liberal society.

A Tool for Criminal Policy The principle in its positive aspect, or a positive conception of the harm principle, offers a prima facie good reason to criminalise, a criminal-policy grounds for criminalisation. Harm principle as a principle of criminalisation can be, therefore, not only a principle against criminalisation (as above) but also a principle for criminalisation. In the latter case, however, the need for supplementing criteria (limiting factors)308 becomes even more apparent, for only if the proposed piece of legislation is also in accordance with other relevant principles and factors of just criminalisation (be they of constitutional or pragmatic nature), can the prima facie good legislative candidate for criminalisation become a good candidate. The harm principle is not, however, just a tool for criminal policy, its instrument or mechanism; it is its normative framework, from which the criminal policy and the legislator implementing the policy draw their legitimacy – on condition, of course, that the ideology behind it corresponds to the ideology (or the value system) of their addressees and the broader social-moral context.

An Aid to Other Criminal Legal Principles The principle would also alleviate some of the burden the other classical criminallaw principles, especially the principle of legality, have to carry. It would, in other words, prevent those other principles from overstretching.309 For example, decriminalisation of (voluntary)310 prostitution or similar conduct – when they have been criminalised as offences against sexual morality311 – should be argued for on the basis of them being cases of a legal moralistic legislation (that is, criminal offences (or violations) based on legal moralism), which is not a legitimate ground for criminalisation in a developed, liberal society. It would then not have to be argued for such an offence to be stricken down (i.e. decriminalised) because the term ‘immorality’ is unclear, which, consequently, contravenes the principle of legality or “from the point of the legality principle, presents a danger to human rights.”312 It is true that the notion ‘immorality’ is unclear, as is undisputed that unclarity violates the lex certa requirement of the principle of

308

See the chapter on ‘Limiting factors/principles’. The argument, similar to the one proponents of the offence principle use – i.e. the offence principle would prevent the harm principle from over-extending. 310 As opposed to “forced” prostitution as, for example, in trafficking of human beings. 311 As was the case in Slovenia. For more detail, see under the section ‘The legality principle’, infra. 312 Korošec (1997), p. 210. 309

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legality; however, it is not primarily the unclarity or ambiguity that bothers us, it is the moralistic grounds on which harmless313 conduct is prohibited. Yet, if we do not have the principle that would instruct us with regards to the contents of a justified criminalisation, we have to resort to criticising it from the formal standpoint – for example, the standpoint of the legality principle – and this is bad for two reasons. First, it avoids the real issue, that of the legitimacy of the state in interfering with the individual’s autonomy (his freedom of action), or the question of the justified grounds for criminalisation. Second, it may not be always effective in striking down the inappropriate incriminations. For example, the legislator may defend herself against the charges of “unclarity” by specifying in more detail what she means by vague terms like ‘immorality’ etc. He may list cases, where the term applies, or he may list factors which, when fulfilled, shall determine whether something is ‘immoral’ or not. The legislator may clarify it and thus disable our criticism, yet it would still not be acceptable.

A Post-Delictum Tool Although we are here predominantly interested in its role as a principle of criminalisation, the harm principle should prove to be a useful tool in the post delictum stage as well. It would be useful for a judge (or a prosecutor), first, in the already mentioned cases of bagatelle criminality (de minimis non curat lex), where the lack of harm (harmful consequences) or the minimal, insignificant harm would (in legal systems where the matter is tackled by the substantive criminal law) render the verdict of not guilty or (in legal systems where the matter is tackled by the procedural criminal law) trigger the waiver of procedure or prevent it from being instigated in the first place. Granted, the de minimis rule already exists and functions, even in the systems where there is no harm principle known. Having a principle, however, that expressly focuses on harm, would probably trigger more analysis of the subject-matter and would thus help to elucidate also what harms (or harmful consequences) are “trivial” or “insignificant”. Second, harm is an important element defining the seriousness (or gravity) of the offence, and as such it should play an important part on the sentencing level, as a part of another principle, namely, the principle of proportionality. This is, as Simester and Sullivan put it, one of the “payoffs” of the harm principle: “in forcing us to consider more precisely why we are concerned about the activity that is to be criminalised, it gives us tools with which to rank the seriousness of offences and thus decide what level of punishment, if any, is appropriate.”314

313 314

‘Harmless’ in the sense that it lacks “harm to others”. Simester and Sullivan (2003), p. 11.

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The Nature of the Harm Principle There are still some issues of general character regarding the nature of the harm principle, which have been yet unanswered. For example: similar to de minimis rule, should the harm principle be a substantive or procedural legal principle? Is it a criminal-law principle or a wider, general legal principle? Is it a legal principle at all, or is it (should it be) extra-legal? Perhaps it might even be a meta principle, similar to Jareborg’s ultima ratio principle?315 The answer to the first two questions can best be given by comparing the harm principle with another principle of similar nature, namely, the principle of criminal law as a last resort (also called the ultima ratio principle).316 The harm principle as a principle of criminalisation is of course, firstly, a criminalpolicy principle, and hence pre-legal. Yet, so is the ultima ratio principle, which obviously does not stop it from being also a (criminal) legal principle. The said principle is expressly stated, for example, in Art. 2 of the Slovenian Criminal Code, and so it seems there may be room in the General part of the criminal code for the harm principle as well. While the Special part lists particular harms, the General part is traditionally reserved for principles, justifications, excuses, “general doctrines and generalisations”.317 As such, it could definitely contain the doctrine or principle of criminalisation, such as the harm principle. Husak is of the same persuasion, which he expresses with a rhetorical question: “If doctrines in the general part function to limit the structure of offences in the Special part – as surely is the case – then why can’t these doctrines also function to constrain the conduct that can be criminalised?”318 Of course, placing the harm principle in the General part of the code would not by itself solve the problem of criminalisation on the basis of other (not justified) grounds (e.g. legal paternalism), it would not ensure that the legislator would, in fact, adhere to such a principle (harm principle); what we are saying here is merely that if the harm principle as a principle is to be posited into the criminal law (the criminal code) at all, its place should be among other classical legal principles, i.e. in the General part. More importantly, however, is that the specific incriminations (offences) in the Special part of the code, as the concretisations of the harm principle in specific cases, adhere to the harm principle (be it as a principle written down in the General part or not). Outside its nature as a principle of criminalisation, the harm principle could play a role, and it already does, also on the procedural level. In the systems,

315

“The conclusion of the discussion is that the ultima ratio principle has no independent normative function unless it is interpreted as a metaprinciple summarising (sufficient penal value) reasons for criminalisation.” Jareborg (2005), p. 521. 316 “the principle of limited repressiveness” in the Slovenian and Croatian criminal-law theory. 317 Husak, p. 14. 318 Husak, p. 18, 19. He uses the term “doctrine” as a generic term to describe rules, doctrines, principles, defences, and the like. See p. 14, fn. 1.

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where de minimis rule is not a substantive criminal law instrument but instead a procedural one, i.e. to be used and applied by the prosecutor or a judge, the harm (the amount of it, to be more precise) plays a part in deciding whether to prosecute, for example, which effectively means deciding whether something is criminal (and therefore should be prosecuted) or not in the concrete case. Harm principle as a procedural rule, would (slightly modified) therefore require that the prosecution of a crime is justified only when there has been a (significant) harm done to others. However, even as a (criminal) legal principle by way of being in the criminal code, it can be argued that the harm principle is an extra, or meta legal principle. By questioning its ‘legal’ character, we are not here so much referring to the criminal-policy origin of the principle, as to the fact that ‘harm’ (as featured in the harm principle)319 has to be an extra-(criminal)legal category, i.e. a category outside (criminal) law, for the harm principle to be effective – at least as long as we take ‘legal’ to refer to the positive law, which is what we, on the Continent, usually do. The prevailing Continental view of the law, and hence its theory, is positivistic, and so ‘legal’ is that which can be ‘found in the law in force’. In the light of this, the ‘harm’, and consequently, the harm principle, has to be outside the ‘legal’ to perform its limiting function. If it were a ‘legal’ concept, every conduct that was prohibited by law, would – if we accepted the harm principle – of necessity contain ‘harm’. The very fact that a certain conduct is prohibited would mean that it is harmful. Harm would stem from the fact it is prohibited and so the argumentation trying to evaluate whether the criminalisation is legitimate (i.e. whether the criminalised conduct contains harm) would be entirely circular, for we would “find” harm in every criminal norm, in every single criminalised conduct. The harm principle would then be a descriptive principle not a normative one, and hence largely useless. This is also the reason, why ‘harm’ should not be translated, as some suggest,320 by ‘the proscribed consequence’ (Erfolgsunrecht, prepovedana posledica). The latter is always found in the criminal norm321 and hence cannot play a role of a criterion upon which to judge whether the criminalisation is justified, or whether the proscribed conduct really contains ‘harm to others’. Of course, the harm principle need not be in the positive law at all. It would suffice for it to become accepted by the theory, and thus affect our way of thinking about this issue. Moreover, it need not be incorporated into the positive law, by reason of its being primarily addressed to the legislator. It describes “limits that should be respected in the initial determination to employ the criminal sanction to prohibit conduct.”322 For this reason, one might conclude that, if it is to be formulated in any positive law at all, then it should find its place in the

319 320 321 322

Meaning “harm to others“. See Hörnle (2001) and infra, in the main text. See, infra, under the subchapter on ‘Proscribed consequence’. Husak, p. 24.

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constitution, not the criminal code.323 Seemingly the best idea, however, would be to declare the harm principle a “meta legal principle”, a principle above others and – in the light of the necessary (extra-legal) nature of ‘harm’ – prior to criminal law.324 There are also two implications of the harm principle, which are worth mentioning. First of all, the harm principle contains the principle in dubio pro libertate,325 or rather – in the field of criminal law –, the principle in dubio contra delictum.326 In the case of criminalisation, this means that, if the legislator is in doubt whether to criminalise or not (for example, the harm is not so obvious or significant), he should decide against it. The criminalisation of a particular kind of conduct must be necessary. Just as a judge “may not convict someone without proof of his or her guilt, the legislator may not criminalise a particular kind of conduct without evidence that criminalisation is necessary”.327 From this it should also follow that, secondly, the burden of persuasion as to providing the evidence of the (significant or serious) harmfulness of the conduct should lie on the proponents of criminalisation. The first and the second “derivative principles” are, in our opinion, logically connected to each other, similarly to the connection involved in the relationship between the procedural presumption of innocence (of the defendant) and the burden of proof (which lies on the other party), or even, the relationship between the privilege against self-incrimination and the exclusion of evidence.328 They are organically grown together, as are the two mentioned “derivative principles” grown (in)to the harm principle.

323

The same could be said for the ultima ratio principle, which is sometimes located in the criminal code (as in Slovenia). 324 Some claim, however, that “neither principles nor legal concepts can be pre-given. Both are to be formulated for the needs of positive law and taken into use on the basis of demands of society, empirical information and rational arguments.” Sevón, p. 129. 325 “The judge is subject to the principle in dubio pro reo. For the legislator a parallel principle is proposed – in dubio pro libertate (as opposed to in dubio pro lege).” Jareborg (2005), p. 531. See also Müller-Dietz, Heinz, ‘Aspekte und Konzepte der Strafrechtsbegrenzung’, in Festschrift für Rudolf Schmitt, 1992, p. 95; Hassemer, Winfried, Theorie und Soziologie des Verbrechens: Ansätze zu einer praxisorientierten Rechtsgutslehre, 1973, p. 194–220. 326 See Vormbaum, Thomas, ‘’Politisches’ Strafrecht’, in: Zeitschrift für die Gesamte Strafrechtswissenschaft, 1995, at p. 747 (cited by Jareborg (2005), p. 531, fn. 20.) 327 Jareborg (2005), p. 531 (summarising the argument of Hanack, Ernst-Walter, Zur Revision des Sexualstrafrechts in der Bundesrepublik, 1969, p. 37). 328 The presumption itself, without the exclusion of evidence that was obtained by violating the said privilege, de facto means nothing, since the “sanctioning” of the violation in any other way (e.g. by charging the policeman with a criminal offence or using internal disciplinary sanctions) does nothing to status of the defendant, his prior position could be reinstated only by excluding the illegitimately obtained evidence. See more in Zupanˇciˇc et al. (1996 and 1991).

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Problems and Open Questions of the Harm Principle The harm principle, or rather the application thereof, is not entirely unproblematic. What follows is the list of some of the salient open questions, which have been identified as such by different authors.329 They present a challenge for further elaboration, study and refinement of the theory on the harm principle.

Problems with ‘Harm’ As it has been already mentioned under different headings, one of the problems lies in the “object” of the harm principle, namely in the notion of ‘harm’. What counts as harm and which ‘harm’ is the proper one to qualify under the harm principle (not too broadly construed)? There is no problem with direct, physical harm, but what about the indirect, remote or psychological harm? Mill does not give any coherent account of ‘interests’, which is a problem that expresses a larger difficulty having to do with his account of harm. It is difficult, if not impossible,330 to apply his harm principle, if we do not know what is meant by ‘harm’. Gray emphasises that we easily enter into a vicious circle here, since despite Feinberg’s attempt (to define harm as a set-back to interests), “we are still in the dark as to what counts as an interest, and which interests are to be protected, from harm.”331 Von Hirsch attempts to clarify matters by defining an interest, namely as a “resource, in which one has a valid claim.” But does that eliminate the vicious circle? By merely using the term ‘resource’, it probably does not; in fact, as we mentioned before, on the Continent this is a new, rarely (if at all) used concept in criminal law, so it would need even more clarifications than the notion of an interest. As to the ‘valid claim’: here von Hirsch points out that he does not mean only a ‘legal’ claim but also a ‘moral’ claim. He does not explain what is precisely meant by ‘valid’.332 Even if we avoid the normativeness of ‘harm’ in its formulation (e.g. by using Feinberg’s non-normative formulation of “setback of interests”),333 the

329

I do not necessarily take a definitive stance on all of the listed issues nor do I endorse all the views discussed here; with some of the authors, in fact, I clearly disagree, which will be seen from the text. This subchapter simply aims to present the various, pro et contra, views in order to display the complexity of the debate on the harm principle. 330 “Unless we know what Mill means by ‘harm’, we cannot usefully apply his principle.” Gray, p. xviii. 331 Ibidem. 332 Feinberg, on the other hand, states that a claim becomes valid “when its rational support is not merely relevant and cogent, but decisive.” Feinberg (1984), p. 215. However, the question then remains as to what should count as, for example, ‘relevant’. 333 In the light of the von Hirsch’s definition of an ‘interest’ (i.e. resource, in which one has a valid (legal or moral) claim), as explained above, the questions, however, poses itself, whether von Hirsch, despite his originally accepting (and preferring) Feinberg’s nonnormative sense of ‘harm’, does not eventually (through defining ‘interest’ normatively) end up with a (previously avoided) normative conception of harm. In fact, he himself

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normativeness, of course, creeps in via its substance. Harm is a value-laden, diverse concept that varies from time to time, from place to place. One does not, however, have to agree with Gray who maintains that “[i]f, however, as seems highly plausible, conceptions of harm, and in particular judgements about the relative severity of harms, vary with different moral outlooks, then Mill’s principle will be virtually useless as a guide to policy.”334 Within a particular society and particular time (for example, a liberal modern society) one could reasonably posit at least basic, fundamental values or interests, regardless of individuals’ otherwise personally different moral outlooks. And those core, basic, shared interests would then be deemed grounds for (criminal) policy.335 Even in such a society, however, the problem with the substance of ‘harm’, and hence the application of the harm principle, becomes more noticeable, once one moves away from the “core” areas;336 for example, once a certain pressure group tries to introduce something, not widely perceived as ‘harm’ into the criminalisation arena and make it be seen as ‘harm’, or, when the public becomes sensitised to a particular act whose harmfulness may or may not be ordinarily apparent and wants it to be criminalised. Here, an additional “problem” comes to light. The corollary to the problem of not specifying what harm is or should be, how to measure it etc., is, namely, its potential for abuse. Not knowing what harm is, enables it, some may argue, to be anything and everything. It enables the broadening of the notion of harm ad infinitum and thus weakening or even “collapsing” (Harcourt) the harm principle. Even though this is one of the major reasons why some liberal thinkers emphasise the need for a separate ‘offence principle’,337 it has to be also clearly stated that the fact that abuses happen does not invalidate the principle itself. While it is necessary to be aware of the potential difficulties, and for that reason try to, for example, refine the principle by introducing some additional safety nets (such as the ‘limiting factors’), or

agrees with this observation. While he follows Feinberg’s structure of harm in as much as it involves ‘setting back of interests’, it is the second part of von Hirsch’ conception of harm, i.e. the ‘normative claim’ to an interest (or his ‘resource’), that makes his harm normative. In his words (talking about ‘resources’): “Auch wenn die Ressource oft an ein natürliches Phänomen gebunden ist, wie z.B. an den Besitz von Sachen oder an die körperliche Gesundheit, bleibt doch eine normative Beschreibung unverzichtbar: Ressourcen sind erst dann Interessen, wenn ein anderer einen normativ begründbaren Anspruch auf ihre Integrität besitzt.” von Hirsch (2003), p. 18, in Hefendehl et al. (eds.). 334 Gray, p. xviii. 335 A similar view is, for example, shared by Cranor, who argues that the criminal sanction should be reserved for a moral code’s more serious wrongs, where the “seriousness” would be defined relative to the code in question. “I do not see a way a priori to identify such conduct across cultures and moral codes. However, I would suggest that for any morality it is possible to establish a rough ordering of wrongful conduct from the most serious to the trivial and then reserve criminalization for conduct on the “serious” end of the spectrum.” Cranor, p. 163. 336 Of course, any criminalisation principle, not just harm principle, becomes harder to apply in the non-standard cases. 337 See supra.

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strive to evolve the theory regarding the concept of harm etc., the problems in practice do not disqualify the soundness of the theoretical concept or principle as such.338

Relationship Harm – Culpability The systemic allocation of ‘harm’ into the substantive criminal law or the systemic interpretation of ‘harm’ requires, inter alia, its juxtaposition with ‘culpability’. In Anglo-American philosophy of criminal law – which is in general somewhat suspicious of the clear-cut compartmentalisation of criminallaw concepts, towards which the Continental theory is more inclined – one finds claims that culpability qualifies harm.339 Such a culpability-qualified notion of harm may, however, cause a couple of problems. Firstly, it would seem to defeat our purpose to define harm non-normatively. If we, namely, take the wrongness out of the concept (formulation) of harm, thus making it a non-normative “setback to interests”, there seems to be no room left for any normative element affecting the harm thus defined – not for wrongness, let alone for culpability. Secondly, as culpability – also called “subjective responsibility”340 – brings the “subjective” into equation, this would mean that harm cannot be conceived as an objective category. If this were true, though, we might find ourselves on a somewhat slippery ground when trying to categorise harms. If we, namely, allowed culpability to define harm(s), then the variety of degrees of fault, not to mention the variety of motives, would disable the possibility of ever producing a definite catalogue of harms (categorising or ranking harms), since there would be as many harms as there is degrees of fault and shades of “motive and circumstance that determine the extent to which the offender should be held accountable for the consequences of his act.”341 There are two things that have to be considered here. First, one has to be aware that mens rea is in the Anglo-American legal theory a much wider concept than culpability or guilt (Schuld) on the Continent, encompassing not only intent (and recklessness, negligence) but also motives, and other subjective circumstances,342

338

Such problems, if continuing and left unaddressed, can, however, nevertheless, in the end, discourage the application of such a concept or principle. 339 For example, Hall (1976-I), at p. 617. See also Simester and von Hirsch, Allen. 340 As opposed to “objective responsibility”, which is responsibility without fault, responsibility for the caused consequence alone. See Bavcon, Šelih et al., p. 144, 145. Liability without fault is called also “strict liability” and “strict liability crimes” those unlawful acts whose elements do not encompass the requirement of criminal intent or mens rea. See H.C. Black et al. (1990), Black’s Law Dictionary, 6th ed., p. 1422. 341 All these factors, namely, represent culpability in the Anglo-American theory. See von Hirsch and Jareborg (2005), p. 186. 342 Brandt includes under the topic of mens rea the following three elements: the possibility to avoid the act (that the accused had but not taken); the agent’s awareness of the causal link between his behaviour and the events which the law proscribes; the agent’s awareness that it is wrong to produce such consequences, or that it is unlawful, or at least

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and it seems that wrongfulness,343 at least sometimes,344 as well. Second, the legal categories or concepts in the former theory are not as strictly separated as they are (deliberately) on the Continent, and hence the Anglo-American legal concepts often overlap, at least to some extent. Looking at, for example, the notions of ‘wrong’ and ‘responsibility’, their variety of meanings, their entanglement with other concepts, it will soon become clearer whence the “confusion” or overlapping. ‘Wrong’ is a moral and legal concept and so its meaning has to be usually deciphered from the context. Some of its various meanings are, first, that something is ‘evil’ or ‘not good’. Second, in legal parlance, it usually means Rechtswidrigkeit (or Unrecht, “material unlawfulness”), since justifications (e.g. self-defence) take away the wrongness of the act.345 Third, Feinberg defines wrong as “a violation of somebody’s right”,346 while, fourth, others claim that at least in “easy cases”, wrong can be “inferred from causing harm”347 – wrong in these cases, therefore, seems to be a part of harm. Fifth, von Hirsch and Simester suggest that both harm and culpability together constitute a “prima facie wrong”.348 Sixth, as already indicated above, there is also a link between the

that society generally regards the production of such consequences as wrong. Brandt, p. 284. (http://www.arts.ubc.ca/philos/russellj/201lec02.htm) 343 Hall (1976-I, p. 617), for example, claims that “mens rea qualifies ‘harm’; it is not simply a death or loss of possession that is a harm in penal discourse, but a death or loss of possession caused voluntarily by a sane, sober adult without justification or excuse.” Mens rea, on his account, thus consists of ‘intent’ (encompassing sanity) – at least that is what “voluntarily” seems to mean in this case (and not, for example, just the voluntariness of the conduct) –, but also of ‘wrong(fullness)’, i.e. lack of justification. It is interesting to note, that the same was true in the German criminal jurisprudence before Beling and von Liszt, who transferred wrongfulness into an element of the concept of crime. Prior to both scholars the common opinion was that wrongfulness cannot be established without guilt. See Eser, p. 625. 344 On other occasions, we find wrongfulness (Rechtswidrigkeit, absence of justification), not in mens rea but within actus reus. Glanville Williams thus states: “Actus reus includes [  ] not merely the whole objective situation that has to be proved by the prosecution, but also the absence of any ground of justification or excuse, whether such justification or excuse be stated in any statute creating the crime or implied by the courts in accordance with general principles”. (emphasis added) Cited after Allen, p. 17, 18. But then, “mens rea is often integral to the nature and wrongness of the defendant’s action [  ]”. Glanville Williams, in Simester and Smith, p. 14. 345 See, for example, Simester and Sullivan (2003), p. 29. 346 Feinberg, see above. 347 “In easy cases (not remote harm) wrong is inferred from causing harm.” von Hirsch (1996), p. 256. 348 “[I]f A invades a resource of B’s over which B has a legitimate claim, and A does so with the requisite intent (or, perhaps, negligence), this is a prima facie wrong – and thus a legitimate potential object for the censuring response of the criminal law.” von Hirsch and Simester (2003 version), p. 3. In the latest (2006) version, the word “culpable” is inserted into this sentence before the word “wrong”, suggesting that harm (invasion of a resource over which someone has a claim) coupled with culpability (intent, negligence) produces (prima facie) “culpable wrong”. von Hirsch and Simester (2006), p. 2.

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notions of wrong and culpability.349 In any case, wrong seems to be a category in which subjective and objective elements mix. It is a characteristic of an act, yet a characteristic derived from the subject, the agent, or rather, his mental state and perceptions. It is a legal category and yet, extralegal, moral (similar to the German term Unrecht); or legal, if law is understood in a more natural-law way. Similar points have been cited by Hart and Honoré in the case of the concept of ‘responsibility’. They distinguish two meanings of the term. In the first one, responsibility is practically synonymous with liability, answerability. “[I]n this use [  ] there is no implication that the person held responsible actually did or caused the harm.” Example: the parents are “responsible” for what their underage children do. In the second sense, “to say that someone is responsible for some harm is to assert, among other things, that he did the harm or caused it [  ]”. They explain this “double use” by the relationship between causality and liability. “This double use of the expression no doubt arises from the important fact that doing or causing harm constitutes not only the most usual but the primary type of ground for holding persons responsible in the first sense.”350 Hence the “(con)fusion” of concepts of harm and culpability, one may conclude. But “confusion” is probably too harsh a word, even though it seems like that to a Continental lawyer raised in the positivist legal tradition and, in criminal law, ruled by Beling’s tripartite structure of a criminal offence.351 Perhaps it is the Continental theory that tries so much to compartmentalise things.352 The difference perhaps stems from the different viewpoints or thinking about these concepts and different methods of approaching the same issues. Anglo-American law, namely, employs a contextual approach to the analysis of penal problems while German analysis, as Hall observes, proceeds in three stages. The analysis is focused first on Tatbestand, then on legality and finally on Schuld.353 This

349

See supra, in the footnote 343. Ashworth seems to equate the two as well: “A second and related criterion is culpability, for [  ] it is not the mere causing of harm but its wrongful causing that should be criminal.” (1994, p. 24; emphasis added) 350 Hart and Honoré, p. 503 (all quotes). See more in the footnote 165, supra. 351 See Eser; Hall (1976-I). 352 And hence, there are cases where the Continental structure collapses or rather, to prevent it from collapsing, calls these cases exceptions. For example; in the tripartite structure, we first check whether the statutory elements of the norm have been fulfilled, then move on to defining Rechtswidrigkeit (illegality or unlawfulness in the material sense, i.e. wrongfulness, lack of justification), then guilt (Schuld), in the very last instance. If one of prior steps have not been checked (or have been found wanting, i.e. selfdefence defeats wrongness of conduct), one does not even go on to ascertain the guilt. However, in the case of fraud, for example, the intent to defraud (motive) is expressly a statutory element, therefore it has to be checked at the very beginning, in the first step (Tatbestandmäßigkeit), not the third. So we must call it an “exception” (which does not stand alone), to keep believing in our system. 353 Hall (1976-I), p. 619. ‘Legality’, or rather, illegality is (material) unlawfulness, better translated as wrongfulness (see the section on ‘Material unlawfulness – Wrong(ful)ness – Rechtswidrigkeit’, infra).

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“system of ideas or propositions comprises a descriptive theory which was made possible by the restriction of mens rea to intentionality and recklessness, i.e. to what is common in the states of mind manifested in the voluntary commission of the specific crimes”.354 This relationship between harm and culpability, or the role of mens rea in harming, is perhaps more important on the level of sentencing, where the culpability does and should (ought to) influence the end result, i.e. the type and severity of the sentence, and in this respect shape (limit) the influence of the concrete harm. This does not mean, however, that it somehow changes (i.e. participates in the definition of) harm itself; it only limits, in the concrete case, the importance of the (concrete, post-delictum) harm on the end result. The seriousness of the crime, namely, comprises harm, on one hand, and culpability, on the other.355 Both, harm and culpability, affect blameworthiness or “penal value”356 of the offence. Smaller degree of culpability (e.g. recklessness) would, therefore, even with the same harm (e.g. non-accidental death or killing of other) have a different penal value thus warranting a milder sentence than in the case of murder (i.e. killing of other caused intentionally). One could reasonably conclude, therefore, that the culpability, together with harm but independently from harm, influences the blameworthiness (or penal value or seriousness) of the offence, and hence the sentence – which does not, however, mean that culpability, as some believe, in fact forms part of the ‘harm’. Example: if A kills B, whether with intent or negligently, the harm has been done, someone is dead (and not by accident or vis maior (act of God)), and so the harm is the same regardless of the degree of culpability. If there is no justification for the A’s act (e.g. self-defence), then the harm is also wrongful (a wrong) and the degree of culpability can then determine the classification of the offence – murder or manslaughter (and, in turn, different range of sentences). Culpability itself may thus limit the influence of harm (for the selection of the offence and final outcome) or even “trump it” (as in the case of e.g. insult by negligence – as insult can be done only with intent, the lower form of culpability precludes the very existence of a crime of insult) but it does not participate in its definition. Even in the cases, where the culpability (e.g. a specific intent) represents a specific, “positive” (as opposed to “negative”) statutory element of the crime, i.e. is explicitly stated in the description of the offence, the same holds true. In the

354

Hall, ibidem. See von Hirsch and Jareborg (2005), p. 186: “Seriousness of crime has two dimensions: harm and culpability.” 356 “The measure of blameworthiness of any kind of conduct depends partly on what values and interests have been infringed or threatened, and partly on whether the conduct involves actual infringement (harm), or creates a danger of such infringement, or is related to such infringement in some more distant way (for instance, a breach of a safety rule). But it also depends on the guilt or culpability exhibited by the actor in her conduct.” Jareborg (2005), p. 527. 355

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Anglo-American legal system there are numerous cases like that,357 on Continent there are only a few, for the culpability requirement is, in the form of a principle, incorporated into the General part of the criminal code, while the Special part usually only lists special harms, leaving the generally stated subjective element in the General part.358 Yet, even on Continent there are criminal offences, listed in the Special part, that contain a subjective element expressly mentioned in the criminal norm. For example, in the Slovenian Criminal code’s definition of ‘fraud’ there is a requirement that the act is done with ‘fraudulent intent’ or ‘intent to defraud’. Not only that the intent is listed, what is required is a specific intent (so-called dolus coloratus). In this case the Continental theory, with its narrower definition of culpability, admits that the culpability does form a part of the description of the criminal offence in the statute and so, when establishing a crime in the Continental tripartite structure of a criminal offence, we are in fact asking ourselves about mens rea already in the first stage of Tatbestandmäßigkeit, not only later in the third stage of Schuld. Forming the offence or forming actus reus does not, however, necessarily mean it is forming the harm itself, since actus reus does not equal harm or vice versa. Harm is merely one of the elements of the actus reus. Other elements comprise: the conduct, causation,359 proscribed consequence (when it is different from harm), and sometimes360 (as in the case of fraud), but not often,361 also culpability elements.362 Mens rea thereby becomes an element of the very actus reus, for if there is no specific intent (to defraud) present then the actus reus is not the same, the criminal offence may change into some other criminal offence, e.g. ‘fraud’

357

See Robinson et al. The reason for that is probably in the lack of uniformity in the application of the concept of mens rea to different crimes, while “under the German legal practice and theory it is applicable to all classes of crimes”. Schwenk, p. 553. 358 This statement must be qualified by mentioning that negligence when criminalised (i.e. conduct performed negligently when criminalised) always takes the shape of the so-called “privileged form of the criminal offence” and is placed in some paragraph following the first one (which always criminalises the so-called “basic/fundamental form of the offence”) – in other words, is, in fact, located in the Special part. However, first, those cases where negligence is criminalised are not so many; they are (and ought to be), in fact, an exception, and, second, negligence as such, the general description of negligence, is, nevertheless, stipulated in the General part. In other words, even in these cases, the offences in the Special part contain merely the statement that it is also a criminal offence when a particular act has been done “negligently”, and do not encompass all the descriptive elements of negligence (he should know etc.) in the text itself. 359 See Causation links conduct and harm. See Mueller, p. 178. 360 “Sometimes”, however, becomes “always”, if one subscribes to the so-called theory of “the negative statutory elements of a criminal offence” (negative Tatbestandmerkmale) for in this case the elements of the criminal offence are not only the ones listed in the criminal legal norm titled e.g. ‘theft’ (‘positive elements’), but also the elements, the doctrines etc. of the General part that in each case supplement the ones in the Special part. 361 At least not in the Continental legal system of Germanic legal circle. 362 “In some offences the actus reus may only be proved by proving mens rea.” Allen, p. 17.

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to ‘theft’ (if it fulfils its statutory elements), or loses the criminality altogether, e.g. case of negligent insult, since the actus is not reus. And from that, it is logical to maintain that the number of harms need not (and does not) correspond to the number of criminal offences. For (a) several offences may have the same harm, they could differentiate themselves by other different other elements of actus reus (e.g. by the method or tools they employed, circumstances, in which they deed the act etc.) or by different elements (and degrees) of mens rea (intent, recklessness, specific intent etc.); b) one offence may have a combination of various harms – for example, offence of ‘violent conduct’363 (encompassing, inter alia, minor harms to physical integrity + insult as harm to his dignity). There are criminal offences that set back several of our interests at the same time and so may cause us several different harms, that may, however, fulfill a specific offence (made out of this combination of harms) or constitute an offence (where bigger harms “subsume” other minor harms into the bigger one (see above) or in which some “free” harms that are not constitutive of the offence act as a aggravating circumstance, thus influencing the sentencing. In any case, harm and criminal offence or actus reus are not overlapping notions, therefore the influence that culpability exerts over the latter two is not mirrored in the harm. For that reason, harm can be an objective concept364 and should be, for only in this conception are we able to rank it (which is also important for the systematics of sentences), keep it in a limited number and follow the Feinberg’s non-normative formulation of harm as a “setback to the other’s interest”.

The Indeterminate Scope 1. Self-Regarding v. Other-Regarding Area One of the criticisms addressed to Mill’s exposition of the harm principle is the separation of areas or spheres of conduct into the one chiefly concerning the agent (the sphere of liberty) and the other concerning society or “others” (society’s jurisdiction). In other words, there is the “difficulty of demarcating the sphere of liberty protected by the principle.”365 The sphere of liberty, also called the “self-regarding” area, is an area (or areas) protected from interference (by the State) and encompasses that part of conduct that affects primarily the agent himself, that is, the agent’s own interest.366 Mill’s critics (J.F. Stephen, for

363

Art. 299 of the Criminal Code of Republic of Slovenia: “Whoever insults another, or treats him badly or violently or endangers his security [  ].” 364 That is, “objective” in the jurisprudential sense, in the sense of not being shaped or defined by the subjective element (i.e. culpability); its substance, described in the previous subchapters, is, of course, inherently normative (i.e. value-laden). 365 Gray, p. xvii. 366 Gray, p. xvi. Cf. with the Germanic notion of (an area of) “waivable” (or “disposable”) goods, with which the individual freely disposes – and may hence (validly) consent to them being violated or harmed.

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example) have insisted, however, that such an area is a fiction; that the distinction between self-regarding acts that affect only the agent himself and acts which regard others is “altogether fallacious and unfounded”. 367 If this were true, it would also weaken the harm principle’s anti-paternalistic thrust, as we could not “with any reasonable confidence identify acts that damage the interests of the agent alone”.368 In order to do that, we would first, they argue, have to have some rather watertight answers to what (human) interests are; answers which, we agree with Gray, “are, in truth, hard and intractable”.369 Yet, while answers may be difficult to obtain, they are not impossible, as many believe that some distinction among the core interests and their ordering (or ordering of the wrongs as violations of these interests) within a particular society in a particular time is plausible.370 Furthermore, as Knowles rightly points out, there is a difference between saying that every act “affects” a fellow human being and saying that every act “harms” them. The above mentioned no-man-is-an-island argument,371 if used to strike down the harm principle, needs to prove not only that every person’s action “affects” others, but that it affects them “detrimentally”. In other words, the argument requires, “if it is to be valid, acceptance of the further claim that if all actions affect others, then all actions cause some harm. [  ] Thus to reject the no-man-is-an-island argument against the harm principle one has to block the inference from the “truism” that every action affects others to the conclusion that every action harms others.”372 Quite possibly though, the ultimate answer to the question whether there are some exclusively self-regarding interests (underlying also the Continental idea of the ‘disposable (waivable) goods’) for the purposes of criminal law, may turn out to be a normative, or rather a political, one. The answer may be ultimately lying in our (normative or political) choice of the general or overall aim that the criminal law ought to pursue. If we, namely, take the criminal law to be an “evil” (Bentham) in itself, its usage “not morally neutral” (Cranor), and wish to keep it minimal, as a last resort, to be used only for the more serious harms, then

367

Stephen, p. x. On Schonsheck’s view, there is also an in-between sphere, an “interstice” between the sphere of individual liberty and society’s jurisdiction. “The possibility exists that some actions fall neither into Society’s Jurisdiction nor into the Sphere of Individual Liberty; if neither the argument for one nor the argument for the other is persuasive, then the action falls into the interstice.” Schonsheck, p. 61. 368 Gray, p. xvii, xviii. 369 Gray, p. xviii. 370 See Cranor, p. 163. Some attempts have already been made by Bentham, Mill, Beccaria etc. (see the discussion supra). Moreover, when it comes to ordering of the wrongs, the crime-seriousness studies done in the 60’s and 70’s (e.g. Rossi, Waite, Rose, and Berk (1974); Sellin and Wolfgang (1964)), apparently found considerable consensus among people in their assessment of the relative seriousness of different crimes. See Hogan, Chiricos, and Gertz, p. 397. 371 This is Feinberg’s short name for the argument that “no man’s affairs have effects on himself alone. There are thousand subtle and indirect ways in which every individual act, no matter how private and solitary, affects others”. Feinberg (1973), p. 31. 372 Knowles, p. 236.

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there is room for disposable legal goods and merely self-regarding sphere. If, on the other hand, we believe that criminal law should (or that it does) “educate” people, that it should be used for regulating their behaviour, and thus see it as a tool of socialisation or social engineering, then not having separate categories, denying the existence of harm to (only) self or self-regarding conduct works better for our criminal-law conception. 2. Not a ‘Sufficient’ Reason Another “shortcoming” on the part of the Mill’s harm principle is that the principle states only a necessary,373 and not a sufficient condition of the justified restraint of liberty, which leaves the application of the principle wanting even to the ideal legislator. Harm principle is, namely, only a good prima facie reason for state intervention, not a conclusive reason, meaning that “it [merely] tells us when we may restrain liberty, but not when we are right to do so”.374 This is a very important fact to keep in mind, so that we inquire into other possible factors, principles, requirements, or supplementary criteria that have to be accounted for in order to make a just, humane and efficient new piece of legislation. We have already mentioned rule of law requirements – principle of legality, constitutional constraints (e.g. privacy and free expression) and the ultima ratio principle. Other important factors, that may quash the proposed new criminalisation, may be that the costs of enforcing such a statute may be higher than the costs of harm it prohibits (e.g. it will require an expensive high-tech equipment to be fixed into city buses to catch an occasional person who instead of entering the bus in the front, uses the back door thus avoiding paying for the ticket), or that the prohibition is unfit for real life (unrealistic) and hence not very likely to be complied with (e.g. an offence requiring a close relative, e.g. a wife or mother, to report her husband or son to the police, if they committed a crime, any crime), or where the social value of the proposed prohibited conduct is greater than the harm produced by this conduct (e.g. an interactive artistic performance that included an actor insulting375 his audience or pouring water on the seated in the first row, or stealing little things like shoe-laces or matches from them) etc. The limiting factors/principles to be used in deciding whether harmful conduct should be criminalised represent such an important issue, that they deserve to be addressed in detail, separately, in a later chapter under the same title.

373

On Feinberg’s account the principle does not state even the necessary condition, for he (as well as von Hirsch and Simester) acknowledges also the offence principle as a good prima facie grounds for criminalisation. Offence, not necessarily harm, is a good reason, too. 374 Gray, p. xviii, xix. 375 Von Hirsch and Simester would in the case of insult talk of offence, of course, not harm.

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Potential for Abuse (Abusability of the Harm Principle) The open-endedness of the abstract notions defining the harm principle are unfortunately open also to various abuses; abuses that may, in the last instance, defeat the chief function of the harm principle, i.e. the function to set stringent limits on criminalisation. Abuses may come through different doors. They may come via the generous, extensive and all-encompassing interpretation of ‘others’ (encompassing society, community, majority etc.). ‘Causes or likely to cause’ part of the definition of the principle, especially the ‘likely to cause’ part, is apt to cause trouble as well, since it allows the ‘endangerment’, which is far from the more solid ‘harm’, to qualify for the criminal proscription.376 But the simplest, easiest way to abuse the principle is through the extending of ‘harm’. Regarding the repressive (extensive) criminalisation, two distinct trends seem to be evolving, or rather two different (yet parallel) ways of expounding the widened criminalisation. The first one is keeping the harm principle intact, i.e. using it in a strict, original sense (harm (principle) stricto sensu), where ‘harm’ is only direct and physical (or extreme psychological harm, as an exception). This group, in the desire to expand the reach of the criminal law, therefore employs other available principles such as legal paternalism or legal moralism (and offence principle, perhaps) to justify state intervention. The second group seems, on the face of it, to stay more true to Mill by accepting only the harm principle as the sole justified ground for criminalisation. However, what this second option does is expand the ‘harm’ by interpreting much that would otherwise constitute an offence or legal moralism, as ‘harm’ and thus – via expanding the meaning of harm – stretches the harm principle to make it a scarcely effective constraint. “Nowadays all I need do is tell a joke in bad taste, or put a photo on the wall of my office, or even use a term innocently that is subsequently given a sinister connotation by others and I may be hauled up on a harm charge [  ]”, Elshtain objects.377 With this trend in mind, Harcourt talks about the “collapse of the harm principle” noting that “instead of arguing about morals, the proponents of enforcement are talking about individual and social harms in contexts where, thirty years ago, the harm principle would have precluded regulation or prohibition.”378 He mentions examples of closures of liquor stores in Chicago in 1998 as a part of Chicago Mayor’s campaign to revitalise neighbourhoods. “The campaign focuses on the harms that liquor-related businesses produce in a neighbourhood, not on the morality or immorality of drinking.”379 He notices similar shifts in justification in a wide range of debates over the regulation or prohibition of activities that have traditionally been associated with moral offence 376

Cf. a similar criticism under the section on ‘Social dangerousness’. Elshtain, p. 642, 643. 378 Harcourt, p. 109, 110. 379 Harcourt, p. 110 (emphasis in original). He goes on quoting Mayor Daley saying: “People are voting for their pocketbook, for home values, for church, children and seniors. This is a quality of life issue, not an attempt to impose prohibition.” 377

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(prostitution, pornography, drugs, homosexuality etc.) – argumentation formerly based on morality, has now switched to argumentation based on harm.380 “The harm principle is effectively collapsing under the weight of its own success. Claims of harm have become so pervasive that the harm principle has become meaningless: the harm principle no longer serves the function of a critical principle because non-trivial harm arguments permeate the debate. Today, the issue is no longer whether a moral offence causes harm, but rather what type and what amount of harms the challenged conduct causes, and how the harms compare. On those issues, the harm principle is silent. This is a radical departure from the liberal theoretic, progressive discourse of the 1960s.”381

The culprit for this trend is, what Harcourt calls, the ‘conservative liberalism’. “Liberal criteria themselves have not changed. [  ] But the map of liberalism has changed.” In the 60’s and 70’s liberalism was predominantly progressive, today it is both, progressive and conservative. “Conservatives have adopted the harm principle, and increasingly are making harm arguments.”382 This phenomenon, however, true as it may be, surely does nothing to discredit those liberals who still believe in the harm principle as being a useful analytical tool, a tool that just recently got abused in practice, and who attempt to re(de)fine it, in order to make it tighter, more waterproof or less likely to be abused by the conservatives (be it “liberal” or otherwise). One such attempt to “clean up” the principle – at least of the conduct that is (merely) offensive – is by introducing (or rather, defending) an additional “good” principle of criminalisation, namely, the offence principle. The advocates of this approach believe that “[perhaps] it is a mistake to try to stretch the Harm Principle to accommodate offensive behaviour, as that would make the principle altogether too permissive. An alternate strategy would be to adopt a more narrowly drawn Harm Principle (one that continues to treat harm as involving the infringement of someone’s longer-term resources), and deal with offensive behaviour through a separate Offence Principle.”383 A sceptic might perhaps raise a question here as to the effectiveness of such an enterprise. Even if it is (jurisprudentially) true that an additional principle could return the harm principle to its original form and help reduce this state of “over-criminalisation” or “criminal inflation”, would it actually do so? In other words, what assurance do we have that the penal politics of today, with very low (or even zero) tolerance towards certain socially undesirable conduct, will not simply keep on abusing the harm principle in the way it has so far, but also, now, with the help of a new tool, approved by liberal scholars, (ab)use the offence principle on top of everything and widen the criminalisation even more? The proponents of such an offence principle, i.e. the

380

Harcourt, p. 110 (emphasis in original). Harcourt, p. 113 (emphasis in original). 382 Harcourt, p. 115, 116. 383 von Hirsch and Simester, p. 4, summarising Feinberg’s approach, with which they agree. 381

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offence principle as a solution to the weakening of the harm principle, should perhaps, in this case, hold the burden of persuasion;384 they should present some more substantial evidence as to the necessity of such a separate principle – or, at least, develop sufficiently strict limitations on the offence principle (as an integral part of the principle) to reduce the likelihood of abuse.385 Von Hirsch and Simester, proponents of the separate offence principle, do introduce the ‘mediating principles’, whose task would be, on their view, precisely that. Yet, one could argue that the strongest one of the mediating principles they list, i.e. that of social tolerance, would then either dismiss the purported ‘offence’ as unfit for criminalisation, or, were it more weakly construed, it could prove to be not strong enough to separate minor offence, which is unfit from criminalisation, from the “real” offence that would merit criminalisation.386 In any case, whether one adopts the idea of the need for a separate (offence) principle or not, the Harcourt’s above observation should stimulate the harm principle advocates to challenge the “false” uses of the harm principle rhetoric (or the use of the “false” harm principle) and reveal that much of the today’s argumentation, despite using the harm rhetoric, stems, in fact, from legal moralism or paternalism and not the harm principle.

Some other Criticisms Now, let us briefly look at some other criticisms addressing the harm principle or, specifically, Mill’s harm principle, i.e. his version of the principle. One of the criticisms refers to the discrepancy between the ‘is’ and ‘ought’, arguing that the harm principle is not descriptive of much of the modern criminal law. Many offences thus prohibit conduct which does not cause direct harm to others, but conduct that only indirectly causes harm or does not cause harm at all. That is certainly true; the statutes are full of provisions criminalising mere risk (even of the problematic kind, e.g. the abstract endangerment type) or even self-harm (e.g. euthanasia) or criminalising immorality (e.g. bestiality). However, that is not the problem of deficiency of the harm principle; the criticism should be addressed to such a criminal law and its proponents. In other words, even if that is a fairly accurate description of how things are, it ought not to be like that – and that, precisely, is what the harm principle affirms and why it is needed. The second criticism is addressed specifically to Mill’s exposition of the harm principle, i.e. his Principle of Liberty. The problem with Mill’s harm principle,

384

Similar to the burden of persuasion that lies (should lie) on the proponents of criminalisation, which is a logical by-product of the presumption in favour of liberty. “I agree with Joel Feinberg, and indeed most other philosophers of the criminal law, that there is, and ought to be, a presumption in favour of liberty: the burden of proof is on those who wish to criminalise actions, and not on those who wish to live free of such restrictions.” Schonsheck, p. 63. 385 On other, more detailed, criticisms of the offence principle, see Hörnle (2006). 386 The imputation constraints, mentioned earlier, might also be of some help here.

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which is a utilitarian concept (on Mill’s account) is that he is “deriving a distributive principle, the Principle of Liberty, from the aggregative Principle of Utility”, which, in Gray’s view, is “an attempt at squaring the circle.”387 Harm principle or Liberty principle (as Mill calls it) is a “utility-barring maxim whose adoption will, in fact, maximally promote aggregate utility”.388 In fact, the problem lies in that Mill tried to argue for the harm principle on utilitarian grounds. On the account of the harm principle in the present volume, the principle is not a utilitarian concept and so one is not faced with the problem of proving how this “intuitively peculiar” connection works, if it does at all. One can make normative arguments for the harm principle based on liberal values (offering protection to personal liberty) and, therefore, a moral (not a purely pragmatic) conception. In the light of the foregoing arguments, one could conclude, that even though the harm principle is a more or less uncontested principle – at least compared to other principles –, it is by no means without its problems. Many potential difficulties lurk in the yet insufficiently developed definition and scope of ‘harm’. Not only that what constitutes ‘harm’ remains in part unspecified, but the vagueness of the concept opens the potential for abuse – as the previous discussion suggests. Even if the “founder” of the principle had not remained rather silent on the issue of ‘harm’, the problem of discrepancy between ‘is’ and ‘ought’ would, therefore, not vanish. The ‘harm’, and consequently the harm principle, is a dynamic concept, a signifier, which will be given its meaning(s), its signified(s), anew through time, place and different legislator(s). After all, “though law may control interests, it is in the first place created by interests.”389 This political fact and the inherently normative character of harm are the reasons why the criminalisation, even if based on the harm principle, will always be prone to abuse. However, despite the fact that jurisprudential exercises with harm could never be “bulletproof”, in the sense that they can never give us all the answers we want and protect us from all the possible abuses, they are, nonetheless, useful – for reasons suggested in this chapter – and deserve to be taken seriously and developed. After all, nothing in law is free from risk of abuse, for “law (like crime) is inherently political.”390 As already emphasised above, the misapplications of the concept of harm, and consequently of the harm principle, should not really be understood as an intrinsic deficiency of the concept (or principle) itself. The deficiencies and mistakes in practice do not annul the quality and the jurisprudential soundness of the theory and its concepts. However, as the “bad” practical applications of the theory may (and often do) cast a shadow over the theory itself, the theory should strive

387

Gray, xvi. Gray, ibidem. 389 Quinney, in Hartjen, p. 35. 390 Hartjen, p. 19. Similarly, Ashworth (1999, p. 56): “The contours of the criminal law are not given but politically contingent. Seemingly objective criteria such as harm and offence tend to melt into the political ideologies of the time.” 388

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to predict the concept’s potential for abuse and try to reduce it by refining or improving the theory. One way of refining the theory on the harm principle is, as already suggested, by introducing a back-up system of limiting factors or limiting principles, which can go a long way in determining the legitimate scope of the harm principle.

Limiting Factors/Principles Under the section on Feinberg’s ‘mediating maxims’, we have emphasised the need for setting limits on the harm principle itself, for making a clearer statement of restricting or limiting criteria/principles that would apply to all cases of the harm principle, not just in particular cases (like many of Feinberg’s maxims). Mill himself noted this when he wrote: “[I]t must by no means be supposed, because damage or probability of damage, to the interests of others, can alone justify the interference of society, that therefore it always does justify such interference.”391 Feinberg, similarly, expressed the need for his harm principle to be supplemented by other principles and maxims. Since the aim of the harm principle is “to prevent only those harms that are wrongs”, he wrote, “the harm principle needs to be supplemented by an elaborate set of mediating maxims, interest-rankings, principles of justice and the like, before it can be applied to real legislative problems.”392 The legislator should, for example, in addition to the harmfulness of the conduct, also consider the countervailing social value of the conduct, the prohibitions’s potential intrusiveness upon privacy or personal autonomy and the practical feasibility of enforcement.393 Jareborg, in his later separate article, summarises various criminalisation arguments into three main criminalisation principles. His ‘penal value principle’ tells us that the conduct that is not significantly blameworthy394 should not be criminalised and, conversely, that “[t]he higher the (abstract) penal value, the stronger the reasons for criminalisation.”395 The ‘utility principle’ involves assessing the weight of arguments concerning the need, control costs

391

Mill, p. 104. Feinberg (1984), p. 36. 393 von Hirsch and Jareborg (2005), p. 187. 394 He uses the expressions “penal value” and “(degree of) blameworthiness” as synonyms, and explains that the latter depends partly on (1) what values and interests have been infringed or threatened, and partly on (2) whether the infringement has been actual (harm) or the conduct merely created a danger of such infringement or was related to such infringement is a more distant way, but also (3) on the guilt or culpability exhibited by the actor through her conduct. Jareborg (2005), p. 527. Remembering that the “seriousness of crime” is measured by harm and culpability (see von Hirsch and Jareborg), it is safe to say, that the ‘penal value’ (or the degree of blameworthiness) and the ‘seriousness’ of the offence are two sides of the same coin. 395 Jareborg (2005), p. 530. 392

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and inefficiency, while the ‘humanity principle’ is “assessing the weight of arguments concerning moderation (mainly prospective proportionality), the victim’s interests and some sorts of control costs.”396 Unfortunately, Jareborg does not mention how the various principles stand in relation to each other; whether they are all on the same level (to be balanced against each other) or whether there is perhaps a hierarchy between them. Schonsheck, however, attempts that. He has worked out a structure of various factors that should be taken into consideration in the process of criminalisation and, furthermore, envisaged how the structure should look like. On his view, the entire criminalisation process should resemble a funnel with three filters: the ‘Principles Filter’, the ‘Presumptions Filter’, and the ‘Pragmatics Filter’. A legitimate, justifiable criminalisation, on his account, presupposes that a particular piece of the proposed legislation has, “successively and succesfully”,397 passed through all of them in the three-step, filtering procedure. At the first level, the Principles Filter, the legislator should determine whether the action in question falls within the moral authority of the state. At the second filter, there would be an inspection into other possible means, less coercive and intrusive than the criminal statute, which could do the task satisfactorily enough, that is, reduce the occurrence of the negative conduct to an acceptable level. And, finally, at the third, Pragmatics Filter, one would perform a cost/benefit analysis inspecting the consequences of enacting and enforcing a prohibition.398 If we now take into account the factors and principles that should play an important role in the application of the harm principle – some already mentioned by other authors and some supplementary ones that we additionally deem important – and apply them to the structure (‘filtering approach’)399 devised by Schonsheck, we can construct the following model of an ideal three-step criminalisation process. The harm principle – and we could probably include Jareborg’s ‘penal value principle’ – should obviously lie in the area of the first filter, or rather, it should come through the first, Principles Filter, while legal moralism and paternalism would (should) remain on the other side, i.e. excluded. At the Presumptions Filter, the rule of law requirements, principle of ultima ratio and of legality, other constitutional constraints, and quite possibly also the Jareborg’s ‘humanity principle’, would represent a filter that would allow the newly proposed incrimination to go through only if no other less intrusive, less repressive, more humane measures were available or could do the job well

396

Jareborg, idem at p. 531. By control costs, he means a variety of costs and effects arising from the criminalisation (the resources needed to cope with the load that the criminalisation will involve, the increase of price of the prohibited object in an illegal market, and its by-products of increased criminality against property and organised crime, the fact that scarce resources used for punishment are more desperately needed for “urgent care” etc.). Jareborg, idem at p. 530. 397 Schonsheck, p. 25. 398 Schonsheck, ibidem. 399 This ‘filtering approach’ is basically the ‘principled approach’ (as opposed to the ‘balancing approach’), but more structured, more hierarchical.

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enough. This filter would presumably host also Bentham’s fourth type400 of circumstances where punishment should not be inflicted; which is when the punishment would be “needless” due to the offences being more profitably dealt with by other means, e.g. through education.401 The last, Pragmatics Filter, would then be concerned with the issues such as: the (financial) costs of criminalisation and enforcement, the social costs402 of criminalisation, obviously the Jareborg’s ‘utility principle’, his ‘practical feasibility of enforcement’ – which is perhaps similar to our above mentioned ‘realism’ maxim (“prohibition unfitted for real life”) and Bentham’s403 cases of “unprofitability”,404 such as the ‘small likelihood of detection’ –, the effectiveness,405 the “defiance” factor,406 consonance and 400

The other three cases are: (1) when punishment was “groundless” (e.g. the person injured has given consent), (2) when punishment was considered “inefficacious” (law not properly promulgated, conditions of infancy, insanity etc. in the perpetrator), and (3) when punishment would be “unprofitable”. See Bentham, p. 286. 401 Rosen, p. lxviii, in Bentham. As the question for Bentham, the utilitarian, is whether it is “profitable” to deal with offences in one way or another, one might very well argue that his ‘needlessness’ factor should fall under the third filter, calculating the costs and benefits, the profits. The contents of it, however, overlap with the ultima ratio principle (belonging clearly in the second filter), which required that the criminal law be used only as a last resort, that is, only if no other means (such as education) are possible. 402 “For one thing, the criminalisation of conduct has a social cost for those who undergo punishment. The cost lies in the stigma attached to a conviction for a crime and the resultant ‘criminal record’ that follows the offender forever.” Burchel and Milton, p. 31. But not only those: Bentham has distinguished the “evil of punishment” into four branches: (1) the evil of coercion, including constraint or restraint, (2) the evil of apprehension, (3) the evil of sufferance, and (4) “the derivative evils resulting to persons in connection with those by whom the three above-mentioned original evils were sustained.” Bentham, p. 287 (emphasis in original). 403 He admittedly talks about punishment, not criminalisation, which is why his “groundless” and “inefficacious” cases of punishment do not apply in our case, yet some considerations about the necessity (need for a criminal-law response) and profitability (or costs) of punishment should certainly enter the debate at the criminalisation deliberation stage as well. 404 “When a punishment is unprofitable, or in other words too expensive, it is because the evil of punishment exceeds that of the offence.” Bentham, p. 287. There might be circumstances where too many people would need to be arrested and punished or an attempt to do so would cause widespread displeasure or the danger of detection is, or would appear to be, so small, as to make the punishment appear in a high degree uncertain. 405 “An action might fail to pass through the Pragmatics Filter because no permissible state action would in fact prove effective in reducing the incidence of action.” Schonsheck, p. 79. 406 Defiance, as opposed to compliance, is, inter alia, the unwillingness of the people to comply with the law and its requirements. Schonsheck emphasises that in many cases, the compliance of citizens to new criminal legislation is simply assumed, and that this is a methodological mistake. He emphasises that this “assumption of compliance” takes various forms; from ignoring various costs of law enforcement (or assuming them to be negligible), to using the words “prohibit” and “prevent” interchangeably, from envisioning a society in which the proscribed conduct simply doesn’t occur, to misdescribing the behaviour of citizens in a way such that compliance with a prohibitory statute could reasonably be expected. Schonsheck, p. 8–11.

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consistency of the proposed offence with the extant law,407 and similar. If, after this last step, the benefits of the new criminal legislation still outweighed its costs, then and only then, the criminalisation would be given a go ahead. Some of these countervailing factors could also play the role of ‘balancing factors’,408 for they wouldn’t preclude criminalisation, but merely weigh against it. The moral side-constraints such as ‘free speech’ could play this role. The ‘financial costs’ also seem to be such a category, or rather, they could sometimes play the role of an absolutely limiting factor, defeating criminalisation, and sometimes the role of a relatively limiting – balancing factor, which could, on the whole, have (primary) effects other than quashing criminalisation. If the offence was thus less serious and the costs enormous, they could end the criminalisation at the third level (third filter); if, on the other hand, the offence was very serious, blameworthy, harmful and also successfully passed the second filter, then a minor increase in the costs of implementation probably should not stop it all together, but merely perhaps re-adjust the burden of proof, i.e. put some more burden of proving the offence’s true severity and/or the need for criminalisation on the supporters of the proposed criminalisation. This “balancing” within the third filter – which, looking at the larger picture, could also be construed as balancing within the chosen principle (harm principle) at the level one (the ‘Principles Filter’) – would, consequently, have repercussions not only on the end result (the successful or unsuccessful criminalisation) but it would assign specific duties to the parties involved, it would, in other words, specify more concretely the burden of proof (of the legitimacy of criminalisation).

407

Simester and Sullivan (2003), p. 24. Or ‘general’ mediating principles, to be employed in all cases, not just in particular cases (as they are sometimes with Feinberg – see above). Feinberg, similarly, lists five balancing rules, which he, however, envisions to be employed (only) “for cases where harm or lack thereof is a less then certain consequence of a given kind of conduct”, where the conduct creates merely “a danger to some degree” – essentially, therefore, in the cases of remote harm. See Feinberg, p. 216 and supra, in the main text under the title ‘Mediating maxims’. For the further development on these and other mediating principles, see von Hirsch’s and others’ contributions at the conference in Basel (autumn 2004), which just recently came out in a book (A. von Hirsch, K. Seelmann, and W. Wohlers (eds.) (2006), Mediating Principles – Begrenzungsprinzipien bei der Strafbegründung, Nomos, Baden Baden.)

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V Continental Counterparts to the Anglo-American Concept of the Harm Principle

Within the Continental criminal-law theory of Germanic legal circle, it is possible to locate areas where there is a possibility of concurrence with the AngloAmerican harm principle. The Continental counterparts could be searched for: (1) within the so-called ‘general paradigm (or general notion) of the criminal offence’, (2) within the concept of ‘legal goods’ (Rechtsgüter), (3) within the classical criminal-law principles (principle of ultima ratio and principle of legality), or (4) in the ‘proscribed consequence’ (Erfolgsunrecht).

The Continental ‘General Paradigm of the Criminal Offence’ The Continental (principally, German) tripartite ‘general paradigm of the criminal offence’409 predicates crime upon the presence and proof (cumulatively) of: (1) Tatbestandmäßigkeit (or, “fulfillment of the statutory elements of a crime”,410 or rather, “accordance [of actus] with the content of a legal

409

Also mentioned in literature under: “general or structural concept of crime” (Sévon, p. 127), “general notion of crime”, “general structure of the offence” (Eser, 1992, p. 316), “general system for analysing criminal acts” or “general system for structuring criminal analysis” (Naucke, p. 306), etc. 410 Eser (1976), p. 623. Similar Naucke: “the state or condition of fulfilling the defined elements of a criminal offence” (p. 311, fn. 13). 95

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norm”411 ), (2) Rechtswidrigkeit (or, (material) “unlawfulness of the act”412 or “illegality”,413 the absence of a justification, a wrong), and (3) Schuld (guilt, culpability, mens rea). In some places (e.g. Italy,414 Croatia415 ) they postulate, as an additional, supplementary element, also Strafbarkeit (punishability, kaznivost). In Slovenia (and similarly, Croatia), there was not so long ago an additional element of ‘social dangerousness’ (družbena nevarnost). This, however, was dropped due to its numerous abuses.416 The foregoing concept of crime first evolved in the German criminal legal theory, but became widely recognised in most Continental countries (including Austria, Switzerland, Slovenia, Italy, Spain, Portugal, Greece, Poland, the majority of Nordic countries) and has even spread out to Latin America, Israel, Japan, South Korea, Taiwan and in South Africa.417 The main purpose of this “legalistic device”418 is to enable, with its logical internal structure, a “rational, real (factual) and equal (balanced) judicial deliberation and thus to assure the so-called legal security (Rechtssicherkeit)”,419 to facilitate a “balanced and differentiated use of law”420 through its orderliness and

411

Fisher, p. 435. In German criminal law, an act, to be ’tatbestandmäßig’, must: (1) be a voluntary human conduct (Handlung, i.e. “vom Willen getragenes menschliches Verhalten”), (2) fall within the catalogue of criminal offences in the Special part (Besonderer Teil) of the Criminal Code (Strafgesetzbuch) or in a ‘Nebengesetz’ (collateral law), and (3) fulfil all the elements (Merkmale) of the ‘Tatbestand’. Fisher, p. 168. According to modern, neo-classical doctrine of the ‘finale Handlungslehre’, which was developed by Welzel, these elements must be not only objective, but also subjective. On this doctrine (called also Vorzatztheorie), the perpetrator’s will or intent (Vorsatz) is, namely, incorporated as a subjective element in his conduct and, consequently, forms a (subjective) part of ‘Tatbestand’. Fisher, p. 310, fn. 18, 19. 412 Eser (1976), p. 623. 413 Fisher, p. 424. 414 The so-called “teoria della quadripartizione”. Ferlinc (2000), p. 11. 415 See, for example, Baˇci´c, p. 91. 416 See, for example, Bavcon, ‘Comments on the Proposed Amendments’. The main textbook of substantive criminal law more or less mirrors this structure of the general notion of the offence, even though the categories may be couched in different terms: “(1) voluntary act of a human being, (2) opposition of the said conduct and its consequence to some commanding or proscriptive norm of the criminal law, (3) the absence of reasons, which would render the perpetrator’s conduct or consequence in accordance with the law, and (4) the possibility of blaming the perpetrator for his act as being subjectively reprochable, individually culpable.” Bavcon, Šelih et al. (2003), p. 163. The first and the second element reminds us of Tatbestand (see also Korošec (2004-I), p. 42), the third seems to correspond most to the Rechtswidrigkeit, while the last is, of course, the requirement of Schuld. 417 See Bavcon, Šelih et al., (2003), p. 164, Eser (1966), p. 623. The French criminal legal theory, in contrast, lists the following three elements of the criminal offence: 1) élément légal (illegality), 2) élément matériél (external result), and 3) élément moral (cf. mens rea). 418 Ryu, p. 608. 419 Jescheck and Weigend (1996), p. 195. (cited after Korošec (2004-I), p. 40) 420 Roxin (1997), p. 159.

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“lead to the right (correct) and rational use of law”.421 It simplifies and stimulates the systematic use of law.422 In short, its main goals are “clarity, predictability, stability, simplification and acceleration of deliberation in practice.”423 It has, however, been criticised by some Anglo-American legal theorists424 – the so-called realist school(s) of law –, which assert that “such a deductive procedure is impossible. [  ] [L]egal concepts serve to open the problems and to show how they should be outlined, but they do not give any direct solution to legal problems in terms of a legal norm.”425 Given that the main point of the harm principle is to ensure there should be no crime without harm (i.e. that the legislator criminalises only harmful conduct), and in view of the fact that on Continent the definition of a crime progresses through the above mentioned three stages, it would seem a reasonable starting point to find the harm its place either within or alongside (as an additional or supplementary element) the three elements. The harm, as the essence of the harm principle, could be perhaps, a prima vista, found somewhere in the area of ‘wrong’ (Rechtswidrigkeit) or ‘social dangerousness’, or both. (Or neither.)

Material Unlawfulness – Wrong(ful)ness – Rechtswidrigkeit Unlawfulness or illegality is a broad term, said to encompass two dimensions or aspects. The theory also mentions two kinds of “unlawfulnesses”: the material (or substantive) and the formal unlawfulness. Formal unlawfulness, which shall not concern us here, refers simply to the proscription of a certain conduct in the positive law of a particular society, the inconsistency of the conduct with the norms of the legal order, or the “against-the-lawness”, so to speak. The material unlawfulness (a concept introduced by Franz von Liszt), on the other hand, means “an opposition to the moral and social values”;426 a concept, in some ways, perhaps best described by the German term of Unrecht (nepravo), which belongs more to the moral theory or philosophy of law, then to the criminal law theory. Unrecht, namely, has a distinct moral connotation; it is more about ‘immorality’ and ‘antisocialness’427 then ‘illegality’, despite its name. This is not surprising, however, as the term Recht itself – meaning ‘law’ as well as

421

Roxin (1997), p. 160. See Roxin (1997), ibidem. 423 Korošec (2004-I), p. 40. 424 See Ryu; Hall (1976-I). 425 Sévon, p. 128. 426 Bavcon, Šelih et al. (2003), p. 233. The authors also describe it (at p. 159) as “the injury or endangerment of some individual or public legal good”. 427 “Criminal offence, as an abstract notion and concrete event, must have a criminal, that is, immoral and antisocial nature [nepravo], from the viewpoint of the overall human values accepted and valued in a particular society, to be justifiably called a criminal offence.” Bavcon, Šelih et al. (2003), p. 233. 422

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‘right’ – is a moral notion and has, as Naucke points out, “moral overtones that are independent of positive law”.428 The division inside the concept of unlawfulness, which was of a special interest to academics in the former socialist countries, also delivered two middle-way conceptions of a criminal offence: the formal-substantive and the substantiveformal conception, the former of which in currently dominating the Slovenian criminal law,429 taking place of the previous substantive-formal conception, whose choice was influenced by the former Soviet Union. In less moral-philosophical and more legal language, the German Rechtswidrigkeit is closer to the material unlawfulness, as both of these notions, regardless of the formal unlawfulness or the proscription of an act in the positive criminal law, render the act “not unlawful” (nicht rechtswidrig), if supported by justifying reasons (Rechtsfertigungsgründe).430 In the light of this and the distinct moral overtone of Recht, its true meaning would, in English, be best encompassed by the term ‘wrong’ or ‘wrongfulness’, not ‘unlawfulness’, even though that the latter is the most literal translation.431 Here, two questions arise: first, could ‘harm’ be a part of this second stage432 of the general structure of the offence, and if so, second, to what extent is it overlapping with the notion of Rechtswidrigkeit or material unlawfulness (wrongfulness), in other words, does the absence of ‘harm’ (or harmfulness) negate the material unlawfulness (wrongfulness) of the conduct?

428

Naucke, p. 311, fn. 13. This conception was reflected in the Article 7 of the Slovenian Criminal Code defining a ‘criminal offence’ as “an unlawful act [the formal aspect – N.P.] that is, owing to its dangerousness [the substantive aspect – N.P.], proclaimed by law as a criminal offence, the characteristics of which as well as the sentence are therein prescribed.” 430 Fisher, p. 170. Among the most important justifications, the author lists: consent, presumed consent, self-defence, defensive emergency, offensive emergency, justifying emergency, exercise of official rights or implementation of legal orders, pursuit of just interests, social adequacy, and other intervention rights. (ibidem) On Slovenian criminal law, the justifications are: self-defence, duress, necessity, consent, presumed consent, medical interventions. See Bavcon, Šelih et al. (2003), p. 236–256. Only the first three are explicitly stated in the positive law as well. Some (e.g. Bele) include also de minimis offence, while others (e.g. Bavcon, Šelih) believe that bagatelle criminality excludes punishability (kaznivost, Strafbarkeit). 431 Eser (1992) is of the same opinion. He translates Rechtwidrigkeit as ‘wrongfulness’, which “may be negated by a ground of justification”. (p. 316) Regarding the justifying reasons, he emphasises also that a ground of justification negates wrongfulness but not Tatbestandmäßigkeit (“definitional elements of the offence”), “unless one considers grounds of justification as ‘negative elements of the definition of the offence’: so-called ‘negative Tatbestandsmerkmale’”. (p. 317) Similarly, Feinberg (1984 p. 215) describes set-back interests produced by justified or excused conduct as “harms that are not wrongs”. 432 The first one being Tatbestandmäßigkeit.

429

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As to the first question, the prima facie answer could be affirmative. Remembering the above definition of, at least,433 material unlawfulness as the injury or endangerment of some individual’s or public, social legal good, at least bits of harm (namely, injury and remote harm) seem to be there. Also, in the opinion of some theorists and, it seems, according to the Slovenian Criminal Code,434 de minimis offence (which, inter alia, includes “the lack or insignificance of harmful consequences”)435 excludes or negates precisely the wrongfulness of the act. In other words, de minimis offence is, on their view, one of the justifications or justificatory grounds. However, the prevailing theory does not seem to share this view. According to the major (and only) Slovenian textbook on the substantive criminal law,436 de minimis offence (due to the lack of harmful consequences, for example) negates the punishability (Strafbarkeit, kaznivost),437 not the wrongfulness (material unlawfulness). They base their belief on two main arguments, at least one of which would probably persuade also a common-law lawyer. One of the arguments relies on the three-stage analysis (the tripartite general notion of the offence) of a crime. Taking into account the fact that one of the conditions or factors that can make an act (which otherwise contains all the characteristics of the criminal offence) of “low significance” – thereby “not constituting a criminal offence” – is also a low degree of guilt, and the fact that guilt (Schuld) is the third element of the general notion, while unlawfulness (wrongfulness) is the second, de minimis offence cannot exclude the second element, for in that case one would not even begin to consider existence of the third element, i.e. the guilt. In

433

I suspect that material unlawfulness does not entirely correspond to German Rechtwidrigkeit; but believe that it is, namely, broader, i.e. encompassing more than just the lack of justifications, that it represents also an affirmative statement directly concerned or connected to the legal goods. This discrepancy could be probably traced to not just the legal, but also the moral dimension (moral discourse) of the material unlawfulness – its similarity with the Unrecht and, consequently, the incomplete overlap between the concept of Unrecht and Rechtwidrigkeit. In the legal discourse, the ‘material unlawfulness’, namely, encompasses both terms (even though we have, in Slovenia, another name for Unrecht, namely nepravo or non-law, which is perhaps a more literal translation but not a part of the regular criminal legal theory conceptual language). 434 The code is, namely, using the same expression “shall not constitute a criminal offence” in the case of de minimis offence, as it is in the cases of self-defence and necessity. 435 “Any act which is of low significance shall not constitute a criminal offence although it contains all the characteristics thereof. Act shall be deemed to be of low significance when the danger thereby involved is insignificant, owing to: the nature or gravity of the act; the fact that harmful consequences are insignificant or do not exist; the circumstances in which the act was performed; the low degree of criminal liability of the perpetrator or the personal circumstances of the perpetrator.” Article 14 of the Slovenian Criminal Code. 436 Bavcon and Šelih (1999), now Bavcon, Šelih et al. (2003). 437 Even though it is not entirely clear what ‘punishability’ should represent in the Slovenian criminal law theory. Punishability (kaznivost) is, namely, not mentioned as an element of the general notion of the offence, yet the concept surfaces now and then, usually in connection with de minimis offence.

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other words, (low degree of) “guilt could not logically exclude the unlawfulness [wrongfulness] simply because, the unlawfulness is, as the second element of the general notion of offence, a precondition for the establishing of the third element, i.e. guilt.”438 The second argument appeals to logic or reason that is behind the “rule” which says that self-defence is not allowed against the conduct that is not unlawful.439 The textbook example is the one of box of matches. Stealing a box of matches from the convenience store would surely qualify as a de minimis offence; the shop owner is, however, perfectly entitled to protect his property or prevent himself from being stolen from (within the legal limits, of course). If de minimis would exclude the wrongness (material unlawfulness or Rechtwidrigkeit) of the conduct, then self-defence of the shop owner would not be allowed; it would, in fact, be illegal. To these two arguments against locating the harm in the wrong (or wrongfulness) a third, normative, one could be given. We have above argued for the jurisprudential “objectiveness” of the harm principle, i.e. its independence from the culpability,440 on the grounds that, inter alia, enables us to pursue the concept of ‘harm’ in the Feinberg’s non-normative sense, i.e. as a “setback to an interest of another”.441 Treating harm as wrong (Feinberg’s normative sense of ‘harm’)442 would, therefore, contravene our chosen path, contradict the explanation of ‘harm’ as a “setback to interests” and thereby promulgate seeking and establishing a somewhat different conception of harm within the Continental criminal law than we gathered from the Anglo-American harm principle. As to the second question regarding the extent of the possible overlap between ‘harm’ and ‘material unlawfulness’ (‘wrongfulness’, Rechtswidrigkeit): it is, first, only relevant if the answer to the first question (i.e. is ‘harm’ a part of ‘wrongfulness’) is affirmative – which we believe is not and should not be. However, hypothetically speaking, if de minimis offence were to exclude wrongfulness – rendering the answer to the first question affirmative –, the answer to the second question would, nevertheless, be negative, for there are other, subjective, factors there, that also constitute “insignificant danger” (de minimis offence) and thereby a lack of ‘wrongfulness’. Besides the so-called objective criteria, i.e. the nature and gravity of the act, harmful consequences etc., there are, namely, also the low degree of culpability and personal circumstances on the part of the perpetrator, that constitute the subjective criteria, which make the conduct bagatelle. In other words, harm and unlawfulness would not entirely overlap, since harm would

438

Bavcon, Šelih et al. (2003), p. 257. See Bavcon, Šelih et al. (2003), p. 256. 440 See the heading ‘Relationship harm – culpability’ in the previous chapter. 441 The ‘harm’ thus conceived was first expounded by Feinberg, who had thereby made an important step forwards from the Mill’s account (or rather, lack thereof) of ‘harm’. Its value as a jurisprudential tool, that among others allows the ranking of interests, was recognised also by von Hirsch and Simester, who have addressed the issue of ‘harm’ from this perspective. 442 “One person wrong another when his indefensible (unjustifiably and inexcusable) conduct violates the other’s right [  ]” Feinberg (1984), p. 34. 439

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be only a part of what constitutes or affects unlawfulness. The concepts would therefore not be the same, even if the answer to the first question were affirmative. Our task was to ascertain whether the ‘harm’ could be found in the second element of the general Continental notion of the offence, namely the wrongfulness or material unlawfulness or Rechtswidrigkeit of the act, and we found it to be negative. This second element of the general paradigm describes what constitutes a ‘wrong’ and wrong is (ought to be) separate from harm. The Slovenian ‘material unlawfulness’ (materialna protipravnost), to the extent it still exists, or the German ‘wrongfulness’ (Rechtswidrigkeit) as the Continental counterparts to the Anglo-American notion of ‘wrong’ are, therefore, not (and ought not to be) the counterparts or even approximations to the Anglo-American notion of ‘harm’.

(Social) Dangerousness The ‘danger (or dangerousness) to society’ used to be an element of the ‘general notion of the offence’ in the legal systems that were, like Slovenia, under the influence of communism. The concept was adopted from the former Soviet Union, which put ‘social dangerousness’ even before the principle of legality. The new Criminal Code of SFRY443 , passed in 1951, broke away from the Soviet influences and consistently from there on adhered to the principle of legality,444 yet the dangerousness (of the act) to society remained the pivotal element of the general paradigm of the offence.445 The focus on society and its interests, its well-being was not, however, solely a socialist invention. In their search for the social roots of crime, bourgeois theories of criminal law also considered the reasons why certain proscribed acts are wrong. In 1903, Mayer, looking for the substantive and normative contents of unlawfulness, claimed that the unlawful acts infringe the interests of society. Similarly, von Liszt believed substantively unlawful (i.e. wrong) acts to be those acts that are socially harmful.446 Although the Slovenian criminal law theory was not unanimous on this issue,447 the prevailing opinion seemed to be in favour of equating ‘material unlawfulness’ (wrongfulness) with ‘social dangerousness’,448 although it was probably meant more as a normative claim than a descriptive one. In any case, 443

Socialist Federal Republic of Yugoslavia (that Slovenia was a part of). Bavcon, Šelih et al. (2003), p. 106. 445 Art. 8, par. 1, of the SFRY Criminal Code thus read: “A criminal offence is a socially dangerous offence, which the law proclaims as a criminal offence and concurrently describes its characteristics.” 446 Fabjanˇciˇc, p. 588, Ferlinc, p. 324. 447 See, for example, Fabjanˇciˇc, Ferlinc, Bele. 448 See Bavcon, Šelih (1999), p. 184. In the more recent edition (2003), the authors maintain that “material unlawfulness and social dangerousness are two closely intertwined notions, which are sometimes identical, while at some other times they should be considered as two relatively independent elements of a criminal offence.” See Bavcon, Šelih et al. (2003), p. 233. 444

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Slovenian penal theory soon abandoned the concept, mostly due to the abuses done in its name, and so today the debate is mostly avoided by saying that it is no longer relevant. However, this is not entirely true. Not only does the “spirit” of ‘social dangerousness’ still influence the concept of ‘dangerousness’ that even today sporadically appears in the Code,449 it is the sort of a debate that is never quite over. If we understand ‘social dangerousness’ in a broader sense, i.e. outside its narrowly defined, socialist meaning, if we take it, in other words, to mean the ‘harm to society’, then we find ourselves discussing the issues such as: the social roots of criminal law, or whether ‘others’ in “harm to others” can/should be a ‘society’ (in the language of the Continental criminal law theory, whether ‘society’ as such is/should be a general or specific so-called ‘object of criminal-law protection’), and even the disponibility of legal goods and values, and the reasons why certain interests are protected by criminal law while others (merely) by civil law, etc. – all topics that are still very much en vogue, so to speak. The doubts as to the abstract notion of ‘society’ justifiably being the primary object of criminal-law protection in the modern450 criminal law have been already expressed in the previous chapters. Apart from its potential for abuse (the abstract notion of ‘society’ being used in lieu of the ‘ruling class’, the ‘elite’, or ‘the powerful’, whose interests de facto protects, or of the ‘state’ hidden under the mask of ‘society’), there is much evidence of actual abuses (being used against the opponents of the regime).451 The modern criminal law and its theory are – perhaps also in the wake of the shortcomings of the influential Movement de Défense Sociale452 Certainly some 449

For example, in the Art. 14 (de minimis offence) and Art. 7 (definition of a ‘criminal offence’). See above. It is not clear, which kind of danger(ousness) the Code has in mind. It seems, in fact, that the concept remained more or less the same, i.e. its meaning, and that the name has changed (lost the adjective) simply because the syntagm ‘social dangerousness’ acquired a negative connotation in the former (socialist) regime. The change of name was thus more or less purely symbolic. 450 Accompanied by the modern, eclectic theory of criminal law, which arose at the end of the 19th and the beginning of the 20th century and found its way into in the positive law in the 20’s and 30’s. See Bavcon (1958), p. 148. 451 See Bavcon (2003), ‘Pripombe k predlogu novele KZ Slovenije’ (Commentary on the Proposed Amendments). 452 The Social Defence movement began to spread all over the world after the Second WW. The basic ideas behind the movement, replacing deterrence and retribution with ideas of resocialisation and reform, were considered more humane and very progressive at the time, and acquired a wide support – not only among the criminologists and theorists, but also in the criminal legislation. Criminal codes of Greenland, Sweden, Canada, Ethiopia, Marocco, Bolgaria, Poland and Federal Republic of Germany reflected the ideas of the movement. (After 1960 even the Soviet Union and others Eastern European, socialist states joined the Movement.) However, in the 60’s and 70’s it became obvious that the ideas of the Movement fell short of expectations. Apart from the rise in crime, it became apparent that the theory of the new social defence “can be used as an excuse for any kind of intervention into the liberties and rights of the individual, his personal integrity and identity, this time not in the form of the brutal physical force, but perfidious

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– more focused on the (protection of the) individual. The trend runs in the direction of the expansion of the so-called ‘disposable’ legal values; values with which the individual may freely dispose (e.g. consent to their violation or harm). Many German scholars rightfully emphasise that the state was made in order to protect the individual,453 not to be used against him. The society can, however, be a “secondary”, derivative object of protection, protected via the protection of the individual and his interests and, consequently, harmed via the harm done to its individual members. After all, ‘society’ can only exist with the individual and for the individual. The notion of ‘social dangerousness’, if it is taken to mean ‘harm to society’ and if it lost the negative connotation gained under the previous regime, could, therefore, remain, on condition that it is understood in this derivative way. The acceptance of the idea of criminal law secondarily, derivatively prohibiting and sanctioning ‘harm to society’ would not, however, imply the acceptance of the ‘society’ as the primary victim, i.e. as the ‘other’ in the harm principle’s “harm to other(s)”. One could, nonetheless, object to keeping the notion of ‘social dangerousness’ or ‘dangerousness’ (if it remains to be understood in the same way, i.e. as dangerousness to society) on the grounds that it does not, in fact, constitute harm. Dangerousness, danger, or endangerment may, at best, lead to proper harm. It is a future-oriented, forward-looking, prospective harm and is as such a much more lax notion than harm as such. In the statement that something is ‘harmful’ it is inferred that that “something” has regularly in the past produced some harm, while saying that something is ‘dangerous’ does not presuppose anything of the sort. We may, therefore, conclude that the concept of ‘(social) dangerousness’ is probably not the adequate substitute for the ‘harm’ of the harm principle. First, dangerousness is much more vague a term than harm (even more so if it remains unspecified, i.e. allows both the ‘concrete’ and the ‘abstract endangerment’ to qualify)454 and hence much more open to abuses and extensive criminalisation, which is precisely what the harm principle is set out to prevent. Furthermore, in the light of history, dangerousness has acquired a bad reputation – admittedly when it was still combined with the adjective ‘social’, yet there

psychological methods, all in the name of “good” intentions and “objective” interests of the individual himself.” Bavcon, Šelih et al. (2003), p. 98. 453 See e.g. Roxin, Hassemer, in the text above. 454 Liberal criminal-law theorists often find it easy to support criminalisation of cases of ‘concrete endangerment’, since they “regularly, as a rule” bring about harmful consequences (if left unchecked). Making cases of ‘abstract endangerment’ into ‘crimes’ (i.e. offences of the criminal law in the narrow sense), for which it is often enough to break some minor regulations, is, however, a different story. Criminalisation of abstract endangerment is more problematic and should be used more sparingly or even as an exception, in the cases where the harmful result, if it came to it, would be of catastrophic proportions (e.g. nuclear explosion). See Bavcon, Šelih et al. (2003), p. 182, 183.

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is no evidence that the remaining ‘dangerousness’ of today would indicate anything else.

Legal Goods (Rechtsgüter) Even though we could have already mentioned the concept of ‘legal goods’ under the topics of material unlawfulness or social dangerousness,455 or under the ‘statutory elements of the offence’,456 it deserves a fuller analysis in its own right. 1. The Concept As we have already indicated before (in Ch. IV), it is better – in order for the Continental lawyer to understand the harm principle – not to use the linguistic interpretation, but instead to look at it (the harm principle) systemically, i.e. to use system-based and teleological interpretation. That presupposes inspecting of the role, position and functions of the harm principle within the systematics of the criminal law and trying to find a similar concept within the Continental legal system. Realising that ‘material unlawfulness’ (or ‘wrong’ or ‘Rechtwidrigkeit’) and ‘(social) dangerousness’ are not particularly helpful in explaining what harm, as the key element of the harm principle, is, we suggest the best approximation to the ‘harm’ itself, semantics aside, could be reached via the Continental notion of the ‘Rechtsgut’ (a legally protected good). Rechtsgüter represent legal goods, that is, legally protected interests457 of the individual or other legal entities (e.g. corporate organisations) or of certain collectivities. The latter are so-called ‘Kollektive Rechtsgüter’.458 They can be

455

The conduct is, as some claim, “substantively unlawful when it violates the legal goods, protected by the criminal law norm, in a way that is socially dangerous”. See Novoselac, p. 187. 456 Some scholars (e.g. Roxin, Weigend, Sax), namely, seem to find the legally protected good in Tatbestandmäßigkeit. See in Korošec (2004-II), p. 92–94. 457 “legitimate values and interests” Jareborg (2005), p. 524. 458 The Rechtsgutstheorie has fewer strictures on the collective interests being protected by the criminal law than the Anglo-American harm principle doctrine (at least in the latter’s original, Millian version). This does not, however, mean that there are no critical voices to be heard, from the Continent, addressed to the protection of collective legal goods. Roxin, for example, acknowledges that Rechtsgüter protect not only individual but also collective interests. As humans share certain general interests, that can be even called universal, he sees no problems with the collective interests as such. However, he stresses that with the protection of collective interests it becomes sometimes quite difficult to differentiate or choose between the collective interests that are worthy of protection and those collective interests that are not; for example, it becomes difficult to argue why not protect also majority morality (in whose name the homosexual intercourse could be prohibited because it violates the alleged legal good of heterosexuality). See Roxin, in Lernestedt, p. 146.

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either natural material goods (e.g. land, water) or products of human labour; the latter can be further on divided into material goods (e.g. food, money etc.) and immaterial goods (e.g. privacy, education, freedom, security etc.).459 These are just some classifications of legal goods. Normatively speaking, ‘legal goods’ are the goods or values of a particular society that may be mirrored in, and protected by, the law.460 Another definition defines Rechtsgut as “a good which the law properly recognises as being necessary for social peace or for individual wellbeing, and as therefore meriting legal protection”.461 The concept of Rechtsgut has been traditionally understood as a concept about the general scope of (legal) protection, whose main functions are to limit the legislator and restrict the courts, or in other words, to provide “rational criteria for criminalisation and interpretation”.462 As such, it certainly seems to be a worthy rival to the AngloAmerican harm principle, or a candidate, possibly the best, for the Continental counterpart to the harm principle. 2. The Juxtaposition with the Concept of Harm A setback to a (criminal-law)463 Rechtsgut (the interest therein protected) would, on this account, constitute ‘harm’. Harm would be, in other words, the criminallaw negation (infringement) of the Rechtsgut and so, it is reasonable to believe that the function of legal goods could correspond to the function(s) of harm, or rather, the harm principle.464 Both concepts, ‘harm’ and ‘legal good’, overlap in their common “building block”, namely the ‘interest’. ‘Interest’ is their point of convergence, for ‘harm’ is a “setback to an interest (of another)” and ‘legal good’ (or Rechtsgut) a “legally protected interest”.465 There is at least one major difference that needs emphasising at this point.466 This is the lack of “of other” in the above definition of a ‘legal good’ as a “legally protected interest”. While the ‘other’ (as opposed to ‘self’, for example) is crucial in the definition of the liberal harm principle, it does not seem to be

459

See, for example, Pavˇcnik (1997), p. 138. Not necessarily, however, by the criminal law. Roxin, for one, argues that, based on the subsidiarity of criminal law, not all legal goods should be protected by criminal law. See in Lernestedt, p. 148. See also Jareborg (2005). 461 Duff, in The Stanford Encyclopedia of Philosophy (available online at: http://plato.stanford.edu/archives/win2002/entries/criminal-law/) 462 Sévon, p. 152. 463 That is, only those legal goods that warrant protection by the criminal law, the ‘criminal legal goods’. 464 See von Hirsch (2003) in Hefendehl et al. (eds.). 465 According to von Jhering’s ‘interest theory’ on the nature of rights, the “legally protected interest” is also a description of a ‘right’. “Interest is an essential element of a right and expresses its practical goal, while the legal protection represents a formal element and only a ‘protective shield’ of the content.” Pavˇcnik (1997), p. 121. See more in von Jhering, R. (1968), Geist des römischen Rechts. III, 9th ed., Aalen. 466 There are also other, finer differences that will be discussed later in the text, when the opportunity arises. 460

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a necessary element of the definition of a legal good. Rechtsgutstheorie as such, therefore, does not e.g. preclude legal paternalism from being included in the sphere of legal protection.467 (The modern criminal-law trend emphasising the waivability (disposability)468 of legal goods might, but not the doctrine itself.) In order for it to perform the functions similar to the harm principle, the Rechtsgutstheorie has to be, therefore, trimmed down, that is, supplemented by the ‘other’ (or rather, with ‘of others’; as in “legally protected interests of others”). That has to be done not only to exclude moralism and paternalism from being legally protected, but also to limit the harm in general to the harm that is done or risked to other human beings, whose interests have been set back. Even ‘harm’ from the harm principle is, in other words, narrower than harm in the ‘legal good’; that is, the harm that results from the violation of the ‘legal good’. 3. The History The concept of Rechtsgut has been elaborated within the German theory of criminal law. The proposed sifting of interests worthy or not worthy of protection is said to be based mostly on classical liberalism, stemming from Feuerbach’s views.469 As the classical German tradition conceptualised the general scope of protection with the help of notions of practical philosophy, Feuerbach, under Kantian influence, focused on the individual and thus conceived the object of protection (or limits to the legislator’s freedom) in terms of the individual subjective rights (äussere Rechte).470 German scholar Birnbaum, who is acknowledged as the originator of the concept of Rechtsgut,471 challenged Feuerbach’s ‘rights’ approach, i.e. his view of crime as the perpetrator’s violation of the victim’s rights, arguing that there are many criminal law statutes containing crimes that do not violate any individual right (e.g. unethical and irreligious acts), yet are nonetheless considered very much as proper crimes.472 Birnbaum thus proposed a definition of crime as a “violation of or a threat to a good, which the state is to guarantee equally to everyone and which is attributable to the human will”.473 In the present form, however, the concept of Rechtsgut became an integral part of German criminal law doctrine through the works of 467

See more fully, in von Hirsch (2003). ‘Waivable’ or ‘disposable’ legal goods (die disponibelen, freiverfügbaren Rechtsgüter), as stated previously in the text, are those which the individual may (in the last instance) waive or “dispose of”, meaning he may, for example, consent to their violation as they are “his” goods and nobody else’s. ‘Disposable’ goods are individual goods, as opposed to communal legal goods, which are ‘non-disposable’ (or ‘non-waivable’). Legal paternalism certainly seems able to creep in via the non-waivable goods, which already conceptually take away the possibility of one harming (only) one’s self. 469 Lernestedt, p. 361, 362. 470 Sévon, p. 152. 471 See Birnbaum, p. 149. 472 Moreover, Feuerbach himself considered those acts as crimes, albeit crimes lato sensu. 473 Birnbaum, p. 179. 468

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Franz von Liszt. From there on, the language of rights and duties (be it the rights of the individual or derived from the general interests of society474 ) began to be replaced with the material concept of ‘good’.475 Von Liszt believed that the punishment should be “an intention-conscious creation and goal-conscious function of the state society”.476 Some believe that this was not only an epistemological shift with collective interests being taken into account, but that as it also invoked a shift in the understanding of the task of criminal law. The classical idea of securing the sphere of freedom of the individual was substituted by “the active role and primacy of state policy, changing and managing society also through criminal law.”477 4. Various Schools of Rechtsgut Theorists After von Liszt, various “schools” of thought subsequently developed, which can be grouped roughly into two main groups. One group of Rechtsgut theorists is purely descriptive (descriptively-orientated, positivist), maintaining that a legally protected good is what the positive law says it is. Rechtsgut or legal good, they say, can always be extrapolated from the criminal law norm.478 On this account, a ‘legal good’ has obviously no independent, normative value by itself, since harm, as a setback to legally protected interests thus conceived, would, namely, necessarily arise out of every criminal law proscription. In the light of that, Rechtsgut obviously cannot serve as a critical tool (similar to the harm principle) for assessing the (prima facie) legitimacy of criminalisation; if, namely, every criminal norm protects some legal good (i.e. proscribes the violation thereof), then the assessment whether the requirement of the harm principle (or more Continentally speaking, the principle of criminalising only the violations of legally protected goods) was satisfied in a particular case of criminal legislation, would be impossible, or rather, pointless. The answer would always be affirmative and the reasoning behind it circular. Let us assume, for example, there is a criminal offence prohibiting whistling in public. It is clear that there is obviously no harm to others involved in this case, which would also mean – on supposition that Rechtsgut serves the same function as the harm (principle) – that there is no legal good violated in this case. Yet, if Rechtsgut is merely a descriptive notion, then the mere existence of such a criminal offence means that there exists a legal good (or goods) that the prohibited conduct of public whistling impairs. A legal good, such as the catch-all notion of ‘public peace’, or a newly-invented legal good, such as protection from needless noise, would have to be construed, that is, “be found” in the norm – for it is there for sure. The 474

The latter was introduced to the scope of criminal law protection under the influence of Hegel. 475 Sévon, p. 153, citing Marx, M. (1972), Zur Definition des Begriffs ‘Rechtsgut’, Heymans, K¨oln. 476 Sévon, p. 154. 477 Sévon, p. 154. 478 See, critically, Stratenwerth, in Hefendehl et al. (eds.).

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fallacy of such argumentation, apart from some pretty outlandish formulations of legal goods and rights, is that it begs the question. The “critical” schools of Rechtsgutstheorie, on the other hand, emphasise that a ‘legal good’ has to perform a critical function (as well). Roxin thus argues that ‘legal good’ should not be entirely descriptive; that what is needed, is a critical dimension, which, he believes, should be achieved through the underlying principles of legal system, the constitutional principles.479 Some others derive the Rechtsgut’s critical dimension from the concept of rights, often the constitutional rights.480 Lernestedt criticises the use of constitution in this respect, claiming that “when a constitution is used as a source of argumentation, the “Rechtsgut” theorists refer either to the “Spirit” or the “Foundations” of the Constitution, or similarly vague terms [  ], or – when reference is actually made to concrete paragraphs of the Constitution – they must accept that the concept of Rechtsgut loses all of its independence: it simply summarises that which already follows from the law. The claimed capacity of providing an independent critical yardstick is lost”.481 Furthermore and particularly on the issue of rights, tying the concept of a ‘legal good’ to the notion of (the violation of) a legal right – be it constitutional or some other – is in itself a self-defeating undertaking. Apart from the most obvious reason that a separate term ‘legal good’ would not be even needed, if the notion of rights would equally effectively “get the job done”; it would, namely, also prevent us from criminalising the harm done to some valuable good that has been only recently discovered482 or acknowledged,483 and, therefore, no legal right covering this situation, existed. As on this view of (rights-derived) Rechtsgut, no existing rights would encompass this case, which is why there would be no possibility to make the above mentioned new good into a (criminal) legal good and thus protect it, if necessary, with criminal law. For this reason, if the term ‘right’ should be used at all, it would seem a good idea to use it as broadly as possible, or use it in the sense of a ‘moral right’.484

479

Roxin (1997) p. 15. He claims that for the legal good to perform a criminalisationconstraining function its content must be derived from the constitutional principles as only they limit the legislator in a modern democratic state. (ibidem). This direct appeal to the constitutional principles, however, seems to be absent in the new (2005) edition. 480 For example, Otto Lagodny. 481 Lernestedt, p. 362. (emphasis in original) 482 For example, some new mineral that we previously did not know existed but, in fact, has some potential usefulness to human beings (or has even proved to be potentially necessary for human life in the future) has been discovered. 483 The societies, namely, go through changes; their values change, priorities shift, or they simply become more sensitised to a particular phenomenon, and hence wish to regulate it (also by criminal law). Even though this can often be dangerous (especially if it is brought about as a reaction based on ‘moral panic’), it can often be also justified. Family violence used to be shoved under the rug of ‘privacy’ and ‘sanctity of home’; today, the taboo is broken. Similar changes in the attitude, resulting in the formation of new ‘goods’ to be protected, have been noticed in the area of the protection of women, ethnic minorities etc. 484 Cf. with von Hirsch’s “claim”, infra.

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Last, but not least, there are two more things to consider. The history of the legal goods, as it was explicated above, itself shows that the concept, or its predecessors, moved away from the initial ‘rights’ discourse (first merely individual, subjective, later also societal) into forming the more material and objective ‘good’, which probably means that today’s concept of a legal good is something else, something more evolved or at least different from rights. Also, secondly – the criticism addressed mostly to those who derive legal goods specifically from the constitutional or international human rights –, neither constitutions nor e.g. some international human rights declarations, encompass all the rights. In the case of constitutions, the rights they mention are only the rights the State is obliged to provide (either by not interfering or providing a legal recourse in the case of their infringement (negative rights), or by positively endeavouring to do something (positive rights)). In the case of international human rights and civil liberties documents; these documents have historically came about in order to ensure the mandatory minimum of rights, that lowest common denominator or “core criterion of basic justice”485 that each signatory country could, and should, respect – at least. 5. The ‘Legality’ of Legal Goods For legal goods to perform their critical function, that is, to allow us to use them as a critical yardstick, they need to be “outside” the positive law, ius positum. Otherwise, if they were “made” by the positive law, they would, in fact, “be” in every single incrimination and therefore, the offences could never be found wanting of a protected legal good. If the law constituted, rather than merely (legally) acknowledged, legal goods, the concept of Rechtsgut would be entirely descriptive and would have no independent value, no critical dimension. Should Rechtsgüter be thus extra-legal? Should ‘legal goods’ be, in fact, ‘extra-legal’ goods, a kind of bona in se486 – a mirror image of mala in se?487 It would seem to follow logically from their name that they become ‘legal’ goods only once they enter into the sphere of law (any law).488 In the positivist legal tradition that pervades the Continental legal systems, this would mean that only once a certain value or interest has been incorporated into the positive law, one

485

Besson, p. 511. This core criterion of “measure of low specificity” is something “which all persons and peoples can accept as the basis for moral judgements about the global order and about other social institutions with substantial international causal effects.” Besson, ibidem, citing Pogge. 486 However, not “goods in themselves” in the sense that only the already existing goods would qualify. The notion would have to make room for potential new goods that a society may at some point begin to value. 487 “An offence malum in se addresses conduct [  ] that is pre-legally wrong. Here, at least in part, the law acknowledges (rather than designates) the wrongfulness of that conduct through a declaration of criminalisation.” Simester and Shute, p. 10. 488 Not necessarily criminal law, as has been pointed out already, since criminal law protects only some legal goods, hence some talk of selective or fragmentary nature of criminal law. See further in Jareborg (2005).

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could talk of “legally protected interests or values” (Rechtsgüter proper), while, prior to legislation, they would be just ‘goods’. In order for legal goods to play a critical role, similar to the harm principle, they have to be conceptualised (or understood) as something beyond the positive criminal law. Roxin believes Rechtsgüter have to be “pre-criminal (positive) law but not pre-legal”,489 in the sense that they have to come from the legal system, or that they already are in the sphere of law (lato sensu). Another possible way of thinking about Rechtsgut or legally protected interests would be to think of them as being those important interests of others that are supportable on ethical grounds or, more generally, those “resources over which one has a valid claim”. The latter are von Hirsch’s description of ‘interests’, for the purposes of defining legal goods. “Resources are [then] ‘interests’, when the other has a normative claim over their integrity.”490 The incorporation of the interests of ‘others’ (from the harm principle)491 is reminiscent of the already mentioned new tendency of modern criminal law to emphasise or expand the scope of so-called ‘disposable’ or ‘waivable’ goods, i.e. those goods which the individual is allowed to freely dispose of or waive (and thus also validly consent to the harm done to them), as opposed to the ‘non-disposable’ ones. In Germany, drug offences supposedly protect the legal good of “public health” (Volksgesundheit), which is a non-disposable good. The incorporation of the notion of “interest of others” (not of e.g. society) into the concept of Rechtsgut would then – similarly to the trend of waivability (disposability) of goods492 – underline the idea of the individual (his interests) being ingrained into the very notion of legal good. After all, (harder) drugs are undoubtedly harmful, but first and foremost to the person who uses them, not to others, or some abstract “public health”493 – the notion which includes the others as well as the actor himself. As von Hirsch points out: “I have, without question, legally protected interests in my own health not being harmed by others. But do I also have a similar claim against myself? The assumption of my endangering my own legal good seems obscure.”494 For this reason, the non-disposability of legal goods has per se a distinct paternalistic undertone. Secondly, what is perhaps even more important at this point, the legal good conceived in this way stresses the moral aspect of the notion, as opposed to 489

Cited after Lernestedt, p. 148. von Hirsch (2003), p. 18, in Hefendehl et al. (eds.). See supra, in the footnote 333. 491 von Hirsch (2003), p. 18, in Hefendehl et al. (eds.). Other (from the harm principle) means also that ‘other’ is mostly understood in the sense of ‘the individual’. “Harm to others is by the harm principle mostly seen individualistically”. von Hirsch, idem, at p. 19. (“Die Schädlichkeit gegenüber anderen Personen ist beim ‘Harm Principle’ hauptsächlich individualistisch zu sehen; es geht also vor allem um Schädigungen von natürlichen Personen”.) 492 See, for example, the writings of German theorists Ensthaler and Rudolphi. 493 Cf. Schünemann’s critique of the German Constitutional court’s judgement in the “cannabis case”, and particularly his description of the ‘physical health of the society’ as “in truth, not a collective good, but rather a collection of the health of each citizen, subsumed under a generic heading, and [is] as such, merely and individual good”. Schünemann, p. 556. 494 von Hirsch (2003), p. 19, in Hefendehl et al. (eds.). 490

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the legal conception of the ‘legal good’, which was criticised above for its descriptiveness and lack of critical dimension. Differently from Roxin, who looks for the Rechtsgut’s critical dimension outside positive criminal law yet within the legal system, von Hirsch proposes stepping outside the realm of law. Although his “valid claim”, to be sure, can be in the form of a legal right, it need not be.495 It can be a “mere” moral right, moral entitlement,496 which has yet to be translated into law for its efficient protection. As such, one could also talk of a meta-right (to a good), that is, a “moral right to an effective legal right to X”;497 a right that, at least morally, binds a just legislator to protect it by law. 6. Additional Questions Although this analysis of Rechtsgut mainly focuses on the jurisprudential, conceptual matters, it is perhaps necessary to note a few questions regarding legally protected interests that are of special importance to the Continental notion of Rechtsgut, as well as to the Anglo-American notion of harm. First of all, in the quest for parsimonious scope of criminal law, the question arises as to the number and extent of legal goods. Are there (or rather, should there be) a numerus clausus for legal goods? If there were a direct connection between legal goods and criminal offences, which are of a limited number, then the answer could logically be affirmative. Yet, the categories should not overlap. Similar to the foregoing discussion regarding the relationship between harm(s) and criminal offences (crimes), the overall structure of legal goods should be independent from the structure of the Special part of the criminal code, containing particular criminal offences. Moreover, as with harm, there ought to be fewer (criminal) legal goods, or types of legal goods, than there are criminal offences. Although the Continental criminal-law teaching informs us that the so-called ‘objects of criminal law protection’ and ‘legal goods’ are not the same thing (and so one cannot conclude that, for example, the title of the chapter in the Special part reveals the legal good protected), it is obvious, for example, that murder and manslaughter, two separate criminal offences, violate the same legal good, namely, a person’s life. The difference between these two offences – and, similarly, between other crimes that nonetheless protect (or rather negate) the same legal good –, might lie in a different modus operandi, modality of crime, degree of culpability, circumstances in which the crime took place or subjective circumstances relating to the perpetrator or the

495

Concerning those cases where there is an overlap between von Hirsch’ ‘valid claims’ and the existing legal rights, Hörnle, however, argues that for some instances (like the right to sexual autonomy or to privacy) arguments appealing to [those] rights are more convincing than arguments appealing to von Hirsch’ ‘resources’. See Hörnle (2006), p. 12. 496 The “morality” of the claim would have to be, however, tied to (or in accordance with) the democratically chosen political theory, in our case, liberalism – which would ensure that e.g. legal moralisms stay out of reach. 497 Besson, p. 519, citing Pogge.

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victim, etc. Of course, this is “self-evident” only to those who subscribe to harm being an objective element of the concept of crime. The proponents of not so strict a separation between the objective harm and subjective mens rea would probably disagree, arguing that the harm in murder is different from harm in manslaughter. The difference in mens rea or in degree in guilt would, for them, make a difference. As argued previously, harm should be understood as an objective category, not only for pragmatic reasons (for making the ranking and categorising of harms possible) but also to be able to utilise the non-normative498 sense of harm (represented as a “setback to an interest499 (of other)”), which we believe to be jurisprudentially more useful to work with and less likely to facilitate incriminations based on legal moralism, to pass as ‘harm’.500 This applies also to the distinctly Continental notion of a ‘legal good’.501 Perhaps even more so, in the light of the, already mentioned, much sharper distinction between the objective and subjective elements of the offence – as can be seen, for example, in the structure of the Continental ‘general paradigm of the criminal offence’. Next question, regarding the relations between different legal goods themselves, is, whether they are all on a par or whether some are higher than others? Is there, in other words, a hierarchy of legal goods? Some interests can certainly be derived from others which could, therefore, be termed “higher”. An interest in one’s own reputation, for example, is based on the broader value (right) of personal integrity. And, if the hierarchical structure resembles a pyramid, similar to Kelsen’s pyramidical structure of legal norms, is there a legal good at the very top of the pyramid? Which one would that be; which one would be the Grundnorm in the world of legal goods, the Grundrechtsgut, so to speak? Humanity? Integrity? Liberty? Peace? A person’s welfare interests?502 Certainly some 498

See above, the end of the section on ‘The formulation (the concept)’ of harm, though. The reader will remember that Feinberg, after making a distinction between the normative and non-normative conception of harm, he, thereafter, starts to employ the term ‘wrong’ to denote his ‘harm in the normative sense’, pointing out, nonetheless, that the state needs both, cumulatively, to legitimately criminalise conduct. In other words, that only ‘wrongful harms’ and ‘harmful wrongs’ would be a prima facie good reason for criminalisation. 500 Eser is of similar persuasion, when he claims that ‘harm’ is an objective element, “the damage done to objective interests and values”, and that only “thus understood, the harm requirement is precisely the principle which, if properly employed, would restrain the state from punishing purely immoral wrongs”. See Eser (1966), p. 367. 501 In the light of the legal positivism that pervades the Continental legal theory, it would perhaps be better to say that it applies to the ‘good’ or ‘interest’ that forms a part of a ‘legal good’. 502 Although in plural, hence no Grundrechtsgut (but perhaps Grundrechtsgüter), Feinberg’s “welfare interests” are the basic requisites for a person’s well-being, interests that are “the necessary means to his more ultimate goals, whatever the latter may be, or later come to be” (p. 37). In this category Feinberg lists the following interests: the interests in the continuance for a foreseeable interval in one’s life, the interests in one’s own physical health and vigour, the integrity and normal functioning of one’s body,

499

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Or, perhaps, no changes in the status quo to the worse? Regardless of the question whether the “Grundrechtsgut” is possible, if needed at all, to establish, it would seem helpful to have some kind of taxonomy of basic legal goods (or basic interests, basic harms) and their ranking, worked out, in order to be really able to use all of the Rechtsgut’s potential; Rechtsgut being understood, similarly to the harm principle, as a critical yardstick for legitimising criminalisation.503 If we do not have a listing or classification of recognised legal goods, then it is more difficult to compare the (proposed or existent) criminal offences against the list, in order to see whether they contain any of the described, legitimate harms/interests. In the absence of such a list, it is easier to fall prey to the same circularity we reproached the descriptive school of Rechtsgut theorists. Now, compiling such a list would, without a doubt, be a difficult task for a variety of reasons and surely there would be exceptions, as they are to any rule or principle, some could object to its lack of universality (probably less if the list was to reflect the values, and apply only, within a particular society or particular state) etc. For these reasons and others, the list (or taxonomy, classification, categorisation, nomenclature) should be flexible and open-ended enough to allow to be extended, if good reasons are given. This is important, since over time new values, interests and rights may emerge. However, the changing or extending of such a classification should be done sparingly. The requirement for a limited and not easy changing of the core values or of the most basic legal goods stems, in the last instance, from the modern “minimalist” approach to criminal law, mirrored in the ultima ratio principle. The classification should, furthermore, encompass only the more basic and generic of interests (or Rechtsgüter or harms) thus making it also sufficiently flexible to make room for variation in the actual performance of these harms or different forms of culpability etc. Even in the best of criminal codes, there will probably always be some “free-floating” offences504 (e.g. bestiality (zoophilia) or defamation of

minimal intellectual acuity, emotional stability, the absence of groundless anxieties and resentments, the capacity to engage normally in social intercourse and to enjoy and maintain friendships, at least minimal income and financial security, a tolerable social and physical environment, and a certain amount of freedom from interference and coercion. See Feinberg (1984), p. 37. 503 It is important to note that something in this direction has been already done; the ranking of interests – by Feinberg, categorisation of standard harms – by von Hirsch and Jareborg, crime categories – by Farr and Gibbons, principal interests that motivate criminalisation – Burchell and Milton. As interests often overlap with philosophical ‘pleasures’, the classics, such as Bentham (who made a list of pleasures and pains) and Mill (who, in his Utilitarianism, further introduced qualitative differences among pleasures) may be of some use here as well. Paley made a distinction between those pleasures that lead to happiness and those that do not, while some crime-seriousness studies (e.g. by Rossi, Waite, Rose and Berk (1974), and by Sellin and Wolfgang (1964)) found considerable consensus among people in their assessment of the relative seriousness of different crimes. 504 Perhaps some offences based on the offence principle, or even legal paternalism or moralism.

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the national anthem505 ), not falling under any category of harm, i.e. (infringements of) interests based on the harm principle (or based on that conception of legal goods, which corresponds to the harm principle), yet as exceptions, if not too numerous, they would not really cause the “crisis of the paradigm”.506 Furthermore, having exceptions (based on moralism, paternalism or offence principle), and recognising them as such, is still better than trying to make these “free-floaters” fit our categories (i.e. harm) at any cost, perhaps in desire to make our conclusions ironclad to avoid possible criticisms. The latter, i.e. forcibly conforming exceptions to the rule or (re)interpreting all evidence so that it confirms the theory, would, namely, make us guilty of a fallacy of ‘poisoning the wells’.507 Another interesting issue, where a gap or difference between the concept of a legal good and the concept of harm becomes evident, is the way in which the criminal law deals with emotion-based offences (die Gefühlsdelikte).508 On the Continent, the crime of insult, for example, is considered an offence against honour; and honour, dignity, good name, reputation etc. are all widely accepted Rechtsgüter.509 In the Anglo-American legal theory (influenced by Feinberg’s ‘offence principle’), however, the protection of the victim’s emotional or psychological state by criminal law is bifurcated. An infringement constitutes ‘psychological harm’, thus warranting incrimination on the grounds of the harm principle, only where the psychological impairment is, if not permanent then at least, longer-lasting, a proper “setback” to the victim’s emotional or mental state. If the victim’s psychological state is, however, only momentarily upset or disturbed (as in the case of insult, for example), then there is no ‘harm’, only ‘offence’; offence, that may, nonetheless, be legitimately criminalised in a liberal society 505

Art. 174 of the Criminal Code of Slovenia, for example, criminalises ‘Defamation of the Republic of Slovenia’: “(1) Whoever publicly commits any of the offences under Articles 169–173 of the present Code against the Republic of Slovenia or against the President of the Republic with respect to the exercising of his office shall be punished by a fine or sentenced to imprisonment for not more than one year. (2) The same punishment shall be imposed on anyone who has publicly defamed the flag, coat-of-arms or national anthem of the Republic of Slovenia.” 506 Paradigm being, of course, criminalisation on the basis of the harm principle. 507 Toulmin et al, p. 167, 168. 508 Under Gefühlsdelikte Roxin, for example, lists offences such as ‘insult’ and similar offences (Ch. 14 of the German Criminal Code), ‘creating a public nuisance’ (Art. 183a) etc. See Roxin (2005), p. 22, 23. 509 Not only de iure but also in theory. Hörnle (at the Offence principle workshop, Oct. 2003, Cambridge) argued that the tradition in German penal law puts strong emphasis on persons’ honour, that the crime of insult is seen as an essential element of the German Penal Code, and that any proposal to remove it from the Penal Code and delegate it to the Law of Violations would, on her view, meet strong resistance. Roxin, despite claiming that the protection of citizens from negative emotions per se should not be primarily the task of criminal law, argues that “[t]he peaceful and free living together presupposes an individual who is not afraid of others nor must be submitted to discrimination by others, which is why the offences against honour (die Ehrverletzungsdelikte) are legitimately made criminal”. Roxin (2005), p. 22.

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(if certain conditions are met),510 at least in the view of the so-called ‘moderate liberals’. And so, herein lies the difference. Insult, as the prototype ‘offence’, is understood, in both legal systems, as an affront to honour or dignity. As both of these values are on the Continent understood as Rechtsgüter, the legitimacy of their protection through the criminal law is, by and large, not considered problematic. However, the infringements of these goods in the case of insult, as we have seen, would not necessarily be candidates for ‘harm’. Compared with the Anglo-American theoretical solution, it would seem that the Continental concept of ‘legal goods’, or rather the violations thereof, thus encompasses cases of ‘harm’ proper, as well as cases of (mere) ‘offence’. This would, consequently, mean that if one argues from an ‘extreme liberal’ position (i.e. accepting only the harm principle as a legitimate reason for criminalisation), then the concept of Rechtsgut might be found inappropriate a substitute, because its scope seems to be broader than the concept of ‘harm’.511 Even the Continental legal theorists see in emotion-based offences a potential danger, an open door for extending the “zone of criminality”. Some thus argue that emotions may be protected by criminal law, but only once the actual behaviour disturbs “public peace”.512 That, however, may be problematic from the point of view of fair imputation, since then we cannot blame the actor for negatively affecting other’s emotions but, instead, for disturbing public peace.513 Certainly some 510

For example, “good reasons” provided by the presumably offended person. See more in von Hirsch and Simester, and in the text supra. 511 However, one might perhaps argue that the extreme liberal’s conception of ‘harm’ could be slightly broader from the ‘harm’ as understood by moderate liberals, so that ‘insult’ would, in their mind, produce harm. It is important not to go too far with this line of reasoning, though. 512 Roxin, in Lernestedt, p. 147. In his new textbook (2005 edition), Roxin seems to make a move away from stressing the ‘public peace’ dimension and, instead, focuses on the victim’s ‘sense of security’. He maintains (at p. 22) that feelings (or the protection of citizens against negative feelings) should rightfully be considered a legal good (and hence a part of criminal law stricto sensu) only where an individual’s sense of security is harmed (where she feels threatened in her security). This security dimension would, for example, allow the criminality or punishability (Strafbarkeit) of exhibitionist acts (Art. 183 of the StGB) “only where they were conducted in the circumstances, which in the offended women evoked fear of a sexual assault” (“nur, soweit diese unter Umständen erfolgen, die bei den betroffenen Frauen die Furcht vor sexuellen Übergriffen hervorrufen muss”). Lacking this fear, the offence would, on his view, be more appropriately criminalised as a ‘violation’ (Ordnungswidrigkeit). Idem, p. 23. 513 A similar objection could probably be raised even if one argues for the criminal-law protection of emotions by appealing not to the ‘public peace’ but instead to the perceived (subjective feeling of) threat or fear for the victim’s security (see, for example, the previous footnote). Quite apart from the issues of the subjectivity of fear as being sufficient for the criminal-law involvement, the criminological evidence on what causes/generates fear and insecurity (e.g. media influences etc.), the differences between human beings in their susceptibility to fear and in their perception of fear (which would probably, in the interests of justice, ask for a more objective test of the “criminality” of behaviour), it is doubtful whether the criminalisation of an offence (e.g. exhibitionism) can (that is, ought to) be

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If the latter should be considered as a proper crime at all (and not perhaps merely a violation (prekršek, Ordnungswidrigkeit)), is the question; however, even if we arguendo assume that it rightfully is (or should be) a proper crime, it would not justify the criminalisation of another offence, that prohibits mere upsetting of others’ feelings and emotions. Another thing to bear in mind here is whether “affront to feelings”, even if established as proper harm, is enough. As already pointed out on several occasions in the text, the harm principle only gives us a necessary reason, a prima facie good reason for criminalisation. Even if the requirement of ‘harm’ (or Rechtsgut, if conceived as having a critical dimension, or ‘offence’ if accepted as a legitimate basis for criminalisation) is fulfilled, there may be other reasons, filters, balancing and limiting factors that can, at the end of the day, outweigh the harm principle. A good example of such reasoning can be seen, for example, from a case describing the debate on abortion. For those who might see abortion as offensive, Gavaghan – notwithstanding his treating ‘offence’ as “harm of sorts” – writes: “[T]he interests you or I have in preventing others from behaving in a way which we find offensive seems a rather weak interest when weighed against the interest of a woman in exercising control over her own body.”514 The above list of issues is not exhaustive, nor have any definite answers been given to the posed questions. The questions raised cannot be, namely, briefly dealt with; a more thorough investigation into them, on the other hand, would overstretch the scope of this volume. Nonetheless, they are all important issues that would, each, deserve a separate multidisciplinary study, where jurisprudence would work hand in hand with general philosophy and psychology. 7. Evaluation In the analyses of the previously suggested Continental counterparts I have eventually tried to answer whether the latter are – and if so, to what extent – indeed similar to the Anglo-American concept of harm and, of course, the harm principle. The time has arrived to ask the same question in relation to the Continental concept of a ‘legal good’ or Rechtsgut. Here, one must, first, note the rather ambivalent attitude among Continental theorists towards the Rechtsgut doctrine. Some find it useless, either because of its descriptiveness or its failure to produce interesting insights, despite the extensiveness of the literature. It is hard, namely, to dismiss Jareborg’s comment that “something must be wrong when almost 200 years of intensive intellectual activity seem to have resulted in more confusion than clarity.”515 Apart from

justified via (claiming there exist) the elements, or fear of, some other criminal offence (e.g. sexual assault, threat etc.) 514 Gavaghan, p. 4. He continues: “To force the triple ordeal of unwanted pregnancy, labour and parenthood on the reluctant surely requires a stronger justification than the sensibilities and superstitions of others.” Ibidem. 515 “Personally, I see the doctrines concerning Rechtsgüter as a blind alley; something must be wrong when almost 200 years of intensive intellectual activity seem to have

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this, we have noted a few discrepancies between the two concepts. First of all, ‘harm’ as featured in the harm principle, is narrower than ‘legal goods’ – especially in legal goods’ “descriptive”, positivist version. The latter encompass all values, interests, goods that should be (or are) protected by law, the negation of which may constitute harm in the broadest sense, but not the harm, that is, “harm to others”, a requirement of the harm principle. Even if we narrow down the category of legal goods to only those legal goods that are protected by criminal law (“criminal legal goods”), we could find some other differences, due to, for example, the Continental treating of some ‘offences’ as ‘harms’ (or, more correctly, as an infringement of, or damage to, some criminal legal good), which consequently implies that ‘legal goods’ is a somewhat bigger category than Anglo-American ‘harms’, as he former also encompasses some ‘offences’. In any case, secondly, a purely descriptive conception of Rechtsgut is inappropriate, because it is useless as a critical tool for assessing the legitimacy of criminalisation. If a legal good can always be distilled from the positive criminal legal norm, then there is no offence that would not shield some legally protected interests, and hence ‘legal good’ holds no independent value, provides no “critical yardstick”, and plays no role similar to the harm principle. The critical conceptions of Rechtsgut or “critical” schools – at least the ones relying chiefly on the constitutional law –, on the other hand, have to be a bit more “critical” to themselves. The constitutional law or constitutional rights can serve only as an additional, supplementary aid to explaining legal goods, yet they are a separate notion, historically and content-wise. Not all legal goods are rights and not all rights are incorporated into the constitution. In fact, deriving a “critical yardstick” from the positive law (of any kind) is highly problematic since it is usually quite circular. Roxin was aware of that when he proposed searching for the contents of the concept, not in positive law, but in the legal system as such. Von Hirsch went even further and via his conception of an interest as “a resource over which one has a valid claim”, located, in my view, the legitimate interests worthy of criminal law protection outside the realm of law, i.e. as an extra-legal concept. Third, there are at least a couple of important caveats to bear in mind, when comparing two concepts originating from different legal backgrounds. One is a general warning against uncritical and hasty transplantation of one concept into a different legal culture, with different tradition, different way of thinking and structuring things. Even if the differences are small, they sometimes matter surprisingly. In the end, they may turn out not to be so small.516 The second caution relates to the fallacy of equivocation. As it is often the case, ‘signifiers’ overlap, but not also their ‘signifieds’, their meanings. The signifier “interest”

resulted in more confusion than clarity.” Jareborg (2005), p. 524, fn. 6. See also Wohlers (2003). 516 The reader is reminded of the interesting, and different, relationship between harm and culpability in the two major criminal legal systems.

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is a perfect example, for it may carry a normative or non-normative meaning, which may, obviously, affect the validity of discussion. It is perhaps better, instead of trying to see whether ‘harm’ and (the negation of) ‘legal good’ overlap, to see what, if anything, the harm principle theory could contribute to the Rechtsgut theory. The juxtaposition with the previously expounded harm principle indicates that the harm principle and harm, as conceived, might provide exactly that critical dimension the concept of legal good requires, in order to break away from merely describing what is in the positive (criminal) law.

Classical Criminal Legal Principles If one were to aspire to locate the harm principle or its approximations on the formal level as well, one might first turn to look among other criminal legal principles as expounded in the General part of the Continental criminal codes and in the criminal legal theory. In light of the fact that the harm principle as such is not (yet) conceptualised in the Continental legal system, its closest “formal”, that is “principled”, approximation could possibly be the principle of legality, on one hand, and the principle of last resort (ultima ratio), on the other. The existing principles of criminal law, their placement and functioning within the criminal codes are of interest to us also from another perspective that concerns the hypothetical prospect of incorporating the harm principle in the Continent and perchance even including it in criminal codes. In any event, if the harm principle were to be incorporated into the positive law at all, it should be put, of course, into the General part of the code. Husak, arguing the same, more or less rhetorically asks: “If doctrines in the general part function to limit the structure of offences in the Special part – as surely is the case – then why can’t these doctrines also function to constrain the conduct that can be criminalized?”517

The Legality Principle In the debates on criminalisation and harm on the Continent some criminal-law theorists invoke the legality principle (particularly its lex certa requirement) as that tool, which would, on their view, help prevent inappropriate material to be criminalised in much of the same way as the Anglo-American harm principle would. It is for this reason, I shall briefly address the legality principle and its possible criminalisation aspects.

517

Husak, p. 18, 19.

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Principle of legality is admittedly the most basic, the most classical, the most elementary criminal legal principle on the Continent.518 It has a myriad of variations on the theme “nullum something sine something else” – nullum crimen sine lege (certa,519 praevia, scripta, stricta), nulla poena sine lege,520 nulla is guaranteed by the Constitution and the Criminal Code which, in Art. 1, stipulates that “no sentence or other criminal sanction shall be imposed on any person for committing an act that did not constitute a criminal offence under the statute prior to being committed and for which a sentence was not prescribed by the statute.”poena sine crimine and, some believe,521 even nullum crimen sine poena. Regarding the latter, Husak calls attention to the differing formulations of the principle available and asserts that “perhaps this principle states only that crimes must be created by the legislature, and says nothing about punishment.”522 Baˇci´c, similarly, lists five demands the principle should uphold,523 among them, however, there is no mention of the existence of crime being dependent on the existence of punishment. One explanation of this divergence in attitudes could be that the answer depends on what one thinks criminalisation does. If the criminal code is seen as only addressing the judges (“you should punish whoever does X”) not the people in general, than this lex imperfecta (i.e. no sanction attached to a crime) can be de facto construed as meaning that there is no crime – since judges, who ultimately “find” crime that has been up till that point merely “asserted”, cannot do anything about it.524

518

It can be, however, found in some Anglo-American systems as well. See, for example, Burchell and Milton for the account of the legality principle in the South-African criminal law (which has been, however, heavily influenced by the Continental law as well). Munday mentions the principle in association with the English legal system. He notices, however, that especially in the domain of punishment, the legality principle has “its own peculiarities” within the English law: “Notamment, à moins que le législateur n’intervienne pour les régler, en cas d’infractions de common law – qu’il s’agisse de privation de liberté ou d’une amende – les sanctions que les tribunaux anglais peuvent infliger restent sans limites.” Munday, p. 361, fn. 1. 519 or “reasonably precise and settled definitions of the offences”. Burchell and Milton, p. 61. 520 Beccaria, appalled by the brutality and arbitrariness of the prevailing system of punishments, argued that punishment should be determined not by whim of officials but by “the laws alone”. Burchell and Milton, p. 57. The idea was warmly welcomed in the 18th century revolutionary France and put into the 1789 Declaration of the Rights of Man. Feuerbach, in 1801, offered a different rationale for the principle, and expressed it in the form of a Latin maxim: nullum crimen, nulla poena sine lege. This version of the doctrine of legality then spread from Europe to North and South America, and became enshrined in the Art. 11/2 of the UN Universal Declaration of Human Rights. In Slovenia, the principle 521 See LaFave and Bavcon, Šelih, in the footnote supra. 522 Husak, p. 25, fn. 58. 523 The five requirements listed are: 1) nullum crimen sine lege scripta, 2) nullum crimen sine lege stricta, 3) nullum crimen sine lege praevia, 4) nullum crimen sine lege certa, and 5) nulla poena sine lege. Baˇci´c, p. 59. 524 The answer, of course, also depends on one’s views regarding the mala in se crimes, i.e. the inherent badness, moral wrongness, criminality of some acts.

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The principle is undoubtedly important – at the criminalisation stage, it, for example, guarantees that no conduct can be seen and prosecuted as a ‘crime’ (and hence nobody convicted as a criminal) if there is no previous, written law proclaiming such a conduct a crime and thus giving the individual opportunity to conform to the law. As such it provides ‘fair notice’ to the individual, not only of the prohibited conduct but also of its “price-tag” (the proscribed sentence or sentence range), thus promoting also his autonomy: “Subjects as rational, free human beings, have the choice whether to conform or not and are able, using rules as standards, to conduct their lives with the minimum risk of suffering interference.”525 On the judicial level, moreover, it ensures that the rules are applied in a non-arbitrary way,526 which consequently promotes the rationality of law.527 Unfortunately, the principle of legality is often also inappropriately extended (distorted) to include the numerous other conceptions – for example, the ultima ratio principle (i.e. the assertion that the latter is derived from the legality principle), the strict construction of penal statutes,528 the accessibility of law,529 the prohibition of the use of analogy, and the prohibition against retrospectivity530 – the legality principle is supposed to cover them all. It is thus employed as a passpartout criticism to strike down any kind of bad legislation – be it too vague or not abstract or specific enough, fixing, inter alia, also the lack of harm. Consider, for example, the decriminalisation of prostitution531 in Slovenia. The legislation prohibiting voluntary prostitution (law of violations or Ordnungswidrigkeiten) was attacked not for the conduct’s lack of harm(fulness) to others, but for using a term like “sexual immorality”, which was deemed to be too vague, too unclear a term and hence violating the principle of legality.532 Husak notices a similar reasoning in the USA. “Courts in the USA

525

Wilson, p. 33. Norrie (2001), p. 8. 527 See Norrie (2001), p. 8, 9. 528 Poenalia sunt restringenda. In other words, there exists the presumption that all uncertainties of the law should be interpreted in favour of the defendant. The courts, as Munday notices, more often violate this presumption, than they observe it. He offers, as an explanation, general prevention and promulgation of the well-being of the community – as two goals the courts pursue. (“[  ] les tribunaux ont pour mission de dissuader les citoyens de s’incliner vers la criminalité et ainsi de promouvoir un bien-être collectif. A cette fin, la capacité d’élargir le champ d’application de la loi n’est pas sans utilité.”) Munday, p. 372. 529 Burchell and Milton, p. 63. 530 Burchell and Milton, p. 66. 531 That is, the offence of prostitution (in the narrow sense, not encompassing also its associated phenomena such as pimping and procuring for prostitution – which remained criminal offences) being taken out of the law of violations (administrative-penal offences). The latter two criminal offences were later (with the Amendments to the Criminal Code, Ur. l. RS 40/2004, in April 2004) merged into one, called ‘the abuse of prostitution’. 532 See the Draft of the proposed amendments to the Law of Violations (also on the website of the Parliament: www.dz-rs.si). 526

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frequently strike vagrancy statutes allegedly because they are vague, and fail to provide adequate notice to defendants of the conduct proscribed. [  ] The problem with vagrancy laws cannot be rectified simply by better draftmanship. The more obvious problem is that the statute criminalised conduct that is not condemnable.”533 Despite the special connection between the legality principle and the Continental legal theory, the principle, unfortunately, only functions well – in the sense that it produces desirable results and prevents abuses – if the laws (and the legal system) are good.534 The legality principle is not a content-specific principle; it says a lot about the form, but little or nothing about the contents. However, as the contents matter perhaps more that the requirement of form535 , the emphasis is these days put on the moral “legitimacy” of laws.536 However, as there is no separate principle of legitimacy, the principle of legality is stretched some more, that is, reinterpreted so that it encompasses the idea of legitimacy as well. Even though it may seem reassuring to believe in the dogma that law is “complete” or “perfect”, in the sense that it has no gaps (for every “gap” can be filled out by (re)interpretation), this is sometimes a highly questionable an enterprise. It may, namely, do more harm than good – among others, to the very principle we so highly estimate. If principle of legality is “overfed” in such a way, it may lose all of its importance; it may collapse.537 A Continental jurist might also prefer to have a separate principle, i.e. a principle outside the legality principle, dealing with the substantive issues of criminalisation, for, ironically perhaps, that would be more in accordance with the legality principle itself. A demand of lex certa, a part of the legality principle, if extended to any kind of criminal legal norm/provision – be it a rule or principle –, may itself, namely, desire a much more precise, clear and specific contents of the principle of legality.

The Ultima Ratio Principle The principle of criminalisation as last resort (as ultima ratio regis) is somewhat closer to the harm principle. The ultima ratio principle is first and foremost a “principle of legislative ethics”,538 a principle that can sometimes be found in the criminal codes (e.g. Slovenia, Croatia), even though it might better fit in the constitution. It can be found in leading books and treaties, and in the

533

Husak, p. 33. “Not every intervention into human rights is also legitimate, despite it being in complete accordance with the [domestic] law.” Bavcon, p. 70, in Bavcon et al. (1997). 535 If anything, one might say that the inflation of laws, which we are experiencing nowadays, took that “fear” from us. 536 Bavcon (1990). 537 “Implosion” would probably be an even more accurate depiction. 538 Jareborg (2005), p. 521. 534

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jurisprudence of the European Court of Human Rights.539 The principle’s contents, more or less, follows from its name. The state ought to use the tool of criminalisation only as a last resort, when there is no other way of addressing the conduct. It is often mentioned in connection with the so-called “fragmentary character”540 of criminal law (i.e. protecting only some legal goods) and the “subsidiarity”541 of criminal law (i.e. that the task of the criminal law is merely to provide subsidiary protection for the interests that the law recognises and protects542 ). The criminal law should be, therefore, employed only when other means have been exhausted. Jareborg envisages a kind of four-step process to ensure the principle is respected all the way. First, “there must be a basic presumption that the State should not interfere at all. [Second], if interference is necessary, then aid, support, care, insurance and licence arrangements should take precedence over coercive measures. [Third], if coercive measures are necessary, they need not consist in sanctions. [And fourth], if sanctions are necessary, private law sanctions might be preferable to administrative sanctions.”543 The Art. 2 in the Slovenian Criminal Code formulates the principle in the following way: “Therefore, it shall be legitimate to lay down criminal offences and to prescribe sentences only when, and to the extent that, the protection of human life and other basic values cannot otherwise be assured.”544 “Therefore” relates to the previous article (Art. 1) that expounds the principle of legality. In Slovenia, as already mentioned, the ultima ratio principle is conceived as being derived from the legality principle. The prevailing Slovenian criminal-law theory (and perhaps some other Continental theories as well) obviously count the legality principle to be “the one”, the single most important principle, arching over all the rest, including the ultima ratio principle. The picture should probably be just reversed, or rather, the ultima ratio principle put on a par with the legality principle. Jareborg, for example, claims that the ultima ratio principle should be a metaprinciple, if we want it to have any independent normative function – a “metaprinciple summarising sufficient penal value reasons for criminalisation”,545 Certainly some

539

Bavcon, p. 59, in Bavcon et al. (1997). See, for example, Jareborg (2005). 541 “der fragmentarische und akzessorische Character der Strafrechts” (Jescheck 1988, p. 46). 542 Jareborg (2005) p. 532. 543 Jareborg (2005), p. 524. 544 “Dolocˇ anje kaznivih dejanj in predpisovanje kazenskih sankcij v zakonu je upravicˇ eno samo, kadar in kolikor varstva cˇ loveka in drugih temeljnih vrednot ni mogocˇ e zagotavljati drugacˇ e.” 545 Jareborg proposes a “positive” conception of the said principle, i.e. as a principle providing reasons for (not against) criminalisation. However, his article (2005) finishes with a warning that the scope of such a conception “should be, however, fairly limited” (p. 534) and mentions (only) the humanity and utility principles as the possible limiting factors. However, as the humanity principle itself, undoubtedly, encompasses (that is, ought to encompass) the ultima ratio principle as commonly understood (i.e. in the 540

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to be precise. If, today, the emphasis is really put on the moral legitimacy of laws (Bavcon), for legality itself is not enough, then the argument to “make” the principle of last resort a metaprinciple should be endorsed. The principle should not, however, be perceived as merely a criminal legal principle, but a much broader legal principle, for if we consider its four-step process of implementation, it becomes quite obvious that it does not apply only to the field of criminal law, but law in general. What is more, it does not pertain only to legal intervention, but any kind of state intervention. It is not, therefore, a principle to be taken into account only prior to criminalisation (and therefore as addressing solely the legislator), but prior to any kind of state intervention, from any state representative.546 Bavcon, similarly, maintains that the principle does not speak only to the legislator but to any official or body within the criminal justice system. “Even when an act fulfils all the statutory elements of some criminal offence, the authority should carefully consider, within its legally prescribed powers, if the act in the case at hand is in fact so dangerous that it warrants the use of criminal legal force, or could there be perhaps some other measures used, measures like conditional suspension of prosecution or mediation etc.”547 The principle is, however, primarily addressed to the legislator,548 and that is one of the characteristics it shares with the harm principle. More importantly, a description of the repressiveness-limiting principle (as the ultima ratio principle is named in the Slovenian legal theory) as a “a cluster of checks on the arbitrariness of the government”,549 could just as well describe the harm principle, since its main and most important function is, namely, precisely the same, i.e. to limit the negative sides of the state’s power (arbitrariness being one of them). An additional common element between the ultima ratio principle and the harm principle, is a presumption called “in dubio pro libertate”. By libertas, in this context, it is meant non-criminalisation. As a judge may not convict a person without proof of her guilt, the legislator may not criminalise a particular kind of conduct without evidence that the criminalisation is necessary, argues Hanack.550 In dubio pro reo for the judge should translate into in dubio pro libertate or in dubio contra delictum551 for the legislator. Feinberg endorses this presumption in favour of liberty and formulates it as being a requirement that “whenever a legislator is faced with a choice between imposing a legal

“negative” conception, providing reasons against criminalisation), one may argue that the “positive” conception of the ultima ratio principle would be, at the end of the day, limited (also) by its “negative” conception. 546 Which makes the idea of the ultima ratio principle as a constitutional principle, even stronger. 547 Bavcon, Šelih et al. (2003), p. 138. 548 Beccaria and Jelenc have also in principle wrote to the rulers (law-makers), not judges. 549 “…kompleks zavor zoper samovoljo oblasti”. Bavcon (2002), p. 41. 550 Hanack, Ernst-Walter, Zur Revision des Sexualstrafrechts in der Bundesrepublik, in Jareborg (2005), p. 531, fn. 19. 551 Vormbaum, in Jareborg (2005), p. 531, fn. 20.

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duty on citizens or leaving them at liberty, other things being equal, he should leave individuals free to make their own choices. Liberty should be the norm; coercion always needs some special justification.”552 The said presumption is “a reason against criminalisation”,553 and as such, a logical outgrowth of the harm principle (‘principle of liberty’, as Mill named it) as well as of the ultima ratio principle. Their “job” is to make the task of criminalising difficult. And the said presumption also allocates the burden of persuasion; the burden is on those who wish to criminalise, not on those who wish to live free of such restrictions.554 Upon evaluation, one detects so many similarities between the principle of ultima ratio and the harm principle, to be entitled to count the two as perhaps coming from the same “family”. The harm principle could be, in fact, a kind of “subprinciple”, a subcategory of the ultima ratio principle, with the exception that the harm principle determines also the contents of criminalisation, while the ultima ratio only a preference for non-intervention or non-criminal intervention. And herein lies the main reason why the ultima ratio principle is not enough, i.e. not a sufficient warrant either to stop the “criminal law inflation” (or “overcriminalisation”) or to guarantee that the criminal legislation is passed for the right reasons, i.e. on legitimate grounds for criminalisation. While the ultima ratio principle is merely a “formal” principle as it were, the harm principle is a “substantive” one and this is also why it is better to imagine them hierarchically reversed: to have the harm principle as a “supraprinciple”, as the main, leading criminalisation-determining principle (to be applied in the first place, at the level of the first filter),555 while the ultima ratio principle with its formal nature would test the harmful-thus-prima-facie-criminalisable material on the level of the second filter as a ‘limiting principle’, narrowing down the conduct that could be legitimately criminalised even further.

Proscribed Consequence Proscribed consequence (Erfolgsunrecht, prepovedana posledica) is a part of the Tatbestand, one of the statutory elements of the offence. A rule of thumb in the modern criminal law states that one may talk of criminal offence proper only if an act or omission resulted in a consequence (the exceptions being criminal preparatory actions and criminal attempts). Not any consequence, of course, will do – only the one proscribed by a criminal norm; hence the term ‘proscribed consequence’.

552 553 554 555

Feinberg (1984), p. 9. Schonsheck, p. 15. Schonsheck, p. 63. See the chapter on ‘Limiting principles’.

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In a lot of cases the proscribed consequence overlaps with the harm or harmful consequence, and so the term has begun to be used interchangeably.556 Not only in practice, there are assertions in legal theory as well, that the ‘proscribed consequence’ may correspond to the Anglo-American category of ‘harm’.557 However, in light of the fact that “the criminal code [always] explicitly or tacitly tells us, which proscribed consequence must be caused by the conduct, in order to be able to call it a crime”,558 the synonymous usage of the expressions is far from deserved. If the proscribed consequence is always “in this way or another gathered from the description of the offence”,559 then, logically, there is no point in our asking whether a particular criminal norm contains the proscribed consequence and has been, therefore, legitimately criminalised (as we do with the harm principle), for, obviously, every norm by nature contains such a consequence. Justifying the norm via the proscribed consequence would be entirely circular and fallacious.560 In other words, what the harm principle is saying is precisely that only the harm should be made into a “proscribed consequence”, but since the proscribed consequence is an automatic, innate ingredient of the criminal-law norm, it equals harm only when the harm principle is followed without exception. Yet, even when/if this were the case, that is, if ‘is’ and ‘ought’ collapsed into one and there were no discrepancy between them, the ‘proscribed consequence’ would functionally (or conceptually) still fail to qualify as a proper surrogate for harm, as long as it was to be conceived in the above described way. In such a conception, it carries no (from the positive-law norm) independent value and, hence, should not be confounded with the harm principle. Conversely, if harm principle were to be conceived in this way, it could not play the role of a criterion, according to which the legitimacy of criminalisation could be determined.

556

Bošnjak, for example, notices that the Slovenian prosecutors sometimes mistakenly employ the term ‘proscribed consequence’ instead of ‘harmful consequence’ in the cases of bagatelle criminality (de minimis). See Bošnjak, p. 50, in Bavcon et al. (2000). 557 “Erfolgsunrecht deckt sich dabei etwa mit der Kategorie ‘harm’.” Hörnle (2001), p. 105. 558 Bavcon, Šelih et al., (2003), p. 181. 559 Ibidem. 560 The critique, as one can observe, is identical to the one addressed to the descriptive school of Rechtsgutstheorie.

VI Conclusion – Final Evaluation

So far, the present study has attempted to tackle three major sets of issues. In Chapters II and III, the issue of criminalisation and its legitimacy has been examined. Arguing that today, more than ever, the state proclaiming itself as democratic and liberal, and ascribing to ideals such as the rule of law (or Rechtsstaat), needs justification; it needs legitimacy, i.e. its existence and powers (functioning) need to be legitimate, and thus also its power to criminalise. Legality alone will not do. Legitimacy as a moral right or a question of “proper aims for which government has a right to exercise authority to coerce individuals to comply with the common good, to regulate their behaviour,”561 is what is required. We maintained that – apart from the obvious factors like transparency of the legislative process and participation of experts and other relevant groups562 – it is important that criminalisation is guided by principles, which would not only remove the mistakes of ‘balancing’, but also ensure important values (often ingrained in chosen political and legal system, or constitution, or derived from the broader international trends in modern criminal law) are given proper attention to ensure a more just and coherent, reasonable outcome. Four principles, or grounds for criminalisation, were subsequently discussed, dismissing legal paternalism and legal moralism, conditionally accepting the offence principle (or at least not rejecting it a priori), and promoting the harm principle. Chapter IV then analysed and discussed the harm principle in detail, its rationale and open questions, while Chapter V focused on the Continental legal theory of Germanic legal circle in order to locate possible Continental counterparts or approximations to the harm principle. What remains for us to consider, and we shall consider it in this chapter, is a kind of synthesis to previous more analytical parts of the thesis and an overall evaluation from the standpoint of the possible reception of the harm principle (in some form or another) into the Continental criminal legal theory.

561 562

Forst, p. 213. Factors that should be present in any representative democracy. 127

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The Absence of a Counterpart The Continental (and particularly German) criminal legal theory does not make explicit use of the harm principle. The notion of harm does not correspond to the Continental notion of wrongfulness (material unlawfulness, Rechtwidrigkeit) – even though wrongfulness as material unlawfulness may be a somewhat broader concept than wrongfulness as the German Rechtwidrigkeit. However, even if we situated harm within the wrongfulness (Rechtwidrigkeit, material unlawfulness) – that is, in the second element of the Continental ‘general paradigm of the criminal offence’–, it would not help us, i.e. it would not perform the functions of the harm principle, for it (and the whole ‘general paradigm’, in fact) is used post delictum, as a pragmatic tool in a three-step process to determine the punishability of the act. The functions of limiting of criminalisation are, therefore, performed partly under the title of the ultima ratio principle (in theory, at least), partly (and mistakenly) by the legality principle, and in part with the help of the concept of a ‘legal good’. The first principle merely determines the form, or rather the time of criminalisation, the legality principle is often (ab)used to strike down the legislation that in fact lacks in the harmfulness of the conduct, while legal goods are often used as a descriptive concept, to be made out from the concrete norm, and hence rendered unhelpful as a critical tool for assessment of the legitimacy of criminalisation.

The Appeal of the Harm Principle Can the Continental theory profit by adopting the harm principle? Does it need the harm principle? This volume argues that the answer is affirmative, even though the actual implementation can take different forms. The harm principle has many advantages the Continental legal system itself could use. It would provide a normative criterion for proposed new criminal legislation and a tool for criticising the existent (criminal) laws. It would also help prevent the existing principle of legality from being overloaded (i.e. being used as a catch-all phrase to strike down bad legislation) and may even help the ultima ratio principle to become more effective (and be thus taken more seriously) by acquiring specific contents or a specific function as a ‘limiting principle’. The principle would not authorise criminalising conduct that is merely found “immoral” or harmful to the actor himself. What the current debates surrounding draft criminal law statutes need is argumentation that is based on the harm/harmfulness of the conduct. The concept when further developed, moreover, enables comparison between harms and between criminal offences, and so provides a common denominator of discussion as a necessary base for further disagreement e.g. among people who share different views as to what counts as harm,563 and even among those who think 563

What people, individually and subjectively, count as harm, namely, depends on the time, place, the individual and his values – for harm (škoda) is “not only an objective state, but also (or perhaps first and foremost) a specific (namely value-laden) interpretation of facts.” Kanduˇc (2003), p. 280, fn. 59.

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paternalism, for example, should (to at least some degree) be a legitimate basis for criminalisation as well. A paternalist might, namely, share the view of a liberal that theft is less harmful than rape, even though they may disagree on whether selling drugs to consenting adults is a harm (harm of a kind that would warrant criminal law protection). The harm principle (or broader, harm doctrine) thus provides (perhaps the only) a common language, upon which a proper discussion, discussion about the same subject, can proceed. As a half of the tandem (the other half being culpability) that defines the seriousness or gravity of the offence,564 ‘harm’ would turn out to have ample meaning also for the fair determination of sentence, i.e. the proportionality of punishment.565 Furthermore, the elaboration of the notion of harm would surely be of use when deciding about whether to apply de minimis rule which, among others, mentions the “absence or insignificance of harmful consequences” as one of the factors that determine the “low significance” of the offence. Such an offshoot of the harm principle would thus be helpful in the concrete, post delictum stage as well. Its primary function would, however, remain being a criterion of criminalisation (a tool of legislative ethics – Jareborg) that would – similarly to de minimis rule in the concrete case – restrict the criminalisation of conduct, not sufficiently harmful. The actual reception of the idea of the harm principle, as mentioned, could take place either in the shape of the harm principle as formulated in the AngloAmerican criminal legal philosophy, or in the shape of a new principle based on the concept of ‘criminal legal good’. This concept would be, first, much narrower than “traditional” legal good, for not all legal goods need or should be protected by criminal law; it would encompass only (significant) harm “to others” (as in the harm principle proper). Second, the criminal legal good would have to lose its purely “descriptive” dimension, to be able to serve as a critical yardstick for measuring the legitimacy of criminalisation. The “critical” perspective on Rechtsgutstheorie would provide a good starting point; it would need, however, to go beyond mere appealing to (constitutional) rights and develop an independent (rights-independent) concept of a legal good. The ‘interest’, as its central notion, should be further elaborated upon. Here, the achievements of the theory on the harm principle could prove useful.

(In)Sufficiency of the Principle Would the reception of the harm principle help substantially in resolving problems of criminalisation? As indicated above, some of the questions regarding the harm principle remain open, some problems (still) unresolved. Partly, they arise out of yet insufficient clarification of the concept of ‘harm’: what is harm, 564

One could also speak of the “significance” of the offence – following the articulation of de minimis rule in the Slovenian Criminal Code. 565 See more fully in von Hirsch (1993); von Hirsch and Ashworth (2005).

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which harm is to be proscribed by the criminal law, how “immaterial” may it get, harm’s relationship with the notion of ‘victim’ etc. This volume has tried to answer some of these questions (or at least locate them and shed some light onto them), noticing the need for clarifying the term ‘harm’ and subsequently the term ‘interest’ (jurisprudentially preferring the non-normative conceptions)566 and the need for a taxonomy or classification of harms.567 It has also become apparent that, in order to make the concept of ‘harm’ firmer, the intertwined notions (e.g. ‘the victim’) that in some ways determine or permeate the ‘harm’, have to be elucidated more clearly. The uncertainties concerning particular types of harm (e.g. accumulative harms) can be solved by various “mediating maxims” and the just scope of potential perpetrators (‘authorship’ of crime) by rules of fair imputation. However, a just criminalisation necessitates also separate “limiting factors and principles”, to be applied to all cases of prima facie harm, that is, when the harm requirement has been already fulfilled. These limiting principles would work as a kind of filters (Schonsheck), potentially inhibiting the criminalisation despite the initial case for criminalisation being already made (by the harm principle). In other words, the harm principle alone is not enough for a just criminalisation;568 it does (ought to), however, provide a necessary condition,569 which has to be supplemented by a variety of other considerations. The anthropocentrism and individualism of the principle (its main focus being on the human individual), remains, for the political and moral basis on which the harm principle was developed, “suffers” from the same predicament. While our thinking should go beyond our own individual interests and move more towards an individual, (re)integrated into the community, the criminal law itself need not follow that path, i.e. there is no need to use the criminal law in this expansive way for protection of such concerns. The collective interests should, first, not be a mere euphemistic term for the state’s interests, second, could be in most cases derived from individual interests, and third, when/if they cannot be seen as a mere sum of individual’s interests, they should be protected in some other way – perhaps, as Hassemer suggested, by a special “intervention law”.570 The criminal law of today should, in our view, remain 566

The normative conception of elementary blocks or atoms like ‘harm’ or ‘interest’, namely, seems to lead us nowhere. It equals harm to wrong, thus injecting much more of subjective (even moral(istic)) undertone into the harm principle. 567 At least within a particular society that shares the same values and convictions as to which interests are legitimate, i.e. justified to be protected by law – those are the interests which will not only be asserted but will be also socially recognised as valuable. See more in Eser (1966), p. 414 et seq. 568 Which, however, does not mean that this is some kind of deficiency on the part of the harm principle. 569 Not even a necessary, if one accepts the offence principle as the legitimate grounds as well. 570 In many cases of collective interests or harms (e.g. economic and (some forms of) environmental harm) we are dealing with a special kind of harm, namely accumulative harm (“Air and water pollution are paradigmatic accumulative harms.”

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true to its modern criminal law maxims of minimalist, humanist, ultima ratio criminalisation. The state exists chiefly for the individual, Hassemer also pointed out, and the expansion of the protection beyond the individual’s wellbeing sooner or later becomes also conceptually (philosophically) untenable from the point of liberal assumptions. It can, moreover, easily lapse into the protection of majority’s morality or conventional mores (and hence legal moralism). Some exceptions may, of course, be tolerable (as long as they do not cross a certain threshold), some are probably even inevitable or necessary, for, as Jareborg puts it, “we cannot expect any criminalisation principle to be unqualified and exceptionless”.571 Such exceptions, however, do not deny the importance of the harm principle.

Feasibility of Reception The next question is one of feasibility. In other words, can the harm principle be successfully transplanted into the Continental legal system? If one has problems even with comparing laws and legal concepts from different legal cultures, for tradition and structure have to be accounted for,572 how much success could there be in actually transferring a concept (whose translation is even considered problematic)? How much would the mentality and the culture matter, as well as the way of thinking things, reasoning and other, perhaps irrational (emotive) factors? Should the mentality, as a kind of “soil”, be changed as well to assure success of the transplantation? Could it be changed? After the reception of a “foreign” concept or before? Does the society adapt to the change in laws (or legal theory) or is it the other way around?    These and other questions that are primarily in the domain of other disciplines (sociology of law perhaps) would perhaps be more difficult to answer a few decades ago when there was no European Union, no globalisation of today’s proportions, no ECHR (European Convention on Human Rights) etc. Today we see the diverse legal systems approaching, harmonising, exchanging ideas and people (which may be the main reason for the former). The following are only some points of

Feinberg (1984), p. 228.) that requires a different kind of “mentality” behind the imputation of responsibility. The duty to protect the environment (when it is not directly harmful to the individual) is more of a social than moral entitlement, and the protection of environment is, therefore, seen more as an outgrowth of the social, not moral, responsibility. As the traditional criminal law is still based on the moral responsibility (and blameworthiness) of the individual actor, it seems even more reasonable to tackle the issue of protection of such complex goods in some other way. The nature of the restoration of the harmed good is, furthermore, quite different – the emphasis is on the restitution not punishment. For more on imputational problems with the public accumulative harm, see Feinberg (1984), p. 227–232. 571 Jareborg (2005), p. 523. 572 “Certainly, in comparing different laws we always have to keep in mind different traditions and perhaps differently structured systems.” Eser (1976), p. 623.

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conversion of the two systems, points that are perhaps the most relevant for our task: The discussions on harm as well as on Rechtsgut, both focus on the notion of ‘interest’. One could say that these interests, or ‘legally protected interests’ to be exact, form in both legal systems, the atoms (of harm and of legal good), the same building blocks, that have been, however, put together in a different way. Another intersection can be spotted perhaps in the Anglo-American legal norms that were generated by legal moralism or paternalism, and those Continental legal norms that protect the so-called ‘non-disposable legal goods’.573 It is, namely, the legal moralism or legal paternalism that renders certain legal values that are protected by criminal law, ‘non-disposable’. In both cases we are faced with the similar problem: the state depriving the individual of the power and right to dispose of his legal good by calling it “not his”. The Continental accommodation to the Anglo-American way of looking at the relationship between the individual and the state can be seen in the recent (last decades) shift towards the individual and his/her autonomy. That can be seen, firstly, from the academic and public discourses, employing ‘autonomy’ (a markedly liberal concept) as a justification or a tool for criticism of the state’s interventions and its laws, and, secondly, by augmenting the percentage of ‘disposable legal goods’ thus making them a rule and the cases of ‘non-disposable legal values’ an exception. Last but not least, the international law and, moreover, European laws clearly show how the civil law system and the common law system (at least the British) are, in certain important aspects, even structurally approaching each other. Common economic interests certainly go a long way. We have to bear in mind that law not only controls but is also and in the first place created by interests.574 International law conventions, such as the European Convention on Human Rights, have an impact as well. The Anglo-American principle of a “fair trial” has been adopted into some Continental legal systems via the ECHR convention.575 The jurisprudence of the Strasbourg court is echoed by the decisions of the constitutional courts in the member states, which may not directly make law, but are nonetheless very influential in interpreting the statutes and shaping the legal culture. Sometimes, of course, the transplantation is made directly from one system to another. When drafting the Slovenian Criminal Procedure Code, for example, the concept of the privilege against self-incrimination and the exclusion of illegally obtained evidence were directly taken from the American criminal procedure law and the jurisprudence of the US Supreme Court.576 573

Legal goods to the violation (harming) of which the harmed person (the victim) cannot validly consent. See more, supra. 574 Quinney, cited above, ibidem. 575 Similarly perhaps, the “principle of proportionality”. See Bavcon et al. (1997). This does not mean, of course, that Continental jurisdictions had or believed in unfair procedures (or disproportionate sanctions) until then. 576 See more in Zupanˇciˇc et al. (1996).

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These intersections or points of conversion indicate that it is possible to accept some foreign concept and successfully implement it into a domestic legal system. However, they may also show that the “foreign” transplanted concept may modify itself, adapt or assimilate to the new environment, new mentality, which, in turn, proves again that it is not doomed to failure, but also that one cannot be certain that the same plant will bear the same fruit, as it were. One has to keep all this in mind, although, needless to say, it is not always necessarily a bad thing to cultivate new species, for that enables further learning.

The Mode of Reception If the Continental criminal legal theory is willing to accept the harm principle and it is possible to transplant it successfully, how should it be done? Should we take Mill’s or Feinberg’s formulation and put it into the criminal code, just like the principle of legality? Should it be nomothetically (legislatively) edited and then put into the black-letter law? I do not find it necessary, even though it would be possible. The fact that a principle would primarily address the legislator and be, nevertheless, made a part of ius positum is not unheard of – as the example of the ultima ratio principle in the Article 2 of the Slovenian Criminal Code clearly attests to. However, this is not necessary. The harm principle can share the same role as the principle of humanity, which is clearly a criminal law principle, recognised by the theory,577 even though it is not expressly stated in the code. Furthermore, it is questionable, if the norms of a purely declaratory or symbolic nature (similar to the preamble to the constitution) have a role to play in the statutes. One might argue even that it is preferable for legal security (Rechtssicherheit) not to have such provisions in the statute, for they may do more harm than good. As Hall once wrote: “A canon of scientific inquiry is that of economy. A concept that is not needed is not merely superfluous, it also clouds analysis.”578 Conceivably, the principle could be put into the constitution. Yet, there is no need for that. It is probably better to have such a principle (and, in turn, the concept of ‘harm’) outside the constraints of the positive legal norm, for it can then evolve more freely.579

577

Bavcon, Šelih et al. (2003), p. 141–144. Hall (1976-II), p. 644. 579 “During the reform work [on Finnish criminal law – N.P] much discussion has been devoted to the question of whether or not – and if so, to which degree – legal definitions of basic concepts in principle should be included in the new code. The principle of legality has been referred to as speaking for codified definitions, while arguments for leaving the conceptual development mainly to the legal and criminal sciences have been based upon the expectation of scientific progress in these fields.” Sévon, p. 129. 578

VII Some Criminological Afterthoughts

Contemporary criminal law is said to be experiencing the ‘crisis of overcriminalisation’580 or ‘criminal law inflation’; the trend of expansive criminalisation, where criminalisation seems more like the prima ratio than the ultima ratio, a pedagogical instrument.581 In my view, the harm principle may not deliver us from this evil, so to speak, but it might be somewhat helpful. The principle, namely, sets out the legitimate grounds, necessary conditions that need to be fulfilled at the first stage of criminalisation, and the condition is ‘harm to others’ – not ‘immorality’, not harm to self (and in the extreme liberal version also no offence), only to others. The harm principle, if understood as suggested in this volume, and if supported by rules of fair imputation and various limiting principles, should also militate against (or, ex post, declare illegitimate) the criminalisation on the basis of mere abstract, far-fetching risk or remote harm, which often covers others (illegitimate) reasons disguised in the rhetoric of harm. As many new offences are precisely of this nature – criminalising risk (or rather, fear), not harm – the harm principle if taken seriously, should oppose such criminal legislation. Some, however, propose that the criminal law should be re-examined and have its priorities shifted – that it should, for example, move away from guilt and moral responsibility and other concepts that abound in moral phraseology, and instead focus on social responsibility, restitution and harm.582 Another view suggests that criminologists should stop focusing solely on crime or criminal harms and, instead, move beyond its narrow confines and focus on the “social harm”,583 580

Husak, p. 20. “[T]his is a matter of employing criminal law as an instrument of popular pedagogy, in order to ‘sensitise’ the people”. Jareborg (2005), p. 528, referring to Hassemer’s observation. 582 “What is needed is a new system of justice based not on the abstract and metaphysical notions of ‘free will’, ‘moral guilt’, and ‘moral responsibility’ but on the secular notion of ‘harm’.” Fattah, p. 78. 583 This perspective or approach hence carries the name of “social harm approach”. For a detailed analysis and discussion of many social, non-criminal harms, see P. Hillyard, Ch. Patazis, S. Tombs, and D. Gordon (eds.) (2004), Beyond Criminology: Taking Harm Seriously, Pluto Press, London. 581

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that is, on various kinds of harms, which people experience in their lifetimes.584 Both ideas draw from the observation that the criminal victimisation is not more harmful, more serious and more dangerous than other victimisations.585 And in this, they may be right. Certainly the poverty kills more people every day than all the serial murderers together, and life and health is often ruined in our everyday workplaces, yet they are discounted as a necessary outcome of the market economy and thus considered non-criminal. The notion of harm, thus, takes the centre stage also in alternative views of criminal law or, even broader, of the theoretical rationale and political utility of retaining a commitment to, inter alia, (criminal) law.586 But even though the proponents have some plausible arguments for focusing more on harm (broadly understood), there are, however, a few issues to consider first – especially if (or when) a broader focus on harm is understood as leaving behind the mens rea requirement.587 First, the classical criminal law principle of subjective responsibility or guilt (nullum crimen nulla poena sine culpa) is looked upon as an achievement of the modern criminal law, a civilisational achievement even.588 The elimination of the requirement of guilt would, therefore, seem not to be an easy task; in fact, it would almost certainly encounter much resistance. Another thing is “censure”.589 Many scholars find censure or reprobation590 to be a quintessential characteristic of the criminal law,591 perhaps even the

584

Idem, p. 1. “There is no doubt that deaths, injuries and losses from victimisation by crime are relatively minor when compared to those caused by other forms of victimisation. [  ] With the exception of very few minor types (such as murder, rape or serious injury) most victimisations, even the ones usually termed serious, are actually trivial in nature, as well as consequence.” Fattah, p. 72, 73. “The range and type of harm people experience during their life course are, of course, extremely varied. [  ] Some of these events will be captured by the criminal law. Most of the events, however, will not be seen as criminal and categorised in a variety of different ways from ‘outcomes of the market economy’ to ‘accidents’ or ‘mistakes’. Yet for the person who dies, whether it is from a deliberate act, ‘accident’ or indifference they are still dead with all the social and economic consequences for their family and friends. Similarly, if a person is injured or they ‘lose’ their life savings, the immediate harm is the same whether it is socially construed as a crime or mistake. Thus, it is a central premise of this book that it makes no sense to separate out harms, which can be defined as criminal, from all other types of harm.” Hillyard, Pantazis, Tombs, and Gordon (eds.), p. 1, 2. 586 Hillyard et al., 2004 p. 1. 587 Ideas of abandoning the concept of guilt are not new, though; they go far back in time. The Social Defence Movement, whose origin dates back to the year 1946, developed the notion of the “antisocial” (antisocialité) to replace the notion of moral responsibility. See, Ancel (1987), p. 86. In 1959, Barbara Wootton argued for the abandoning the concept of responsibility, to which H.L.A. Hart very persuasively replied in his book Punishment and Responsibility (ch. VII), arguing for the concept. 588 See Bavcon, Šelih et al. (2003), p. 144–147. 589 See von Hirsch (1993); von Hirsch and Ashworth (2005), ch. II. 590 “ocˇ itek” Bavcon, Šelih et al. (2003), p. 145. 591 See von Hirsch (1993); Simester and Sullivan (2003), p. 4.

585

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only remaining distinguishing element from other kinds of law, and the law of violations. From this it would seem to follow that, not only that tort is different from crime, but that as long as the criminal law, or rather its punishment, contains censure, the reception of the “new paradigm”592 of criminal law, which has no room for guilt, does not seem very likely or appropriate. Moreover, in this particular alternative view of (the tasks or aims of) the criminal law, one could see a startling tendency to greatly expand the notion of criminal harm (i.e. harm that deserves criminal law protection) to encapsulate every kind and all kinds of harm, not only “harm to others” (at least not ‘others’ interpreted as individual persons), and a wider scope of mere social endangerment.593 But if the alleviation of the criminalisation of mere risks, of mere “potential” of causing harm, is the desired result of this new criminal law, do we really want it? Is this still criminal law? Should it be criminal law? Out would go the rules of personal imputation, out would go the ultima ratio principle. And where are the rest of the limiting factors? The social costs of criminalisation? The humanity principle? In this alternatively proposed view, the notion of harm is, undoubtedly, given a prominent place, for it is not merely a prima facie good reason for criminalisation (or a necessary reason) but seems to be also the only reason. The “new” criminal law might be viewed by some as conciliatory and humane in the sense of not being punitive but restitutive, but should not the humanity principle also act as a factor preventing something from becoming criminal law in the first place? The regulation of acts of endangerment would be perhaps a legitimate task for the administrative law; for the criminal law, however, such an undertaking could be endorsed only if/when the nature of criminal law is changed to such an extent that there would really be no features of blaming or censure involved – if/when the criminal law, in other words, were to become de facto a (type of) administrative law. But why then even employ criminal law at all? Why not just handle these harms via the administrative law, or a separate “law of interventions” (Hassemer)? The environmental harm, for example, in many (perhaps most) cases represents the so-called accumulative harm594 resulting from accumulative acts which, at the individual level, would be harmless.595 Also the attitudes,

592

See Fattah. “Another advantage of the notion of harm over the notion of intent, over the consequence orientation over the guilt orientation, is that it allows the regulation of acts of endangerment. There are countless acts in industrial, technological societies that require regulation for the simple reason that they have the potential of causing harm, sometimes quite serious harm.” Fattah, p. 86. 594 “Some crimes (e.g. certain environmental offences) have harm that is primarily collective or aggregative: no identifiable person has his interest set back by activity of an identifiable actor; but if a sufficiently large number of persons engage in the conduct, the public’s interests are adversely affected.” von Hirsch and Jareborg (2005), p. 188. 595 See, for example, The Convention on the Protection of the Environment through Criminal Law, Council of Europe, Strasbourg, November 4, 1998. The Convention is the first international convention to criminalise acts causing or likely to cause environmental 593

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reactions of people to harming the “traditional” individual interest, on one hand, and the collective interest, on the other, vary significantly. We do not feel the same when we hear about someone polluting the air, then when we hear about X murdering Y. We do not find the two acts even comparable. (Perhaps we should and perhaps we shall some day, when our ecoconscience or the lack of clear air reaches certain level, but for now, the discrepancy in reaction is great.) The old distinction between malum in se and malum prohibitum could explain the difference. If we protect every “good”, everything that is worthy of protection by invoking criminal law (i.e. by criminalisation), then mala in se will actually represent only a drop in the sea of the criminal-law prohibition, a minor exception among all the mala prohibita (or bona protecta), and if this happens then the ascription of censure and blameworthiness would have to vanish on its own. Until then we cannot but agree with Hart that there are values not at all related to ideas of retributive punishment, which the system of responsibility does maintain.596 Moreover, in spite of the fact that a broken nose or a slap in the face may hurt the same whether it has been done intentionally or by accident, it is the responsibility (if it can be established) of the person who caused it, which determines our future conduct (or social relations) towards that person.597 And what is more, sometimes the same harms, if caused intentionally by a friend or someone we trusted, do not even “hurt” the same. By raising these various objections to some of the above mentioned perspectives or ideas, I simply want to show that the importance of the concept of ‘harm’ need not necessarily be gained at the expense of the notion of guilt. Despite the fact that the (ascription of) guilt has a lot of problems on its own – from the concept of free will to measuring of its degrees etc. – it plays, hand in hand with the harm principle, a pivotal role in, inter alia, restricting the state’s scope of repressive intervention. Having said that, the harm principle is independently important because it is a concept reflecting the liberal emphasis of many of today’s criminal-law theories. The focus on harm (as opposed to e.g. immorality or antisocialness of the conduct), especially at the criminalisation stage, represents a move towards a more just and humane society, where tolerance is taken seriously, crime is seen as a regular social phenomenon that will always exist to some degree, and the criminal law not treated as a comprehensive moral code or a universal medicine for dealing with less desirable behaviour in society, but instead truly as a tool of last resort, to be employed only in cases of substantial

damage. It is a non-self-executing treaty, i.e. the states have legislative obligation to criminalise certain acts, described in the Convention. Many of these offences contain merely causing of risk and abstract endangerment (e.g. the unlawful operation of a plant, the unlawful storage of hazardous waste etc.) and this is said to be in accordance with the “precaution principle” of the international environmental law (as set out in the Rio Declaration). The environment as a legal good has obviously its own idiosyncrasies that require a special kind of anticipatory protection, not necessarily compatible with the conventional or traditional criminal law principles on criminalising risk. 596 Hart (1968), p. 180. 597 Hart (1968), p. 183.

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harm to others, culpably committed, when no other legal or extra-legal, less intrusive, option is available; when the criminal law is viewed neither as a technique for channelling people’s punitive attitudes or popular feelings nor as the state’s attempt to socialise them. The, above described, “internal” significance of the harm principle as the bearer of the concept of harm, which has a pivotal role in the modern criminal law, is furthermore accompanied by its more “external”, formal significance derived from the harm principle being a principle of criminalisation, and thus enabling the critical appraisal of the criminal law from the outset – at the criminalisation and even pre-criminalisation stage. The critical approach to criminalisation as the state intervention into the sphere of the individual’s autonomy, namely, presupposes the development of criteria or principles, according to which the state should criminalise, which, in turn, is a part of a much larger quest for the legitimacy of the state’s power that has to be constantly reassessed. Power of the state to criminalise, that is to proscribe certain human conduct as criminal (with all the initial procedural infringements on the accused’s liberties, stigma attached to conviction and, of course, punishment, if he is found guilty), that power is one of the most dangerous powers there are, and therefore needs to be justified in the society that counts itself to value personal liberty. A principled approach (and within it, the selection of proper principles), seems not only superior to the prevailing technique of simple “balancing” of reasons (which is not guided by any criteria) but also represents this attempt to set limits to this criminalising power and thus ensure that some basic standards of fairness are met whenever the state decides to further encroach upon the individual’s freedom through the criminal law. It is a duty of criminology and criminal jurisprudence to constantly scrutinise the state’s legitimacy of its criminalising power and refine the concepts and principles of criminal accountability, for we agree with Eser that, “jurisprudence is not confined to mere commentarial interpretation of what the legislature has produced but involves also the task of providing new devices and propositions for the advancement of law and justice”.598

598

Eser (1966), p. 365. “Since jurisprudence is not confined to mere commentarial interpretation of what the legislature has produced but involves also the task of providing new devices and propositions for the advancement of law and justice, we must not be content with what the legislators thought the essence of criminal harm to be. It is rather, a permanent obligation of criminal jurisprudence to refine the principles of criminal liability, which, in turn, the legislators may then use to orient themselves when defining new crimes.”

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