Offense to Others

Offense to Others

Offense to Others

Offense to Others

Synopsis

The second volume in Joel Feinberg's series The Moral Limits of the Criminal Law, Offense to Others focuses on the "offense principle," which maintains that preventing shock, disgust, or revulsion is always a morally relevant reason for legal prohibitions. Feinberg clarifies the concept ofan "offended mental state" and further contrasts the concept of offense with harm. He also considers the law of nuisance as a model for statutes creating "morals offenses," showing its inadequacy as a model for understanding "profound offenses," and discusses such issues as obscene words and socialpolicy, pornography and the Constitution, and the differences between minor and profound offenses.

Excerpt

Passing annoyance, disappointment, disgust, embarrassment, and various other disliked conditions such as fear, anxiety, and minor ("harmless") aches and pains, are not in themselves necessarily, harmful. Consequently, no matter how the harm principle is mediated, it will not certify as legitimate those interferences with the liberty of some citizens that are made for the sole purpose of preventing such unpleasant states in others. For convenience I will use the word "offense" to cover the whole miscellany, of universally disliked mental states (see Vol. I, Chap. 1, §4) and not merely, that species of the wider genus that are offensive in a strict and proper sense. If the law is justified, then, in using its coercive methods to protect people from mere offense, it must be by virtue of a separate and distinct legitimizing principle, which we can label "the offense principle" and formulate as follows: It is always a good reason in support of a proposed criminal prohibition that it would probably be an effective way of preventing serious offense (as opposed to injury or harm) to persons other than the actor, and that it is probably a necessary means to that end (i.e., there is probably no other means that is equally effective at no greater cost to other values). The principle asserts, in effect, that the prevention of offensive conduct is properly the state's business.

Like the word "harm", the word "offense" has both a general and a specifically normative sense, the former including in its reference any or all of a miscellany of disliked mental states (disgust, shame, hurt, anxiety, etc.), and the latter referring to those states only, when caused by the . . .

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