The Limits of the Harm Principle |
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Authors: | Hamish Stewart |
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Institution: | (1) Faculty of Law, University of Toronto, 84 Queen’s Park, Toronto, ON, M5S 2C5, Canada |
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Abstract: | The harm principle, understood as the normative requirement that conduct should be criminalized only if it is harmful, has
difficulty in dealing with those core cases of criminal wrongdoing that can occur without causing any direct harm. Advocates
of the harm principle typically find it implausible to hold that these core cases should not be crimes and so usually seek
out some indirect harm that can justify criminalizing the seemingly harmless conduct. But this strategy justifies criminalization
of a wide range of conduct on the basis of the fear, worry, and anxiety it generates among those who are not the direct victims
of the conduct, and thereby undermines the limiting role of the harm principle by permitting the very move it was meant to
prevent: the criminalization of harmless conduct on the ground of others’ feelings about it. The best way to avoid this dilemma
is to recognize that people have rights, operating independently of the harm principle, to be treated in certain ways just
because they are persons. The existence of such rights provides a ground for both criminalizing conduct and limiting the scope
of criminalization because these rights point both to conduct that people must be permitted to engage in (regardless of its
harmful effects) and conduct that might well be criminalized (though it is not harmful). A complete account of criminal law
will therefore require the harm principle to work together with an independent account of rights. |
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