Harms, Wrongs, and Set-Backs in Feinberg's Moral Limits of the Criminal Law

Abstract

As a rough first approximation, one might divide the moral and political justifications for criminalizing conduct into two types: deterring harm-doing and punishing wrongdoing. While there are many ways in which a system of penal justice might accommodate both ideas, there will always be some tension between the two, in that deterring harm-doing may sometimes seem to demand the punishment of those who have done no wrong, while punishing wrong-doing may be, from the point of view of deterrence, too punitive or not punitive enough. This tension is closely related to a long-standing debate about the status of rights: Are our rights defined to serve purposes external to the system of rights itself and therefore vulnerable to redefinition as social and political goals change, or do some of our core rights trump other considerations and therefore indefeasible by