法律imperfectionism

IF 0.7 Q2 LAW
James Edwards
{"title":"法律imperfectionism","authors":"James Edwards","doi":"10.1080/20403313.2023.2259237","DOIUrl":null,"url":null,"abstract":"ABSTRACTWhat role do moral norms play in the justification of legal norms? Here, I explore an answer that emphasises the moral significance of imperfection – of the fact that we are imperfect people, who live imperfect lives, and who have imperfect tools at our disposal for responding to our predicament. These imperfections, I argue, help make the case for (one version of) the harm principle. And they help make the case against the claim traditionally associated with legal moralism, namely that moral duties give law-makers reason to create legal duties with the same content. To accept all this is compatible with accepting – as I also claim here – that legal norms which help us better conform to moral norms are legal norms there is reason for law-makers to create. Those who accept this are nowadays dubbed perfectionists. Following John Gardner, I suggest that they are better thought of as legal imperfectionists.KEYWORDS: Harm principle; legal moralismperfectionismliberalismcriminal law Disclosure statementNo potential conflict of interest was reported by the author(s).Notes1 References to legal moralism in what follows are references to the traditional view. I discuss variations on that view, and defend a rival characterisation, in J Edwards, ‘An Instrumental Legal Moralism’ in L Green, B Leiter and J Gardner (eds), Oxford Studies in Philosophy of Law: Volume 3 (OUP 2018).2 This formulation may bring to mind Joseph Raz’s normal justification thesis. My claim in the text, however, is not a claim about what justifies the authority of legal norms. It is a claim about what justifies the creation and retention of such norms. (It is compatible, indeed, with the claim that legal norms are never legitimately authoritative). For Raz’s thesis, see J Raz, The Morality of Freedom (OUP 1986) 53ff.3 More, that is, than (those which) occurred prior to creation of the legal norm, and/or than (those which) would have continued to occur in its absence.4 It is a norm that, in John Gardner’s words, ‘retards rather than advances the cause of conformity with the very moral norms’ that justify its existence. See J Gardner, ‘What is Tort Law For? Part 1. The Place of Corrective Justice’ (2011) Law and Philosophy 1, 21.5 Those who believe in a general moral obligation to obey the law will of course disagree. I add myself here to the list of those who doubt that any such obligation exists.6 Say, because the exception would be erroneously taken to apply in a range of cases in which not stopping is dangerous.7 M Moore, Placing Blame (OUP 1997) ch 16.8 The suggestion is Malcolm Thorburn’s: see M Thorburn, ‘Criminal Law as Public Law’ in RA Duff and SP Green (eds) Philosophical Foundations of Criminal Law (OUP 2011) 23.9 See J Gardner, ‘Justification under Authority’ (2010) Canadian Journal of Law and Jurisprudence 71, 73; J Gardner, ‘Dagan and Dorfman on the Value of Private Law’ (2017) Columbia Law Journal 179, 195–96. Gardner attributes the suggestion to Michael Walzer.10 Parfit calls these moral immoralities: see D Parfit, Reasons and Persons (OUP 1984) 32. One of his examples is parental love. It would be wrong for parents not to love their children. Yet there are cases in which this love inclines parents to act wrongly, because of the added weight loving parents give to the interests of their children.11 This is a feature of what Raz calls competitive pluralism: see Raz (n 2) 401ff. In his words, ‘competitive pluralism admits the value of virtues possession of which normally leads to a tendency not to suffer certain limitations in other people which are themselves inevitable if those people possess certain other, equally valid virtues. The traits of character which make for excellence in chairing committees and getting things done, when this involves reconciling points of view and overcoming personal differences, those very trains of character also tend to make people intolerant of single-minded dedication to a cause. And there are many other examples’.12 The proper ends of legal institutions, I assume, are the ends that legal officials have reason to use the powers conferred upon them by those institutions to achieve.13 I base my remarks on Raz (n 2) chs 14–15. You may doubt that norms which tell us what it takes to live well are rightly thought of as moral norms. Ronald Dworkin says that they part of ethics rather than morality: R Dworkin, Justice for Hedgehogs (HUP 2013) ch 1. Here, I use the term moral to include what Dworkin calls ethics. But nothing much turns on this choice here.14 See Gardner ‘Dagan and Dorfman on the Value of Private Law’ 195.15 Why does interaction matter in this way? For different ideas, see AJ Julius, ‘Basic Structure and the Value of Equality’ (2003) 31 Philosophy and Public Affairs 321; T Nagel, ‘The Problem of Global Justice’ (2005) 33 Philosophy and Public Affairs 113; A Sangiovanni, ‘Global Justice, Reciprocity and the State’ (2007) 35 Philosophy & Public Affairs 3. A different version of the thought explored in the text is developed by Antony Duff. For Duff, we have duties to answer to fellow members of political communities for wrongs that impinge on the civic life of those communities. These duties do not – indeed cannot – apply in the absence of political communities. See RA Duff, The Realm of Criminal Law (OUP 2018).16 The most detailed account is Ripstein’s: see A Ripstein, Force and Freedom (HUP 2009). Ripstein’s ideas are applied to the criminal law in Thorburn (n 8).17 J Rawls, Political Liberalism (Columbia 1993). This norm is (in turn) thought to be entailed by norms of respect: see e.g., C Larmore, ‘The Moral Basis of Political Liberalism’ (1999) Journal of Philosophy 599; M Nussbaum, ‘Perfectionist Liberalism and Political Liberalism’ (2011) 39 Philosophy and Public Affairs 3. For doubts about the entailment, see J Raz, ‘Disagreement in Politics’ (1998) American Journal of Jurisprudence 25.18 The objection is developed at length in S Wall, ‘Is Public Justification Self-Defeating?’ (2002) 39 American Philosophical Quarterly 385.19 The late Rawlsian view described in the text might be understood differently. The idea might be that, while controversial moral norms are reason-giving for legal institutions, the reasons they give are necessarily defeated. The objection offered in the text applies, mutatis mutandis, to this alternative understanding of the view.20 RA Duff, Answering for Crime (Hart 2007) ch 1.21 R Dworkin, Law’s Empire (Hart 1986).22 Thorburn (n 8) 41.23 Gardner claims that those who are basically responsible have reason to answer to anyone. But he accepts that whether we are bound to answer to others is a further question, and that the answer depends on whether our accusers have ‘standing in the matter’: see J Gardner, ‘Relations of Responsibility’ in Cruft, Kramer and Reiff (eds), Crime, Punishment and Responsibility (OUP 2011) 90.24 For defence of these claims about moral standing, see J Edwards, ‘Standing to Hold Responsible’ (2019) 16 Journal of Moral Philosophy 437.25 I discuss this function at length in J Edwards, ‘Explaining Ourselves in Court’ in M Madden Dempsey and F Tanguay-Renaud (eds), From Morality to Law and Back Again: A Liber Amicorum for John Gardner (OUP 2023).26 Thorburn writes that Gardner is ‘committed to the view that legitimate criminal wrongs must all be moral wrongs and that criminal justifications should track the structure of moral justifications’: Thorburn (n 8) 23.27 [1971] 2 WLR 467. Discussed in Thorburn (n 8) 32ff.28 J Gardner, ‘In Defence of Offences and Defences’ (2012) 4 Jerusalem Review of Legal Studies 110, 115.29 These include cases of excuse. To create an excuse is not to grant a permission. It is to impose a duty on courts not to convict defendants for certain prohibited acts. Absent acoustic separation, such duties also have the potential to undermine the preventive function of the criminal law. This worry comes to the fore in the case-law on duress, the availability of which has been significantly narrowed in English law (Howe [1987] AC 417; Hasan [2005] UKHL 22). As Baroness Hale has observed, this narrowing inevitably denies defences to some who are morally excused. It does so in the name of discouraging membership in criminal organisations. The classic formulation of the worry – cited approvingly by Lord Bingham in Hasan – continues to be Lord Simon’s: ‘your Lordships should hesitate long lest you may be inscribing a charter for terrorists, gang-leaders and kidnappers’ (Lynch [1975] 1 All ER 913). For discussion of the same point in the context of self-defence, see J Edwards and T Yusari, ‘The Internal Morality of Criminal Law’ (OJLS, forthcoming).30 (1884) 14 QBD 273.31 P Foot, ‘The Problem of Abortion and the Doctrine of Double Effect’ (1967) Oxford Review 5.32 Like Lord Denning, Lord Coleridge appeals in these remarks to the fallibility of legal subjects. Other decisions appeal to the fallibility of courts themselves: see e.g., Quayle [2005] 1 WLR 3642; Nicklinson [2013] EWCA Civ 961.33 Thorburn (n 8) 32–36.34 This also matters, of course, for those engaged in rational reconstruction.35 Gardner describes himself in these terms in his From Personal Life to Private Law (OUP 2018) 198.36 See e.g., JS Mill, On Liberty (1859); Raz (n 2) ch 15; J Gardner, Offences and Defences (OUP 2007) 29ff.37 And the amount of harm prevented is not disproportionate to the costs of prohibition. I borrow the labels used in the text from Antony Duff and Sandra Marshall: see their ‘Remote Harms and the Two Harm Principles’ in Simester, du-Bois Pedain and Neumann (eds), Liberal Criminal Theory (Hart 2014). For discussion of the differences between HPP and other versions of the harm principle, see J Edwards, ‘Harm Principles’ (2014) Legal Theory 253.38 Thorburn (n 8) 30.39 Moore (n 7) 649.40 A Ripstein, ‘Beyond the Harm Principle’ 34 Philosophy and Public Affairs 215.41 For versions of this idea, see Raz (n 2); Edwards (n 37).42 In which, for instance, a criminal law will rarely be enforced, and in which the sentences available for violation do not include imprisonment.43 V Tadros, Wrongs and Crimes (OUP 2016) 101ff. For similar points, see J Stanton-Ife, ‘The Limits of Law’ in EN Zalta (ed), The Stanford Encyclopedia of Philosophy § 4.44 I say the harm principle rather than HPP because Feinberg consistently rejects the latter. He claims that law-makers are required not to prohibit unless this is necessary either to prevent harm or serious offence: J Feinberg, Harm to Others (OUP 1984) ch 1. For criticism of the italicised addition, see see J Edwards, ‘No Offense’ in L Alexander and KK Ferzan (eds), The Palgrave Handbook of Applied Ethics and Criminal Law (Palgrave 2020). The point in the text is that for Feinberg even this wider principle proves too narrow. A fortiori for the even narrower HPP.45 The example is Parfit’s. See D Parfit, ‘Future Generations: Further Problems’ (1982) 11 Philosophy and Public Affairs 113.46 J Feinberg, Harmless Wrongdoing (OUP 1988) 327.47 Some conceive of principles of justice in this way. Rawls writes that such principles only apply in the circumstance of justice. In these circumstances, we ‘suffer from various shortcomings of knowledge, thought and judgment’, which include ‘bias’ and ‘preoccupation with [our] own affairs’. ‘Unless these circumstances existed’, Rawls writes, ‘there would be no occasion for the virtue of justice’. See J Rawls, A Theory of Justice (HUP 1971) § 22.48 Feinberg (n 44) 5.49 Tadros (n 43) 94.50 It might be said that a single example would suffice if following HPP in that example was impossible to justify. In reply, it is worth recalling that HPP does not tell us what should be criminalised. It only tells us that some things may not be. Refusing to criminalise even a very serious wrong is not something that can never be justified. The refusal would be justified if, were law-makers to criminalise the wrong, there would be many more instances of very serious wrongdoing.51 It is often suggested that to defend HPP is to claim that, as a matter of raw morality, harm has lexical priority. Ripstein, for instance, suggests that HPP derives its appeal from a ‘harm for harm’ rule, and that the appeal is illusory because there are counterexamples to be found outside the law (Ripstein (n 40) 217). For reasons given in the text that follows, defenders of HPP need make no such claim.52 J Raz ‘Autonomy, Toleration and the Harm Principle’ in S Mendus (ed), Justifying Toleration (CUP 1988) 169; J Gardner, ‘Prohibiting Immoralities’ (2007) 28 Cardozo Law Journal 2613; Gardner (n 36) 76–77.53 One implication of the harm principle, so understood, is that it requires supporters of criminalisation to offer evidence that criminalising will have the effect of preventing harm. In turn, it entitles others to demand such evidence, and subject that evidence to public scrutiny. This requirement is often violated by those who pay lip service to the principle. Consider, for instance, the famous case of Brown [1994] AC 212. One reason given by the House of Lords for holding that consensual sadomasochistic activity ought to be criminalised, is that refusing to criminalise might lead to the corruption of young men. No evidence at all is offered by the court for the truth of this claim.54 P Devlin, The Enforcement of Morals (OUP 1965) 16–19.55 Raz (n 2) 404. See also Gardner (n 36) 118–19.56 Raz (n 2) 406.57 Raz (n 52) 174–75.58 Mill (n 36) ch 3.59 ibid.60 HLA Hart, Law, Liberty and Morality (Stanford 1968). Green discusses Hart’s argument in L Green, ‘On Being Tolerated’ in MH Kramer, C Grant, B Colburn, and A Hatzistavrou, The Legacy of H.L.A. Hart: Legal, Political, and Moral Philosophy (OUP 2008).61 L Green, ‘The Nature of Limited Government’ in J Keown and R George (eds), Reason, Morality and Law (OUP 2013).62 The Crime Survey for England and Wales, for example, shows a consistent drop in crime from the mid-nineties onwards: see Office for National Statistics, Crime in England and Wales (2022). But the survey is limited to crime committed against those resident in households. So it excludes crime committed in institutions, including prisons, as well as crime committed against the homeless.63 By some 80% in the last 30 years. See The Prison Reform Trust, Prison: The Facts (2023) available at <https://prisonreformtrust.org.uk/publication/prison-the-facts-summer-2023>.64 For a recent study, see J Treadwell and K Gooch, Crime In Prisons: Where Now and Where Next? (2019) available at <https://eprints.staffs.ac.uk/id/eprint/5438>.65 Ripstein (n 40).66 Both parts are discussed in N Lacey, The Prisoner’s Dilemma: Political Economy and Punishment in Contemporary Democracies (2011 CUP).67 Tadros (n 43) 94–95. Two clarifications. First, Tadros is concerned in this passage with the harmful conduct principle. But his objections apply, mutatis mutandis, to HPP. Second, the last sentence of the passage refers to rules of thumb. Tadros does not explain what he takes rules of thumb to be, but it is often suggested that they have no normative force of their own. Such rules merely summarise the effect of moral norms that apply independently of them. I have argued that we are sometimes bound by constraints that apply in virtue of our fallibility. Constraints of this kind are not rules of thumb.68 Why ‘may’? Because if ought implies can, and law-makers cannot rid themselves of their shortcomings, they will lack the obligation mentioned in the text.69 Tadros might say that his objection applies only to state officials. Make Katie a policewoman, and the point remains.","PeriodicalId":44113,"journal":{"name":"Jurisprudence-An International Journal of Legal and Political Thought","volume":null,"pages":null},"PeriodicalIF":0.7000,"publicationDate":"2023-10-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":"0","resultStr":"{\"title\":\"Legal imperfectionism\",\"authors\":\"James Edwards\",\"doi\":\"10.1080/20403313.2023.2259237\",\"DOIUrl\":null,\"url\":null,\"abstract\":\"ABSTRACTWhat role do moral norms play in the justification of legal norms? Here, I explore an answer that emphasises the moral significance of imperfection – of the fact that we are imperfect people, who live imperfect lives, and who have imperfect tools at our disposal for responding to our predicament. These imperfections, I argue, help make the case for (one version of) the harm principle. And they help make the case against the claim traditionally associated with legal moralism, namely that moral duties give law-makers reason to create legal duties with the same content. To accept all this is compatible with accepting – as I also claim here – that legal norms which help us better conform to moral norms are legal norms there is reason for law-makers to create. Those who accept this are nowadays dubbed perfectionists. Following John Gardner, I suggest that they are better thought of as legal imperfectionists.KEYWORDS: Harm principle; legal moralismperfectionismliberalismcriminal law Disclosure statementNo potential conflict of interest was reported by the author(s).Notes1 References to legal moralism in what follows are references to the traditional view. I discuss variations on that view, and defend a rival characterisation, in J Edwards, ‘An Instrumental Legal Moralism’ in L Green, B Leiter and J Gardner (eds), Oxford Studies in Philosophy of Law: Volume 3 (OUP 2018).2 This formulation may bring to mind Joseph Raz’s normal justification thesis. My claim in the text, however, is not a claim about what justifies the authority of legal norms. It is a claim about what justifies the creation and retention of such norms. (It is compatible, indeed, with the claim that legal norms are never legitimately authoritative). For Raz’s thesis, see J Raz, The Morality of Freedom (OUP 1986) 53ff.3 More, that is, than (those which) occurred prior to creation of the legal norm, and/or than (those which) would have continued to occur in its absence.4 It is a norm that, in John Gardner’s words, ‘retards rather than advances the cause of conformity with the very moral norms’ that justify its existence. See J Gardner, ‘What is Tort Law For? Part 1. The Place of Corrective Justice’ (2011) Law and Philosophy 1, 21.5 Those who believe in a general moral obligation to obey the law will of course disagree. I add myself here to the list of those who doubt that any such obligation exists.6 Say, because the exception would be erroneously taken to apply in a range of cases in which not stopping is dangerous.7 M Moore, Placing Blame (OUP 1997) ch 16.8 The suggestion is Malcolm Thorburn’s: see M Thorburn, ‘Criminal Law as Public Law’ in RA Duff and SP Green (eds) Philosophical Foundations of Criminal Law (OUP 2011) 23.9 See J Gardner, ‘Justification under Authority’ (2010) Canadian Journal of Law and Jurisprudence 71, 73; J Gardner, ‘Dagan and Dorfman on the Value of Private Law’ (2017) Columbia Law Journal 179, 195–96. Gardner attributes the suggestion to Michael Walzer.10 Parfit calls these moral immoralities: see D Parfit, Reasons and Persons (OUP 1984) 32. One of his examples is parental love. It would be wrong for parents not to love their children. Yet there are cases in which this love inclines parents to act wrongly, because of the added weight loving parents give to the interests of their children.11 This is a feature of what Raz calls competitive pluralism: see Raz (n 2) 401ff. In his words, ‘competitive pluralism admits the value of virtues possession of which normally leads to a tendency not to suffer certain limitations in other people which are themselves inevitable if those people possess certain other, equally valid virtues. The traits of character which make for excellence in chairing committees and getting things done, when this involves reconciling points of view and overcoming personal differences, those very trains of character also tend to make people intolerant of single-minded dedication to a cause. And there are many other examples’.12 The proper ends of legal institutions, I assume, are the ends that legal officials have reason to use the powers conferred upon them by those institutions to achieve.13 I base my remarks on Raz (n 2) chs 14–15. You may doubt that norms which tell us what it takes to live well are rightly thought of as moral norms. Ronald Dworkin says that they part of ethics rather than morality: R Dworkin, Justice for Hedgehogs (HUP 2013) ch 1. Here, I use the term moral to include what Dworkin calls ethics. But nothing much turns on this choice here.14 See Gardner ‘Dagan and Dorfman on the Value of Private Law’ 195.15 Why does interaction matter in this way? For different ideas, see AJ Julius, ‘Basic Structure and the Value of Equality’ (2003) 31 Philosophy and Public Affairs 321; T Nagel, ‘The Problem of Global Justice’ (2005) 33 Philosophy and Public Affairs 113; A Sangiovanni, ‘Global Justice, Reciprocity and the State’ (2007) 35 Philosophy & Public Affairs 3. A different version of the thought explored in the text is developed by Antony Duff. For Duff, we have duties to answer to fellow members of political communities for wrongs that impinge on the civic life of those communities. These duties do not – indeed cannot – apply in the absence of political communities. See RA Duff, The Realm of Criminal Law (OUP 2018).16 The most detailed account is Ripstein’s: see A Ripstein, Force and Freedom (HUP 2009). Ripstein’s ideas are applied to the criminal law in Thorburn (n 8).17 J Rawls, Political Liberalism (Columbia 1993). This norm is (in turn) thought to be entailed by norms of respect: see e.g., C Larmore, ‘The Moral Basis of Political Liberalism’ (1999) Journal of Philosophy 599; M Nussbaum, ‘Perfectionist Liberalism and Political Liberalism’ (2011) 39 Philosophy and Public Affairs 3. For doubts about the entailment, see J Raz, ‘Disagreement in Politics’ (1998) American Journal of Jurisprudence 25.18 The objection is developed at length in S Wall, ‘Is Public Justification Self-Defeating?’ (2002) 39 American Philosophical Quarterly 385.19 The late Rawlsian view described in the text might be understood differently. The idea might be that, while controversial moral norms are reason-giving for legal institutions, the reasons they give are necessarily defeated. The objection offered in the text applies, mutatis mutandis, to this alternative understanding of the view.20 RA Duff, Answering for Crime (Hart 2007) ch 1.21 R Dworkin, Law’s Empire (Hart 1986).22 Thorburn (n 8) 41.23 Gardner claims that those who are basically responsible have reason to answer to anyone. But he accepts that whether we are bound to answer to others is a further question, and that the answer depends on whether our accusers have ‘standing in the matter’: see J Gardner, ‘Relations of Responsibility’ in Cruft, Kramer and Reiff (eds), Crime, Punishment and Responsibility (OUP 2011) 90.24 For defence of these claims about moral standing, see J Edwards, ‘Standing to Hold Responsible’ (2019) 16 Journal of Moral Philosophy 437.25 I discuss this function at length in J Edwards, ‘Explaining Ourselves in Court’ in M Madden Dempsey and F Tanguay-Renaud (eds), From Morality to Law and Back Again: A Liber Amicorum for John Gardner (OUP 2023).26 Thorburn writes that Gardner is ‘committed to the view that legitimate criminal wrongs must all be moral wrongs and that criminal justifications should track the structure of moral justifications’: Thorburn (n 8) 23.27 [1971] 2 WLR 467. Discussed in Thorburn (n 8) 32ff.28 J Gardner, ‘In Defence of Offences and Defences’ (2012) 4 Jerusalem Review of Legal Studies 110, 115.29 These include cases of excuse. To create an excuse is not to grant a permission. It is to impose a duty on courts not to convict defendants for certain prohibited acts. Absent acoustic separation, such duties also have the potential to undermine the preventive function of the criminal law. This worry comes to the fore in the case-law on duress, the availability of which has been significantly narrowed in English law (Howe [1987] AC 417; Hasan [2005] UKHL 22). As Baroness Hale has observed, this narrowing inevitably denies defences to some who are morally excused. It does so in the name of discouraging membership in criminal organisations. The classic formulation of the worry – cited approvingly by Lord Bingham in Hasan – continues to be Lord Simon’s: ‘your Lordships should hesitate long lest you may be inscribing a charter for terrorists, gang-leaders and kidnappers’ (Lynch [1975] 1 All ER 913). For discussion of the same point in the context of self-defence, see J Edwards and T Yusari, ‘The Internal Morality of Criminal Law’ (OJLS, forthcoming).30 (1884) 14 QBD 273.31 P Foot, ‘The Problem of Abortion and the Doctrine of Double Effect’ (1967) Oxford Review 5.32 Like Lord Denning, Lord Coleridge appeals in these remarks to the fallibility of legal subjects. Other decisions appeal to the fallibility of courts themselves: see e.g., Quayle [2005] 1 WLR 3642; Nicklinson [2013] EWCA Civ 961.33 Thorburn (n 8) 32–36.34 This also matters, of course, for those engaged in rational reconstruction.35 Gardner describes himself in these terms in his From Personal Life to Private Law (OUP 2018) 198.36 See e.g., JS Mill, On Liberty (1859); Raz (n 2) ch 15; J Gardner, Offences and Defences (OUP 2007) 29ff.37 And the amount of harm prevented is not disproportionate to the costs of prohibition. I borrow the labels used in the text from Antony Duff and Sandra Marshall: see their ‘Remote Harms and the Two Harm Principles’ in Simester, du-Bois Pedain and Neumann (eds), Liberal Criminal Theory (Hart 2014). For discussion of the differences between HPP and other versions of the harm principle, see J Edwards, ‘Harm Principles’ (2014) Legal Theory 253.38 Thorburn (n 8) 30.39 Moore (n 7) 649.40 A Ripstein, ‘Beyond the Harm Principle’ 34 Philosophy and Public Affairs 215.41 For versions of this idea, see Raz (n 2); Edwards (n 37).42 In which, for instance, a criminal law will rarely be enforced, and in which the sentences available for violation do not include imprisonment.43 V Tadros, Wrongs and Crimes (OUP 2016) 101ff. For similar points, see J Stanton-Ife, ‘The Limits of Law’ in EN Zalta (ed), The Stanford Encyclopedia of Philosophy § 4.44 I say the harm principle rather than HPP because Feinberg consistently rejects the latter. He claims that law-makers are required not to prohibit unless this is necessary either to prevent harm or serious offence: J Feinberg, Harm to Others (OUP 1984) ch 1. For criticism of the italicised addition, see see J Edwards, ‘No Offense’ in L Alexander and KK Ferzan (eds), The Palgrave Handbook of Applied Ethics and Criminal Law (Palgrave 2020). The point in the text is that for Feinberg even this wider principle proves too narrow. A fortiori for the even narrower HPP.45 The example is Parfit’s. See D Parfit, ‘Future Generations: Further Problems’ (1982) 11 Philosophy and Public Affairs 113.46 J Feinberg, Harmless Wrongdoing (OUP 1988) 327.47 Some conceive of principles of justice in this way. Rawls writes that such principles only apply in the circumstance of justice. In these circumstances, we ‘suffer from various shortcomings of knowledge, thought and judgment’, which include ‘bias’ and ‘preoccupation with [our] own affairs’. ‘Unless these circumstances existed’, Rawls writes, ‘there would be no occasion for the virtue of justice’. See J Rawls, A Theory of Justice (HUP 1971) § 22.48 Feinberg (n 44) 5.49 Tadros (n 43) 94.50 It might be said that a single example would suffice if following HPP in that example was impossible to justify. In reply, it is worth recalling that HPP does not tell us what should be criminalised. It only tells us that some things may not be. Refusing to criminalise even a very serious wrong is not something that can never be justified. The refusal would be justified if, were law-makers to criminalise the wrong, there would be many more instances of very serious wrongdoing.51 It is often suggested that to defend HPP is to claim that, as a matter of raw morality, harm has lexical priority. Ripstein, for instance, suggests that HPP derives its appeal from a ‘harm for harm’ rule, and that the appeal is illusory because there are counterexamples to be found outside the law (Ripstein (n 40) 217). For reasons given in the text that follows, defenders of HPP need make no such claim.52 J Raz ‘Autonomy, Toleration and the Harm Principle’ in S Mendus (ed), Justifying Toleration (CUP 1988) 169; J Gardner, ‘Prohibiting Immoralities’ (2007) 28 Cardozo Law Journal 2613; Gardner (n 36) 76–77.53 One implication of the harm principle, so understood, is that it requires supporters of criminalisation to offer evidence that criminalising will have the effect of preventing harm. In turn, it entitles others to demand such evidence, and subject that evidence to public scrutiny. This requirement is often violated by those who pay lip service to the principle. Consider, for instance, the famous case of Brown [1994] AC 212. One reason given by the House of Lords for holding that consensual sadomasochistic activity ought to be criminalised, is that refusing to criminalise might lead to the corruption of young men. No evidence at all is offered by the court for the truth of this claim.54 P Devlin, The Enforcement of Morals (OUP 1965) 16–19.55 Raz (n 2) 404. See also Gardner (n 36) 118–19.56 Raz (n 2) 406.57 Raz (n 52) 174–75.58 Mill (n 36) ch 3.59 ibid.60 HLA Hart, Law, Liberty and Morality (Stanford 1968). Green discusses Hart’s argument in L Green, ‘On Being Tolerated’ in MH Kramer, C Grant, B Colburn, and A Hatzistavrou, The Legacy of H.L.A. Hart: Legal, Political, and Moral Philosophy (OUP 2008).61 L Green, ‘The Nature of Limited Government’ in J Keown and R George (eds), Reason, Morality and Law (OUP 2013).62 The Crime Survey for England and Wales, for example, shows a consistent drop in crime from the mid-nineties onwards: see Office for National Statistics, Crime in England and Wales (2022). But the survey is limited to crime committed against those resident in households. So it excludes crime committed in institutions, including prisons, as well as crime committed against the homeless.63 By some 80% in the last 30 years. See The Prison Reform Trust, Prison: The Facts (2023) available at <https://prisonreformtrust.org.uk/publication/prison-the-facts-summer-2023>.64 For a recent study, see J Treadwell and K Gooch, Crime In Prisons: Where Now and Where Next? (2019) available at <https://eprints.staffs.ac.uk/id/eprint/5438>.65 Ripstein (n 40).66 Both parts are discussed in N Lacey, The Prisoner’s Dilemma: Political Economy and Punishment in Contemporary Democracies (2011 CUP).67 Tadros (n 43) 94–95. Two clarifications. First, Tadros is concerned in this passage with the harmful conduct principle. But his objections apply, mutatis mutandis, to HPP. Second, the last sentence of the passage refers to rules of thumb. Tadros does not explain what he takes rules of thumb to be, but it is often suggested that they have no normative force of their own. Such rules merely summarise the effect of moral norms that apply independently of them. I have argued that we are sometimes bound by constraints that apply in virtue of our fallibility. Constraints of this kind are not rules of thumb.68 Why ‘may’? Because if ought implies can, and law-makers cannot rid themselves of their shortcomings, they will lack the obligation mentioned in the text.69 Tadros might say that his objection applies only to state officials. Make Katie a policewoman, and the point remains.\",\"PeriodicalId\":44113,\"journal\":{\"name\":\"Jurisprudence-An International Journal of Legal and Political Thought\",\"volume\":null,\"pages\":null},\"PeriodicalIF\":0.7000,\"publicationDate\":\"2023-10-16\",\"publicationTypes\":\"Journal Article\",\"fieldsOfStudy\":null,\"isOpenAccess\":false,\"openAccessPdf\":\"\",\"citationCount\":\"0\",\"resultStr\":null,\"platform\":\"Semanticscholar\",\"paperid\":null,\"PeriodicalName\":\"Jurisprudence-An International Journal of Legal and Political Thought\",\"FirstCategoryId\":\"1085\",\"ListUrlMain\":\"https://doi.org/10.1080/20403313.2023.2259237\",\"RegionNum\":0,\"RegionCategory\":null,\"ArticlePicture\":[],\"TitleCN\":null,\"AbstractTextCN\":null,\"PMCID\":null,\"EPubDate\":\"\",\"PubModel\":\"\",\"JCR\":\"Q2\",\"JCRName\":\"LAW\",\"Score\":null,\"Total\":0}","platform":"Semanticscholar","paperid":null,"PeriodicalName":"Jurisprudence-An International Journal of Legal and Political Thought","FirstCategoryId":"1085","ListUrlMain":"https://doi.org/10.1080/20403313.2023.2259237","RegionNum":0,"RegionCategory":null,"ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":null,"EPubDate":"","PubModel":"","JCR":"Q2","JCRName":"LAW","Score":null,"Total":0}
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摘要

安东尼·达夫(Antony Duff)提出了文本中探索的思想的不同版本。对达夫来说,我们有责任对政治团体的其他成员负责,因为这些错误影响了这些团体的公民生活。在没有政治团体的情况下,这些义务不适用——实际上也不可能适用。16 .参见《刑法领域》,《法学研究》,2018年第1期最详细的描述是里普斯坦的:见里普斯坦,力与自由(HUP 2009)。里普斯坦的思想在索伯恩的刑法中得到了应用(第8页)J罗尔斯,《政治自由主义》(哥伦比亚1993)。这一规范(反过来)被认为是尊重规范所包含的:例如,C Larmore,“政治自由主义的道德基础”(1999)哲学杂志599;M . Nussbaum,《完美主义自由主义与政治自由主义》(2011)39(哲学与公共事务)对于这种推论的质疑,请参见J Raz,“政治上的分歧”(1998),《美国法理学杂志》第25.18期。这一反对意见在S Wall,“公共辩护是自我挫败吗?”(2002) 39《美国哲学季刊》385.19文中描述的罗尔斯晚期观点可能有不同的理解。这个想法可能是,尽管有争议的道德规范是法律制度的理由,但它们给出的理由必然是失败的。案文中提出的反对意见经必要修改后适用于对该意见的这种不同理解R·德沃金:《法律的帝国》(Hart 1986).22索伯恩(n 8) 41.23加德纳声称那些负有基本责任的人有理由对任何人负责。但他承认,我们是否一定要对别人做出回应是另一个问题,而答案取决于指控我们的人是否“在这件事上有地位”:看到J加德纳,“责任关系”毫不相干,克莱默和雷夫(eds)、犯罪、惩罚和责任(牛津大学出版社2011)90.24防御这些关于道德地位,看到爱德华J“站保持负责任的”(2019)16道德哲学杂志437.25我讨论这个函数在爱德华J的长度,在法庭上解释自己的M Madden邓普西和F Tanguay-Renaud (eds),从道德和法律:书籍Amicorum对约翰·加德纳(牛津大学出版社2023)点索伯恩写道,加德纳“坚持认为,合法的犯罪行为必须都是道德上的错误,犯罪辩护应该遵循道德辩护的结构”:索伯恩(n 8) 23.27 [1971] 2 WLR 467。在索伯恩(n 8) 32页讨论J Gardner,“在对罪行和辩护的辩护中”(2012)4 Jerusalem Review of Legal Studies 110, 115.29。制造借口不等于授予许可。它规定法院有义务不因某些被禁止的行为而对被告定罪。如果没有声隔离,这种义务也有可能破坏刑法的预防功能。这种担忧在关于胁迫的判例法中表现得尤为突出,而在英国法律中,胁迫的适用范围已大大缩小(Howe [1987] AC 417;Hasan [2005] UKHL 22)。正如黑尔男爵夫人所观察到的,这种缩小不可避免地否定了一些在道德上情有可原的人的辩护。它这样做的名义是阻止犯罪组织的成员。对这种担忧的经典表述——宾汉勋爵在《哈桑》一书中赞许地引用了这句话——仍然是西蒙勋爵的名言:“各位勋爵应该犹豫很久,以免为恐怖分子、帮派头目和绑架者起草宪章”(Lynch [1975] 1 All ER 913)。关于在自卫的背景下同一观点的讨论,见J Edwards和T Yusari,“刑法的内在道德”(OJLS,即将出版)(1884) P Foot,“堕胎问题和双重效应学说”(1967)牛津评论5.32像丹宁勋爵一样,柯勒律治勋爵在这些评论中呼吁法律主体的易错性。其他判决诉诸法院本身的可错性:例如,Quayle [2005] 1 WLR 3642;Nicklinson [2013] EWCA Civ 961.33 Thorburn (n 8) 32-36.34当然,对于那些从事理性重建的人来说,这也很重要加德纳在其《从个人生活到私法》(OUP 2018) 198.36中这样描述自己。参见j.s Mill, On Liberty (1859);Raz (n 2)第15章;J Gardner,《犯罪与辩护》(OUP 2007),第29卷第37页防止伤害的数量与禁令的成本并不不成比例。我借用了安东尼·达夫和桑德拉·马歇尔在文本中使用的标签:参见他们在Simester, du-Bois Pedain和Neumann(编辑),自由犯罪理论(Hart 2014)中的“远程危害和两害原则”。关于HPP与其他版本的伤害原则之间差异的讨论,请参见J Edwards,“伤害原则”(2014)Legal Theory 253.38 Thorburn (n 8) 30.39 Moore (n 7) 649.40 A Ripstein,“Beyond the harm principle”34 Philosophy and Public Affairs 215。 关于这个想法的不同版本,见Raz (n 2);42 .爱德华兹(n 37)43 .在这种情况下,例如,刑法很少得到执行,对违法行为可判处的刑罚不包括监禁V Tadros,《错误与犯罪》(OUP 2016) 101ff。关于类似的观点,见J Stanton-Ife, EN Zalta (ed),斯坦福哲学百科全书§4.44我说伤害原则而不是HPP,因为Feinberg一贯反对后者。他声称,除非为了防止伤害或严重的罪行而必须禁止,否则要求立法者不得禁止:J Feinberg,《对他人的伤害》(OUP 1984)第1章。对于斜体添加的批评,请参见J Edwards, L Alexander和KK Ferzan(编辑),《Palgrave应用伦理学和刑法手册》(Palgrave 2020)中的“无冒犯”。文章的重点是,对于范伯格来说,即使是这个更广泛的原则也太狭隘了。这是更窄的HPP.45的一个例子。参见D Parfit,“未来世代:进一步的问题”(1982)11哲学与公共事务113.46 J Feinberg,无害的不法行为(OUP 1988) 327.47有人以这种方式构想正义原则。罗尔斯写道,这些原则只适用于正义的情况。在这种情况下,我们“在知识、思维和判断上存在各种缺陷”,包括“偏见”和“过于关注自己的事务”。罗尔斯写道:“除非这些情况存在,否则正义的美德就没有出现的机会。”参见J罗尔斯,A Theory of Justice (HUP 1971)§22.48 Feinberg (n 44) 5.49 Tadros (n 43) 94.50可以说,如果在这个例子中遵循HPP是不可能证明的,那么一个例子就足够了。作为回应,值得回顾的是,HPP并没有告诉我们什么应该被定为犯罪。它只是告诉我们,有些事情可能不是。即使是非常严重的错误,拒绝将其定为刑事犯罪也不是一件永远无法辩解的事情。如果立法者将这种错误定为刑事犯罪,那么将会有更多非常严重的错误行为出现,这种拒绝是有道理的人们常常认为,为HPP辩护就是声称,作为原始道德问题,伤害在词汇上具有优先地位。例如,Ripstein认为,HPP的吸引力来自于“以德报怨”的规则,这种吸引力是虚幻的,因为在法律之外可以找到反例(Ripstein (n 40) 217)。52 .基于下文给出的理由,HPP的捍卫者不需要提出这样的主张J Raz“自治、宽容和伤害原则”,见S Mendus(编),《为宽容辩护》(CUP 1988) 169;J Gardner,“禁止不道德行为”(2007)28 Cardozo Law Journal 2613;如此理解的伤害原则的一个含义是,它要求刑事定罪的支持者提供证据,证明刑事定罪将具有预防伤害的效果。反过来,它又赋予其他人索取此类证据的权利,并将这些证据置于公众监督之下。这一要求经常被那些口头上遵守这一原则的人所违背。以布朗[1994]AC 212的著名案例为例。上议院认为双方自愿的施虐受虐行为应该被定罪的一个原因是,拒绝定罪可能会导致年轻人的堕落。法庭根本没有提出任何证据来证明这一说法的真实性P德夫林,道德的强制执行(OUP 1965) 16-19.55 Raz (n 2) 404。另见Gardner (n 36) 118-19.56 Raz (n 2) 406.57 Raz (n 52) 174-75.58 Mill (n 36) ch 3.59同上60 HLA Hart, Law, Liberty and Morality (Stanford 1968)。61 .格林在《论被容忍》中讨论了哈特的观点。《论被容忍》由克莱默、格兰特、科尔伯恩和哈兹斯塔夫鲁合著,《哈特的遗产:法律、政治和道德哲学》(OUP 2008)《有限政府的本质》,参见J . Keown, R . George(编),《理性、道德与法律》,2013年第6期例如,英格兰和威尔士的犯罪调查显示,从90年代中期开始,犯罪率一直在下降:参见国家统计局,英格兰和威尔士的犯罪(2022年)。但该调查仅限于针对家庭成员的犯罪行为。因此,它不包括在机构中犯下的罪行,包括监狱,以及对无家可归者犯下的罪行在过去的30年里减少了80%。参见监狱改革信托基金,监狱:事实(2023),可在。64。最近的一项研究,见J Treadwell和K Gooch,监狱中的犯罪:现在和未来在哪里?(2019) .65, Ripstein (n 40).66这两个部分都在莱西的《囚徒困境:当代民主国家的政治经济与惩罚》(2011 CUP)中进行了讨论Tadros (n 43) 94-95。两个澄清。首先,塔德罗斯在这篇文章中关注的是有害行为原则。但他的反对意见在必要时也适用于HPP。第二,文章的最后一句话是指经验法则。 塔德罗斯没有解释他所认为的经验法则是什么,但经常有人认为它们本身没有规范的力量。这些规则只是总结了独立于规则之外的道德规范的效果。我曾说过,我们有时会因为容易犯错而受到约束。这种约束不是经验法则为什么“可能”?因为如果应该意味着可以,立法者不能摆脱自己的缺点,他们将缺乏文中提到的义务塔德罗斯可能会说,他的反对只适用于州政府官员。让凯蒂成为一名女警察,重点依然存在。
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Legal imperfectionism
ABSTRACTWhat role do moral norms play in the justification of legal norms? Here, I explore an answer that emphasises the moral significance of imperfection – of the fact that we are imperfect people, who live imperfect lives, and who have imperfect tools at our disposal for responding to our predicament. These imperfections, I argue, help make the case for (one version of) the harm principle. And they help make the case against the claim traditionally associated with legal moralism, namely that moral duties give law-makers reason to create legal duties with the same content. To accept all this is compatible with accepting – as I also claim here – that legal norms which help us better conform to moral norms are legal norms there is reason for law-makers to create. Those who accept this are nowadays dubbed perfectionists. Following John Gardner, I suggest that they are better thought of as legal imperfectionists.KEYWORDS: Harm principle; legal moralismperfectionismliberalismcriminal law Disclosure statementNo potential conflict of interest was reported by the author(s).Notes1 References to legal moralism in what follows are references to the traditional view. I discuss variations on that view, and defend a rival characterisation, in J Edwards, ‘An Instrumental Legal Moralism’ in L Green, B Leiter and J Gardner (eds), Oxford Studies in Philosophy of Law: Volume 3 (OUP 2018).2 This formulation may bring to mind Joseph Raz’s normal justification thesis. My claim in the text, however, is not a claim about what justifies the authority of legal norms. It is a claim about what justifies the creation and retention of such norms. (It is compatible, indeed, with the claim that legal norms are never legitimately authoritative). For Raz’s thesis, see J Raz, The Morality of Freedom (OUP 1986) 53ff.3 More, that is, than (those which) occurred prior to creation of the legal norm, and/or than (those which) would have continued to occur in its absence.4 It is a norm that, in John Gardner’s words, ‘retards rather than advances the cause of conformity with the very moral norms’ that justify its existence. See J Gardner, ‘What is Tort Law For? Part 1. The Place of Corrective Justice’ (2011) Law and Philosophy 1, 21.5 Those who believe in a general moral obligation to obey the law will of course disagree. I add myself here to the list of those who doubt that any such obligation exists.6 Say, because the exception would be erroneously taken to apply in a range of cases in which not stopping is dangerous.7 M Moore, Placing Blame (OUP 1997) ch 16.8 The suggestion is Malcolm Thorburn’s: see M Thorburn, ‘Criminal Law as Public Law’ in RA Duff and SP Green (eds) Philosophical Foundations of Criminal Law (OUP 2011) 23.9 See J Gardner, ‘Justification under Authority’ (2010) Canadian Journal of Law and Jurisprudence 71, 73; J Gardner, ‘Dagan and Dorfman on the Value of Private Law’ (2017) Columbia Law Journal 179, 195–96. Gardner attributes the suggestion to Michael Walzer.10 Parfit calls these moral immoralities: see D Parfit, Reasons and Persons (OUP 1984) 32. One of his examples is parental love. It would be wrong for parents not to love their children. Yet there are cases in which this love inclines parents to act wrongly, because of the added weight loving parents give to the interests of their children.11 This is a feature of what Raz calls competitive pluralism: see Raz (n 2) 401ff. In his words, ‘competitive pluralism admits the value of virtues possession of which normally leads to a tendency not to suffer certain limitations in other people which are themselves inevitable if those people possess certain other, equally valid virtues. The traits of character which make for excellence in chairing committees and getting things done, when this involves reconciling points of view and overcoming personal differences, those very trains of character also tend to make people intolerant of single-minded dedication to a cause. And there are many other examples’.12 The proper ends of legal institutions, I assume, are the ends that legal officials have reason to use the powers conferred upon them by those institutions to achieve.13 I base my remarks on Raz (n 2) chs 14–15. You may doubt that norms which tell us what it takes to live well are rightly thought of as moral norms. Ronald Dworkin says that they part of ethics rather than morality: R Dworkin, Justice for Hedgehogs (HUP 2013) ch 1. Here, I use the term moral to include what Dworkin calls ethics. But nothing much turns on this choice here.14 See Gardner ‘Dagan and Dorfman on the Value of Private Law’ 195.15 Why does interaction matter in this way? For different ideas, see AJ Julius, ‘Basic Structure and the Value of Equality’ (2003) 31 Philosophy and Public Affairs 321; T Nagel, ‘The Problem of Global Justice’ (2005) 33 Philosophy and Public Affairs 113; A Sangiovanni, ‘Global Justice, Reciprocity and the State’ (2007) 35 Philosophy & Public Affairs 3. A different version of the thought explored in the text is developed by Antony Duff. For Duff, we have duties to answer to fellow members of political communities for wrongs that impinge on the civic life of those communities. These duties do not – indeed cannot – apply in the absence of political communities. See RA Duff, The Realm of Criminal Law (OUP 2018).16 The most detailed account is Ripstein’s: see A Ripstein, Force and Freedom (HUP 2009). Ripstein’s ideas are applied to the criminal law in Thorburn (n 8).17 J Rawls, Political Liberalism (Columbia 1993). This norm is (in turn) thought to be entailed by norms of respect: see e.g., C Larmore, ‘The Moral Basis of Political Liberalism’ (1999) Journal of Philosophy 599; M Nussbaum, ‘Perfectionist Liberalism and Political Liberalism’ (2011) 39 Philosophy and Public Affairs 3. For doubts about the entailment, see J Raz, ‘Disagreement in Politics’ (1998) American Journal of Jurisprudence 25.18 The objection is developed at length in S Wall, ‘Is Public Justification Self-Defeating?’ (2002) 39 American Philosophical Quarterly 385.19 The late Rawlsian view described in the text might be understood differently. The idea might be that, while controversial moral norms are reason-giving for legal institutions, the reasons they give are necessarily defeated. The objection offered in the text applies, mutatis mutandis, to this alternative understanding of the view.20 RA Duff, Answering for Crime (Hart 2007) ch 1.21 R Dworkin, Law’s Empire (Hart 1986).22 Thorburn (n 8) 41.23 Gardner claims that those who are basically responsible have reason to answer to anyone. But he accepts that whether we are bound to answer to others is a further question, and that the answer depends on whether our accusers have ‘standing in the matter’: see J Gardner, ‘Relations of Responsibility’ in Cruft, Kramer and Reiff (eds), Crime, Punishment and Responsibility (OUP 2011) 90.24 For defence of these claims about moral standing, see J Edwards, ‘Standing to Hold Responsible’ (2019) 16 Journal of Moral Philosophy 437.25 I discuss this function at length in J Edwards, ‘Explaining Ourselves in Court’ in M Madden Dempsey and F Tanguay-Renaud (eds), From Morality to Law and Back Again: A Liber Amicorum for John Gardner (OUP 2023).26 Thorburn writes that Gardner is ‘committed to the view that legitimate criminal wrongs must all be moral wrongs and that criminal justifications should track the structure of moral justifications’: Thorburn (n 8) 23.27 [1971] 2 WLR 467. Discussed in Thorburn (n 8) 32ff.28 J Gardner, ‘In Defence of Offences and Defences’ (2012) 4 Jerusalem Review of Legal Studies 110, 115.29 These include cases of excuse. To create an excuse is not to grant a permission. It is to impose a duty on courts not to convict defendants for certain prohibited acts. Absent acoustic separation, such duties also have the potential to undermine the preventive function of the criminal law. This worry comes to the fore in the case-law on duress, the availability of which has been significantly narrowed in English law (Howe [1987] AC 417; Hasan [2005] UKHL 22). As Baroness Hale has observed, this narrowing inevitably denies defences to some who are morally excused. It does so in the name of discouraging membership in criminal organisations. The classic formulation of the worry – cited approvingly by Lord Bingham in Hasan – continues to be Lord Simon’s: ‘your Lordships should hesitate long lest you may be inscribing a charter for terrorists, gang-leaders and kidnappers’ (Lynch [1975] 1 All ER 913). For discussion of the same point in the context of self-defence, see J Edwards and T Yusari, ‘The Internal Morality of Criminal Law’ (OJLS, forthcoming).30 (1884) 14 QBD 273.31 P Foot, ‘The Problem of Abortion and the Doctrine of Double Effect’ (1967) Oxford Review 5.32 Like Lord Denning, Lord Coleridge appeals in these remarks to the fallibility of legal subjects. Other decisions appeal to the fallibility of courts themselves: see e.g., Quayle [2005] 1 WLR 3642; Nicklinson [2013] EWCA Civ 961.33 Thorburn (n 8) 32–36.34 This also matters, of course, for those engaged in rational reconstruction.35 Gardner describes himself in these terms in his From Personal Life to Private Law (OUP 2018) 198.36 See e.g., JS Mill, On Liberty (1859); Raz (n 2) ch 15; J Gardner, Offences and Defences (OUP 2007) 29ff.37 And the amount of harm prevented is not disproportionate to the costs of prohibition. I borrow the labels used in the text from Antony Duff and Sandra Marshall: see their ‘Remote Harms and the Two Harm Principles’ in Simester, du-Bois Pedain and Neumann (eds), Liberal Criminal Theory (Hart 2014). For discussion of the differences between HPP and other versions of the harm principle, see J Edwards, ‘Harm Principles’ (2014) Legal Theory 253.38 Thorburn (n 8) 30.39 Moore (n 7) 649.40 A Ripstein, ‘Beyond the Harm Principle’ 34 Philosophy and Public Affairs 215.41 For versions of this idea, see Raz (n 2); Edwards (n 37).42 In which, for instance, a criminal law will rarely be enforced, and in which the sentences available for violation do not include imprisonment.43 V Tadros, Wrongs and Crimes (OUP 2016) 101ff. For similar points, see J Stanton-Ife, ‘The Limits of Law’ in EN Zalta (ed), The Stanford Encyclopedia of Philosophy § 4.44 I say the harm principle rather than HPP because Feinberg consistently rejects the latter. He claims that law-makers are required not to prohibit unless this is necessary either to prevent harm or serious offence: J Feinberg, Harm to Others (OUP 1984) ch 1. For criticism of the italicised addition, see see J Edwards, ‘No Offense’ in L Alexander and KK Ferzan (eds), The Palgrave Handbook of Applied Ethics and Criminal Law (Palgrave 2020). The point in the text is that for Feinberg even this wider principle proves too narrow. A fortiori for the even narrower HPP.45 The example is Parfit’s. See D Parfit, ‘Future Generations: Further Problems’ (1982) 11 Philosophy and Public Affairs 113.46 J Feinberg, Harmless Wrongdoing (OUP 1988) 327.47 Some conceive of principles of justice in this way. Rawls writes that such principles only apply in the circumstance of justice. In these circumstances, we ‘suffer from various shortcomings of knowledge, thought and judgment’, which include ‘bias’ and ‘preoccupation with [our] own affairs’. ‘Unless these circumstances existed’, Rawls writes, ‘there would be no occasion for the virtue of justice’. See J Rawls, A Theory of Justice (HUP 1971) § 22.48 Feinberg (n 44) 5.49 Tadros (n 43) 94.50 It might be said that a single example would suffice if following HPP in that example was impossible to justify. In reply, it is worth recalling that HPP does not tell us what should be criminalised. It only tells us that some things may not be. Refusing to criminalise even a very serious wrong is not something that can never be justified. The refusal would be justified if, were law-makers to criminalise the wrong, there would be many more instances of very serious wrongdoing.51 It is often suggested that to defend HPP is to claim that, as a matter of raw morality, harm has lexical priority. Ripstein, for instance, suggests that HPP derives its appeal from a ‘harm for harm’ rule, and that the appeal is illusory because there are counterexamples to be found outside the law (Ripstein (n 40) 217). For reasons given in the text that follows, defenders of HPP need make no such claim.52 J Raz ‘Autonomy, Toleration and the Harm Principle’ in S Mendus (ed), Justifying Toleration (CUP 1988) 169; J Gardner, ‘Prohibiting Immoralities’ (2007) 28 Cardozo Law Journal 2613; Gardner (n 36) 76–77.53 One implication of the harm principle, so understood, is that it requires supporters of criminalisation to offer evidence that criminalising will have the effect of preventing harm. In turn, it entitles others to demand such evidence, and subject that evidence to public scrutiny. This requirement is often violated by those who pay lip service to the principle. Consider, for instance, the famous case of Brown [1994] AC 212. One reason given by the House of Lords for holding that consensual sadomasochistic activity ought to be criminalised, is that refusing to criminalise might lead to the corruption of young men. No evidence at all is offered by the court for the truth of this claim.54 P Devlin, The Enforcement of Morals (OUP 1965) 16–19.55 Raz (n 2) 404. See also Gardner (n 36) 118–19.56 Raz (n 2) 406.57 Raz (n 52) 174–75.58 Mill (n 36) ch 3.59 ibid.60 HLA Hart, Law, Liberty and Morality (Stanford 1968). Green discusses Hart’s argument in L Green, ‘On Being Tolerated’ in MH Kramer, C Grant, B Colburn, and A Hatzistavrou, The Legacy of H.L.A. Hart: Legal, Political, and Moral Philosophy (OUP 2008).61 L Green, ‘The Nature of Limited Government’ in J Keown and R George (eds), Reason, Morality and Law (OUP 2013).62 The Crime Survey for England and Wales, for example, shows a consistent drop in crime from the mid-nineties onwards: see Office for National Statistics, Crime in England and Wales (2022). But the survey is limited to crime committed against those resident in households. So it excludes crime committed in institutions, including prisons, as well as crime committed against the homeless.63 By some 80% in the last 30 years. See The Prison Reform Trust, Prison: The Facts (2023) available at .64 For a recent study, see J Treadwell and K Gooch, Crime In Prisons: Where Now and Where Next? (2019) available at .65 Ripstein (n 40).66 Both parts are discussed in N Lacey, The Prisoner’s Dilemma: Political Economy and Punishment in Contemporary Democracies (2011 CUP).67 Tadros (n 43) 94–95. Two clarifications. First, Tadros is concerned in this passage with the harmful conduct principle. But his objections apply, mutatis mutandis, to HPP. Second, the last sentence of the passage refers to rules of thumb. Tadros does not explain what he takes rules of thumb to be, but it is often suggested that they have no normative force of their own. Such rules merely summarise the effect of moral norms that apply independently of them. I have argued that we are sometimes bound by constraints that apply in virtue of our fallibility. Constraints of this kind are not rules of thumb.68 Why ‘may’? Because if ought implies can, and law-makers cannot rid themselves of their shortcomings, they will lack the obligation mentioned in the text.69 Tadros might say that his objection applies only to state officials. Make Katie a policewoman, and the point remains.
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CiteScore
1.40
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0.00%
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期刊介绍: Jurisprudence provides a forum for scholarly writing on the philosophy of law. While demanding the utmost intellectual honesty, clarity and scholarly rigour, its editorial policy is distinctively open-minded in relation to philosophical approach. A main purpose of the journal is to encourage scholarship which explores and transcends the categories and assumptions on which contemporary jurisprudential debates are conducted, and to stimulate reflection upon traditional questions concerning the nature of law, politics and society. The journal''s unique reviews section will provide in-depth discussion and analysis of major developments in the field. Jurisprudence aims: -to encourage research exploring the relation between questions in the philosophy of law and debates in related branches of philosophy, including but not limited to political philosophy, moral philosophy, the philosophy of religion and the philosophy of mind; -to support study of the intellectual history of the philosophy of law, both for its own sake and in order to shed light on contemporary jurisprudential questions; -to encourage careful research illuminating relations between jurisprudential questions and theoretical debates in anthropology, sociology, cultural and literary studies. Replies and correspondence pieces will be generally discouraged, although may be acceptable if the intention is to deepen and extend an original line of thought, and not merely to reiterate or amplify an earlier argument.
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