Harm To Self (the Moral Limits Of The Criminal Law)

HARM TO SELF The MORAL LIMITS VOLUME THREE NEW YORK OXFORD of the CRIMINAL LAW Harm to Self JOEL FEINBERG OXFORD UNIVERSITY PRESS Oxford University Press Oxford New York Toronto Delhi Bombay Calcutta Madras Karachi Petaling Jaya Singapore Hong Kong Tokyo Nairobi Dar es Salaam Cape Town Melbourne Auckland and associated companies in Berlin Ibadan Copyright © 1986 by Oxford University Press, Inc. First published in 1986 by Oxford University Press, Inc., 200 Madison Avenue, New York, New York 10016 First issued as an Oxford University Press paperback, 1989 Oxford is a registered trademark of Oxford University Press All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of Oxford University Press, Inc. Library of Congress Cataloging in Publication Data Feinberg, Joel, 1926The moral limits of the criminal law. Includes index. Contents: v. 1 Harm to others—v. 2. Offense to others— v. 3. Harm to self. 1. Criminal law—Philosophy. 2. Criminal law— Moral and religious aspects. I. Title. ISBN 0-19-503746-4 ISBN 0-19-505923-9 (PBK) 2 4 6 8 1 09 7 5 3 1 Printed in the United States of America For Betty yet again This page intentionally left blank About the Longer Work Harm to Self is the third volume in a four-volume work, The Moral Limits of the Criminal Law. The volumes have been published separately at short intervals, each with a brief synopsis of the earlier volumes. Volume one, Harm to Others, discusses the concept of harm, its relation to interests, wants, hurts, offenses, rights, and consent; hard cases for the application of the concept of harm, like "moral harm," "vicarious harm," and "posthumous harm"; the status of failures to prevent harm; and problems involved in assessing, comparing, and imputing harms. Volume two, Offense to Others, discusses the modes and meanings of "offense" as a state distinct from harm; offensive nuisances; profoundly offensive conduct (like mistreatment of dead bodies, desecration of sacred symbols, and the public brandishing of odious political emblems like swastikas and K.K.K. garments); pornography, obscenity, and "dirty words." Volume four, Harmless Wrongdoing, will discuss the various positions often called "legal moralism," including the claims that criminal prohibitions can be justified by their role in strengthening community ties and preserving a way of life, enforcing true morality, preventing wrongful gain from exploitation even when it has no proper "victim," elevating taste, and perfecting character. vn This page intentionally left blank Synopsis of Volumes One and Two The basic question of the longer work that volume one introduces is a deceptively simple one: What sorts of conduct may the state rightly make criminal? Philosophers have attempted to answer this question by proposing what I call "liberty-limiting principles" (or equivalently, "coercion-legitimizing principles") which state that a given type of consideration is always a morally relevan