McGill Law Journal ~ Revue de droit de McGill
THE IMPOSSIBILITY OF A CRITICALLY OBJECTIVE
CRIMINAL LAW
Dennis J. Baker*
In this paper, I argue that principled
criminalization does not have to rely on critical
objectivity. It is not necessary to demonstrate
that conduct is criminalizable only if it is wrong
in a transcultural and truly correct sense. I ar-
gue that such standards are impossible to iden-
tify and that a sounder basis for criminalization
decisions can be found by drawing on our deep
conventional understandings of wrong. I argue
that Feinbergs harm principle can be supported
with conventional accounts of harm, and that
such harms can be identified as objectively
harmful when measured against our deep con-
ventional understandings of harm. The distinc-
tion that critical moralists make between truly
harmful conduct and conventionally objective
harmful conduct is unsustainable because many
conventional harms impact real victims in so-
cial contexts. The best that we can do is to
scrutinize our conventional conceptualizations
of harm and badness, but that scrutiny is con-
strained by the limits of epistemological inquiry
and our capacity for rationality at any given
point in time. Many acts are criminalizable be-
cause they violate social conventions that are
shareable by communally situated agents.
Dans cet essai,
je soutiens que
les
principes de la criminalisation ne reposent pas
forcment sur lobjectivit critique. Il nest pas
ncessaire de dmontrer quun comportement est
criminalisable seulement sil est rellement
rprhensible au sens transculturel. Je soutiens
que de tels critres sont impossibles identifier et
que nos notions conventionnelles et approfondies
du mal constituent une base plus saine pour les
dcisions relatives la criminalisation. Je soutiens
que les explications conventionnelles du mal
appuient le principe labor par Feinberg et que
ces maux peuvent tre identifis comme tant
objectivement nuisibles lorsque compars notre
comprhension conventionnelle et approfondie du
mal. La distinction qutablissent les moralistes
critiques entre le comportement rellement nocif
et
le comportement gnralement considr
comme tant objectivement nocif est intenable
parce que de nombreux maux conventionnels
affectent des victimes relles dans des contextes
sociaux. Le mieux que nous pouvons faire est
dexaminer de faon minutieuse nos conceptions
du mal et de la mchancet. Cet examen est
toutefois limit par les limites de lenqute
pistmologique et par notre capacit de
rationalit un moment donn. De nombreux
actes sont criminalisables parce quils violent
des conventions sociales qui peuvent se partager
par lentremise dagents collectifs.
* M Phil, PhD Jesus College, Cambridge, Lecturer in Law, Kings College London.
Citation: (2011) 56:2 McGill LJ 349 ~ Rfrence : (2011) 56 : 2 RD McGill 349
Dennis J Baker 2011
350 (2011) 56:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Introduction
I.
II.
Criminalization
The Vacuity of Critical Moral Accounts of Harm and
Offence
III. Conventionally Contingent Harms
IV. The Conventional Badness of Offence-Doing
V.
Principled Criminalization and Conventionally Contingent
Wrongs
Conclusion
351
355
360
371
377
385
391
THE IMPOSSIBILITY OF A CRITICALLY OBJECTIVE CRIMINAL LAW
351
Introduction
The famous debate between H.L.A. Hart and Lord Devlin was about
principled and unprincipled criminalization. Hart argued that there was
no principled justification for criminalizing many of the activities that
Lord Devlin advocated criminalizing, such as homosexuality or prostitu-
tion. Hart argued for principled criminalization, which he suggested
would be criminalization that could be justified by pointing to critical
moral standards.1 Hart took the view that culpable harm provided a criti-
cal moral justification for criminalizationthat is, a justification that is
universally right.2 Joel Feinberg refers to critical morality as true moral-
ity, which according to him is a collection of governing principles thought
to be part of the nature of things, critical, rational, and correct.3
Like Hart, Feinberg asserts that a positive justification for criminali-
zation is only valid to the extent that it is also a correct rule of morality,
capable of satisfying a transcultural critical standard.4 Feinberg attempts
to limit criminalization by arguing that normative or objective moral ac-
counts of harm can be used to constrain positive or conventional accounts
of harm employed to justify penal censure. Critical moralists seem to take
the view that deep personal conviction or practical reasoning allows moral
agents to identify objective or normative accounts of harm.5 I present a
more modest account of the moral agent because I view the moral agent
as nothing greater than a communally situated human being. If practical
reasoners are merely communally situated humans trying to solve con-
ventional conflicts, then it is fairly clear that it is impossible for such crea-
tures to identify fully correct accounts of harm and badness, goodness,
rightness, wrongness, and so forth.
Standards identified by human thinkers cannot be truly correct be-
cause it is impossible for us to know whether a standard is truly correct.
Furthermore, in practice all reasoning (notwithstanding the belief of some
commentators that these standards are mind-independent) is influenced
1 HLA Hart, Law, Liberty and Morality (Stanford, Cal: Stanford University Press, 1963)
at 17-53.
2 HLA Hart, Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983) at
248ff. C.f. Stanley Fish, Theres No Such Thing as Free Speech and Its a Good Thing,
Too (New York: Oxford University Press, 1994) at 200-29.
3 The Moral Limits of the Criminal Law: Harmless Wrongdoing, vol 4 (New York: Oxford
University Press, 1988) at 124 [Feinberg, Harmless Wrongdoing].
4 Ibid.
5 See e.g. Ronald Dworkin, Objectivity and Truth: Youd Better Believe It (1996) 25:2
Phil & Pub Aff 87.
352 (2011) 56:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
by societal evolution, convention, and human biases.6 The human mind is
not a computer! It is not possible to claim that certain conventional
wrongs are truly wrong, bad, or harmful in a transcultural sense, but
principled justifications can be supplied for criminalizing many conven-
tionally contingent wrongs. There is no doubt that intersubjective delib-
eration will give us better results, but it cannot tell us whether a particu-
lar moral standard is correct.
Hart suggests that an objective account of harm can be discovered and
therefore can provide a critical moral justification for or against criminali-
zation. But the harm principle itself is a conventional construct, and con-
ceptualizations of harm depend on convention. It might be argued that
deep (deep, meaning long-held and widely shared understandings in
Western society) conventional agreement about the harmfulness of cer-
tain acts, such as murder, is sufficient to provide a principled-harm ar-
gument for outlawing it. This provides a strong conventionally objective
case for outlawing such wrongs. Feinberg, however, supplements the
harm principle7 with an offence principle,8 which holds that culpable of-
fence-doing also provides a critical moral justification for criminalization.
The problem with offensive conduct and trivial harms is that there is no
deep or constant (intersubjectively shared) agreement about the badness
or wrongness of such acts. I could provide many examples, but I think nu-
dity in ancient art, movies, and modern art, might be sufficient for tenta-
tively claiming that exhibitionism has not been constantly considered to
be bad, harmful, or wrong. Feinberg is particularly critical of Lord Dev-
lins positive morality,9 but it is not clear that Feinbergs offence principle
rests on anything more than positive morality. Feinberg does not explain
why culpable offence-doing is inherently wrong in a critical moral sense
rather than a conventional senseor why standards cannot be developed
from conventional morality to provide principled justifications for crimi-
nalization.
While I develop the idea of conventional objectivity more fully
throughout the paper, the basic theory is that we are able to draw on our
deeply held conventional understandings of wrong and harm (including
our scientific and biological accounts of harm and bad consequencesin
addition to conventional understandings about privacy and autonomy in
modern society) in order to formulate a case either for or against crimi-
6 Ibid.
7 Joel Feinberg, The Moral Limits of the Criminal Law: Harm to Others, vol 1 (New York:
Oxford University Press, 1984) [Feinberg, Harm to Others].
8 Joel Feinberg, The Moral Limits of the Criminal Law: Offense to Others, vol 2 (New
York: Oxford University Press, 1985) [Feinberg, Offense to Others].
9 Feinberg, Harmless Wrongdoing, supra note 3 at 133-73.
353
THE IMPOSSIBILITY OF A CRITICALLY OBJECTIVE CRIMINAL LAW
nalization. We may change our minds about what is bad, harmful, and
wrong depending on the social context. Hence, our conceptualizations of
harm and wrong depend on conventional understandings of harm and on
socialization. We may therefore claim that something is objectively harm-
ful within a certain conventional context, but this is entirely different
than claiming that something is bad or harmful in a transcultural critical
objective sense. For the most part, at the most basic level all societies
have similar conventional understandings about the badness, wrongness,
and harmfulness of conduct such as genocide, murder, starvation, torture,
and so forth. Such understandings have emerged because humans have
drawn on basic biological information, human instincts, and evolving so-
cial norms to solve conventional conflicts.
Transculturally, there are shared understandings about the badness
and harmfulness of fairly primitive10 harms such as wantonly amputating
anothers hand. For instance, in some countries the justification for chop-
ping off a thiefs hand for shoplifting hinges on an understanding that it is
bad and harmful to wantonly amputate a persons hand. It is because
hand amputation is understood to be bad and harmful that it is used as a
punishment rather than a reward. I do not know of any state where the
conventional understanding is that hand amputation is good and thus
should be used as a reward. The same might be said for the death penalty.
There is no transcultural disagreement about death (capital punishment)
or hand amputation as bad and harmful. Rather, the disagreement is
about whether such punishments are proportionate or necessary given
our respect for humanity and life. But this does not mean those acts are
truly harmful or bad. Empirical information (i.e., biological, scientific, and
medical explanations of pain and damage) and our conventional under-
standing of pain, hurt, and culpability, are more than sufficient for provid-
ing an objective account of the harmfulness of wanton hand amputation;
this alone, however, cannot be used to prove that it is objectively harmful
in a critical moral sense.
Ashworths claim that the criminal law has been influenced by the po-
litical demands of the day is beyond dispute, and unless we can identify
appropriate constraints, it might be impossible to have a principled crimi-
nal law.11 If the harm and offence principles do not provide critical reasons
for constraining criminalization, then it might not be possible to distin-
10 The word primitive is used here in a technical sense, to convey a particular philoso-
phical meaning. For a similar use of this term, see especially John Tasioulas, Crimes of
Offence in Andrew von Hirsch & AP Simester, eds, Incivilities: Regulating Offensive
Behaviour (Oxford: Hart, 2006) 149 [von Hirsh & Simester, Incivilities].
11 See Andrew Ashworth, Is the Criminal Law a Lost Cause? (2000) 116 Law Q Rev 225
at 253.
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guish Feinbergs justifications for criminalization (culpable harm and cul-
pable offence) from those of Lord Devlin. I argue that both Hart and
Feinberg were wrong to assume that there is a critical moral type of harm
and a conventional moral type of harm. I take the view that culpable harm
and culpable offence only provide conventional justifications for criminali-
zation. I focus on Feinbergs offence principle because the conventional na-
ture of culpable offence-doing provides the strongest challenge to the claim
that criminalization can be constrained by critical moral accounts of harm
and offence. It is difficult to see the critical objectivity of wrongness claims
concerning many forms of offence-doing, such as public exhibitionism. The
aim of this paper is to show that offence to others does not provide a criti-
cal moral justification for invoking the criminal law.
J.L. Mackie used retribution as a test case for objectivity.12 He would
have had a field day with Feinbergs offence principle. I am a supporter of
Feinbergs criteria, but I think the metaethical foundations that he claims
for his harm and offence criteria are open to question. Feinberg promises
a normative conception of wrong distinct from the positive one upon which
Lord Devlin relies, but offence to others delivers a conception that is in-
distinguishable from a merely positive one. If harm or offence is anything
that a person subjectively perceives to be harmful or offensive, then
Feinbergs principles are vacuous. To counteract this possibility, Feinberg
argues that the harm or offence must be objective or normative. Feinberg
seeks to base his harm and offence principles on objective foundations, but
fails. When it comes to the offence principle, the weakness of Feinbergs
critical objectivity claim is most evident. I argue that even though there is
no critical moral justification for criminalizing exhibitionism, it is possible
12 Retributivism: A Test Case for Ethical Objectivity in Joel Feinberg & Hyman Gross,
eds, Philosophy of Law, 4th ed (Belmont, Calif: Wadsworth Publishing Company, 1991)
677 at 684 [Mackie, Retributivism]. As JL Mackie explains:
In this lies the solution of our paradox of retribution. For what we have
sketched is the development of a system of sentiments (which, through objec-
tivization, yield beliefs) which from the point of view of those who have them
are both originally and persistently retrospective. They are essentially re-
tributive, essentially connected with previous harmfulor, occasionally,
beneficialactions. When we seek to rationalize our moral thinking, to turn
it into a system of objective requirements, we cannot make sense of this ret-
rospectivity. We either, with the utilitarians, attempt to deny it and elimi-
nate it or to subordinate it to forward-looking purposes, or, with their re-
tributivist opponents, try various desperate and incoherent devices, none of
which, as we have seen, will really accommodate the principle of desert
within any otherwise intelligible order of ideas. But if we recognize them
simply as sentimentsthough socially developed sentimentswe have no
difficulty in understanding their obstinately retrospective character (Moral-
ity and the Retributive Emotions (1982) 1:1 Criminal Justice Ethics 3 at 9).
THE IMPOSSIBILITY OF A CRITICALLY OBJECTIVE CRIMINAL LAW
to draw on conventional morality to provide a principled case for criminal-
izing it in certain contexts.
355
I. Criminalization
The criminal law gives any government immense power over its peo-
ple because disobeying a criminally codified command can result in stig-
matization and severe punishment (conviction, imprisonment, fines, and
so forth). Why are citizens of a given state, bound or obliged to follow the
guides of acceptable behaviour as set out in the criminal law? Since the
criminal law is a punitive response to unwanted behaviour, its authority
is contingent on its legitimacy.13 I argue that certain human acts are de-
serving of the crime label because they produce bad consequences (or risk
producing bad consequences, as is the case with attempts, endangerment,
and so forth) that are of an avoidable kind for othersavoidable in that
the wrongdoer culpably aimed for the bad consequences and could have
chosen otherwise. The harm might be indirect and thus threaten the
community (State) by damaging its institutions (e.g., perjury, bribery, and
environmental damage are collective harms), or the harm might be di-
rectly victimizing, as is the case with murder, theft, rape, and so forth.
The issue of indirect or collective harm is controversial as it is difficult to
individualize the harm-doing.14
Many criminal laws are codified and deeply held conventional com-
mands, such as laws against rape, assault, murder, theft, fraud, and so
forth. A given criminal law will have authority regardless of whether it
serves a legitimate purpose,15 but the criminal law as a general institution
of social control will retain its legitimacy and authority only if the bulk of
its commands are understood as principledthat is, understood to be fair
in accordance with our conventional understandings of justice and fair-
ness. It is not possible to state the cut-off point in numerical terms, but if
more than fifty percent of a given states laws served no legitimate pur-
pose (that is, some goal that is understood to be legitimate by communally
situated moral agents), or were unjust and draconian, then the result
might be revolution. For instance, most people in advanced Western socie-
13 David Beetham, The Legitimation of Power (Atlantic Highlands, NJ: Humanities Press
International, 1991) at 56-63.
14 Dennis J Baker, Collective Criminalization and the Constitutional Right to Endanger
Others (2009) 28:2 Criminal Justice Ethics 168.
15 See generally Joseph Raz, The Authority of Law: Essays on Law and Morality, 2d ed
(Oxford: Oxford University Press, 2009).
356 (2011) 56:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
ties would not tolerate jail terms of fifty years for shoplifting.16 We have
deep conventional understandings about the trivial nature of the harm-
fulness of shoplifting and therefore do not see lengthy jail terms as a nec-
essary government response. When the bulk of a states laws, whether
they are private laws or public laws, serve some legitimate purpose (pur-
poses that are conventionally understood and accepted as legitimate), the
law in that state will retain its posited authority. Although there are
many perceivably unjust criminal laws that serve no legitimate purpose,17
the bulk of jailable offences in the United States do seem to be aimed at
genuine wrongs.18 Arguably, many unjust laws retain their authority be-
cause the general institution of criminal law and punishment retains its
authority.
We implicitly agree to have law in order to maintain society for the
good of humanity, but we also realize that the State might misuse the law
or simply get it wrong. Thus, the law itself has to be subject to a number
of constraints in the interest of fairness. The State is merely comprised of
members of society acting as a collectiveand we need to know why the
commands of the majority, as expressed in laws, have authority over us as
individuals. As we will see, many activities that are deemed bad or harm-
ful by the State (the collective, community, or society) often involve little
more than someone flouting a seemingly innocuous social custom, as is
the case with exhibitionism. Since this type of conduct is harmless, the
harm criterion does little to answer the following question: what makes
exhibitionism criminalizable?
Criminalization is a process of labelling certain actions as punishable
by the State in order to solve social conflicts and problems with co-
operation that arise in competitive plural societies.19 I argue below that
16 But people can be socialized so as to tolerate the criminalization and punishment of
harmless wrongs such as kissing in public. The majority in a given community might
not see this as being draconian. It is a jailable offence to kiss (even a peck on the cheek)
in public in Dubai (Hugh Tomlinson, We Will Clear Our Names, Insist Couple Facing
Jail for Kissing: Dubai Court Delays Britons Appeal Hearing, The Times [of London]
(15 March 2010) 5).
17 For many examples of unjust criminalization, see Dennis J Baker, The Right Not to be
Criminalized: Demarcating Criminal Laws Authority (London, UK: Ashgate Publish-
ing, 2011).
18 Even many apparent malum prohibita crimes such as prohibitions concerning parking
cars (laws allowing for fair use of public spaces) and rules about which side of the road
to drive on (laws facilitating the free and safe movement of people) serve the well-being
and advancement of humanity by allowing for the benefits of co-operative living to be
realized.
19 Dennis J Baker, Constitutionalizing the Harm Principle (2008) 27:2 Crim Just Ethics
3 at 4-16.
357
THE IMPOSSIBILITY OF A CRITICALLY OBJECTIVE CRIMINAL LAW
constraints, such as those of harm and culpability, are only objective to
the extent that there is deep conventional agreement about what consti-
tutes a punishable harm. However, once we get into territory where there
is disagreement about what ends are intersubjectively shareable by all
communally situated agents, a principled case for criminalization is diffi-
cult to identify. Furthermore, it is almost impossible to identify a critical
moral account of criminalizable harm and offence. At the inter-
jurisdictional level there is deep agreement about the badness and
wrongness of acts that result in primitive harm, such as gross physical
harm (e.g., biologically painful harms such as starvation, blinding, ampu-
tation, and torture). Beyond those primitive harms, however, agreement
is totally contingent on jurisdictional and cultural conventions. Conven-
tional harms and conventions are born and must die together.20 Primitive
harms do not rely on convention as there are other biological and scien-
tific explanations of the badness and harmfulness of such acts. We could
adopt a grander scheme and argue that the normativity of harm hinges on
critical agent-relative reasons. 21 As Christine Korsgaard puts it, Values
may be intersubjective: not part of the fabric of the universe or external
truth, but nevertheless shared or at least shareable by agents.22 Inter-
20 Bentham highlights the conventional nature of property in the following phrase, Prop-
erty and law were born together, and would die together. tienne Dumont, Benthams
Theory of Legislation: Principles of Legislation Principles of the Civil Code, ed and
translated by Charles Milner Atkinson (London, UK: Oxford University Press, 1914)
vol 1 at 146-47.
21 Objectivity is derived through a deliberative process:
Agreement of rational, reasonable, and competent deliberators, resulting
from an ideally operated deliberative process, may be our best mark of cor-
rectness of the judgments in question; but that agreement does not make the
judgment correct. … In this point, objectivity as publicity fits Kants view that
… if the judgment is valid for everyone who is in possession of reason, then its
ground is objectively sufficient. This is sufficient for objectivity, but not for
correctness (truth in his [Kants] discussion). Objectivity, understood as in-
tersubjective validity demonstrated by the agreement of all those possessed
of reason, does not constitute correctness … but it provides the touchstone
whereby we assure ourselves, from where we are, that our sense of the truth
of judgments we accept is not idiosyncratic (Gerald J Postema, Objectivity
Fit for Law in Brian Leiter, ed, Objectivity in Law and Morals (Cambridge,
Mass: Cambridge University Press, 2001) 99 at 121).
22 Christine M Korsgaard, Creating the Kingdom of Ends (Cambridge, Mass: Cambridge
University Press, 1996) at 281. Korsgaard states that:
One reason I take this option to be important is this: I think that its lack of
ontological or metaphysical commitments is a clear advantage of Inter-
subjectivism; we should not be Objective Realists unless, so to speak, there is
no other way. This is not just because of Ockhams razor. A conviction that
there are metaphysical truths backing up our claims of value must rest on,
and therefore cannot explain, our confidence in our claims of value. Meta-
physical moral realism takes us the long way around to end up where we
358 (2011) 56:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
subjectively, normative claims are not the claims of a metaphysical world
of values upon us: they are claims we make on ourselves and each
other.23
But Korsgaard has a Kantian inter-subjectivity of all reasonable
agents in mind. The word shareable reflects Kants unwillingness to en-
gage in anthropological reasoning when thinking about the content of mo-
rality. It is impossible to claim that criminal law is normative in this
sense because anthropological information has to be considered in light of
the conventional problems it addresses.24 Principled criminalization might
be identified by examining what is actually shared in specific communi-
ties, but this would not be normative in the Korsgaardian sense as it is con-
tingent on what is shared in specific contexts and at specific points in time.
Culturally situated intersubjective agents might identify principled
justifications for criminalization, but there would be nothing critically ob-
jective about the standards that they might develop. Furthermore, my
conception of principled is neutral between different reasons why agents
might intersubjectively share their endsand is therefore neutral be-
tween what I describe as the critical moralists reason for arguing that
ends should be shared and other reasons for so arguing. I merely critique
critical morality to highlight the impossibility of claiming that particular
acts, such as exhibitionism, are objectively wrong in a critical moral sense
and are therefore prima facie criminalizable. The exhibitionism exemplar
is used in the final sections to emphasize the vacuity of the claim that cer-
tain disgust-causing acts can be defined as universally wrong and bad.25
It is fairly easy to show that core instances of criminality (rape, theft,
murder, and so forth) are principled if we accept deeply held conventional
conceptualizations of harm, autonomy, and culpability. There is much less
started – at our own deep conviction that our values are not groundless – with-
out giving us what we wanted – some account of the source of that conviction
(ibid at 305) [emphasis added].
23 Ibid at 301.
24 GP Baker & PMS Hacker note:
Normative behavior, viewed externally, in ignorance of the norms which
inform it, may seem altogether unintelligible. A story is told of a Chinese
mandarin passing through the foreign legations compound in Peking. Seeing
two of the European staff playing an energetic game of tennis, he stopped to
watch. Bemused, he turned to a player and said, If it is, for some obscure
reason, necessary to hit this little ball back and forth thus, would it not be
possible to get the servants to do it? (Language, Sense and Nonsense: A
Critical Investigation into Modern Theories of Language (Oxford: Basil
Blackwell, 1984) at 257).
25 See Tasioulas in von Hirsh & Simester, Incivilities, supra note 10.
359
THE IMPOSSIBILITY OF A CRITICALLY OBJECTIVE CRIMINAL LAW
agreement, however, when it comes to criminalizing offensive conduct and
soft harms.26 A principled conventional account of the badness of offending
others might be possible, but it is impossible to provide a critical moral
account of its inherent criminalizability. The best we might be able to do
is accept that Lord Devlin was right to argue that everyone (communally
situated) intersubjectively shares the end of social harmony, but that eve-
ryone might also share the end of social toleration when social harmony is
merely disturbed by tolerating conventionally harmless conduct that in-
volves the fundamental liberty and equality interests of those causing the
offence. For instance, homosexuality and prostitution are consensual ac-
tivities that take place between adults behind closed doors, and criminal-
izing either would violate the privacy, equality, and autonomy rights of
the offenders.
I argue that unexplained claims of objectivity or critical morality are
not sufficient to refute Lord Devlins theory. Per contra, an intersubjec-
tively constrained conventional morality might explain the difference be-
tween good reasons for criminalization and those that purely cater to idio-
syncratic prejudice.27 The critical moralist does not merely aim to subject
justifications for criminalization to critical scrutiny, but also claims that
their reasons provide correct, transnational, or universal justifications for
criminalization. These claims overlook the fact that the wrongness and
badness of the acts (and consequences that flow from certain social inter-
actions) are circumstantially and conventionally contingent. I cannot see
why a strong conventional account of culpable harm and offence-doing is
not sufficient to provide a principled account of their criminalizability. It
does, however, acknowledge that what presently seems to be a good justi-
fication for criminalization might not be so later. The core problem for
lawmakers is that once they move away from accounts of harm and wrong
where there is almost omnipresent social agreement about the harmful-
ness of the act, as is the case with gross physical harms (i.e., primitive
harms such as, physical starvation, blinding, wounding, and so forth), the
harmfulness of the conduct becomes conventionally contingentand if we
26 The term soft harm refers to acts that are conventionally harmful such as uploading
an individuals sex tapes onto the World Wide Web. This would be a gross violation of
privacy that would likely cause distress to some, but not to all. Thus, a soft harm is sub-
jective in that it causes psychological distress that will harm some, but will not always
result in harm. It is distinct from a hard harm, which refers to offences such as rape,
murder, and serious offences against the person and property that affect all people in
the same way.
27 If conventional morality were not constrained by intersubjective endorsement, it would
be of no use as it would provide no guidance whatsoever. But this does not mean that
our conventionally situated agents are able to claim their harm or offence arguments
are correct or transcultural. The best they might do is try to constrain unbridled and
unprincipled conventional criminalization.
360 (2011) 56:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
move far enough away from the harm paradigm, then it becomes impossi-
ble to even describe the unwanted conduct as conventionally harmful.
If we can imagine a bad-consequence dartboard of unwanted conduct,
primitive harm would be the bulls eye. As we move concentrically away
from the bulls eye, the harms become more conventionally contingent,
and ultimately the unwanted consequence is not harmful at all, but a
mere flouting of some custom or social norm. The basic elements of
wrongness for the purpose of criminalization are: bad acts and conse-
quences, and culpability. It is conventionally understood that the union of
these makes an agents actions wrong and ultimately criminalizable. Cul-
pability is about telling an agent in advance, If you aim or disregard an
obvious risk for a particular bad consequence, then you will be punished
for your choice. The bad act and consequence constraint is not too contro-
versial when it is actual harm, or risk of harm in the case of attempts and
endangerment. However, people disagree about whether offences and soft
harms also constitute harm. Conventionally, there is deep agreement
about the legitimacy of criminalizing wrongful harm. There might also be
agreement about the need to regulate conventionally contingent wrongs,
such as exhibitionism, but what is clear is that a critical moral or criti-
cally objective account of the wrongness of offending others is vacuous.
If Hart, Feinberg, and countless others want to dismiss Lord Devlins
positive morality, then they must show why their accounts are different.
Furthermore, their claim that only critical moral conceptualizations of
harm and offence provide principled justifications for criminalization, is
nonsensical because they have not shown why their accounts of harm and
offence are critical. I argue that conventional harms and offence, as identi-
fied intersubjectively by communally situated deliberators, is sufficient to
scrutinize criminalization decisions and to identify a principled case for
criminalization.
II. The Vacuity of Critical Moral Accounts of Harm and Offence
What are the moral aims of the criminal law? The object and function
of law generally is not too different from that of conventional morality.
Mackie provides a superlative prcis of the function of morality and its re-
lation to law:
Protagoras, Hobbes, Hume, and Warnock are all at least broadly in
agreement about the problem that morality [and ultimately law] is
needed to solve: limited resources and limited sympathies together
THE IMPOSSIBILITY OF A CRITICALLY OBJECTIVE CRIMINAL LAW
361
generate both competition leading to conflict and an absence of
what would be mutually beneficial cooperation.28
Mackie also explains that
[t]he essential device [for creating society and co-operation] is a form
of agreement which provides for its own enforcement. Each of the
parties has a motive for supporting the authority who will himself
have the job of punishing [or awarding private law remedies such as
damages, injunctions, and so forth] breaches of the agreement (and
will himself have a motive for doing so). Consequently each party
will have a double reason for fulfilling his side of the bargain: the
fear of punishment [or having to pay damages, for example] for
breaking it, and the expectation of benefits from keeping it, because
the fulfilment by the [majority of] other parties of their sides of the
bargain is fairly well assured by the same motives.29
Whether we are talking about morality by agreement30 or the social
contract more generally, 31 there is ample empirical evidence to support
the claim that society is formed by some kind of agreement,32 and also
that some individuals will not keep their side of the bargain in such a big
web of complex agreements and inter-agreements.33 Consequently, infor-
mal moral commands are codified into law so that violations will be de-
terred with punishment or private law remedies.34 Mackie cites game the-
ory in his discussion of the evolution of morality, but he is careful to note
that even the most advanced theory could not explain the complexity of
the way in which moral principles have evolved from the process of hu-
man socialization and civilization.35 We benefit from aviation, telecommu-
nications, university education, and travel; that is, from property, and
28 JL Mackie, Ethics: Inventing Right and Wrong (Harmondsworth, UK: Penguin Books,
1977) at 111 [Mackie, Ethics].
29 Ibid at 109. See also Stanley I Benn & RS Peters, Social Principles and the Democratic
State (London, UK: HarperCollins, 1971).
30 David Gauthier, Morals by Agreement (Oxford: Oxford University Press, 1986) at 103.
31 TM Scanlon, What We Owe To Each Other (Cambridge MA: Belknap Press of Harvard
University Press, 2000).
32 See FJM Feldbrugge, ed, The Laws Beginnings (Leiden: Martinus Nijhoff, 2003) at 161-
62, 280; AS Diamond, Primitive Law: Past and Present (London: Methuen & Co, 1971)
at 185ff.
33 The hard empirical evidence is documented in the national crime statistics and in the
tens of thousands of judgments flowing out of the courts each year concerning private
disputes.
34 A communitarian theory of criminalization might explain why it is just to punish
breaches of the agreed morality, because such violations attack society, community, and
the secondary institutions that advance society and, ultimately, human flourishing and
well-being.
35 Mackie, Ethics, supra note 28 at 115ff.
362 (2011) 56:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
services, and the laws that are designed to regulate the fair distribution of
such goods and services. It is in these areas that the law is also needed to
prevent harm to others. For example, health and safety standards, and
regulations against fraud and deceptive practices, are designed to reduce
harm. Since the State and its institutions advance co-operative living and,
ultimately, human flourishing, each individual has an interest in main-
taining them. As we will see, modern accounts of morality have deprived
the intersubjective thinker of a social milieu.36
Raz notes that law serves a number of social functions including the
prevention of undesirable behaviour mainly achieved by enacting criminal
and tort laws through the provision of facilities and mechanisms to allow
private arrangements to be regulated and protected between individuals;
through the provision of services and the redistribution of goods; and
through the provision of facilities for solving unregulated disputes.37 Since
society is necessary for the advancement and well-being of humanity, it is
maintained both directly and indirectly by law. Laws cover many areas
because of the complexity of modern living. We have criminal law, con-
tract law, family law, trust law, consumer protection law, tort law, envi-
ronmental law, tax law, and so forth. Tax law, for example, has both a di-
rect and indirect impact. It forces individuals to hand over a portion of
their income, but that income is spent on communal infrastructure. Tax
law allows revenues to be collected in a transparent way so that the public
may benefit indirectly from the provision of universities, schools, roads,
courts, police, welfare for the poor, and so forth. The provision of these
services reduces conflicts that might arise from the extreme distribution
disparities that flow from inability.38
Principled criminal laws should be formulated by drawing on ration-
ally constructed principles of justice, that is, principles that have evolved
from deeply held conventional understandings of justice and fairness.
Principles of justice such as the harm principle, the autonomy principle,39
the culpability principle,40 and the equality principle,41 among others,
36 Alasdair MacIntyre, After Virtue: A Study in Moral Theory, 2d ed (Notre Dame, Ind:
University of Notre Dame Press, 1984); Steven Shapin, A Social History of Truth: Civil-
ity and Science in Seventeenth-Century England (Chicago: University of Chicago Press,
1994).
37 Raz, supra note 15 at 168-75.
38 For a discussion on the legal and social conflict over the legality of begging, see Dennis J
Baker, A Critical Evaluation of the Historical and Contemporary Justifications for
Criminalising Begging, Comment (2009) 73:3 J Crim L 212.
39 JB Schneewind, The Invention of Autonomy: A History of Modern Moral Philosophy
(Cambridge: Cambridge University Press, 1998).
40 Rollin M Perkins, A Rationale of Mens Rea (1939) 52:6 Harv L Rev 905.
363
THE IMPOSSIBILITY OF A CRITICALLY OBJECTIVE CRIMINAL LAW
have been developed and constructed by humans, and have improved as
humans have gained better insights. Of course, accounts of harm will vary
given the limits of epistemological inquiry and of human rationality. Hu-
man agents invent crimes to manage conventional conflicts that arise
from communal living. Criminal law is a system of social control that al-
lows a given community to manage itself.42 It is used to manage genuine
conflicts, but unfortunately, also to criminalize conventionally harmless
wrongs and to control less powerful groups in society.43
Criminal laws that proscribe wrongs that are not harmful, or do not
violate the autonomy of others, are unprincipled. For example, the acts re-
ferred to by Lord Devlin44 are not conventionally harmful or oppressive to
the autonomy of others because even conventional accounts of harm and
wrong cannot explain how consenting adults engaging in homosexuality
or prostitution could harm or violate the autonomy of others. Lord Devlin
does not run into error by suggesting that without criminalization of these
acts, society would disintegrate, but rather he runs into error by postulat-
ing that certain harmless violations of conventional norms would cause
social disintegration and thus should be criminalized. There is no empiri-
cal support for his claim that activities such as homosexuality or prostitu-
tion would cause the same type of social disintegration that would tran-
spire if wrongful harms such as murder, rape, theft, and robbery, were not
criminalized.45
Rational deliberators should draw on the best social information
availableincluding deep conventional understandings of justice, harm,
privacy, autonomy, and so forthwhen making criminalization determi-
nations. The evolution of criminal law has often been shaped by unjust
considerations because of lawmakers who were not sufficiently enlight-
ened and rational at various stages in our history to understand the injus-
41 WT Blackstone, On the Meaning and Justification of the Equality Principle (1967)
77:4 Ethics 239.
42 Donald Black, The Behavior of Law (New York: Academic Press, 1976) at 2.
43 See Richard Quinney, Critique of Legal Order: Crime Control in Capitalist Society (New
Brunswick, NJ: Transaction Publishers, 2002) at 16; William Chambliss & Robert
Seidman, Law, Order, and Power, 2d ed (Reading, MA: Addison-Wesley, 1982) at 171-
206; Jeffrey Reiman, The Rich Get Richer and the Poor Get Prison: Ideology, Class, and
Criminal Justice, 8th ed, (Boston: Allyn & Bacon, 2007) at 4-8.
44 Patrick Devlin, The Enforcement of Morals (London: Oxford University Press, 1965).
45 The only check we have against idiosyncratic prejudice is the intersubjective endorse-
ment procedure, which requires idiosyncratic justifications for criminalization in order
to be tested against the reasoned views of others, and the best empirical and historical
information available. It also has to be subjected to the prevailing standards of justice.
364 (2011) 56:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
tice of some of their decisions.46 In the sixteenth and seventeenth centu-
ries, the masses lacked the context to understand that humans could not
really be witches, and therefore many women were criminalized for alleg-
edly engaging in witchcraft.47 We no longer criminalize witchcraft as we
have sufficient empirical information to be able to rationally understand
that humans cannot have supernatural powers. The issue of objectivity,
even in the limited conventional sense, is fundamental as it can explain
the wrongness of actions such as genocide, murder, rape, and so forth.48
Reason allows intersubjective thinkers to see that the gross physical
harm-doing involved in culpable genocide is objectively bad and wrong,
regardless of the context or circumstances. Conventionally, it is under-
stood as a gross and wanton abuse of human life. The same deliberator
would also understand that the wrongness of exhibitionism is convention-
ally contingentto ascertain its badness and ultimately its wrongness,
the deliberator also has to consider the underlying social norms that in-
form it.
Wrongness grounded in critical morality is inherent wrongnessthat
is, those wrongs that are truly wrong. Objectivity here, claims that the
proposition X is wrong is an absolute truth. Wrongness that is suppos-
edly discovered as a truth (ethical wrongness grounded in moral and epis-
temological realism) is distinguishable from wrongness that is derived
46 Francis Bowes Sayre notes that primitive English law started from a basis bordering
on absolute liability (Mens Rea (1932) 45:6 Harv L Rev 974 at 976-77). See also the
idiosyncratic prejudice that James Fitzjames Stephen, like Devlin LJ (supra note 44),
tried to dress up as morality (Liberty, Equality, Fraternity, ed by Stuart D Warner (In-
dianapolis: Liberty Fund, 1993).
47 As ADJ MacFarlane notes, two observers from the time, Sir Thomas Browne and Wil-
liam Perkins, expressed the belief that
even if an illness was explicable by medical theory, it might still originate in
the evil will of another person. Here they were making the distinction be-
tween a cause in the mechanistic sense how a certain person was injured
and cause in the purposive sense why this person and not another was
injured. When people blamed witches they did it not out of mere ignorance,
but because it explained why a certain misfortune had happened to them,
despite all their precautions; why, for example, their butter did not come
(Witchcraft in Tudor and Stuart Essex, in JS Cockburn, ed, Crime in Eng-
land, 1550-1800 (Princeton: Princeton University Press, 1977) 72 at 83)
×..
48 The badness and wrongness of many acts is conventionally contingent, but others acts
are accepted as wrong and bad in nearly all jurisdictions. However, universal agree-
ment very rarely extends far beyond a core set of primitive harmsharms that are bio-
logical and scientifically identifiable as bad and that impact all humans more or less in
the same way. If you amputate a persons legs, the amputee will be crippled regardless
of whether they live in Brazil or New York. In some sub-contexts, such harms may be
welcomed (by sadomasochists, for example)but I can think of no modern state where
such a harm would be generally welcomed by the masses.
365
THE IMPOSSIBILITY OF A CRITICALLY OBJECTIVE CRIMINAL LAW
from communally situated agents intersubjectively reflecting on evolving
standards of justice. The latter considers how your culpable actions will
impact the interests of others in certain social contexts. The union of bad
acts and consequences with culpability, as it is conventionally understood,
is sufficient for establishing wrongness and thus a conventionally objec-
tive case for criminalization. This case for criminalization may not be ob-
jective in a critical moral sense, but it may be the best that we can do. A
communally situated moral agent can act rationally and can be a de-
tached observer who is appraised of the principles of justice that have
evolved (such as the harm principle, the culpability constraint, and so
forth), and the relevant social facts and conventions; and thus this agent
can be in a position to reason and understand that certain culpable ac-
tions are wrong and worthy of punishment.
The conventional account is more constructive in criminalization eth-
ics because it allows the theorist, philosopher, politician, and citizen to
draw not only on abstract concepts such as justice, autonomy, harm, fair-
ness, equality, and humanity that have been thought about and developed
by thinkers for generations,49 but also empirical information, context, con-
vention, social practice, and so forth, in order to formulate practically use-
ful guiding principles for constraining unjust criminalization in competi-
tive societies. The reflective endorsement approach is about applying the
criminalization label to violations that humans can reason are wrong be-
cause of their impact on genuine human interests in organized, co-
operative, coordinated, and civilized societies. The constraints against un-
principled criminal law might include criteria such as harm and culpabil-
ity. Critical moral accounts of harm differ in that such harms are always
harms regardless of the time or context.
The most extreme claims of objectivity or normativity come from the
moral realists who claim that certain actions are wrong in a mind-
independent waythat is, wrong regardless of whether there are humans
(including socially conditioned humans) available to conceptualize their
wrongness.50 I propose that it is nonsensical to argue that the conse-
49 See e.g. John Stuart Mill, On Liberty and Other Essays ed by John Gray (Oxford: Ox-
ford University Press at Clarendon Press, 1969). See generally DD Raphael, ed, British
Moralists 1650-1800 (Oxford: Oxford University Press, 1969).
50 As Nicholas Rescher puts it:
The issue of objectivity in the sense of mind-independence is pivotal for re-
alism. A fact is objective in this mode if it obtains thought-independentlyif
any change merely in what is thought by the worlds intelligences would
leave it unaffected. With objective facts (unlike those which are merely a
matter of intersubjective agreement) what thinkers think just does not enter
inwhat is at issue is thought-invariant or thought-indifferent (Objectivity:
366 (2011) 56:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
quences of death, physical pain, or harm are bad consequences in thought-
independent terms, not only for humans but also for animals, trees, and
all life forms on the planet. The ontological idea that the consequence of
death or physical harm to a life form really would exist, and would in fact
be bad in strong mind-independent terms, is oxymoronic because it relies
on human preconceptions of the what if. The bad consequences that
would allegedly exist independently of human thought, such as an earth-
quake wiping out a species, are only bad according to a human conceptu-
alization of bad. The realist claim is that it is not that this would not be
bad without humans, but that it would exist as something different.
Maybe it would have a different label, but it would be the exact same
physical set of events. Furthermore, wrongness is a human construct that
rests on culpability (mens rea)that is, human intentions. Animals in-
stinctually avoid harm and death. Even if humans did not exist and could
not conceptualize a snake biting and killing an elephant, merely because
it erroneously feared that the elephant was going to stand on it, the death
of the elephant would exist. However, the snake cannot be culpable. Thus,
it can harm the elephant (harm as conceptualized by humans) but it can-
not wrong it, because it cannot know any different. Putative self-defence
might justify a human acting as the snake did, but a snake does not have
the capacity to comprehend wrongness and thus does not need to defend
its actions. Likewise, a volcano might harm a species by wiping out the
rainforest on which it depends for food, but the volcano does not thereby
wrong those creatures.
Domestic cats have a tendency not only to kill birds and mice for food,
but also to torture such creatures by playing with them for many hours
before eating them. In some cases, the cat will not even eat the bird or
mouse, but will merely use it for the fun of playing with it. When a human
sees a bird or mouse being tortured as a cat plays with it, the tendency is
to try to rescue the preyespecially if it is a birddue to conventional
norms about birds being good and mice being vermin. The human inter-
vener sees the cats wanton use of its prey as bad. However, no one would
consider punishing the cat, as rational humans realize that a cat does not
have the reflective and rational capacities of a human being and therefore
does not bring about the bad consequences culpably.51 Per contra, when a
person intentionally aims to bring about avoidable bad consequences for
others, it is the person’s moral culpability and the badness of the conse-
The Obligations of Impersonal Reason (Notre Dame: University of Notre
Dame Press, 1997) at 104).
51 EP Evans, The Criminal Prosecution and Capital Punishment of Animals (London: Fa-
ber and Faber, 1987) at 184-85 (in both the East and West, it was once normal for ani-
mals and inanimate objects to be castigated).
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THE IMPOSSIBILITY OF A CRITICALLY OBJECTIVE CRIMINAL LAW
quences (harm to a fellow human being) that provides the lawmaker with
a conventional justification for criminalization. It is fair to punish those
who deliberately harm others because harm-doing produces bad conse-
quences for those who are harmed, and the harm-doer knows that they
are committing a wrong by inflicting such harm. It violates the genuine
rights of the victims.
A more sophisticated realist argument is that certain acts are wrong
in a mind-independent sense. Science-based ontology might be useful for
claiming that biological harm such as blinding a human, amputating their
legs, or subjecting them to a lobotomy, for example, is truly damaging and
painful in an ontological and scientific sense, and thus bad. But how could
intentional human actions (blameworthy actions, such as those involving
culpability) be mind-independent? Surely the intentional harm-doing has
to be carried out by a creature of human intelligence with a mind that is
in operation in order for it to be willed and intended. It is our conventional
conceptualization of culpability and harm that is doing all the work in
these moral theories. When a human thinks, plans, deliberates, and then
harms others, the willed harm could hardly be mind-independent. It can
only be understood as wrong if there is a human knower to grasp its
wrongness. It is wrong because a creature (a human being) that has
enormous intelligence, and has evolved and socialized itself for millen-
nia,52 is able to draw on its intellect, rational capacity, social convention,
empirical and biological facts, and conventional understandings,53 in order
to realize the wrongness of intentionally harming others.
When conflicts or clashes arise between human agents, the same in-
tersubjective agents reflect to determine which party is intentionally, or
recklessly, acting unjustlythat is, committing a wrong. For instance, the
idea of queuing for customer service is a convention that evolved to solve
the conflict that would arise if everyone tried to be served at the same
time. Likewise, the culpability constraint evolved54 from the reflective en-
52 Many principles of justice have evolved slowly, and what seems obvious now may not
have been considered by even the most advanced ancient civilizations (see generally
Evans, ibid).
53 See generally Erving Goffman, Relations in Public: Microstudies of the Public Order
(New York: Basic Books, 1971).
54 It was once normal for people to be prosecuted for any harm caused by their animals,
slaves, other members of [their] household, and even by inanimate things which be-
longed to [them] (Albert Lvitt, The Origin of the Doctrine of Mens Rea (1922) 17:2 Ill
L Rev 117 at 120). See also Frederick Pollock & Frederic William Maitland, The History
of English Law: Before the Time of Edward I, 2d ed (Cambridge: Cambridge University
Press, 1968) vol 2 at 470-80.
368 (2011) 56:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
dorsement process as it became clear that intentionally or recklessly55
aiming to bring about avoidable (culpable) bad consequences for others
was different from accidentally doing so. The deliberator does not have to
reflect too deeply to understand that those who fail to queue without ex-
cuse or justification act at the expense of all those who have.
To summarize the foregoing, a conventional approach56 acknowledges
that acts are only wrong for humans if humans conceptualize them as be-
ing wrong, bad, and harmfuland that for humans to do this, they must
draw on social and contextual information. Blame and fault are conven-
tional concepts that have evolved from human rationalitythat is, human
reasoning about fairness and justice, and the related institutions and so-
cial practices that have evolved as humanity has become civilized and so-
cialized. It is unproductive to attempt to demonstrate that criminal
wrongs are objectively wrong in the critical sense.57 Moral principles such
as the culpability principle are instantiated in the world, but are human
constructs. The culpability condition requires a mind of some kind (mind-
dependence rather than mind-independence) and rationally grounded so-
cial transactions. A cat torturing a mouse is not a rationally grounded so-
cial transaction because cats lack rationality and operate outside our so-
cial milieu. Soldiers, by contrast, are rational human agents who are able
to draw on principles of justice and social norms in order to engage in ra-
tional social transactions. Consequently, if a group of soldiers were to tor-
ture prisoners of war, they would be acting irrationally and would also
contravene deeply held social rules about not torturing others. The sol-
diers have sufficient rationality and empirical information to understand
the relevant social information and conventional implications of their ac-
tions so as to identify the wrongness of torture.
Even if it is possible to determine the absolute truth of certain moral
propositions about the inherent wrongness of certain crimes or the meta-
physical status of offending others, there are many crimes, such as exhibi-
tionism, that cannot be explained as having truly bad consequences for all
55 See Thomas Nagel, The View From Nowhere (New York: Oxford University Press, 1986)
at 185.
56 Some commentators tend to exaggerate the objectivity provided by reason and fail to
acknowledge that it is susceptible to convention and to the limitations of human ration-
ality. See e.g. David Wiggins, Needs, Values, Truth: Essays in the Philosophy of Value,
3d ed (Oxford: Clarendon Press, 1998) at 195ff; Thomas Nagel, The Last Word (New
York: Oxford University Press, 1997).
57 Incorporating the complex question of truth into criminalization decisions does not
seem to achieve anything. See generally, Richard Rorty, Objectivity, Relativism, and
Truth: Philosophical Papers, vol 1 (Cambridge, UK: Cambridge University Press, 1991).
See also Richard Joyce, The Myth of Morality (Cambridge, UK: Cambridge University
Press, 2001).
369
THE IMPOSSIBILITY OF A CRITICALLY OBJECTIVE CRIMINAL LAW
people at all times.58 I have not seen a convincing account of the truth of
the proposition that being naked in public is truly wrong in an inherent
universal sense. It is not a mere case of whether offence and disgust are
properties that are instantiated in the world,59 but whether exhibitionism
does in fact produce an inherently bad consequence. Socialization seems
to provide the better explanation of the disgust-causing properties of pub-
lic nudity. There is nothing inherently wrong with the nudist using a pub-
lic beachone hundred years ago, wearing a modern bikini in public
would have been the equivalent of being nude today, and one hundred
years from now nudity might be the norm on beaches. Nevertheless, as I
point out below, we might regulate public nudity for the sake of solving
co-operation problems concerning the ethical use of public spaces in com-
plex, plural societies. Critical moral accounts of the badness of offending
otherssuch as that provided by Feinberghave failed to demonstrate
the inherent wrongness of public nudity, because outside of human
thought, socialization, context, and convention, it does not produce a bad
consequence and is not absolutely wrong in a universal sense.60
It is not only the wrongness of offensive acts that is conventionally
contingent since genuine harms are also conventional. For instance, if X
were to paint a yellow stripe across the Mona Lisa, Xs conduct would be
58 Thomas Nagel, one of the staunchest defenders of moral realism, has argued that exhi-
bitionism is only wrongful in a conventional sense (Concealment and Exposure (1998)
27:1 Phil & Publ Aff 3 at 18).
59 Douglas Husak recently attempted to ascertain the metaphysical status of offence
whether the property of offence really exists. Husak was unable to demonstrate that of-
fence really exists and concluded that
many theorists appear to believe that disgust realism is not needed to justify
legal intervention …
… [In the end] we must examine empirical data about our disgust mecha-
nisms (Disgust: Metaphysical and Empirical Speculations in von Hirsch &
Simester, Incivilities, supra note 10, 91 at 110-11).
See also Aurel Kolnai, The Standard Modes of Aversion: Fear, Disgust and Hatred
(1998) 107 Mind 581.
60 As John McDowell has written:
Disgust and nausea, we can plausibly suppose, are self-contained psychologi-
cal items, conceptualizable without any need to appeal to any projected prop-
erties of disgustingness or nauseatingness. … The question, now, is this: if, in
connection with some range of concepts whose application engages distinctive
aspects of our subjective make-up in the sort of way that seems characteristic
of evaluative concepts, we reject the kind of realism that construes subjective
responses as perceptions of associated features of reality and does no work
towards earning truth, are we entitled to assume that the responses enjoy
this kind of explanatory priority, as projectivism seems to require? (Mind,
Value and Reality (Cambridge, Mass: Harvard University Press, 1998) at
157)
370 (2011) 56:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
classified as criminal.61 But unless we consider the underlying social
norms, it is not possible to comprehend the wrongness, badness, or harm-
fulness of intentionally painting an additional feature on an old painting.
Let us assume that X is a private collector, so conventional property
rights are not violated. If X owns the painting, then surely X is entitled to
destroy it. Some might argue that the additional paintwork is further art
and adds dimension to the original artwork. It certainly does not diminish
the owners essential or primitive-type survival resources in the way that
destroying a remote communitys only source of water and food would.62
The objective wrongness of conventional harms and offences can only be
ascertained by considering contextual, circumstantial, social, and empiri-
cal factors. Therefore, the objectivity of this type of harm is conventional,
and thus is subject to all the inconsistencies and biases that affect the
reasoning of communally situated intersubjective agents. Remember, my
communally situated agents do not have the supernatural capacity envis-
aged by Nagel, Kant, or Korsgaard. They are just socialized humans
drawing on societal practices to try and work out what conventional val-
ues should be protected through criminalization. In this sense, it is neces-
sary to understand conduct in light of the social norms that inform it.63
Similarly, if a person takes a coin and scratches the paintwork on an-
other persons new Rolls-Royce, the car owner has been harmed in a con-
ventional sense. However, if it is a minor scratch, it seems that the car
owner has only been offended (rather than harmed), because the owner
has been socialized to enjoy the aesthetics64 of cars with perfect paint-
work. The shallow scratch would not need to be repaired, as the car would
61 This would be an offence under the Criminal Damage Act 1971 (UK), c 48.
62 Economic harm is shaped significantly by conventional ideas of ownership. Unlike pain,
torture, death, amputation, rape and so forth, the harmfulness of theft, property dam-
age, and embezzlement varies from culture to culture depending on whether the culture
has a communal or individual conceptualization of property ownership, or whether it
even recognizes property. In the most primitive sense, harm to essential resources such
as shelter, food and water supplies could be described as universally harmful as it
would impact all humans biologically in the same way.
63 Baker & Hacker, supra note 24 at 257-58.
64 Here, objective agreement might be impossible. For instance, in Regina v Gibson, [1990]
2 QB 619 (CA), [1991] 1 All ER 439 [Gibson] the defendant was convicted for outraging
public decency by displaying earrings made out of human foetuses in an art gallery. I
subjectively cannot see the art in such a display. Likewise, many westerners might like
to have a Caravaggio hanging in their drawing room, but might not want decorated
skulls from New Guinea hanging in their drawing room. Social conditioning obviously
affects tastes in a fundamental way. See generally Frances Berenson, Understanding
Art and Understanding Persons in SC Brown, ed, Objectivity and Cultural Divergence,
Royal Institute of Philosophy Lecture Series, vol 17 (Cambridge, UK: Cambridge Uni-
versity Press, 1984) 43.
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THE IMPOSSIBILITY OF A CRITICALLY OBJECTIVE CRIMINAL LAW
not rust, nor would it affect the cars usability. The reality in modern
complex societies is that many genuine harms and offensive wrongs can
only be understood by considering the underlying social norms, as bad
acts or consequences have a substantial man-made element. These bad
consequences occur as a result of the complex way in which we have so-
cialized ourselves, and because we agree to have our freedom constrained
in certain social contexts in order to achieve the levels of co-operation that
are essential for society, community, and civilization to function and exist.
In what follows, I will outline the vacuity of Feinbergs claim that cul-
pable offence-doing provides a critical moral justification for criminaliza-
tion. The harm principle is less problematic because there is deep conven-
tional agreement not only about the most primitive harms, but also about
many harms that are not primitive such as destroying cultural artifacts
like the Mona Lisa.65 The core issue in the harm principle context will be
to ensure the harm is genuine and that the criminal law is a proportion-
ate legislative response.66 I think the offence principle is much more con-
troversial as it is not clear that preventing offence, per se, is needed to
promote human flourishing, or that it solves conflicts that need to be
solved by the criminal law. I also examine whether Feinbergs offence jus-
tification for criminalization can be distinguished from Lord Devlins. I set
the scene by briefly discussing the conventionally contingent nature of
harm.
III. Conventionally Contingent Harms
Wrongs emerged naturally as society became more complex and as
more intricate problems with co-operation arose. Experience taught peo-
ple that it was necessary and good to avoid harms and other bad conse-
quences, especially those of the culpable kind. Let us consider conven-
tional harms in light of Feinbergs harm principle. Feinberg expounds
harm in three senses: (1) harm as damage, (2) harm as a setback to inter-
ests, and (3) harm as wrongdoing.67 Harm, as used in Feinbergs formula-
tion of the harm principle, is an amalgamation of senses (2) and (3). Harm
must be caused by wrongful (culpable) conduct to be a candidate for
criminalization. Harm occurs under the harm principle when Xs interests
65 Mackie rightly notes that the aim of morality is to advance the human cause. See
Mackie, Ethics, supra note 28 at 169-99.
66 See Dennis J Baker, The Harm Principle vs Kantian Criteria for Ensuring Fair, Prin-
cipled and Just Criminalisation (2008) 33 Australian Journal of Legal Philosophy 66;
Dennis J Baker, Punishment Without A Crime: Is Preventive Detention Reconcilable
with Justice? (2009) 34 Australian Journal of Legal Philosophy 120.
67 Feinberg, Harm to Others, supra note 7 at 32-34.
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are set back by the wrongful conduct of Y.68 The concept of harm as used
by Feinberg represents the overlap of senses two and three: only setbacks
of interests that are wrongs, and wrongs that are setbacks to interests,
are to count as harms in the appropriate sense.69 When used in this way,
the term interest refers to a stake that a person has in his or her well-
being. According to Feinberg, ones interests taken as a whole consist of
all those things in which one has a stake. In the singular, ones personal
interest consists in the harmonious advancement of all ones interests in
the plural.70 These interests, or as Feinberg puts it, the things these in-
terests are in, are distinguishable components of a persons well-being: he
flourishes or languishes as they flourish or languish.71
Feinberg explains the badness of harm-doing by referring to a trichot-
omy of interests, including welfare interests, and those security and ac-
cumulative interests that cushion our welfare interests.72 Welfare inter-
ests are at the core of Feinbergs scheme. They are interests of a kind
shared by almost everyone as necessary means to … more ultimate goals,
whatever the latter may be, or later come to be.73 Welfare interests in-
clude our interest in prolonging the continuance of our life for a foresee-
able period of time, preserving our physical health and security, maintain-
ing minimum intellectual acuity and emotional stability, being able to en-
gage in social intercourse and benefiting from friendships, sustaining
minimum financial security, sustaining reasonable living conditions,
avoiding pain and grotesque disfigurement, preventing unjustified anxie-
ties and resentments, and being free from unwarranted coercion.74 They
are those interests in goods and conditions that we all need, independ-
ently of our individual life-plans. Everyone has a necessary stake in these
kinds of interests as they are the requisites of our well-being. 75
Feinberg distinguishes important welfare interests from those inter-
ests that merely concern a persons more ulterior aims.76 Our ulterior
aims might include the goal to own a dream house, or to have a prominent
68 Ibid at 215.
69 Ibid at 36.
70 Ibid at 34.
71 Ibid.
72 Ibid at 37, 207.
73 Ibid at 37.
74 Ibid.
75 Ibid.
76 Ibid.
THE IMPOSSIBILITY OF A CRITICALLY OBJECTIVE CRIMINAL LAW
career as a movie star or as a politician, and so forth.77 A persons more ul-
timate goals and wants (e.g., building a dream house, gaining a political
or professional position, solving some vital scientific question, raising a
family, or achieving spiritual grace) are not directly protected by the law:
373
If I have an interest in making an important scientific discovery,
creating valuable works of art, or other personal achievements, the
law will protect that interest by guarding my welfare interests that
are essential to it. But given that I have my life, health, economic
adequacy, liberty, and security, there is nothing more that the law
(or anyone else, for that matter) can do for me; the rest is entirely up
to me.78
Ulterior interests that extend elements of welfare beyond minimal
levels, however, are also protected.79 The law against burglary not only
protects the welfare of the indigent person who might face starvation if
burgled, but it also protects the billionaire whose welfare might not be di-
rectly affected by the theft of a Caravaggio painting that they forgot they
owned.80 Even though certain types of harm only have a trivial impact on
the interests of certain individuals, they can have an accumulative im-
pact. Hence, it is not only the ulterior interests of billionaires that are pro-
tected,
but also their interests in liberty (the interest in being the person
who decides how the accumulated funds are to be spent) and secu-
rity (even his welfare interests might be threatened by the act that
77 Ibid. See also ibid ([b]ut in respect at least to welfare interests, we are inclined to say
that what promotes them is good for a person in any case, whatever his beliefs or wants
may be. … [T]here may be a correspondence between interest and want, but the exis-
tence of the former is not dependent upon, nor derivative from, the existence of the lat-
ter at 42).
78 Ibid at 62. Feinberg goes on to add:
If my highest interest is in pecuniary accumulation as such, or in such uses
of wealth as the purchase of a yacht or a dream house, the law can protect
that interest indirectly by protecting me from burglary and fraud, but it can-
not protect me from bad investment advice, personal imprudence, the unpre-
dictable dependencies of others, the lack of personal diligence or ingenuity,
and so forth (ibid).
79 Ibid at 62-63.
[U]lterior interests are only indirectly invadable. The usual way of harming
one of another persons ulterior interests is by invading one of the welfare in-
terests whose maintenance at a minimal level is a necessary condition for the
advancement of any other interests at all. … At least one class of ulterior in-
terests are directly vulnerable: those that consist of the extension of welfare
interests to transminimal levels. The rich man is wronged by indefensible
acts of theft just as much as the poor man is, though he will not be harmed as
much (ibid at 112).
80 Ibid at 63.
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invades his financial interest, especially if the invasive act employs
force or coercion, or seems likely to be frequently repeated).81
Coupled with the threat to liberty and security interests, even minor
setbacks to the financial interests of others threaten the general security
of property, and the orderliness and predictability of financial affairs in
which everyone has an interest, however small.82 Those security interests
that cushion our welfare interests can be protected.83 For instance, com-
mon assaults are criminalized to protect our elementary sense of secu-
rity.84 In a similar vein, our accumulative interests are those nonessen-
tial interests [we] have in the various good things of life.85 The theft of a
billionaires yacht or Caravaggio would not necessarily deprive a billion-
aire of their livelihood or margin of security above the minimum they re-
quire, but it would invade their accumulative resources.86 If left un-
checked, theft would also destabilize the entire property system in which
we all have an interest.
Feinberg distinguishes mere wants from cognizable interests. It would
be implausible to classify strong wants as interests. For example, Lucy, a
devoted fan of the Yankees, may have a fervent desire to see the Yankees
win, but that alone would hardly ground a case for claiming an interest in
a Yankees victory.87 Feinberg argues that [s]ome of our most intense de-
sires then are not of the appropriate kind to ground ulterior interests
since (like a sudden craving for an ice cream cone) they are unlinked to
our longer-range purposes, or they are insufficiently stable and durable to
represent any investment of a stake.88 The harm principle is a measure
81 Ibid.
82 Ibid. Here, Feinberg seems to have coordination and co-operation in mind.
83 Ibid at 207.
84 In exploring Feinbergs concept of security interests, Andrew von Hirsch writes:
Beyond the bare minimum of health and economic well-being required to
pursue his aims, a person requires a certain additional safety margin. With-
out that margin, the person may be able to function, but only barely so
and with much reason for apprehension (Injury and Exasperation: An Ex-
amination of Harm to Others and Offense to Others, Book Review of, Harm
to Others by Feinberg (supra note 7) and Offense to Others by Feinberg (supra
note 8), (1986) 84 Mich L Rev 700 at 703 [von Hirsch, Injury and Exaspera-
tion]).
85 Ibid.
86 Ibid at 704.
87 Feinberg, Harm to Others, supra note 7 at 42.
88 Ibid at 43.
375
THE IMPOSSIBILITY OF A CRITICALLY OBJECTIVE CRIMINAL LAW
that helps protect personal autonomy.89 A person is harmed when their
opportunities for enjoying or pursuing the good life are thwarted or di-
minished.90 Harm occurs when our personal or proprietary resources are
impaired, since our resources are needed to enable us to realize our other
opportunities.91
Feinbergs formulation of the harm principle has its problems, but it
generally provides a fairly convincing account of the wrongness of certain
harms both in the primitive and conventional sense.92 If we return to the
example of X lightly scratching the paintwork on Ys Rolls-Royce, we can
see that the bad consequence is conventionally constructed as it does not
necessarily damage Ys livelihoodnor does it automatically impact Ys
accumulative interests. It only impacts Ys accumulative interests because
Y has been socialized to perceive the scratch on the cars original paint-
work as an act of vandalism. It is the way in which Y has been socialized
that causes Y to be offended by the aesthetics of the altered paintwork. Y
is wronged because X interfered with Ys autonomy (freedom of choice) by
scratching the car without consent; and the wrong stands even though Ys
resentment hinges on the fact that Y has been socialized to dislike the
cars altered appearance. Y feels compelled to use Ys accumulated re-
sources to have the car restored to its original condition and thus gain
control over how the property will be used. In most modern contexts, a car
is not a necessity. Coupled with this, Ys car is still fully functional. Ys ac-
cumulated primitive resources have not necessarily been diminished in
the sense of overall essential livelihood such as basic food, shelter, physi-
cal security, and so forth93 because Y can still gain full use from the car
regardless of its altered paintwork. Feinberg draws on conventional prop-
erty rights and argues that one should have the right to protect accumu-
89 As von Hirsch has written, Such a rationale explains why a minimum of political lib-
erty is a welfare interest. It is not that one cannot subsist without liberty. It is, instead,
that one cannot formulate, select, and pursue ones own purposes where there is exces-
sive outside interference with ones choices, associations, and expression (Injury and
Exasperation, supra note 84 at 705 ×.).
90 AP Simester & Andrew von Hirsch, Rethinking the Offense Principle (2002) 8:3 Legal
Theory 269 at 281[Simester & von Hirsch, Rethinking].
91 Ibid, citing Joseph Raz, Autonomy, Toleration, and the Harm Principle in Ruth Gavi-
son, ed, Issues in Contemporary Legal Philosophy: The Influence of HLA Hart (Oxford:
Clarendon Press, 1987) 313 at 327.
92 See Dennis J Baker, The Moral Limits of Criminalizing Remote Harms (2007) 10:3
New Criminal Law Review 370; Andrew von Hirsch, Extending the Harm Principle:
Remote Harms and Fair Imputation in AP Simester & ATH Smith, eds, Harm and
Culpability (Oxford: Clarendon Press, 1996) 259.
93 Arguably, the right to accumulate resources well beyond what is needed to survive in
modern societies is an extension of the primitive idea of accumulating to safeguard
ones chances of survival during hard times such as droughts, floods, and so forth.
376 (2011) 56:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
lated resources, even if those resources are unearnedas might be the
case with celebrities who are often paid way beyond what a person could
possibly earn for the labour and skill of a single humanbecause not hav-
ing this right would be harmful in a normative sense. I think the protec-
tion of unearned wealth and excessive wealth surely has to rest on con-
ventional notions of property rights.
Let us return to our example. Ys socialization will cause Y to feel
compelled to have the paintwork on the Rolls-Royce restored to its origi-
nal form. In fixing the paintwork, Y is asserting a right to decide how to
use his or her property. Y will be harmed to the extent that Y will have to
draw on accumulated resources in order to restore the car. Convention-
ally, it is arguable that it would be impossible for many people to live to-
gether co-operatively and seek the benefit of co-operative living without
also accepting reasonable compromises. A person is expected to accept a
compromise to their freedom when the exercise of that freedom has avoid-
able and unjustifiable, or, inexcusable bad consequences for others, even if
those bad consequences are conventionally contingent. People queue when
they are waiting to be served at the grocers or bank as this compromise
allows each queue member to benefit from a fair distribution of the bur-
dens and benefits that arise from co-operative living. The criminal law is
used in more serious cases to coerce those who are unwilling to accept
reasonable compromises.94 If everyone were allowed to scratch the cars of
others, this would unnecessarily threaten the general co-operative system
of living (community and society) in which everyone has an interest. By
scratching the car, X does not act in a way that is acceptable to rational
agents who are trying to work together in a co-operative system.95
Criminalization, in this context, is designed to facilitate a fair distri-
bution of the benefits and burdens that arise from co-operative communal
living. The harm-doer is not asked to accept an unreasonable compromise
in freedom as the freedom to wantonly invade the property rights of oth-
ers is not a fundamental freedom and is thus an avoidable violation of the
freedom of others. The underlying social norms play a significant role in
explaining why a person might feel compelled to maintain the physical
appearance of a car and thereby suffer a setback in accumulated re-
sources in order to restore their property.
94 See generally Max Rheinstein, ed, Max Weber on Law in Economy and Society, trans-
lated by Edward Shils & Max Rheinstein (Cambridge, Mass: Harvard University Press,
1954).
95 C.f. the procedural realism presented by Korsgaard in Christine M Korsgaard with GA
Cohen et al, The Sources of Normativity, Onora ONeill, ed (Cambridge: Cambridge
University Press, 1996) at 131-66.
377
THE IMPOSSIBILITY OF A CRITICALLY OBJECTIVE CRIMINAL LAW
IV. The Conventional Badness of Offence-Doing
The conventional contingency of badness and, ultimately, wrongness
is even more evident in the case of offence to others as its badness varies
depending on the conventions adopted by the given community.96
Feinberg asserts that [i]t is always a good reason in support of a proposed
criminal prohibition that it would probably be an effective way of prevent-
ing 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.97 Feinberg
argues that a separate offence principle is needed because ephemeral an-
noyances, disappointments, disgusts, embarrassments, and detested con-
ditions such as fear, anxiety, and trivial aches and pains, do not necessar-
ily result in harm. Some offensive encroachments might set back our in-
terests and thus come within the purview of the harm principle, but most
forms of offence do not result in harm. Even gross offences such as public
displays of earrings made from human foetuses,98 eating vomit in front of
others in the confines of a public bus, copulating in public spaces, and so
forth, do not amount to harm. Since
harm even in the broad untechnical sense rules out mere transi-
tory disappointments, minor physical and mental hurts, and a
miscellany of disliked states of mind, including various forms of of-
fendedness, anxiety, and boredom as harms, since harm in the broad
sense is any setback of an interest, and there is (typically) no inter-
est in the avoidance of such states.99
Feinberg uses the concept of culpable offence to provide a critical moral
reason for criminalizing those harmless but offensive acts that are of-
fenses proper (e.g., revulsion and disgust), hurts (e.g., harmless throbs
and pangs), and others (e.g., shame and embarrassment).100
We need to examine two questions: (1) what makes offending others
wrong, and (2) what are the criminalizable bad consequences of this type
of wrongdoing? Offence is assessed almost entirely in accordance with
community mores, which differ from community to community, from gen-
eration to generation. For example, public nudity is not universally offen-
96 Like Feinberg, I assert that there is a conceptual distinction between offending others
and harming others, but I think this distinction can be made in objective terms by
drawing on our deep conventional understandings of harm and offence. See Dennis J
Baker, The Sense and Nonsense of Criminalising Transfers of Obscene Material
(2008) 26 Sing L Rev 126.
97 Feinberg, The Moral Limits of the Criminal Law: Offense to Others, supra note 8 at 1
[emphasis in original].
98 Gibson, supra note 64.
99 Feinberg, Harm to Others, supra note 7 at 215-16.
100 Ibid at 48.
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sive. There is plenty of evidence that, in the history of the world, many
cultures existed where public nudity was not an issue, and where privacy
has not been conceptualized in the same way as it is in modern times.
Even during more recent times in some remote tribes in tropical regions,
it is common for people to go unclothed.101 Public nudity is also common
on many European beaches. Similarly, a local swearing at another local in
an inner-city neighbourhood would not have the same social meaning as a
philosophy student swearing at a professor on the High Table at a Cam-
bridge University formal dinner. The sight of two men or women kissing
in public might cause profound affront in some parts of Russia, the Middle
East, or even in some parts of the United States,102 but might go unno-
ticed in London, New York, or Stockholm. Offence is predominantly a sub-
jective sensation, some forms of communication will offend the old but not
the young, some forms of communication will offend women but not men,
and some displays will offend Christians but not atheists, and vice versa.
What makes disgust objectively wrong? Underlying the wrongdoing
involved in some forms of offence-doing is the idea of disrespect. Respect
in its non-Kantian formulation would provide neutral reasons for toler-
ance and compromise. As Rescher states, Respect peoples sensibilities
about the appropriate and acceptable appearance of fellow humans by
conforming to established rules of proper modesty.103 Simester and von
Hirsch, drawing on the idea of respect and consideration for others, argue
that the wrongness ofand according to them, the ability to criminalize
offensive behaviour can be explained in terms of disrespect and inconsid-
erate actions.104 They argue that everyone, as self-determined morally re-
sponsible human beings, has a right to be treated with a minimum degree
of respect and consideration. According to their analysis, certain offensive
acts are impermissible because they treat autonomous choosing agents
with a gross lack of respect and consideration. The wrongdoing require-
ment calls upon the proponent of criminalisation to put forward reasons
why the conduct is wrongnamely, under our proposed account, why the
conduct treats others with a gross lack of consideration or respect.105
However, von Hirsch and Simester provide a conventional case for crimi-
101 Michael Tobias, A Vision of Nature: Traces of the Original World (Kent, Ohio: Kent
State University Press, 1995) at 240.
102 Lawrence v Texas, 539 US 558 (2003).
103 Supra note 50 at 143.
104 Rethinking, supra note 90 at 291.
105 Andrew von Hirsch & Andrew Simester, Penalising Offensive Behavior: Constitutive
and Mediating Principles, in von Hirsch & Simester, Incivilities, supra note 10, 115 at
120 [von Hirsch & Simester, Penalising]. However, von Hirsch and Simester are well
aware of the important role that convention must play.
379
THE IMPOSSIBILITY OF A CRITICALLY OBJECTIVE CRIMINAL LAW
nalizing certain offensive acts. They refer to particular bad consequences
such as insults, inverse-privacy and loss of anonymity, rather than offence
per se, to explain disrespect and inconsideration. I think a better ap-
proach would have been for them to test the boundaries of privacy viola-
tions as a conventional bad act or consequence, and to argue that the un-
ion of this bad act with culpability equals wrongness.
Von Hirsch and Simester postulate that the ability to criminalize ex-
hibitionism might be drawn from
Nagels conception of reticence, regarding obligations of mutual re-
straint concerning persons private (and especially their intimate)
sphere. Notions of reticence include an entitlement to privacyto
exclude others from ones personal domain. But the obverse should
also obtain: we are entitled not to be involuntarily included in the
personal domain of othersparticularly, to be spared certain inti-
mate revelations. It is the wrongfulness of that involuntary inclusion
that, arguably, makes exhibitionism a matter of treating others
without consideration.106
Does the bad consequence of having your privacy violated provide a
principled justification for invoking the criminal law? There are deep con-
ventional understandings concerning privacy in Western society and
there is no doubt that gross privacy violations can have bad consequences
for those affected. If a man films up a ladys skirt and thereafter posts the
images on the Internet, it is not difficult to envisage the conventionally
bad result that this will have for the victim. Any psychological distress
would depend on the way the victim has been socialized to feel shame, as
she would likely not complain if someone took a photo of her face. How-
ever, this type of conventionally contingent bad consequence is real and
should be criminalized because it violates the victims freedom and the de-
fendant has no great liberty in the interest of filming up the skirts of oth-
ers.
Let us consider the idea of privacy as a conventional justification for
invoking the criminal law. Privacy, as defined by Gavison, involves three
independent components: in perfect privacy no one has any information
about X, no one pays attention to X, and no one has physical access to
X.107 These elements of secrecy, anonymity, and solitude are interrelated
and all form a part of the complex fabric of the concept of privacy. A per-
son can suffer a loss of proximity and anonymity when an uninvited
stranger sits at that person’s table in a restaurant, or next to them on the
train even though the carriage is full of empty seats. This reference to
physical access and physical proximity is in the sense of a person gaining
106 Ibid at 122 [references omitted].
107 Ruth Gavison, Privacy and the Limits of Law (1980) 89:3 Yale LJ 421 at 428.
380 (2011) 56:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
the sort of access that would allow them to get close enough to touch or
observe the captive viewer through the normal use of their senses.
Gavison provides a number of examples to demonstrate how certain
privacy losses can be understood as physical access. For example, if a
stranger … gains entrance to a womans house on false pretenses in order
to watch her giving birth,108 it is the proximity violation that causes the
loss of privacy. Similarly, if a stranger … chooses to sit on our bench,
even though the park is full of empty benches,109 it is the proximity viola-
tion and physical access that causes the loss of privacy in this context. In
both of these cases, the essence of the complaint is not that more infor-
mation about us has been acquired or that more attention has been drawn
to us, but that our spatial aloneness has been diminished.110 The context
and underlying social norms are important. A person would not violate
anothers privacy by standing right next to them in a crowded train. Two
people may be forced to sit next to each other on a crowded train, but they
do not violate the others territory as they have a conventional under-
standing about the right to sit near each other in this context. It is the
norm for people to use the shared space in a public train. If the train is to-
tally crowded, then people are expected to sit and stand closely together.
The passengers expect this from experience. A person does not subject a
fellow passenger to unwanted attention simply by sitting next to them.
I now want to turn my attention to the second and third types of pri-
vacy losses referred to by Gavisonthat is, no one pays attention to X,
and no one has physical access to X.111 What are the bad consequences of
exhibitionism? Take the example provided by Feinberg of the couple who
copulate in a public bus.112 People have a right to be able to copulate, but
should members of the public be forced to see the intimate details of the
couples copulation in a public place. Unwanted information such as nude
displays, are obtrusions into domains.113 Goffman notes that wrongful en-
croachments can come about either through an intrusion or an obtru-
108 Ibid at 433.
109 Ibid.
110 Ibid.
111 Ibid at 428.
112 Feinberg, Offense to Others, supra note 8 at 10-13.
113 Gavison rightly asserts that
a number of situations sometimes said to constitute invasions of privacy will
be seen not to involve losses of privacy per se … These include exposure to
unpleasant noises, smells, and sights; … insulting, harassing, or persecuting
behavior; presenting individuals in a false light; unsolicited mail and un-
wanted phone calls (supra note 107 at 436).
381
THE IMPOSSIBILITY OF A CRITICALLY OBJECTIVE CRIMINAL LAW
sion.114 X might intrude into Ys physical space by taking Ys private in-
formation, or entering Ys private home, or even by getting too close to Y
in a public park. Meanwhile, a wrongful obtrusion comes about when an
individual makes what are taken as overextensive claims to personal
space, incidentally encroaching on the personal space of those adjacent to
him or her on areas felt to be public in the sense of being non-
claimable.115 For instance, if X were to plug a speaker into an iPhone and
play music at full volume while riding in a public bus, this would disturb
the comfort of those who want silence or a reasonably minimal level of
noise.
In the chapter entitled The Territories of the Self, Goffman defines a
territory as a field of things, or a preserve, that individuals have
claims over.116 In the situational sense, the individual would have an enti-
tlement to control, use, or possess the demarcated territory. In the ego-
centric sense there are preserves which move around with the claimant,
he being in the center.117 Territories are not determined by objective fac-
tors, but rather the determiners are contextual. Their contours have a so-
cially determined variability and are defined according to [s]uch factors
as local population density, purpose of the approacher, fixed seating
equipment, character of the social occasion, and so forth.118 Goffmans
territories of self are defined by contextual and conventional factors
rather than by objective criteria. Accordingly, he defines personal space as
[t]he space surrounding an individual, anywhere within which an enter-
ing other causes the individual to feel encroached upon, leading him to
show displeasure and sometimes to withdraw.119 The contours of personal
space are generally determined according to social norms,120 so whether
there is an objective violation of privacy depends on context and conven-
tion. For example, if a person sits next to the only other passenger in the
train car, that passenger might find this invasive. If the person who sits
next to the only other passenger is of the opposite sex, this might add di-
mension to the passenger’s concern and discomfiture.121 This sort of har-
assment has the potential to violate the train passengers right to be let
alone and remain anonymous. Likewise, if a man goes to an almost empty
114 Supra note 53 at 50-51.
115 Ibid at 51 [emphasis added].
116 Ibid at 29.
117 Ibid.
118 Ibid at 31.
119 Ibid at 29-30 ×..
120 Ibid at 31.
121 Ibid.
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beach and sits within a foot of a young woman, his propinquity would vio-
late her right to be let alone. He is in her private domainher territory.
This would be an unjustifiable invasion of her personal space, over which
she has a claim.
Egocentrically, a persons personal space moves with them, [the per-
son] being in the center.122 An individual is entitled to exclude others
from their territory. If the beach was absolutely packed, then keeping a
distance of a foot might go unnoticed as he is merely asking her to share
the public beach, which is a permissible demand. Beach-goers consent to
the crowding by making the decision to use the crowded beach and they
share the common end of using the beach for recreational purposes. Goff-
man notes:
[O]n the issue of will and self-determination turns the whole possi-
bility of using territories of the self in a dual way, with comings-into-
touch avoided as a means of maintaining respect and engaged in as
a means of establishing regard. And on this duality rests the possi-
bility of according meaning to territorial events and the practicality
of so doing. It is no wonder that felt self-determination is crucial to
ones sense of what it means to be a full-fledged person.123
The conventional badness of an inverse-privacy violation can be un-
derstood as an autonomy violation. The privacy (and autonomy) violation
is objectively bad to the extent that Western society values privacy and
space. It is arguable that we all have an interest in maintaining a mini-
mum degree of privacy, given the conventional and socialized makeup of
moral agents in complex plural societies.
Unreasonable losses of autonomy occur when the wrongdoers private
information is forced upon non-consenting spectators in the public do-
main. The bad consequence of exhibitionism is simply that the witness is
denied the opportunity to choose whether to receive this very intimate in-
formation. The unwanted information could be obtrusive without neces-
sarily having an obscene or indecent content. For example, if a person
plays an iPod in the confines of a public bus at its highest volume, they
are intruding on the personal domains of the other passengers.124 The loud
decibels resonating from the iPod in the public bus would restrict the
choices of the other passengers by preventing them from choosing be-
tween loud music and silence, or between the loud music and conversation
with other passengers. Feinberg argues that, In being made to experi-
ence and be occupied in certain ways by outsiders, and having had no
122 Ibid at 29.
123 Ibid at 60-61 ×..
124 von Hirsch & Simester, Penalising, supra note 105 at 125.
383
THE IMPOSSIBILITY OF A CRITICALLY OBJECTIVE CRIMINAL LAW
choice in the matter whatever, the captive passengers suffer a violation of
their autonomy.125
However, because the unwanted consequence is of a trivial nature,
any criminal regulation should be enforced with fines rather than jail
terms. The justification for criminalizing this type of wrongdoing has
nothing to do with critical morality. Even the conventional case for crimi-
nalization is exceptionally weak. There is no deep agreement about the
need to limit offensive behaviour in public places or about what is offen-
sive. Many people are not concerned about exhibitionism in open public
places such as nude beaches and parks. If a person goes to a nude beach,
that person consents to what they might see. Von Hirsch and Simester
argue that if the offence is readily avoidable, then it should not be crimi-
nalized.126 Certain types of offensive conduct violate the autonomy and
privacy rights of non-consenting audiences in public places, so they are
subject to a ready avoidability requirement. That is, such activities will be
criminalized when others are not able to readily avoid them without un-
warranted restriction of their own liberty.127
Similarly, a loose conventional argument for criminalizing traditional
privacy violations might go as follows: due to social conditioning, citizens
living in Western societies have deep feelings about privacy. Revealing
another persons very intimate information could cause them grave dis-
tress because of their social beliefs and the shaming norms in our society.
People are made to feel ashamed of certain things and therefore require
privacy. Privacy violations are clearly only bad in a conventionally contin-
gent sense, but may cause genuine psychological distress. Modern tech-
nology has made it particularly easy to access and distribute private in-
formation via the Internet. In some cases, computer repairmen have dis-
covered very private information, such as obscene images, on computers
belonging to their celebrity customers and have uploaded the information
onto the Internet without the customers consent.128 In these cases the
privacy violation is grave enough to result in conventionally contingent
harm. In perfect privacy, no one has any information about the non-
consenting party. There is, however, no such thing as perfect privacy. We
all give up some privacy by entering the public domain to do our daily
business, and entering the public domain means public surveillance. We
125 Feinberg, Offense to Others, supra note 8 at 23.
126 Penalising, supra note 105 at 127-28.
127 Ibid at 124-30.
128 See e.g. a recent scandal in Hong Kong where obscene photos of celebrities were taken
from a stars computer that had been sent for repair. The photos were subsequently up-
loaded onto the World Wide Web. Keith Bradsher, Internet Sex Video Case Stirs Free-
Speech Issues in Hong Kong, The New York Times (13 February 2008).
384 (2011) 56:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
have deep conventional understandings about privacy, and a person is en-
titled to keep certain intimate information private regardless of whether
or not they are a public figure.
When a person uploads obscene images of non-consenting adults onto
the Internet, this causes a grave loss of privacy. This type of direct privacy
violation could come within the purview of the criminal law when the ma-
terial is of an exceptionally private and intimate nature. The material
would have to be exceptionally intimate in those cases involving public
figures because they gain benefits from public prominence and must ex-
pect more public scrutiny than the average citizen. If a person puts them-
self in the public spotlight, then they have to expect a much greater de-
gree of media scrutiny than non-celebrities receive. Culpably distributing
photos and movies of celebrities, or of ex-partners copulating without
their consent, is prima facie criminalizable because it has bad conse-
quences for the non-consenting party. Trivial or moderate privacy viola-
tions should not be criminalized, as the civil law provides adequate reme-
dies.129
There are limitations on the types of information that can be disclosed
without consent. When a person distributes private images of a celebrity
(or of anyone) that is of an obscene nature, the public has no interest in
seeing it, and the non-consenting party is entitled to have their privacy
protected by use of the criminal law. It is one thing to report that a public
figure is having a love affair, but it would be something entirely different
to publish private images of that person having actual intercourse or of
that person in the nude. It would not be reasonable to expect the affected
party to personally undertake responsibility for proceedings to put a stop
to it. The criminal law protection of privacy cannot be extended to other
forms of intimate information (i.e., written or oral mention of the sensitive
information) involving celebrities, because this would be too great a re-
striction on freedom of expression and too great an extension of the crimi-
nal law. Mere verbal or written mention, or non-obscene images, of a ce-
lebrity love affair would not be enough to justify invoking the criminal
law.
Similarly, tacit consent will be sufficient to waive the right to privacy.
If a celebrity (or anyone else for that matter) goes to a public nude beach,
then the celebrity is making their intimate information public. If the pa-
parazzi takes photos or movies of the display and distributes it to the tab-
loids, then the affected party cannot claim that their privacy has been vio-
129 See Douglas v Hello! Ltd (No 3), [2005] EWCA Civ 595, [2006] QB 125 (where an ade-
quate civil remedy was awarded for a moderate privacy violation); C.f. Ettingshausen v
Australian Consolidated Press Ltd (1991), 23 NSWLR 443 (SC) (where the violation
clearly could have been criminalized).
385
THE IMPOSSIBILITY OF A CRITICALLY OBJECTIVE CRIMINAL LAW
lated because the affected party has made the information public by pre-
senting it in the public domain. There is, however, a distinction between
public and quasi-public places. If a journalist or photographer gains access
to a locker room and takes a photo of a famous actor or footballer in the
nude, the photographer could hardly claim that the victim tacitly con-
sented to this intimate information being made public.130 Where a celeb-
rity intentionally or indifferently exposes their posterior in public, the ce-
lebrity cannot complain of a loss of privacy.131
V. Principled Criminalization and Conventionally Contingent Wrongs
Given that the objective badness of privacy loss is conventional, is it
possible to build a principled case for criminalizing such wrongs? Some
remote groups have been socialized not to value privacy or to perceive
public nudity as intimate and unwanted information.132 Unlike the bad
consequence of harm to othersbasically an uncontested bad consequence
in the primitive sense of harmthere is much less agreement about the
badness of many forms of privacy violations. Measuring the justice of
criminalizing conduct exclusively in terms of its impact on human values
and experience does not mean that we cannot distinguish unprincipled
criminalization from principled criminalization. It is by drawing on those
values and experiences that we are able to identify conduct that is worthy
of criminalization. Feinbergs harm principle can be grounded on a con-
ventionalist account of harm and culpability. What we are able to do is
draw on sociological and scientific evidence to make our harm claims ob-
jective within the conventional paradigm.
There is no need to claim that our conceptualizations of harm and of-
fence are correct according to some universal standard. Our harm and of-
fence claims can be tested against our core conventional and scientific un-
derstandings of harm. Harm is universal in the sense that all cultures
recognize harm as a bad thing. Where societies differ is not on the notion
that harm is bad, but on what counts as harm. At the base point, there
are primitive harms that empirically and biologically affect all humans in
the same way. For instance, torture will result in physical pain regardless
of where the victim might be culturally situated. When a rogue state uses
130 See ibid, where a photo of a famous footballer in the nude that had been taken in a
communal locker room, was published in a magazine. The non-consenting footballer
successfully sued for civil damages.
131 See Robert Stansfield, Britneys VPL, Daily Mirror (4 December 2006) online: Mirror
Celebs
lic place without any underwear, thereby exposing her person, whether it was either
recklessly or accidentally).
132 See Tobias, supra note 101 and accompanying text.
386 (2011) 56:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
torture to obtain information from captured soldiers, it does so because
torture is bad and harmfulif it were not the captors would use some
other method to obtain the information. Rewards such as bribes work the
opposite way. Once we move away from the most primitive harms, it be-
comes more difficult to identify the types of harms that would ground
principled criminalization.133 We have conventional understandings about
the psychological distress caused by grossly offensives acts, but it is more
difficult to supply principled justifications for criminalizing them. But if
our conventional justifications are able to withstand the detached scrutiny
of communally situated agents, they will be relatively principled.
In Western societies, privacy is considered to be a cardinal value. Pri-
vacy violations in the traditional sense, present a stronger case for princi-
pled criminalization as the victim might be left rather traumatized by
having their private acts uploaded onto the Internet. Due to the social
makeup of citizens living in competitive and sophisticated modern socie-
ties, privacy has evolved as a cardinal want. When X uses a hidden cam-
era to film up Ys skirt,134 X violates Ys autonomy by deciding how Xs
private information will be used. Stanley I. Benn rightly argues that such
a violation is wrong because it treats its victim with a lack of respect as a
person.135 Benn argues that covert surveillance is morally wrong because
it deliberately deceives a person about his world: It thwarts, on the basis
of reasons that are not his own, the agents attempts to make rational
choices.136 This type of violation is wrong even though the information
(movie, photos, and so forth) might never be made public, not merely be-
cause the clandestine spying would hurt the victims feelings, but because
the wrongdoer uses the unsuspecting victims as a mere means to serve
the ends of the wrongdoer. Keeping the spying secret so that the victims
do not find out might inadvertently spare the victims feelings, but it
would also add dimension to the wrongness of the spying because it falsi-
fies the victims self-perception. The victims might, acting on the false be-
lief that they are in control of their private world, act even more intrigu-
ingly for [their] manipulators ends.137 Benn goes on to assert that, One
cannot respect someone as engaged on an enterprise worthy of considera-
tion if one knowingly and deliberately alters his conditions of action while
concealing the fact from him.138 Benns formula is Kantian, but his ac-
133 Baker, Constitutionalizing the Harm Principle, supra note 19.
134 See the facts in Regina v Hamilton, [2007] EWCA Crim 2062, [2008] QB 224.
135 A Theory of Freedom (Cambridge, UK: Cambridge University Press, 1988) at 276.
136 Ibid.
137 Ibid.
138 Ibid.
387
THE IMPOSSIBILITY OF A CRITICALLY OBJECTIVE CRIMINAL LAW
count of wrongful privacy violations encapsulates our conventional under-
standing of the wrongness of privacy violations fairly well.
Those who learn about the covert spying would feel resentment and
would be offended within Feinbergs wide definition of offence. The short-
lived anger and psychological distress would not be enough to set back
their interests, but the loss of privacy and anonymity would cause pro-
found distress and resentment. This type of wrongdoing is criminalizable
not only because it causes major distress, but because it also results in a
culpable violation of the victims autonomy and privacy rights. The pri-
vacy loss is an independent bad consequence, which can be used to give
the legislature guidance and justification for invoking the criminal law. It
is a consequence that is intersubjectively accepted as bad by communally
situated agents. What is also important is that the violator has no interest
in revealing or accessing this type of private information from others. The
distress caused by this type of violation is conventionally contingent since,
in a culture where nudity or a lack of privacy is the norm for example,
people might not care less if someone were to film them in a state of un-
dress.
Nonetheless, the case for criminalization is exceptionally weak when
the defendant is not revealing or accessing anothers private information,
but is instead forcing their own private information on others. X might
claim to have suffered a loss of autonomy when forced to receive offensive
information in a public context because X is denied the opportunity to
avoid receiving the unwanted information. The offended party could no
doubt claim they were disgusted and shocked by the display of a copulat-
ing couple, but so might those who have been socialized to find same-sex
couples disgusting. They might also claim that being confined in a public
bus where same-sex couples are merely kissing is a bad consequence for
them because it is something they do not want to see. What if a woman is
topless on the bus, is this different from a man being topless on the bus?
Such a law would violate our deeply held conventions about equality.
Thus, if a law were to ban all kissing on public buses regardless of sexual
orientation, it may be permissible if it were really needed to prevent a bad
consequence. Similarly, a law would be discriminatory if it prevented only
women from going topless in public.
What makes forcing members of the public to deal with offensive in-
formation wrong? The offence is subjectively taken in all cases because
some passengers on a bus might be voyeurs and might not mind seeing
copulating couples. Meanwhile, same-sex couples merely kissing would
not offend many others. If it is just the union of culpability and the conse-
quence of forcing the offended party to receive information that they do
388 (2011) 56:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
not subjectively want to receive that justifies criminalization,139 then there
is no way of dealing with the problem of unprincipled criminalization be-
yond referring to agreed upon core harms. I am of the view that, once we
move away from culpable harm criteria, the case for criminalization be-
comes substantially weaker. Having said that, the gross privacy violations
involved in uploading private information onto the Internet could come
within the purview of the harm concept.140 The latter is distinguishable
because people have a stronger interest in protecting their own informa-
tion. The interest in not receiving other peoples private information in
public contexts is not great, as free speech is a much more cardinal lib-
erty.
One justification for criminalizing the copulating couple on the public
bus would be that their actions are unhygienicother people want to use
the public bus seats without sitting where the couple once did their act.
Likewise, a person would not want to sit on a restaurant seat if a nudist
had just been sitting on it. The harm principle might be invoked in such
cases. Similarly, uncovered nudists would not be welcome around the buf-
fet in a restaurant. This would be a soft harm. However, if these people
were on an open beach or in an open park, the case for criminalization
seems hard to sustain. Women wearing a burka in public places might
cause offence to different people for different reasons,141 but we would not
want to use the criminal law to tell people how they should dress in pub-
lic. Therefore, there is no strong case for criminalizing exhibitionism in
open public places where food is not being served or where public seating
is not involved. This probably explains why exhibitionism is not criminal-
ized on beaches and in parks in many European countries.
To the extent that people claim that they have a right not to see same-
sex couples kissing, women wearing burkas, nudists on a beach, and so
forth, the criminal law has no role to play in this. Feinberg cites the rea-
sonable nature of such offensive displays142 as a reason for tolerance, but
the better justification for tolerating such conduct is that it does not
wrong others in a conventional sense because there is deep agreement
139 There is a difference between wrongness (moral impermissibilitythe union of a bad
act and culpability) and mere wrongfulness (culpableness). Mere intention does not
necessarily equal wrongness. X might intentionally bring about good or neutral conse-
quences where, for example, X might intentionally help a little old lady to cross the
road, but would be morally praiseworthy, not criminally censurable, for the deed.
140 Feinberg, Harm to Others, supra note 7 at 26.
141 Charles Bremner, France Goes from Burkas to Burgers in Latest Muslim Row, The
[London] Times (19 February 2010) online: Times Online
142 Feinberg, Offense to Others, supra note 8 at 26.
THE IMPOSSIBILITY OF A CRITICALLY OBJECTIVE CRIMINAL LAW
about the need to tolerate diversity in modern societies. Likewise, the
deep offence caused to some by knowing that books such as Salman
Rushdies The Satanic Verses143 or Philip Roths Portnoys Complaint144 ex-
ist, does not provide a justification for outlawing such literature. To the
extent that people are offended by simply knowing that such activities are
taking place behind closed doors, or that such books exist, Murphy rightly
notes:
389
We must remember that ex hypothesi the acts in question are per-
formed in private by consenting adults. Thus the only thing to which
the complainant could object is the bare knowledge that something of
which he disapproves is going on in private. The question, then, is
this: Is freedom from a knowledge that some disapproved activity is
taking place a right that ought to be recognized? Hart argues con-
vincingly that it is not.145
Unless a person is forced to watch or read the offensive film or book,
they could hardly claim to have been wronged. Would denying the Cam-
bodian genocide or the Nanking Massacre at Speakers Corner in Lon-
dons Hyde Park violate a passing survivors right not to receive such in-
formation? This type of speech clearly treats the passerby with a gross
lack of consideration. But this type of political dialogue belongs in the
public arena, even though it is factually wrong and offensive, because it is
enlightening to the extent it allows the public to understand that some
very disturbing views exist, and leads to informed debate, which allows
the record to be set straight. People have an interest in knowing that
these types of awful views exist in the real world, and they have a respon-
sibility to publicly denounce such views.146 This type of information is pub-
lic informationnot private informationand therefore does not violate
the rights of those who are forced to receive it. Such receivers consent to
receiving this information by choosing to visit public places. People give
up a certain amount of privacy and autonomy as soon as they walk out of
their front door, and in doing this, they cannot expect to be sheltered from
the real world. Different political views are not the type of sensitive and
private information that a person could claim a right to be sheltered from.
Per contra, copulation in a public bus does not serve a similar purpose,
and the intimate display is of no benefit to those who do not want to en-
dure this type of up close and unavoidable encounter. But if it did occur
143 New York: Viking, 1988.
144 New York: Random House, 1969.
145 Jeffrie G Murphy, Another Look at Legal Moralism, Discussion, (1966) 77:1 Ethics 50
at 54.
146 Jeremy Waldron, Homelessness and Community (2000) 50:4 UTLJ) 371 at 391-92.
390 (2011) 56:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
the public would have an interest in hearing or reading about it in the
news, as it informs them about what is going on in the world.
The freedom of expression right protects this interest by creating an
environment that facilitates the free flow of information. Waldron points
out that panhandlers cause offence to some passing by as they may be dis-
tressed by the message conveyed by homeless people, but that distress is
beneficial for both the offended party and the homeless person.147 Firstly,
the passerby might say, This is awful. I am glad I have found out about
this.148 Additionally, the encounter might even motivate the passerby to
do something about it. Such an encounter is a good consequence, not a bad
consequence to the extent it is not aggressive. Aggressively targeting
passersby is a form of harassment and would most likely come within the
purview of the harm principle because it forces society to acknowledge
and respond to the harsh realities of indigence.149 Unwanted speech that
captures the publics attention is usually seen as a detriment, but it
should not be seen as a detriment from the audiences point of view. As
John Stuart Mill is cited as rightly emphasizing, [T]here is significant
benefit in being exposed to ideas and attitudes different from ones own,
though this exposure may be unwelcome.150 The panhandler, the conser-
vative, the liberal, and the prejudiced individual, all have an interest in
articulating their views and in hearing the views of their adversaries. The
consequence of being forced to deal with public political discussion is
somewhat different than having a copulating couples live presentation of
their private affairs forced upon you in the confines of a public bus.
Feinberg correctly asserts that offence would hardly ever outweigh the
value of free speech.151 It appears that only a very narrow range of very
intimate displays (copulating in a bus, or physical intrusions such as ac-
cessing people for prolonged periods in certain contexts in public places,
for example) would be sufficiently bad to justify a criminal law response.
Such activities interfere with the auditors right to be let alone and their
right not to be proximately included in the very private affairs of others in
confined public contexts. However, only a weak case can be made for
criminalizing exhibitionism more generally since the bad consequence is
147 Ibid at 379. A large minority would also be offended by the fact that some people find
beggars offensive as it seems almost shocking that homeless people offend some people.
148 Waldron, supra note 146 at 379.
149 Ibid.
150 This reference to Mill (On Liberty, 2d ed (London: John W Strand and Son, West
Strand, 1859) ch 2 at 31ff) appears in TM Scanlon, Jr, Freedom of Expression and
Categories of Expression (1979) 40:4 U Pitt L Rev 519 at 524, cited in Loper v New
York City Police Dept, 802 F Supp 1029 at 1043 (SDNY 1992).
151 Feinberg, Offense to Others, supra note 8 at 38-39ff.
THE IMPOSSIBILITY OF A CRITICALLY OBJECTIVE CRIMINAL LAW
conventionally variable and could barely be said to have significant conse-
quences for others when carried out in open spaces as opposed to confined
public places.
391
Conclusion
There are established human values and conventions. There are also
recognized standards of rational argument. John McDowell takes the view
that moral values are both anthropocentric and real. He also argues that
objectivity claims are to be made from the internal perspective of our ac-
tual practices.152 We might draw on our best theories of thought, lan-
guage, and so forth, but this does not really tell us whether our claims of
wrongness are truly objective. In this paper I have argued that principled
criminalization does not have to rely on critical objectivity in the sense of
producing transcultural and truly correct standards. I have argued that
Feinbergs harm principle can be supported with conventional accounts of
harm. The best that we can do is scrutinize our conventional conceptuali-
zations of harm and badness, but that scrutiny is constrained by the lim-
its of epistemological inquiry and our capacity for rationality at any given
point in time. The conflicts that arise from communal living inevitably
lead to some kind of political philosophy. Many acts are criminalizable be-
cause they violate conventions that are shareable by communally situated
agents.
I have noted that there is no deep intersubjective agreement about the
badness of exhibitionism and other similar examples. Nor is it clear that
we have a shareable end in outlawing it. The offended group itself will
only follow norms against it while continuing to collectively maintain cer-
tain attitudes and beliefs concerning them.153 We might criminalize cer-
tain soft harms, such as privacy violations, to prevent those who have
been socialized to value privacy from suffering humiliation and psycho-
logical distress. But if that distress arises from other forms of offence,
such as exhibitionism or hate speech, the cardinal value of freedom of ex-
pression would most likely override the victims liberty in avoiding this
type of offence. As noted above, offence can stimulate debate and toler-
ance. The difference with exhibitionism is that the offending party has an
overriding liberty, unless the exhibitionism occurs in a context where it
raises hygiene issues or targets a confined observer, as might be the case
152 Supra note 60 at 318-20.
153 Matthew H Kramer, Objectivity and the Rule of Law (Cambridge: Cambridge Univer-
sity Press, 2007) at 7. See also John Gardner, who notes that in the end it is necessary
to appeal to the harm principle or another similar principle of toleration (Prohibiting
Immoralities (2007) 28:6 Cardozo L Rev 2613).
392 (2011) 56:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
on a public bus. The bad consequence of loss of privacy is conventionally
contingentit is contingent on the way the victim has been socialized.
The gravity of sexual objectivity also hinges on socialization and con-
vention. Take a society where people might be socialized from a young age
to believe that it is a great honour to be used as a sex object by a senior
member of society.154 Obviously, in such a society the psychological harm
would differ from that faced by victims of sexual abuse in modern West-
ern society. What is undeniable is that socialization means that sexual
abuse not only results in physical harm in modern societies, but also
genuine psychological harm and trauma. There is a consensus about the
need to criminalize sexual abuse because of its psychological and physical
badness. Due to the way people are socialized, some forms of sexual use
seem to be tolerated in modern society. For instance, it is arguable that to
some extent people are socialized to tolerate sexual use from celebrities
and other powerful figures. It is doubtful that Tiger Woods, a celebrity
golfer, would have managed to convince so many women to participate in
his infidelity if he had been a normal labourer rather than a skilled la-
bourer.155 As J. L. Mackie notes:
Only some kinds of harm are socially, cooperatively, resented, and
cooperation in gratitude is even more restricted. Again we must seek
and can find sociological reasons for these differences: only with par-
ticular kinds of harm are the conditions favourable for the growth of
a convention of cooperative hostility to them, so only some kinds of
harm are seen as wrong and as calling for general resentment and
punishment. … Though retributive principles cannot be defended,
with any plausibility, as allegedly objective moral truths, retributive
attitudes can be readily understood and explained as sentiments
that have grown up and are sustained partly through biological
processes, and partly through analogous sociological ones.156
154 In China, women were socialized to believe it was a great honour to be chosen to be a
concubine for the emperor. Daoist theory, among other socializing tools, was used to
help convince young women to be on call to the emperor. By the time of the Qing Dy-
nasty, there were up to 20,000 kept in the Forbidden City. See generally Bernard Lle-
wellyn, Chinas Courts and Concubines: Some People in Chinese History (London:
George Allen & Unwin, 1956). How sad it is to be a woman! Nothing on earth is held
so cheap, lamented the 3rd-century Chinese poet Fu Xuan (cited in Elizabeth Abbott,
A History of Mistresses (Toronto: Harper Flamingo, 2003) at 34). It is incorrect to as-
sume that oppression, rather than socialization, was used to achieve such aims in all
cases.
155 Woods is a celebrity golfer who has allegedly slept with numerous women. See Sam Ta-
nenhaus, Tiger Woods and the Perils of Modern Celebrity, The New York Times (12,
December 2009) online: NYTimes.com < http://www.nytimes.com>.
156 Retributivism, supra note 12 at 684.
393
THE IMPOSSIBILITY OF A CRITICALLY OBJECTIVE CRIMINAL LAW
Even our best sociological and biological conceptualizations of harm do
not cover mere umbrage. We might invoke Lord Devlins argument and
hold that if the majority, do not like it then criminalize it, but that
would allow anything to be criminalized. The argument for the preserva-
tion of social harmony is weaker in the case of personal space violations
than it is in the case of those violations that are likely to have deeper psy-
chological consequences, such as sexual abuse or filming up a ladys
skirt.157 When the conduct involves soft harms, the criminal law should be
used only as a last resort.
I have aimed to identify some of the preliminary issues that have to be
sorted out before more work can be done. Some might argue that, apart
from primitive harms common to all societies, my criterion of wrong is
whatever culturally situated agents consider as intersubjectively wrong.
The question then is how my theory of badness differs from positive mo-
rality. It does notexcept that it requires us to scrutinize the justifica-
tions we put forward for criminalizing soft harms and offensive acts. I
would hope that modern thinkers would subject our conventional prac-
tices to greater scrutiny than Lord Devlin did. Finally, I note that the
problem for those who want transcultural accounts of harm and offence, is
that procedural realism is not convincing as a method for grounding such
standards.158 Procedural realism has greater potential as a mechanism for
scrutinizing conventional standards, but it would have to accept that the
deliberators are merely human agents who are communally situated.
It is possible to have a principled criminal law, but this would mean
accepting deeply held conventional accounts of harm, or soft harm, and of-
fence. It would also mean accepting that something that is considered as a
soft harm now, might not be considered as one in the future or in some
other cultural context. There is a clear case for criminalizing harms of a
more primitive kind. There are strong conventions telling us not to rape,
murder, steal, and so forth. There are also clear conventional understand-
ings about the humiliation and psychological distress that might flow
157 We have been socialized into tolerating gross violations of our personal space in certain
contexts such as on the New York subway where, daily, commuters are literally pushed
against each other in a smelly, poorly ventilated train car for long periods of time.
158 The coherence theories presented by Wiggins (supra note 56) and McDowell (supra note
60) are intellectually enjoyable to study, but are unconvincing for dealing with the ex-
amples raised in this essay. I have combed through their works, but was unable to find
anything solid that might have helped me with the questions presented above. Like-
wise, the work of Hilary Putnam is some of the most interesting I have read, but his lat-
ter work seems to be pushing towards procedural realism. See Francisco Javier Gil
Martin & Jess Vega Encabo, Truth and Moral Objectivity: Procedural Realism in
Putnams Pragmatism (2008) 95 Pozna Studies in the Philosophy of the Sciences and
the Humanities 265.
394 (2011) 56:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
form privacy violations. It is essential for us to scrutinize soft harms and
offensive acts much more than is necessary for primitive harms, and in
undertaking this scrutiny we should be able to reduce unprincipled crimi-
nalization. This cannot provide a perfect solution, but it does provide more
guidance than critical morality.
