Law

Can it ever be legitimate to legally prohibit an action solely on the basis that it causes offense in a part of the population and nothing else? It is clear to me that some of these actions will be regarded as morally objectionable by almost all ethical theories. But can taboo breaking alone be sufficient to forbid something by law, or should such laws always require other justifications as well?

John Stuart Mill argued that offense to others is not a permissible ground for a legal prohibition of conduct -- "that the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient reason" ( On Liberty , chapter 1). But then Mill also stretched the notion of harm in various ways so as to reaffirm prevailing prejudices about what conduct it is permissible to proscribe. To think about your question carefully, one needs to start with a sharp definition of offense which supports a clear distinction between offense and harm . (Joel Feinberg's work has a lot to offer on this score.) This is a difficult task, and it is quite likely that our linguistic intuitions about what is harm and what is mere offense are shaped by our moral intuitions about what may and may not rightfully be proscribed by the criminal law. Here are a few examples of...

Is it better to have a criminal justice system that runs the risk of, in every 100 people being acquitted, that 1 will go on to commit a terrible future crime; or one that runs the risk of, in every 100 people being convicted, there being 1 who was innocent? Sorry about the tortured phrasing of my question...

Any realistic criminal justice system will make both types of error: T-errors (terrible future crime committed by one wrongly acquitted) and I-errors (innocent person wrongly convicted). It seems morally more appropriate here to compare alternative systems feasible for the same society in terms of the total number of errors, not in terms of the ratios you focus on (ratio of T-errors to total number of acquitted, ratio of I-errors to total number of convicted). To see this, take a criminal justice system under which 100,000 are acquitted of whom 2000 are wrongly acquitted and go on to commit a terrible crime. Now suppose we modify this system so that many more innocent people are tried and properly acquitted. So now we have 200,000 acquitted of whom 2000 are wrongly acquitted and go on to commit a terrible crime. So we got the T-error rate from 2 percent down to 1 percent. But have we improved the system? Surely not. So I rephrase your question this way: In designing our criminal justice...

Some people are born into privileged situations and some people into poverty. Do you think that those unfortunate enough to be in the second group can sometimes be justified in resorting to crime, say civil disobedience or theft, either through frustration or necessity? And if they were to resort to crime, is it fair to judge and punish them in the same way as more privileged people who might do the same things?

Extreme contrasts of privilege and poverty are often the result of unjust social institutions such as feudalism and serfdom, for example. In such a context, people in dire poverty may well be justified in violating their society's property laws, in practicing civil disobedience, and even in overthrowing the established order, because those laws and this order lack moral standing. But even in a context of severe social injustice, it is generally not morally permissible to violate any and all laws (e.g., by killing children or by stealing from people even poorer than oneself). Those administering and enforcing the laws in a seriously unjust society will rarely admit that these laws are seriously unjust and that some violations of them are justified. Still, they ought to reflect on the justice of the laws they apply and enforce and, if they find the justice of some of these laws to be dubious, may well conclude that they ought to punish leniently if at all. They ought also to reflect...
Law

In light of a question about Irving and Holocaust denial [http://www.amherst.edu/askphilosophers/question/971], I wonder why free speech should be seen as an absolute principle which has no limits. It seems to me that practical wisdom dictates that in some cases for the good of society (for example, to avoid hate crimes) free speech must have certain limits. I have no idea how to determine those limits and I suspect that there isn't any formula, but perhaps you people can clarify the issue. Thanks.

Well, there is such a formula, actually, the so-called clear and present danger test . This goes back to an opinion Supreme Court Justice Oliver Wendell Holmes composed in regard to the case Schenk v. United States (1919). Schenk was general secretary of the American Socialist Party and had been convicted under the Espionage Act with inciting young men not to enlist for World War I. The Court rejected his appeal, judging, in the words of Holmes, that Schenk's "words create a clear and present danger that they will bring about substantive evils Congress has a right to prevent." Holmes likened Schenk's utterance to that of someone fortuitously shouting "fire" in a crowded theater. Subsequent jurisprudence narrowed the test in the direction of requiring that the danger, to count as "present," must be imminent. This undermined Holmes's analogy: The cry of "fire" creates an immediate danger, while Schenk's 15,000 leaflets could not have undermined the US war effort except over a considerable time...

This is a follow-up to question 348. Matthew Silverstein argues that "There is at least one good consequentialist reason for punishing attempted murder less severely than murder. If the two crimes are punished equally, then the law will not deter someone who has tried and failed to murder from trying again!" I guess this is plainly wrong. If someone tries twice she should be punished for two crimes, and the global penalty will be higher (perhaps two times higher). I can't see the difference between that case and the cases where someone commits two (accomplished) crimes of the same type against the same person (or, for that matter, against two different persons).

I agree that your solution works as well or better. Here are two different arguments a consequentialist might make. (1) Suppose all attempted murders are punished equally, regardless of success, with each attempt being punished with 6 years in jail and 30% of punished attempts successful. Now consider this reform: We increase punishment for successful attempts from 6 to 13 years and decrease punishments for unsuccessful attempts from 6 to 3 years. This reform leaves constant the jail time per punished attempt (which consequentialists typically count as a negative): 13 x 30% + 3 x 70% = 6. (Obviously, the numbers here are just for illustration.) But the reform is likely to increase deterrence, because prospective murderers are going to focus more on the "successful" outcome that risks a 13 year penalty than on the (actually more likely) "unsuccessful" outcome that risks a 3 year penalty. As a result of better deterrence, fewer murder attempts are made, fewer people are murdered, and fewer...

Hello I am an Australian and there is a lot of anger here at the moment: an Australian citizen was caught transporting drugs in a different country, where that offence carries the death penalty. The person in question is about to be hung. In Australia, the man would have faced a jail term, but here the death penalty seems far too excessive for the crime. The government of the country about to execute the man claims it is doing so in the interests of its citizens; seeking to protect them from illegal drug trafficking by showing strong intolerance to it. Many people here are angry because the man was only a drug mule: a naive person tricked (or blackmailed) into carrying a package of white powder for powerful drug organisations: key figures in which seem immune to law even though they seem to be the real villains. In another recent case, an Australian citizen travelled to another nearby country, with which Australia enjoys friendly relations. This man did something there that would be completely legal...

It is worth distinguishing two issues: anger that another country applies its laws to one of our citizens; and anger that another country ( any country, actually) applies unjust laws to one of our citizens (to anyone , actually). Though your question seems more focused on the former issue, I think you are really more exercised by the latter. You would be very strongly opposed to Australia hanging a "mule" and to Australia punishing a man for having homosexual relations. And you would not be upset, I guess, if an Australian abroad received a punishment you consider just for some culturally specific crime that does not exist in Australia (e.g., having sex with a woman on the basis of a false promise to marry her while knowing that such sex will make her a total and permanent outcast in her community). As it happens, I am also in Australia and saw a poll last night showing that 47% of Australians want the hanging to go ahead, while 46% are opposed to it. I suppose those 47% think it is...

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