Criminalising Harmful Conduct: The Harm Principle, its Limits and Continental Counterparts
Dr. Nina Peršak’s work addresses the criteria for criminalisation – that is, the criteria that should be employed in determinations whether to prohibit conduct through the criminal law. It is explicitly normative in approach, examining what should be the proper basis for criminalisation, rather than what factors legislatures actually tend to consider in adopting criminal prohibitions. Its focus is on the Harm Principle, that has been developed in Anglo-American philosophy of criminal law and on how this principal might illuminate the Continental debate on criminalisation. As such, this is a work on normative criminal law theory. Hitherto, there has existed no extended English-language treatment, comparing Anglo-American and Continental theories of criminalisation. An important strength of Dr. Peršak’s analysis lies in success in integrating themes from the two bodies of theory, the Anglo-American and the Con- nental. She begins with the Harm Principle and scrutinises its main criterion: the conduct’s intrusion into the interests of other persons. She undertakes a careful dissection of this criterion: e.g., what constitutes ‘harm’ and what is the scope of ‘others’ (and whether and to what extent the latter includes collective interests). This discussion provides not only a thoughtful analysis of the Harm Principle itself; it also provides her with the basis of her critique, later in the volume, of Continental criminalisation theories.
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actus reus argues argument Bavcon causality claim concept of harm conduct constitutional Continental legal system Continental theory crime Criminal Code criminal law criminal legal theory criminal offence criminal-law culpability doctrines element emphasis encompasses endangerment Eser example factors fair imputation Feinberg filter Finland function German grounds for criminalisation harm principle Hirsch and Simester Hörnle human Husak ibidem immorality individual individual’s infringement intervention issue Joel Feinberg justified legal moralism legal paternalism legality principle legislation legitimacy legitimate ground Lernestedt liberal liberty material unlawfulness means mens rea Mill Mill’s namely non-normative normative notion of harm offence principle one’s penal perhaps person positive law principle of legality principles of criminalisation prohibition proscribed consequence punishment question reason Rechtsgut Rechtsgüter Rechtswidrigkeit requirement risk Roxin rule Schonsheck self-harming Šelih sense Simester and Sullivan similar škoda Slovenian Criminal so-called society soft paternalism state’s term ultima ratio principle values victim violation von Hirsch wrong