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Feinberg defines “harm” as a wrongful setback to a person’s interest. 14 His definition thus contains three variables, to the elucidation of which Feinberg devotes several chapters. What follows is necessarily a highly abbreviated summary in reverse order of the fundamental terms as he uses them.
According to Feinberg, we must distinguish between a nonnormative notion of harm as a setback to interests and a normative notion of harm as a wrong. The harm captured in the harm principle combines both these interpretations: it refers to setbacks to others’ interests that are also wrongs.
May 1, 2001 · Feinberg’s attempt to define “harm” to include a sense of moral wrongfulness is the subject of essays by both Antony Duff and Hamish Stewart, although the two authors treat the subject in quite different ways.
- Bernard Harcourt
- [Vol. 5:145
- 148 BUFFALO CRIMINAL LAW REVIEW
- FEINBERG ON CRIME & PUNISHMENT 149
- FEINBERG ON CRIME & PUNISHMENT 151
- 152 BUFFALO CRIMINAL LAW REVIEW
- 160 BUFFALO CRIMINAL LAW REVIEW
- FEINBERG ON CRIME & PUNISHMENT 161
- FEINBERG ON CRIME & PUNISHMENT 163
- 164 BUFFALO CRIMINAL LAW REVIEW
- FEINBERG ON CRIME & PUNISHMENT 165
- A Few CollateralPoints on Punishment
- 166 BUFFALO CRIMINAL LAW REVIEW
- FEINBERG ON CRIME & PUNISHMENT 167
- 168 BUFFALO CRIMINAL LAW REVIEW
- FEINBERG ON CRIME & PUNISHMENT 169
- 170 BUFFALO CRIMINAL LAW REVIEW
- FEINBERG ON CRIME & PUNISHMENT 171
Columbia Law School, bharcourt@law.columbia.edu Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Criminal Law Commons, and the Law Enforcement and Corrections Commons
can be credited with inaugurating the "expressivist" turn in punishment theory with his influential essay, The Expressive Function of Punishment."' Matthew Adler, who offers a skeptical overview of expressive theories, similarly traces the movement back to Joel Feinberg: The work of Professors Pildes, Kahan, and Sunstein... has given renewed salien...
[Vol. 5:145 moral limits.8 Similarly, most of the scholarship surrounding The Moral Limits does not concern itself with Feinberg's expressive theory of punishment.' This is odd. One would expect, after all, that a four-volume treatise on the moral bounds of the criminal sanction would include, at its heart, discussion of theories of punishment. Sev...
"primary laws setting standards for behavior and secondary laws specfying what officials must or may do when they are broken."12 What is the relationship in Joel Feinberg's work between his moral-legal theory and his expressive theory of punishment? Specifically, what is the connection between Feinberg's treatise on The Moral Limits of the Criminal...
that the criminal law is in fact based on legal moralist principles is that punishment is often tied to moral wickedness. The fact that judges traditionally focus on moral culpability in sentencing proves, Stephen argued, that the criminal law is actually aimed at moral wrongdoing-that the criminal law represents, in Stephen's words, the "persecuti...
[Vol. 5:145 should be guided by some higher principle, whether it be justice, fairness, efficiency, or something else. They are both derivative of a moral, social, economic, or political theory that is overarching and controlling. Since they derive from the same theoretical framework, they are closely interrelated. They may be identical. They may b...
[Vol. 5:145 The basic insight of Feinberg's descriptive claim can be illustrated with a simple example. Suppose that someone gives another person a Heimlich maneuver. If the recipient is choking on her dinner, it is likely that the Heimlich maneuver will be interpreted as an act of good samaritanism and will be rewarded. The expressive dimension of...
Feinberg builds a normative claim on the basis of the expressive function of punishment. His claim is that the amount of public censure that we attach to any particular physical punishment-floggings, fastings, incarceration-should be proportional to the harm caused by the offender and the degree to which others are likely to commit the offense. Fei...
those crimes; the act as well as the actor is condemned. Even if the actor's motives were entirely good so that he is not blameworthy at all, the condemnation is to impress on him the community's moral judgment that the act he intentionally performed from such innocent motives was nevertheless wrong.5" Along this line of thought, it could be that t...
[Vol. 5:145 Feinberg's writings, the harm principle (at the very least) serves as the basis of his theory of punishment: harm is the measure of the expressive element of moral condemnation. The concept of harm which is at the heart of the moral limits of the criminal law gives substance to Feinberg's expressive theory of punishment. Feinberg reaffi...
same concept guides the measurement of the condemnatory expressive element of punishment. It is what gives substance to his normative claim concerning the expressive function of punishment.
It is important to note, in this context, that Feinberg draws a sharp distinction between the purposes and function of punishment. He admits that he does not know how the expressive function always relates to purposes: The relation of the expressive function of punishment to its various central purposes is not always easy to trace. Symbolic public ...
[Vol. 5:145 prefer punishment that preserved this aspect solely, and dispensed altogether with the physical media of incarceration and corporal mistreatment, if this were feasible." 6 Feinberg does not develop this personal preference into a full-blown argument, but it does shed light on the direction that his punishment theory would take. In sum,...
Although we have some vague idea of how we should calibrate the opprobrium in relation to harm, we still have no idea what type of pain and suffering to inflict. We are left, then, with a skeletal theory of punishment. The next question, of course, is whether Feinberg is right-in at least two respects. Specifically, is Feinberg right that we should...
[Vol. 5:145 longer really excludes much conduct from the ambit of the criminal law. The collapse of the harm principle, I argue, is beneficial to contemporary political theory-and, especially, in this context, to punishment discourse. It forces us to assess, compare, and weigh harms in a manner that had previously been obfuscated by the harm princi...
may truncate a significant portion of what is expressed in punishment. Moreover, I doubt that the expressive dimension of punishment is easily amenable to engineering or manipulation. It is not clear to me that we could calibrate the moral message attached to punishment in the first place. The message expressed by punishments, especially the moral ...
[Vol. 5:145 punishment than imprisonment at hard labor for life. Naturally, the same moral principle has been commonly deployed in opposition to the death penalty. In this respect, I am more inclined to agree with Stanley Fish that neutral principles "don't have the constraining power claimed for them" and are most often used "to disguise substance...
In this light, the proper inquiry, I believe, is an exercise in utopian social theory and in the history of knowledge. Instead of focusing on moral principles, and instead of isolating moral principles from theories of punishment, we need to look at the distributional consequences of proposed criminal sanctions and at the type of society, social re...
- Bernard E. Harcourt
- 2001
May 1, 2001 · set-back to an individual’s serious welfare interests,6 but while harm in this sense motivates much of Feinberg’s analysis, he clearly defines “harm” as a wrongful set-back to interests.7 This definition may seem to point to an interesting way of combining the deterrence of harm and the punishment of wrong-doing, but I want to suggest that it i...
Feinberg begins Harm to Others with an analysis of what "harm ing" means. Harm is an intrusion into an interest that someone has. A person has a variety of interests, physical integrity and property being only the most familiar. An interest, according to Feinberg, is something the person has a stake in (pp. 33-34).
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The dominant theory of harm is the counterfactual account, most famously proposed by Joel Feinberg. This determines whether harm is caused by comparing what actually happened in a given situation with the ‘counterfacts’ i.e. what would have occurred had the putatively harmful conduct not taken place.
