India Law Journal

REFERENCES BY RAGHAV SRIVASTAVA

The word ‘offence’, for example – The interpretations of such words are highly subjective. What is an offence to A (or offensive to A) might not be to B, and vice versa. I may offend A by verbally abusing him, but this same verbal abuse may not be offensive to B. For the purposes of criminal law, the homogenization of such words is, therefore, not a simple task.

J. Feinberg, The Moral Limits of the Criminal Law Vol. 3 – Harm to Self (Oxford: Oxford University Press, 1986) at 4.

For the purposes of simplicity, harms to the body have been used as illustrations. This does not mean that the harm principle is intended to be applied solely to these harms only, and not economic harms. Swindling another is as much a harm as any of these – while its degree may not be as easy to gauge, it causes injury of a psychological and/or financial nature.

‘Harm’ as defined in the American Heritage Dictionary of the English Language, 4th edn. (2000).

M.D. Davis, “Harm and Morality Revisited: A Reconceptualization of the Harm Principle” Vol. 1 Carceral Notebooks (2005) at 182, sourced from www.thecarceral.org (15th January, 2010).

J. Feinberg, “In Defence of Moral Rights” Vol. 12(2) Oxford Journal of Legal Studies (1992) at 152.

R.G. Frey, Interests and Rights: The Case Against Animals (Oxford: Clarendon Press, 1980) at 7, cited in J. Feinberg, “In Defence of Moral Rights” Vol. 12(2) Oxford Journal of Legal Studies (1992) at 151.

Critical morals are in my opinion really nothing more than extended conventional morals. If there really do exist universal, objective morals, then what is their standard? This universality and ‘objectivity’, I submit, really only indicates agreement on a large scale (across a multitude of societies and communities coincident in time – such that those not conforming to them are classed as deviants without exception – such as thieves), and thus what is referred to as ‘critical morality’ is essentially ‘universal conventional morality’. It is not as unchanging a thing as is believed, for certain critical morals are now being questioned. E.g. cloning, assisted reproductive treatment (ART) techniques. See generally J. McMillan, “The Return of the Inseminator: Eutelegenesis in Past and Contemporary Reproductive Ethics” Vol. 38(2) Studies in History and Philosophy of Science Part C (2007) at 393-410.

Supra note 7, at 151-153. Further, in a democracy, the people cannot control the government if the government controls what the people think.

A. von Hirsch, N. Jareborg, “Gauging Criminal Harm: A Living-Standard Analysis” Vol. 11(1) Oxford Journal of Legal Studies (1991) at 2-3.

See generally J. Feinberg, The Moral Limits of the Criminal Law Vol. 1 – Harm to Others (Oxford: Oxford University Press, 1986).

Only by varying the degree of punishment. This shall not be discussed in detail, for sentencing is beyond the scope of this paper.

The problem of strict liability – if persons indulge in inherently dangerous acts, they are assumed to have knowledge of the consequences and must therefore be culpable for the same – intention cannot play a role here.

Another subjective term – there are words that when uttered in different contexts or before different people, acquire totally different connotations. Some words – dog, for instance - among friends are sometimes construed as signs of endearment, while to a stranger they may seem offensive.

J. Feinberg, “Obscene Words and the Law” Vol. 2(2) Law and Philosophy (1983) at 141.

In the way that the harm caused to a person by his/her own act may affect another party, and thus cause harm to that party too.

J. Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986) at 414, cited in N. Holtug, “The Harm Principle” Vol. 5(4) Ethical Theory and Moral Practice (2002) at 385 - His definition is comprehensive, in the way that someone acting to continue someone’s pain would ordinarily not be acting to decrease his suffering/injury, but prolong it (if, in the ordinary course of things, he were to be relieved of that suffering/injury).

Supra note 5, at 8. Feinberg calls this mixed paternalism, and Kleinig refers to it as impure paternalism – both mean the same: the coercion/restriction on part of the state is justified partly by prevention of self harm, and partly by ‘other reasons’.

Supra note 5, at 8. Here, we are considering paternalism only in the sense of prevention of acts that harm the self (not positive, benefit-promoting paternalism i.e. direction by the state to make choices that are beneficial to the individual. Such paternalism assumes that the individual is not sufficiently capable of making choices that are conducive to his/her welfare).

R.M. Dawes, “The Nature of Human Nature: An Empirical Case for Withholding Judgment: Perhaps Indefinitely” Vol. 16(1) Political Psychology (1995) at 92.

Supra note 30.Paragraph 4, lines 34-35 - Cites Fazal Rab Choudhary v. State of Bihar AIR 1983 SC 323.

See generally B. Bix, A Dictionary of Legal Theory (Oxford: Oxford University Press, 2004).