Joel Feinberg’s Offense to Others is the most comprehensive contemporary work on the significance of offense in a liberal legal system. Feinberg argues that being offended can impair a person’s liberty, much like a nuisance, and that it is therefore legitimate in principle to regulate conduct because of its offensiveness. In this article, I discuss some overlooked considerations that give us reason to resist Feinberg’s conclusion, even while granting this premise. My key claim is that the regulation of offense can (...) inadvertently increase the incidence of offense, by nurturing offense-taking sensibilities. In the course of defending this claim and spelling out its implications, I explain why concerns about the inadvertent nurturing of offense are now more pressing, given the identity–political character of contemporary offense-based social conflicts, and I discuss why a reluctance to legally regulate offensive conduct need not be insensitive to the identity–political issues that animate those conflicts. (shrink)

A central aim within criminal justice ethics is to give a plausible justification concerning which type of acts ought to be criminalized by the state. One of the principles of criminalization which has been presented and critically discussed in the philosophical literature is the Offense Principle. The primary aim of this paper is to argue that unless a rather special and implausible objective list theory of well-being is accepted, the Offense Principle should be subsumed in the Harm Principle.

An objection frequently brought against critical or satirical expressions, especially when these target religions, is that they are ‘offensive’. In this article, I indicate why the existence of diverse and conflicting beliefs gives people an incentive to formulate their complaints in the language of offence. But I also cast doubt on whether people, in saying they are offended really mean to present that as the foundation of their complaint and, if they do, whether their complaint should weigh with us. These (...) doubts do not apply to everything we might find offensive; in particular, they do not apply to simple cases of ‘sensory offence’; but they do apply to ‘belief-based offence’. Relying on offence also implies, inequitably, that different faiths should be differently protected depending on their susceptibility to offence; and the faithful themselves should worry about the flimsiness of claims based on ‘bare knowledge’ offence. I propose a principle of respect for beliefs as a differently grounded and more plausible reason for curbing our treatment of others’ beliefs. However, that principle has a limited compass and is hemmed in by the claims of free expression. It is also less suited to dictating the content of law than to influencing our conduct within the law. (shrink)

This paper considers the justifiability of criminalising anti-social behaviour through two-step prohibitions such as the Anti-Social Behaviour Order (ASBO). The UK government has recently proposed to abolish and replace the ASBO; however, the proposed new orders would retain many of its most controversial features. The paper begins by criticising the definition of anti-social behaviour employed in both the current legislation and the new proposals. This definition is objectionable because it makes criminalisation contingent upon the irrational judgements of (putative) victims, and (...) its often modest preventive benefits come at a high cost to citizens’ liberty and autonomy. The paper then goes on to propose a new definition of anti-social behaviour that would meet these objections: that is, as a course of conduct that causes others to experience serious and justifiable anxiety about the safety of their local community. Whilst this definition identifies a serious form of wrongdoing, its precise scope is inevitably uncertain. The paper thus concludes that we have good reason to use two-step prohibitions such as the ASBO to regulate such conduct, so as to enable the use of the criminal law against it whilst minimising possible concerns of legality arising from the proposed definition’s uncertain scope. (shrink)

Religiously offensive speech, i.e. speech that offends members of religious groups, especially religious minorities, is on the rise in western liberal democracies, particularly following the recent wave of right-wing populism in the UK, the US and beyond. But when is such speech wrongful? This paper argues that the wrongfulness of some religiously offensive speech does not depend on some intrinsic feature of it, or on the subjective reaction of its targets. Instead, such wrongfulness depends on the fact that religiously offensive (...) speech normally takes place against the background of enduring social injustices suffered by certain minorities, for example religious discrimination. In that context, we argue, religiously offensive speech is wrongful when it disables its victims from maintaining an adequately respectful relationship to themselves, and sets back their freedom through domination. Recognizing the wrongfulness of some religiously offensive speech, however, need not entail endorsing its legal regulation all things considered. The paper therefore illustrates different available forms of intervention, ranging from civil law action to state support for the victims of such speech and long-term programmes of citizenship education. (shrink)

The limits on freedom of expression are tested in our democracy when we have to deal with hate speech. A thinker who faced the problem of those limitations was John Stuart Mill, who formulated what has been called “harm principle” in his On Liberty (1859), and according to which the only good reason to interfere with an individual’s liberty is to prevent harm to others. On these grounds, several authors have tried to reconstruct the category of “offense”, in order to (...) forbid varieties of conduct even though they do not cause harm to others. However On Liberty is a remarkable work in defense of liberty, even for those who want to refine their premises introducing elements that justify restrictions on freedom of expression. Certainly the weakness of Mill’s thought, at least one that help us to draw lessons for our democracies, appears only when we notice its flaws in light of a joint reading of On Liberty and Considerations On Representative Government (1861). This task points out an unjustified split between free speech and political participation rights, and one that would exclude certain individuals from citizenship indeed. (shrink)