A CRITIQUE OF THE INDEPENDENCE OF THE ‘OFFENSE PRINCIPLE’ IN THE LEGAL PHILOSOPHY OF JOEL FEINBERG

Abstract

Many scholars have offered their different opinions and views about the notion of offence. Some of them have traced this concept back to Joel Feinberg, as the first to give it a holistic intellectual approach. Feinberg uses the term 'offense' as a shorthand for a whole miscellany of disliked mental states--disgust, shame, hurt, anxiety, disappointment, embarrassment, resentment, humiliation, anger and the like--which for him, are not in themselves necessarily harmful. It follows then that if one is to use the law to punish those who inflict such states on others (i.e. those who are offensive), one cannot justify so doing by resort to the harm principle, but must instead call upon a separate and distinct offence principle. Feinberg therefore creates a clear-cut demarcation between harm and offence. While the former falls under the legislative action of the state and the instruments of the law, the latter should not be based on any strong legal policy or criminal law, but on simple moral principles. This study is a theoretical insight into the complexity of offence principle as a social reality in human affairs, with a view to tackling the problems associated with it