Focused Summary — Offense to Others
In the chapter entitled Offensive Nuisances, Feinberg presents his principle relating to justifiable interferences by the state, which asserts, “It is always a good reason in support of a proposed criminal prohibition that it would probably be an effective way of preventing serious offense (as opposed to injury or harm) to persons other than the actor, and that it is probably a necessary means to that end” (Feinberg, 1). In a more concise formulation of the principle, preventing offense is within the bounds of the state’s authority.
This principle is both implicitly and explicitly a counter to Mill’s Harm Principle, which Feinberg does not think goes far enough. So what exactly does Feinberg mean by “offense” and, to relate the principle to the larger questions of this course, what can rightly be criminalized and how should these things be punished?
Answering the first question requires an understanding of Feinberg’s definition of offense, which he articulates later to be “disliked mental states…caused by the wrongful (rights-violating) conduct of others” (Feinberg, 1–2). Furthermore, whether or not the person being offended is resentful of being wronged or even feels wronged, offense is caused when someone’s rights are violated without justification or excuse. By defining offense in this way, Feinberg includes the actions that are offensive, but that do not quite constitute harm (although, it is important to note, as Feinberg does, that repeated offenses may eventually accumulate to create a harm), as properly belonging in a category of “crime.”
In order to illustrate how offenses are worth “criminalizing, Feinberg walks the reader through 31 short scenarios, of what one might encounter on a bus, separated into six categories, as follows: A) Affronts to the senses, B) Disgust and revulsion, C) Shock to moral, religious, or patriotic sensibilities, D) Shame, embarrassment, and anxiety, E) Annoyance, boredom, and frustration, F) Fear, resentment, humiliation, and anger (Feinberg, 10–13). As the reader considers all these scenarios, it does not take long to realize that while few, if any, of these actions are actually capable of causing harm to the viewer, all of them produce varying levels of offense that seem potentially worthy of criminalization. One of the key differences in levels of offense identified by Feinberg is “affronts to the senses” and “assaults on the sensibilities.” Although varying affronts to the senses can be unpleasant and even unbearable, especially those relating to the sense of smell, assaults on the sensibilities are decidedly worse, since they are more profound and require a deeper recognition or belief (Feinberg, 16).
Lastly, Feinberg spends a considerable amount of time on the idea of how offenses ought to be punished. He makes it extremely clear that offenses should not be punished with nearly the same intensity as actual harms and that they should not even be considered a violation of criminal law. Rather, Feinberg suggests that offenses should only be considered petty misdemeanors at most, and that they should be dealt with through injunctions, “cease and desist” court orders, and if absolutely needed, small fines or imprisonment not exceeding a few days (Feinberg, 3–4).
Feinberg, J. (1988). Offense to others: The moral limits of criminal law (Ch. 7). Oxford University Press.