Fiends and Slime

Florida State University Law Review, Dec 1095

HARM TO OTHERS. By Joel Feinberg. New York: Oxford University Press. 1984. Pp. viii, 269. $22.50

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Fiends and Slime

Lawrence C. George, Fiends and Slime Fiends and Slime Lawrence C. George 0 1 Recommended Citation 0 Thi s Book Review is brought to you for free and open access by Scholarship Repository. It has been accepted for inclusion in Florida State University Law Review by an authorized editor of Scholarship Repository. For more information , please contact , USA 1 Florida State University College of Law , USA Follow this and additional works at; http; //ir; law; fsu; edu/lr - REVIEWED BY LAWRENCE C. GEORGE* Professor Joel Feinberg of the University of Arizona enjoys a well-deserved eminence as an original and careful critic of legal doctrine. He brings the skills of academe, rather than the forum, to his tasks, since he is not a professor of law, but chairman of a department of philosophy. The book under review' is the first of a projected four-volume series.2 It promises to consolidate and add to the reflections on the ethical foundations of criminal responsibility that Feinberg has previously offered in his other writings. Under the scrutiny of a philosophical critic such as Professor Feinberg, lawyers can take pleasure in seeing the logical fabric of a legal principle probed, dissected, and run through its hypothetical permutations with a rigor to which our own "Socratic" tradition aspires with only infrequent success. As the organizing theme for his masterwork, Feinberg has undertaken a thoroughgoing ethical examination of the harm principle. Both common sense and such political consensus as our society exhibits seem to justify adoption of that principle as a starting place for justifying and setting the boundaries of a system of positive criminal law in a modern and liberal democracy.3 0 Professor of Law, Florida State University. University of Chicago, B.S., 1956; Yale University, LL.B., 1959. This review expresses my gratitude to the 1984 Law and Philosophy Workshop sponsored and generously supported by the University of Western Ontario, where I became acquainted with Professor Feinberg's analysis of criminal liability for omissive harm. I am also grateful to the administration of my College, which made summer leave and travel funds available for the pursuit of my interests. My colleague Lynne Henderson graciously read and offered suggestions on this review in an earlier draft. She is responsible for rescuing me from some gaffes that do not appear herein and I am guilty of those that remain. 1. 1 FINRO, HARM TO OTMas (1984). 2. The series is to be titled Tim MonAL LImrrs oF THm CRnwox LAw. The next work will deal with offense to others, volume three with harm to self, and the concluding book with harmless wrongdoing. J. FIumER, supra note 1, at vii. 3. Feinberg devotes great care to his definition of the harm principle; the exercise is one in updating and refining the analysis of John Stuart Mill. No attempt is made to deal with implementation of the harm principle in a code of positive law, either critically or instru As its title indicates, this first volume is concerned with the ethical foundations of our received and traditional apologetics for the substantive scope of the criminal domain. Much of the book is devoted to refinement of the concept of harm. Professor Feinberg takes as axiomatic the principle that harm, to determinate victims, is an essential precondition for any justifiably nasty means of behavioral coercion, such as the criminal law. There is nothing dull, arid, or pedantic in Feinberg's treatment of harms deserving criminal denunciation, although he shows the exhaustive patience of a philosophical craftsman in dividing and pursuing his quarry through every variety of objection and argument. Feinberg is both a creator and a retailer of fine dramatic hypotheticals, designed to focus attention on the most problematical aspects of the moral and legal beliefs that legal officials and scholars take for granted.4 This review singles out for examination a significant subtheme in Feinberg's larger argument: our common law tradition of hostility to creating, enforcing, or even recognizing the very possibility of crimes of omission.5 The merits of Feinberg's critical approach to criminal law are best exemplified for the general reader by considering in some detail this most controversial and venerable of jurisprudential subjects. There is something deeply puzzling to legal and lay minds alike in the curious tardiness and reluctance of modern criminal law to deal with a class of wrongdoing that appears from the viewpoint of a well established moral consensus to be incontrovertibly heinous: the deeds of persons Feinberg calls "bad samaritans." Characteristically, in undertaking to clarify the status of such (non)actors in our polity, Feinberg first presents a balanced and accurate view of the status of criminal statutes in various American and continental legal systems bearing on the subject.7 mentally, because Feinberg's initial task is simply to set limits for the criminalization (whateve (...truncated)


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Lawrence C. George. Fiends and Slime, Florida State University Law Review, 1095, Volume 13, Issue 1,