Fiends and Slime
Lawrence C. George, Fiends and Slime
Fiends and Slime
Lawrence C. George 0 1
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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
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