R. A. Duff (University of Minnesota Law School; University of Stirling – Department of Philosophy) & S. E. Marshall (University of Stirling) have posted ‘Abstract Endangerment,’ Two Harm Principles, and Two Routes to Criminalization on SSRN. Here is the abstract:
We need to distinguish, as theorists too often fail to distinguish, two distinct harm principles. One, the Harmful Conduct Principle, concerns the criminalization of conduct that is itself harmful or dangerous: that principle cannot explain how we can have good reason to create offences of so-called ‘abstract endangerment’, of which many road traffic offences are good examples. We can explain such offences as those by appeal to a different harm principle, the Harm Prevention Principle. That principle, however, is a principle not of criminalization, but of regulation: it gives us reason to regulate conduct if doing so will efficiently prevent harm, without imposing undue burdens on those whose conduct is regulated. We then have reason to criminalize violations of such regulations, not because such violations are always harmful, but if and because they are wrongful. This distinction, between two kinds of principle and two possible routes towards criminalization, can be drawn whatever goals or values we posit as our starting points.
Highly recommended.