Chapter

The Exploitation Principle: Preventing Wrongful Gain

Joel Feinberg

in The Moral Limits of the Criminal Law Volume 4: Harmless Wrongdoing

Published in print August 1990 | ISBN: 9780195064704
Published online November 2003 | e-ISBN: 9780199833207 | DOI: http://dx.doi.org/10.1093/0195064704.003.0006
The Exploitation Principle: Preventing Wrongful Gain

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What role should the law play in preventing or punishing nongrievance or even free‐floating exploitation? According to the exploitative principle, which Feinberg regards as the last best hope for legal moralism, certain types of unjust exploitation are free‐floating evils substantial enough to warrant criminal prohibitions. To this defense of legal moralism, Feinberg offers several replies: (1) some acts of apparently free‐floating exploitation like insider‐trading, which generate unjust gain for the exploiter, actually involve rights‐violating harm; (2) limited forms of certain types of exploitation should be decriminalized, like fortune‐telling for entertainment, or isolated instances of ticket‐scalping. Combining these two replies, Feinberg responds to the legal moralist on the issue of blackmail (a crime that involves threatening to do what one has a legal right to do anyway unless some demand, which one has a legal right to make, is granted by the victim). Taking a radical view, Feinberg argues for the decriminalization of a variety of informational blackmail on the grounds that no criminal code based on liberal principles could prevent people from offering, in exchange for consideration, not to do what they have a perfect legal right to do (i.e., carry out their threat).

Keywords: blackmail; criminal code; exploitation; exploitative principle; insider‐trading; law; rights; victim

Chapter.  32210 words.  Illustrated.

Subjects: Moral Philosophy

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