One of the central issues in theories of criminalisation has been the question of whether or not offensive conduct should be criminalised and, if so, how this should be done. How should society respond to conduct that is insulting, boorish, immoral, disrespectful, or just plain disgusting? In liberal criminal law theory this has tended to be addressed, under the heading of the ‘offense principle’, as a question of how to deal with a residual area of social concern where there may be no identifiable harms. This chapter argues that the offense principle, and the conceptual framework that it relies on, can only be of limited use in understanding this area. It groups together reactions or forms or conduct that are very diverse, and its narrow focus on the question of prohibition leads to a neglect of the way in which regulation in particular areas is about enabling or permitting certain forms of behaviour. This is illustrated through a more detailed examination of the areas of obscenity law (disgust) and regulation of public forms of incivility (respect) to begin to open up a different and more critical analysis of theories of criminalisation in this area.
Keywords: criminalisation; offense principle; Feinberg; obscenity; extreme pornography; disgust; incivility; respect
Chapter. 10313 words.
Subjects: Criminal Law
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