Human Dignity of 'Offenders': A Limitation on Substantive Criminal Law

Crim Law and Philos (2012) 6:187–205

Hebrew University of Jerusalem Legal Research Paper No. 17-4

20 Pages Posted: 20 Jan 2016 Last revised: 2 Jan 2017

See all articles by Miriam Gur-Arye

Miriam Gur-Arye

Hebrew University of Jerusalem - Faculty of Law

Date Written: Ausgust 1, 2012

Abstract

The paper argues for attaching a significant role to the dignity of offenders as a limitation on the scope of substantive criminal law. Three different aspects of human dignity are discussed. Human dignity is closely connected with the principle of culpability. Respecting the dignity of offenders requires that we assign criminal liability according to the actual attitudes of the offenders towards the interests protected by the offence. The doctrine of natural and probable consequence of complicity, which allows us to assign liability for mens rea offenses to a negligent offender, violates the dignity of the offender; it treats the incautious offender as if she had willfully expressed disrespect towards the protected interest. The human dignity core of privacy is invaded by criminalizing the private possession of child pornography. By extending the prohibition of the creation, sale and distribution of child pornography to the private possession of pornography, the State attempts to control the way the individual expresses an essential part of the self — his sexual fantasies — within himself. Dignity demands that our actions convey an attitude of respect towards human beings. The expressive meaning of disrespect is culture-dependent. The historical association with totalitarian regimes explains our reluctance to impose a legal duty to report past crime: the individual who is legally required to turn a suspect into the police is viewed as an ‘‘informant.’’

Keywords: Human dignity, Criminal law, Offenders

Suggested Citation

Gur Arye, Miriam, Human Dignity of 'Offenders': A Limitation on Substantive Criminal Law (Ausgust 1, 2012). Crim Law and Philos (2012) 6:187–205, Hebrew University of Jerusalem Legal Research Paper No. 17-4, Available at SSRN: https://ssrn.com/abstract=2718253

Miriam Gur Arye (Contact Author)

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel

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