When are we Rightfully Aggrieved?: A Comment on Postema
University of San Diego School of Law
Legal Theory, Vol. 11, 2005
San Diego Legal Studies Paper No. 07-02
Gerald Postema argues that Joel Feinberg's harm and offense principles in The Moral Limits of the Criminal Law point toward, but are not co-extensive with, what Postema labels "grievance legal moralism." Grievance legal moralism is a liberal view that posits, as the proper concern of the criminal law, not that a moral wrong has been committed, but that a moral wrong has been committed about which someone has a legitimate grievance. As Postema says, "perhaps it is just and right that Pol Pot suffer for his sins, but it is not right for you or me to exact that suffering, to exact that justice."
In my response to Postema, I raise questions about grievance legal moralism from many angles, including its internal coherence as well as its normative attractiveness, and I conclude that it is of dubious plausibility as a principle for limiting the reach of the criminal law. I also question whether the distinction between criminal law and other methods of handling non-grievance immoralities makes normative sense. Finally, I raise doubts about Postema's ability to meet the challenges of Parfit's "malicious conception" case and Kristol's gladiatorial contest case by claiming, as Postema does, that both involve wrongs that are grievances of the child conceived and the gladiator killed.
Number of Pages in PDF File: 15
Keywords: paternalism, legal moralism, offense, harm principle, limits of the criminal law
JEL Classification: K10
Date posted: September 22, 2005