Criminalising Remote Harm and the Case of Anti-Democratic Activity

Abstract

The "war on terror" declared by leaders of many western countries has been the basis for the introduction of new substantive, as well as procedural, criminal laws. The underlying assumption is that security is an overriding justification silencing all other concerns; The state has a duty to protect its citizens and this duty grants the state permission to use whatever means it finds necessary to attain this protection. Concentrating on substantive criminal law, this paper explores the extent to which this assumption is based on, and consistent with, the general principles that govern state coercion. In practice, the main difficulties arising in relation to the creation of such new criminal offences are concerned with the problem of remote harm. The discussion will focus on the harm principle which defines the main margins of criminal law, and two supporting principles: the minimalist principle and the principle of imputation. I will explore their response to the problem of remote harm, revisiting some of the classic concepts such as the classic definition of the minimalist principle and the "clear and present danger" test. The move towards remote harms also means that special attention has to be given to the motivation of the offenders. Distinct motivations may result in different types of threats. The anti-democratic ideology is among the most severe threats. Nevertheless, I argue that the principles discussed place strict limitations on the use of power by the state, and that not all measures that may be found necessary for a sufficient and comprehensive protection against anti-democratic threats can be justified by them.