Type 1: Offense to Others
According to Joel Feinberg in Offense to Others, the offense principle states that, “It is always a good reason in support of a proposed criminal prohibition that it would probably be an effective way of preventing serious offense (as opposed to injury or harm) to persons other than the actor, and that it is probably a necessary means to that end,” (Feinberg, 1). Essentially, the offense principle is used to argue in favor of coercive legislation to restrict the liberties of those wrongfully offending others.
Feinberg then explains that there are requirements to be met for one to enter an offended state. First, the individual must suffer a disliked emotional state. Then the individual must “attribute that state to the wrongful conduct of another,” and lastly, the individual must resent the other person for putting them into said disliked state (Feinberg, 2).
Feinberg argues that harm is significantly worse than offense and that the punishments for wrongfully offensive conduct should be light in comparison. Feinberg even goes as far to argue that criminal law should be the last resort for preventing offensive behavior when there are alternative solutions such as “individual suits for injunctions… court orders initiated by the police to cease and desist on pain of penalty, or by licensing procedures,” (Feinberg, 3).
In order to clarify the effects of offensive conduct to the individual observer, Feinberg walks the reader through a series of offensive acts occurring on a public bus. These instances of offensive conduct are broken down into six categories, which are as follows: affront to the senses, disgust and revulsion, shock to the moral, religious, or patriotic sensibilities, shame, embarrassment, and anxiety, annoyance boredom and frustration, and fear, resentment, anger. Feinberg enumerates the emotional response from the individual to ensure that all 31 examples given illustrate the various mental states that such acts of wrongful offense may place an individual into.
In Offense to Others, Feinberg argues that when compared to harm, offense is less detrimental than harm, but still poses a significant concern for one’s mental state. By giving a spectrum of examples to illustrate the various levels of offense and consequent disliked emotional states, Feinberg accurately demonstrates that the offense principle is important for a society to consider when discussing criminalization of wrongfully offensive acts. Ultimately, Feinberg describes an array of offensive conduct that raises questions about the distinction between offensive conduct worthy of punishment through harsher means and offensive conduct that is deserving of lighter consequences. Feinberg does not discuss how a society could conclude where this distinction lies, however. I believe this is debate over the line to criminalize offensive behavior is best left to the various governments and cultures who carry different social norms.
