Criminalising Harmful Conduct: The Harm Principle, its Limits and Continental Counterparts

Nina Persak

Juni 2007 · Springer Science & Business Media

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Dr. Nina Peršak’s work addresses the criteria for criminalisation – that is, the criteria that should be employed in determinations whether to prohibit conduct through the criminal law. It is explicitly normative in approach, examining what should be the proper basis for criminalisation, rather than what factors legislatures actually tend to consider in adopting criminal prohibitions. Its focus is on the Harm Principle, that has been developed in Anglo-American philosophy of criminal law and on how this principal might illuminate the Continental debate on criminalisation. As such, this is a work on normative criminal law theory. Hitherto, there has existed no extended English-language treatment, comparing Anglo-American and Continental theories of criminalisation. An important strength of Dr. Peršak’s analysis lies in success in integrating themes from the two bodies of theory, the Anglo-American and the Con- nental. She begins with the Harm Principle and scrutinises its main criterion: the conduct’s intrusion into the interests of other persons. She undertakes a careful dissection of this criterion: e.g., what constitutes ‘harm’ and what is the scope of ‘others’ (and whether and to what extent the latter includes collective interests). This discussion provides not only a thoughtful analysis of the Harm Principle itself; it also provides her with the basis of her critique, later in the volume, of Continental criminalisation theories.