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In their excellent monograph, Crimes, Harms and Wrongs, Andrew Simester and Andreas von Hirsch argue for an account of legitimate criminalisation based on wrongfulness, the Harm Principle and the Offence Principle, while they reject an independent anti-paternalism principle. To put it at its simplest my aim in the present paper is to examine the relationship between ‘the harms’ and ‘the wrongs’ of the authors’ title. I begin by comparing the authors’ version of the Harm and Offence Principle with some other (...) influential accounts. After examining the role wrongfulness plays in their work, I ask what there is left for their Harm and Offence Principles to do. In the light of the understanding and foundations of the Harm and Offence Principles proposed by the authors, I suggest that the answer is little or nothing. The wrongfulness constraint the authors place on their Offence Principle comes close to swallowing it up entirely. Furthermore the part of their Offence Principle that is not thus swallowed by wrongfulness leaves the account with a commitment that is probably best dropped. As far as their Harm Principle is concerned I suggest that the authors’ account of ‘harm’ is so broad that it lacks the resources to distinguish harm-based reasons from wrongfulness- or immorality-based reasons in any principled way. Among other things, I ask in this context, first, whether one can be harmed as one’s character deteriorates and, secondly, whether one is harmed by virtue of the serious wrong one does to another. What really drives the authors’ account of legitimate criminalisation, I believe, is wrongfulness together with an important, amorphous set of potential defeating conditions. They themselves accept such a picture so far as paternalism is concerned. I conclude that their account, which I think has considerable force, would lose little of any significance were their Harm and Offence Principles simply excised. More generally I suspect that a strong role for wrongfulness in an account of legitimate criminalisation is likely to put into serious question the plausibility of an independent principled role for harm and offence. (shrink)

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In a much cited phrase in the famous English ‘Child B’ case, Mr Justice Laws intimated that in life and death cases of scarce resources it is not sufficient for health care decision-makers to ‘toll the bell of tight resources’: they must also explain the system of priorities they are using. Although overturned in the Court of Appeal, the important question remains of the extent to which health-care decision-makers have a duty to give reasons for their decisions. In this paper, (...) I examine the philosophical foundations of the legal obligation to give reasons in English law. Why are judges sometimes supportive of the imposition of a duty to give reasons and sometimes not? What is it about the context of life and death health care allocation problems that makes it unsuitable in their view for such a duty; and is this stance justified? What is it to give a reason for a decision? I examine Frederick Schauer’s account of reason-giving in terms of generalisation and commitment and I suggest that it provides an overstated account of what giving a reason commits one to. I go on to examine an idea of judicial creation: that where value judgements are “inexpressible” there is a strong reason not to impose a duty to give reasons on to public bodies. The strongest case for a duty to give reasons is in terms of the value of respect for citizens. I argue that there is nothing in the very nature of reason-giving that ought to preclude the imposition of such a duty in this context, but concede that there is a serious danger of legalism that could result in a hamstringing of health care decision-making. It is up to judges and lawyers to seek to avoid this danger. (shrink)

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