This paper explores the Offence Principle. It discusses whether two constraints, additional to the criteria stated in conventional analysis, ought to be met before the Offense Principle can be satisfied: (i) that offensive conduct must be a wrong, and (ii) that the conduct must also lead to harm. The nature of the Harm Principle, and its relationship to the Offense Principle, are also considered. The paper suggests that, even if all cases in which offense should be criminalized also involve harm, nonetheless there may be good reasons to retain a separate Offense Principle.

I. INTRODUCTION

Many judges and legal scholars are extremely hostile to class actions in which plaintiffs, despite the fact that they would be unlikely to prevail if the case were litigated to a conclusion, nevertheless obtain a large settlement of their claims. For example, Judge Richard Posner, in an opinion denying plaintiffs the opportunity to maintain a class action, cited with approval Judge Henry Friendly’s characterization of “settlements induced by a small probability of an immense judgment in a class action” as “blackmail settlements.”In re Rhone-Poulenc, 51 F.3d 1293, 1298 (7th Cir. 1995) Professor George Priest, himself intensely critical of the rules governing class actions because they permit plaintiffs in class actions to secure substantial settlements even though they have little chance of prevailing, believes that there are judicial decisions refusing to certify class actions, purportedly because the requirements of the controlling rule have not been met, which are really explained by the court’s desire to prevent plaintiffs with a small chance of winning from securing large settlements. George Priest; Procedural Versus Substantive Controls of Mass Torts Class Actions, 26 J. LEGAL STUD. 52 (1997)

I. INTRODUCTION: LEGAL RIGHTS AND MORAL RIGHTS

Having outlined two different ways of articulating the tort of negligence, John Gardner explains that: “the way we render the ingredients of the tort matters for the defensibility of the regime of liability that it brings in its wake. The reason is that to defend the incidence of the liability one must first defend the assertion of the duty.” And defending the assertion of the duty—given that the law “stands or falls in its own moral legitimacy depending on whether it has the very moral authority that it claims”—involves the following:

Few criminal defenses have generated as much controversy among philosophers and jurists as has necessity, and few philosophers disagree so thoroughly in political and legal philosophy as do Bentham and Kant. But, in a surprising moment of consensus, Bentham and Kant both argue that an imperiled wrongdoer facing death merits an acquittal because the threat of even capital punishment is insufficient to compel her to obey the law.Jeremy Bentham, THE PRINCIPLES OF MORALS AND LEGISLATION 170 (1948). I will hereafter insert references to this work in the text, following the abbreviation “PML.” Immanuel Kant, METAPHYSICS OF MORALS 28 [6:235] (Gregor ed., 1996). I will hereafter insert references to this work in the text, following the abbreviation “MdS,” to the Prussian Academy pagination. Kant makes the same claim in On the common saying: That may be correct in theory, but it is of no use in practice, PRACTICAL PHILOSOPHY 299n [8:300n] (Gregor ed., 1996). I will work only with the former, as it is later and more developed. At a glance, we might take each therefore to hold that she merits an acquittal on the ground that those who could not conform their actions to the requirements of the law cannot fairly be held to answer for them.George Fletcher glosses Kant this way. Fletcher, RETHINKING CRIMINAL LAW 819 (1978). Michael D. Bayles represents this as the standard reading of both. Bayles, Reconceptualizing Necessity and Duress, 33 WAYNE L. REV. 1191, 1194–1195 (1987). But this misrepresents both Bentham’s and Kant’s views. For each, the nondeterrability of the imperiled wrongdoer does not defeat her responsibility for her actions but rather defeats a condition under which the state enjoys the right to punish wrongdoers. In short, for both Bentham and Kant, the imperiled wrongdoer merits an acquittal because the state lacks standing to punish her. I will call this the ultra vires thesis.

I. INTRODUCTION

Stanley Fish says that theory does not exist, and because it does not exist, it has no consequences. This is doubly disturbing for someone who thinks of himself or herself as a legal theorist. While it is one thing to be dismissed as an impractical ivory tower type, out of touch with the real world of practice, it is quite another to be told that you do not exist at all. If legal theory does not exist, what have I been doing these past years? Indeed, what is it that Fish himself has been up to in his many books and articles devoted to jurisprudential issues?Most of his law-related writings have been collected in Stanley Fish, DOING WHAT COMES NATURALLY: CHANGE, RHETORIC AND THE PRACTICE OF THEORY IN LITERARY AND LEGAL STUDIES (Duke University Press, 1989); Stanley Fish, THERE’S NO SUCH THING AS FREE SPEECH . . . AND IT’S A GOOD THING, TOO (Oxford University Press, 1994); and Stanley Fish, THE TROUBLE WITH PRINCIPLE (Harvard University Press, 1999). Moreover, simply existing is not the limit of a legal theorist’s ambition. We want what we do to have significance, and Fish’s claim that theory has no consequences denies us that status.