SOURCE:

Faculty: Arts
Department: Philosophy

CONTRIBUTORS:

Obiefuna, I. V.
Umeogu, B.

ABSTRACT:

Almost everyone would agree that liberty is the goal every state should aspire for. However, before any state is judged liberal it must be able to ensure that the liberty of one individual does not obstruct the liberty of another individual. The issue that stands out then, and which has engaged philosophers and jurists for ages is, in what circumstance can the state legitimately limit the liberty of a citizen in order to ensure that the liberty of another citizen is not infringed upon. The traditional way of navigating this problem is what has come to be known as Mill’s harm principle by scholars. According to Mill, the only concept that is legitimate to apply when contemplating to limit the liberty of citizens in a liberal state is prevention of harm from one person to another person. Contrary to Mill and his disciples, Feinberg postulates the offence principle as a supplement to the harm principle. He contends that harmful and offensive acts should be considered necessary and sufficient reasons to interfere with the liberty of citizens in a democratic state. In adopting this position, Feinberg like Mill before him, disqualifies two other liberty limiting doctrines: Legal Paternalism (offence to self) and Legal Moralism (harmless offence) as legitimate candidates for prohibitory legislation. This dissertation applies the method of analysis to investigate Feinberg’s claim that harm and offence are the only legitimate grounds for judicial limitation of the liberty. The dissertation discovered that Feinberg has no satisfactory moral justification to substantiate his liberalism. Based on this, it concludes that the dynamic nature of human society and the complex and evolving nature of crimes that could arise from such society require that not just the four principles elaborated by Feinberg but also other principles –if members of the society deem it necessary - should be taken into consideration when deciding criminalization and that this can be defended within liberalism.