Criminalisation

“I know of no one, no matter how free in spirit, who argues that we ought to permit gladiatorial contests in [a large sports] Stadium, similar to those once performed in the Colosseum of Rome—even if only consenting adults were involved.”

(Irving Kristol, quoted in Joel Feinberg, Harmless Wrongdoing)

Are you willing to argue that? Surely you have to, unless you are prepared to argue either paternalism is acceptable or that legal moralism is? Moreover, if you are not willing to make the argument Kristol says no one makes, how can you justify the fact that boxing is not criminal?

Introduction:

To fully assess Kristol’s comments, a number of issues in relation to criminalisation need to be addressed, most significantly the discussion of paternalism and legal moralism, as well as the inadequacy of Mill’s Harm Principle. In a predominantly liberal society, the UK places significant emphasis on the protection of liberty at the heart of all issues. Therefore, the criminalisation debate is essentially a balancing act between the protection of liberty and the protection from harm. To the majority, it seems ludicrous to suggest gladiatorial contests, essentially murder for entertainment, should be permitted. Thus, paternalism and legal moralism can be acceptable concepts in widening the scope of criminalisation, providing there are limitations to their application. These philosophies also justify the legality of boxing despite the illegality of gladiatorial contests.

The Inhumanity of Gladiatorial Contests

It is established by Feinberg that “the punishments [of criminalisation] themselves brand” an offender, “society's most powerful stigma and undermine his life projects, in career or family, disastrously”. Therefore, it is of supreme importance to strike the correct balance over what activities should be criminalised. This is achieved through weighing up the harm involved and the breach of liberty, or the level of “interference with a person's liberty for his...