Offense to Others

Malla Pollack mpollack at
Thu Apr 19 13:49:03 PDT 2007

Very interesting, very hard question.  However, my understanding of the
history of the western world is that countries routinely over regulate to
prevent offense to others (often claiming that this would undermine the
structure of socieity - like a subject daring not to worhsip as the king
wished her to).  Very few socieities -actually none I know of - (please
provide more information) has been in the habit of underregulating such
behavor.  NO- that is an error.  I remember hearing about scandalized
American tourists who found the Netherland too open a socieity.  




Malla Pollack

Professor, American Justice School of Law

mpollack at

270-744-3300 x 28



From: John Bickers [mailto:bickersj1 at] 
Sent: Thursday, April 19, 2007 3:41 PM
To: Malla Pollack; Con Law Prof list
Subject: Offense to Others


Ladies and Gentlemen,


Prof. Pollack has several times referred to an idea that I find intriguing,
perhaps even troubling.  It is, if I am not misrepresenting it, that the Due
Process clause should prohibit any criminal law which is based on "offense
to others."  As I understand this idea, it would be illegitimate to prohibit
conduct without the ability to show that it harms someone. Although I admit
that a defense of "I am harming no one" has some appeal, it seems that such
an approach would remove much of society's ability to govern itself (which I
suspect some, perhaps many, would not consider a bad thing).


My question, for Prof. Pollack as well as others, is how we would define the
contours of such a rule.  I presume that we could forbid drunk driving, for
example, but not private drug use.  Would the state ever, under such a
regime, be able to say to a consenting adult, "you may not consent to that;
it offends us."  Germany recently had a debate over this idea, I believe,
when confronted with what certainly appears to have been consensual
cannibalism.  Under an interpretation of DP which found no rational basis
for offense as a source of offenses, is there a limiting principle?


John M. Bickers

Salmon P. Chase College of Law


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