This is an essay on the limits of the Criminal Law. In particular, it is about what principles, if any, determine whether it is legitimate for the state to criminalize certain conduct. Joel Feinberg in his great work on the moral limits of the criminal law argues that we need only two principles. One is a principle regulating harm to other people and the other is an offense principle regulating certain kinds of offensive conduct. I examine various aspects of his argument. In particular I concentrate on his use of the Volenti Principle: He who consents cannot be wrongfully harmed by conduct to which he has fully consented. Feinberg uses the principle to argue that certain kinds of consensual conduct cannot be forbidden unless we adopt some kind of legal moralism, that is, unless conduct can be forbidden on the grounds that it is immoral even though the conduct harms no other person. The first section provides an overview of Feinberg's account of the limits of criminalization. The subsequent sections explore the possibility of prohibiting certain kinds of consensual conduct while avoiding legal moralism by limiting the use of the Volenti Principle.

Professor Cornish's pioneering textbook on Patents, Copyright, Trade Marks and Allied Rights first appeared in 1981. Its rather conservative title no doubt reflected the general lack of familiarity then with the term ‘Intellectual Property’. It was an important area of law, but left to the specialists and their clients; the wider world knew little of it or of its significance. Successive editions of the text have witnessed a transformation; the emergence of intellectual property from a backwater to feature prominently now as valuable property demanding attention from those involved in most forms of economic activity and from politicians and others involved in national and international affairs. There was a paucity of intellectual property literature then; today it is overwhelming.

IP laws, now, are stronger, more extensive, more pervasive, harmonized and globalized than ever could have been contemplated in 1981. TRIPS, introduced to ensure that the legitimate channels of exploitation of intellectual property were not undermined by inadequate laws or ineffective means of monitoring and enforcing them, projected the intellectual property image throughout the world. Thereafter, efforts were made to ratchet up the minimum standards of TRIPS to TRIPS-Plus by international conventions (such as the WIPO Copyright Treaties), international resolutions (such as those affecting trade marks and the internet and well known marks) and, as a surprising recent development, by means of an increasing number of bilateral Free Trade Agreements.

We intend to argue that, under certain circumstances, it is morally permissible, and ought to be legally permissible, for physicians to provide the knowledge and/or means by which a patient can take her own life. This facilitation of suicide is what we shall mean by physician-assisted suicide. When we refer to euthanasia we shall mean cases in which the physician performs the last causal step leading to the death of the patient, and thus can be said to kill the patient.

The reasons for favoring physician-assisted suicide are not difficult to determine. They consist mainly of the interests that dying patients have in the process of dying being as painless and dignified as possible. They also rely on the interest of patients in determining the time and manner of their death. Autonomy and relief of suffering are values that we all can agree to be important. But it has seemed to many people that, important as these values are, there are significant objections to allowing physicians to serve these values either by facilitating suicide or by killing their patients. We believe that these objections are mistaken and that once they are seen to be mistaken, the reasons favoring medically assisted dying lead to our conclusions.

Our basic strategy of argument is essentially ad hominem; that is, we will claim that those who oppose medically assisted dying themselves favor policies that cannot be morally distinguished from the policies we favor and they oppose.

Among physicians the most frequently heard argument against physician-assisted suicide is one about the nature of the medical profession. It is argued that the norms of medicine prohibit a physician from ever acting with the intent to kill a patient or to aid him in killing himself. For this reason it is essential, they believe, to maintain a sharp distinction between allowing patients to die, say by the refusal to initiate cardiopulmonary resuscitation (CPR), and acts of assisted suicide.

Certainly the most important and influential article defending this view is one by Leon Kass. It is almost impossible to find an article opposing medically assisted dying in any of the major medical journals, such as the New England Journal of Medicine and the Journal of the American Medical Association, that does not cite this article as establishing the view that physicians must not aid patients in dying. We propose, therefore, to critically examine Kass's arguments.

Kass begins by considering “the question about physicians killing (as) a special case of – but not thereby identical to – this general question: May or ought one kill people who ask to be killed.” Note the phrase “may or ought,” which will assume some importance as Kass develops his argument.

Let us assume that we can find a plausible case for the view that it is permissible for medical care givers, under certain conditions, either to provide their patients with the means and/or information so that they can take their own lives, or to themselves kill their patients. Let us also suppose that, under certain conditions, care givers ought to provide such assistance in dying. We may think that this “ought,” while it grounds a claim, does not take the form of a right.

Having established this much still does not settle a number of different issues concerning public policy, questions such as: Should the law recognize such a right? Should the institutions of medical practice, such as hospitals, have rules that require action in accordance with such a right? Should the codes of the medical profession include such rules? Ought the profession sanction professionals who violate such claims? This class of questions is one about institutionalizing a right to die.

In general, the establishment of some moral claim or right is at most a necessary condition for the establishment of such an institutional right. That such claims are not sufficient is clear from the fact that although it is quite wrong of us to lie to you about many things, it is not illegal to do so (except for special cases such as commercial fraud).

I have outlined a conception of autonomy; a conception that is in various ways different from other conceptions of autonomy that have historically been developed. One way of attacking such a conception is by arguing that it does not fulfill the evaluative tasks that have traditionally been associated with the notion. In this chapter I wish to defend the conception developed in Chapter 1 against a certain attack and then to argue for the value of exercising autonomy when understood in this way.

There is a traditional view of autonomy that must view my conception as too thin to be of value because there is no specific content to the decisions an autonomous person takes. Suppose we have a person who has not been subjected to the kinds of influence – whatever they turn out to be – that interfere with procedural independence. Suppose the person wants to conduct his or her life in accordance with the following: Do whatever my mother or my buddies or my leader or my priest tells me to do. Such a person counts, in my view, as autonomous. But has not such a person clearly forfeited autonomy? Must autonomy involve a particular content, a substantive and not merely procedural independence from others?

I shall argue that the conception of autonomy that insists upon substantive independence is not one that has a claim to our respect as an ideal.

In ethics, as in the law, there is often agreement concerning what to do in a particular case, or about the importance of a moral principle, co-existing with disagreement about why we should act in a certain manner, or on the nature or basis of the moral principle. Similarly, moral theories may agree about specific cases of lying while giving different accounts of why a lie is or is not justified.

In the past few years a number of criminal prosecutions have brought to public attention the issue of entrapment: Abscam, the DeLorean cocaine trial, Operation Greylord, various sting fencing operations. The investigative techniques used in, say, Abscam, although highly elaborate, expensive, and ingenious are only one example of the range of investigative techniques with which I shall be concerned in this essay. What these techniques have in common is the use of deception to produce the performance of a criminal act under circumstances in which it can be observed by law enforcement officials. I shall use the term “pro-active enforcement” to cover such techniques and the question I shall be discussing is under what circumstances, if any, is the use of such measures legitimate.

Let me begin by saying something more about the nature of proactive law enforcement and also by giving a fairly extensive sample of the use of such techniques. The sample will not only make clearer the nature of such operations but also provide a range of cases for testing judgments about the acceptability of such techniques.

Traditionally, law enforcement in our society has left most of the burden of reporting criminal offenses to private citizens. It is left to individuals, usually victims, to come forward with a complaint of criminal action and to provide much of the evidence in identifying and prosecuting the criminal. Government's role has been limited to various patrol activities and to reaction to complaint.

The concept of autonomy has assumed increasing importance in contemporary moral theory. Appeals to the ideal of an autonomous moral agent play a role in grounding moral argument that appeals to sentiment or self-evidence or intuition played in earlier centuries. In such discussions moral judgments are often contrasted with factual or scientific judgments and claims are made about autonomy (as well as related notions such as authority and objectivity) in the moral context that are sharply distinguished from parallel claims in the scientific context. My aim in this essay is, as they say on prelims, to compare and contrast the nature of autonomy in morality and science.

In Chapter 1, I have characterized autonomy as the capacity of a person critically to reflect upon, and then attempt to accept or change, his or her preferences, desires, values, and ideals. The idea of moral autonomy is a particular case of this, and the rough idea is that persons are responsible for, and have the capacity for, determining for themselves the nature of the moral reasons, considerations, and principles on which they will act.

When I speak of autonomy I shall take this to be a property of persons and I shall only indirectly be concerned with the discussion that has proceeded under the heading of the autonomy of morality, that is, the connection or lack of connection between facts and values. I am primarily concerned with autonomy as specifying certain features of persons involved in their deliberations upon moral issues. I am concerned with moral autonomy and not the autonomy of morals.