Abstract
Anyone interested in the taxonomy of harm must be familiar with Joel Feinberg's The Moral Limits of the Criminal Law,' which sets out to answer the 'deceptively simple' question 'What sorts of conduct may the state rightly make criminal?'. As each successive volume shows, his answer is a liberal one, but not exactly simple. Devlin's 'smooth functioning of society'2 is not accepted as a sufficient justification for bringing this or that type of conduct within the scope of the criminal law. Penal legislation is justified only if there is no other means that is equally effective (at no greater cost to 'other values') in preventing harm or serious offence to persons other than the actor. It is odd that, having arrived at this answer, Feinberg regards the liberal philosopher's task as done. He has proposed-in considerable and persuasive detail-how we should decide what to prohibit by means of penal legislation, but is silent about what that penal legislation may justifiably do to enforce its prohibitions. I am not suggesting that he should have added a penological chapter or appendix to tell us what offences should incur imprisonment or other measures. What surprises me is that he does not even formulate a second question which, as a philosopher, he might be expected to find equally interesting. It is
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