Article: Criminalising Remote Harm and the Case of Anti-Democratic Activity

Shlomit Wallerstein, "Criminalising Remote Harm and the Case of Anti-Democratic Activity" ("Cardozo Law Review", 28 [6], May 2007:
pp. 2697-738).

From the abstract: "The 'war on terror' declared by leaders of many western countries has been the basis for the introduction of new substantive, as well as procedural, criminal laws. The underlying assumption is that security is an overriding justification silencing all other concerns; [t]he state has a duty to protect its citizens and this duty grants the state permission to use whatever means it finds necessary to attain this protection. Concentrating on substantive criminal law, this paper explores the extent to which this assumption is based on, and consistent with, the general principles that govern state coercion. [...] The move towards remote harms also means that special attention has to be given to the motivation of the offenders. Distinct motivations may result in different types of threats. The anti-democratic ideology is among the most severe threats. Nevertheless, I argue that the principles discussed place strict limitations on the use of power by the state, and that not all measures that may be found necessary for a sufficient and comprehensive protection against anti-democratic threats can be justified by them."

The full text of the article can be read free of charge here:

http://cardozolawreview.com/PastIssues/28.6_wallerstein.pdf

Excerpts: "The common feature of these new offences is that they penalise acts that cause, at most, remote harm. [...] One of the main restrictions on a state's power is with regard to its permission to proscribe acts that cause only remote harm. Three principles ensure these limitations: the harm principle, the minimalist principle, and the principle of fair imputation [...] require that a special justification be given for any expansion of criminal law beyond the proscription of acts that cause direct harm, and even then strict limitations are imposed on the possibility to proscribe remote harm. [...] If any motivation justifies the criminalisation of remote harm in accordance with the general principles, anti-democratic ideology should be among those motivations that allow for the widest permission. [...]

"Although there is internal variation, anti-democratic ideologies can be commonly defined as undemocratic ideologies, that is, ideologies that oppose basic democratic principles and are characterised by a shared objective to alter the democratic order with an undemocratic one. [...] This [...] includes all types of activity that are aimed at effectively expressing the anti-democratic views such as assemblies, demonstrations and the writing of letters or books – because whatever else these activities are, their main aim is to spread the anti-democratic ideology. Under this heading one can find a whole range of expressions, from a simple explanation of an anti-democratic ideology as part of an educational course, or a declaration of one's own convictions, to incitements to perform specific unlawful acts. [...]

"Any attempt to assess the probability of an occurrence of harm is bound to be complicated. This is especially true with regard to climate-creating expressions and abstract expressions. [...] A climate develops through the accumulative influence of many acts and utterances. [...] [A]ccording to the wider interpretation of the minimalist principle, the criminalisation of some anti-democratic expressions might be possible (depending on the background conditions). My claim is that anti-democratic expressions are threatening because they create public support. But, if society does not intervene early on – if it waits until anti-democratic agents have committed harmful act [sic] – then it will be too late. The seeds of the ideology will already have been planted in society. The 'last effective point of intervention' is at the early stages of ideological development."

Israeli solicitor Shlomit Wallerstein is a CUF Lecturer in the Faculty of Law at the University of Oxford.