ABSTRACT
This chapter argues that the harm constraint meets the challenges that are outlined by the Ripstein and the Dan-Cohen. The harm justification/constraint provides a superior criterion for ensuring that the criminalization decisions accord with the requirements of fairness and the justice. Dan-Cohen and Ripstein seem to overlook the fact that the harm constraint is not merely about minimizing the criminalization, but rather it is about ensuring that criminalization decisions meets the requirements of fairness and the justice. The basic feature of humanity is simply the capacity to take a rational interest in something: to make decisions according to the reason, to desire and value objects as worthy of pursuit or to realize them as ends. Kant holds that the moral status of actions is not determined according to the best overall outcome that those actions might produce, but rather in accordance with our moral duty.
