Criminalizing Conduct: Harm Principle Re-Considered

Criminalizing Conduct: Harm Principle Re-considered

Synopsis

To criminalize a certain act is to declare that act illegal and devise sanctions in response to that act. This process of criminalizing an act is a rather extreme form of censuring whereby that particular conduct is made both unlawful and punishable. Hence, on what basis do we make the colossal leap in distinguishing what is wrong from what is right, and what should be prohibited from what should be allowed? The proceeding paragraphs, which are aimed to be exploratory and expository in nature, will seek to introduce the Harm Principle (HP), establish its superiority over the other criteria for criminalizing conduct, and ultimately expose some of the inherent weaknesses of the principle before attempting to fill these loopholes to enhance the concept of the HP so that it can be used more broadly and assuredly in the realm of criminalizing conduct.

Introduction to Criminalizing Conduct and the Harm Principle

So, what goes on in the continuum of distinguishing a non-criminal act from a criminal act? The 2 criteria for criminalizing conduct, propounded by C.M.V. Clarkson, are: firstly, the act must be wrongful; secondly, it must be necessary to employ the criminal law to condemn or prevent such conduct. Therefore, based on Clarkson’s two criteria for criminalizing conduct, I shall explore the Harm Principle, which is often used to justify the criminalization of conduct. This principle is considered to be the most liberal among all the other principles for criminalizing conduct, viz, Legal Moralism, the Offence Principle, and Paternalism. To introduce this liberal principle from an alternative vantage, the HP can also be said to be a ‘limiting criteria for criminal sanction’.

Characteristics of the Harm Principle

A few qualities of the HP can be derived from the extract from J.S. Mill’s book On Liberty. Firstly and most obviously, only conduct that inflicts harm on another person, who is the victim, should be criminalized. Therefore, when an act meets this qualification, it shall be considered wrongful and is rendered necessary to be criminalized. Secondly, it is implied that the HP is a liberty maximizing principle whereby the individual rights and autonomy of an individual are being safeguarded to the extent that only when these rights are exercised at the expense of that of another person will it receive criminal sanction. Furthermore, we can also extrapolate from the extract that the principle aims to extend protection to both individuals and the public at large. Thus, the HP appears to be utilitarian in nature, whereby not only does it follow a very ends-based approach of criminalizing conduct that result in a harmful consequence to others, it also serves as a bulwark against the violation of public interest. In pursuit of further examining the HP, next, I shall compare it with the other aforementioned principles of criminalizing behaviour.

Harm Principle v Legal Moralism

Legal Moralism is by far the most illiberal and most controversial of all the principles whereby immorality is purported as a necessary and sufficient condition for the criminalization of conduct. As Tom Honore questioned ‘[h]ow are we to understand morality, a term with uncertain limits’, morality is something that is exceedingly hard to define, especially when we exist in a pluralistic society that holds differing values that are fluid over time. Is it fair and just that homosexual intercourse among two consenting gays be outlawed just because the majority of society thinks it is immoral? Thus, it is extremely contentious to translate moral culpability into a criminal one as individual and public interests will in all likelihood be compromised - perhaps immorality ought to be tempered with the concept of harm before a certain conduct can be deemed criminal.

Harm Principle v Offence Principle

The Offence Principle is a less liberal principle as compared to the HP. This principle widens the scope for the criminalization of conduct whereby acts that cause mere ‘offence’ - ‘the action or fact of offending, wounding the feelings of, or displeasing another’ - should be criminalized. Is it fair