Theories of Criminal Law

Criminalisation= the process by which certain conduct (action) is made criminal (illegal). The reason for criminalisation has to be very well justified as the process entails the restriction of individuals to perform a certain action.

Criminalisation on the Basis of the Harm Principle

In its general form it means that the criminalisation of conduct is on the basis that the conduct causes harm. This principle works smoothly in case of crimes which clearly cause harm, e.g. murder, rape etc. However, other offences may be more complicated.

Given that the criminal justice system includes a large variety of criminal offences, does it make sense for, say, harm to be prevented in the case of murder, in the same way as for the case of driving without insurance? Not necessarily. The punishment will differ based on the variation in harm incurred. They can still both be criminal offences, because they cause some form of harm, however the punishment will be different because of the type and the amount of harm they cause.

Joel Feinberg suggested that only using the principle of harm in criminalisation is not sufficient, as it is too broad. Instead he proposed that additional factors should be considered, including gravity of the harm, magnitude of risk, as well as the relative probability of harm being caused.

Furthermore, harm can be subjective. Not all acts can be considered harm to everyone. Most people can agree on the harm which is caused by the committing of, for example, murder or sexual offences. There are, however, instances where not everyone sees the harm in the same way. E.g. Selling an energy drink to someone who is 15. (note: In the UK, the legal age to buy an energy drink is 16.) Whilst some may see this as extremely harmful, others may argue that it is not that serious of an offence.

Criminalisation on the Basis of Legal Moralism

Generally speaking, this means that criminalisation may be justified on the basis that the act violated some kind of moral standard or principle. This also means that a crime may or may not cause harm, as long as it is immoral, it is still a crime. So, as a result of that, Legal Moralism may encompass the Harm Principle.

The important question to ask here is: Should public morality control the criminal justice system? Take for example acts which are nowadays perfectly legal but, 30 years ago, were considered immoral, e.g. homosexuality. Or acts which we consider immoral but are not a criminal offence in themselves, e.g. cheating on a significant other. This is again why, in itself, Legal Moralism, is by some considered to be insufficient for criminalisation.

In the 1970s (in the UK), there were two offences developed surrounding the idea of ‘public morals’. These were:

1. Conspiracy to corrupt public morals

2. Conspiracy to outrage public morals

Cases to illustrate:

Shaw v DPP [1962] AC 220

In this case the defendant (D) had created a number of magazines which included personal adverts for prostitutes. D had made money from the selling of advertising space for prostitution, they were charged and convicted of conspiracy to corrupt public morals, in addition to breaches of section 30 of the Sexual Offences Act 1956.

The defendant appealed on the basis of conspiracy to corrupt public morals, given that this was not an offence in the law of England and Wales at the time. The appeal was dismissed and the conviction upheld, creating a new offence.

Knuller v DPP [1973] AC 435

In this case, the D published and distributed magazines, which contained individuals advertising homosexual practices. Again, the D was convicted for conspiracy to corrupt public morals. Just like in the previous case, the D appealed and the issue was whether or not this was an offence recognised by England and Wales. The appeal was dismissed, thus reaffirming the creation of this offence in Shaw v DPP.

These cases were, and arguably still are, polarising. Morality is largely thought to be subjective and ever-changing, thus making it difficult to be implemented in criminalisation and law effectively.

* Please note that at no point in this blog am I providing legal advice or claiming to be a professional. These blogs are for entertainment and educational purposes only.*