Criminalizing Conduct

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 and just that watching pornography videos within the confines of my own home deserves to be outlawed just because my neighbours are aware of it and that knowledge causes a few emotional distress and offence? This begs the question of whether the cause of offence, where no material or tangible setback of interest is suffered by the other party, is sufficient to outlaw an act; by far and large, the HP is widely considered by liberals and many parts of society as a more discerning and justified principle as compared to the Offence Principle, especially when it comes to the protection of basic individual rights and autonomy.

Harm Principle v Paternalism

Paternalism involves intervention by the criminal law to protect a person from harming himself and also to enhance his own interests. This is often not regarded as a strong argument for criminalization of conduct as the autonomy of a free-willed person is being encroached upon - why should the state care if I refuse to put on my seatbelt? Also, it is an inconsistent doctrine, because prohibiting people from consenting to injuries in sado-masochism activities, for example, contradicts the non-criminal status of other injury-consenting activities such as boxing. Once again, perhaps the HP will be a more feasible yardstick for criminalizing conduct in pursuance of certainty and personal autonomy in the law.

Weaknesses of the Harm Principle

'Harm' is a term bloated by equivocation. The HP, per se, does not define the nature and limits of harm. Firstly, the directness and remoteness of the resultant harm is relevant in determining whether an act should be made illegal or not. Should the throwing of pebbles into a riverbank be made criminal due to the possibility of the riverbank eventually overflowing and causing harm and damage to people and property? Thus, the rationale of the HP can be used, or rather abused, to criminalize all actions that could lead, however remotely or indirectly, to harm. Secondly, the HP is silent on the seriousness of the harm caused that can lead to criminalization of the particular act. There is no clear 'calculus of harm' to account for both the quantity and quality of harm caused before the causal act can be deemed criminal. Thirdly, the HP does not operate in a vacuous shell. Instead, the interaction