Why Criminalise Conduct?

1. The Harm Principle

• Philosophical Basis: Proposed by John Stuart Mill, the harm principle advocates for criminalising conduct that causes harm to others.

• Limitations: Not all harmful conduct is criminalised.

◦ Advocates for recognising harms to groups and society.

◦ Criticises the law for focusing solely on harm to individuals rather than interconnected individuals in relationships.

◦ Emphasises a binary model of harm.

• Foundation: Some crimes, such as adultery and blasphemy, have religious origins.

• Public Interest: These crimes are punished to preserve social order and reflect societal morals.

• Purpose: Criminal law is used to protect vulnerable victims from harm.

• Application: Often invoked to justify laws protecting children, the mentally ill, and others unable to protect themselves.

• Regulation: Criminal law serves as a tool to regulate economic and political activities.

• Examples: Laws addressing financial fraud, regulatory offences, and political corruption.

• Definition: Crimes that are inherently wrong.

• Examples: Murder, rape, theft.

• Nature: These actions are considered wrong even without legal prohibition.

• Definition: Acts that are prohibited by law but are not inherently wrong.

• Examples: Driving offences, littering.

• Nature: These actions are criminalised to maintain public order and safety.

• 'Choice' Theorists:

◦ Argue that liability arises from the voluntary choice to commit an act.

◦ Focus on the agent's decision-making process.

• 'Character' Theorists:

◦ Ground liability in the character traits revealed by the agent's conduct.

◦ Emphasise the moral character and intentions behind actions.

• Role: Often used to excuse individuals from liability based on their mental state or intentions.

• Function: Exempts those who might otherwise be held liable if their actions were not voluntary or intentional.