HARM PRICIPLE AND CRIMINALIZATION OF BEHAVIOUR

Harm Principle and Criminalization Of Behavior



Harm Principle and Criminalization of Behavior

Introduction

According to the social contract theory therefore we have entered into a contract with each other as 'each man, in giving himself to all, gives himself to nobody thus creating a 'collective body' which we call the state. The focus is prostitution as it has been in the news recently, however we are more concerned with a category to which prostitution belongs, such as private sexual affairs amongst consenting adults, sex games, euthanasia. In other words, we are seeking to establish the limits of the power of this collective body by asking whether an act or omission should be made illegal on the bases of a perceived immorality alone. To answer this question, the starting point will be a critical evaluation of the principle of autonomy which will be balanced against the welfare principle. The conflict between these two principles will be played through the harm principle and the place of morality in the criminal system. Paternalism will then be analysed only briefly to focus more thoroughly on the strict liability aspect of the proposed governmental plans by suggesting other means of achieving the desired results, and then conclude.

Our criminal system punishes less severely a minor than an adult, so too acts under automatism, by mentally ill individuals, when forced to do the act. The criminal law therefore punishes less severely, or none at all, acts which the individual has no power over. In the case of juveniles, we recognise their diminished culpability as their mental capacity is not fully developed to be legally considered autonomous individuals. The pinnacle of the criminal law therefore is the principle that one is an autonomous individual who chooses to act illegally, therefore responsible for breaking the law, hence ought to be punished accordingly. Without this autonomy, without our ability to choose and our choice of acting or not acting, the law would seem utterly unjust and unfair in punishing us for doing something we have no choice but to do.

Some however consider the principle of autonomy to be an artificial construction which has no bearing in reality as it assumes that we have the capacity 'and sufficient free will to make meaningful choices.'5 However the ability to truly choose freely may not necessarily be found in each individual.6 Social deprivation might make such autonomous choice less likely, uneducated individuals, or those with lower intelligence certainly have the capacity for autonomous meaningful choices, however in reality such capacity might not materialise.7 It is therefore argued through the retributivism theory that this principle does not only set the limits of what may be criminalised, but also confers upon the states positive obligations to create an environment for individuals in which they are able to use their capacity for choice.

As each individual therefore must be able to exercise free choice for the state's sanctions to be considered legitimate, the state must keep illegal acts and omission to the absolute ...