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Submitted by ilt07 on March 18, 2008
Category: Social Issues
Words: 1846 | Pages: 8
Views: 83
Popularity Rank: 95,309
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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...
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