LAWS1016 Lecture Notes - Lecture 2: Joseph Raz, Positive Liberty, Neil Maccormick
16 May 2018
School
Department
Course
Professor
2| The Scope and Principles of Criminal Law
Ashworth and Horder (2013): Criminalization:
• The idea of ‘criminalisation’
‘To criminalize a certain kind of conduct is to declare that it is a public wrong that
should not be done, to institute a threat of punishment in order to supply a pragmatic
reason for not doing it, and to censure those who nevertheless do it.’
Criminalisation, therefore, by way of using State power, requires justification. What
then, are the general values to determine whether conduct is criminal?
Purposes of criminal law:
1. Declatory: reassure some, deter others
2. Preventative
3. Censuring
• The principle of individual autonomy (also discussed in 1 by Findlay)
Based on idea that individuals have the capacity and sufficient free will to make their
own choices. This is opposed to by arguments that human behaviour is determinist,
determined by causes which individuals have no control over (philosophical issue)
But it is generally accepted that in certain circumstances, e.g. by threat of another,
people have their free will displaced and cannot be held responsible for their actions
An individual must not be held criminally liable unless they had the capacity and fair
opportunity to do otherwise – H.L.A. Hart 2008
Capacity to make choices is limited:
▪ R.A. Duff: ‘preconditions of criminal liability:’ Sane adults may be held
liable for their own willed conduct, except where there is some excuse like
duress, mistake, or ‘even social deprivation’
Normative element in principle of autonomy (what is norm of human behaviour):
▪ If individuals are treated as free-willed and with capacity, then they must
also be regarded as moral persons.
▪ This is largely a liberal political theory, with a great importance placed on
individual rights against the power of the State – The State’s power to
punish is limited to only when it can be shown that an individual had
chosen the conduct for which they are liable
Issue: ‘Emphasis on individual choice militates against creating offences based on
paternalistic grounds.’ If autonomy is respected, the State should leave individuals to
make their own decisions, rather taking decisions ‘in their best interests’
Issue: Sometimes, principle of autnomy fails to take into account the social context in
which everyone is brought up (which can restrict and facilitate pursuit of certain
desired ends) and the context of powerlessness in which many have to live
To resolve these issues, there should be qualifications for the principle of autonomy
(Joseph Raz)
1. Promotion and protection of positive freedom which is understood as the capacity
for autonomy – includes availability of an adequate range of options and mental
abilities necessary for an autonomous life
2. State has a duty not merely to prevent the denial of freedom, but also to promote
it by creating the social conditions necessary to fully exercise individual
autonomy
3. One may not pursue any goal by means which infringe peoples’ autonomy,
exception being where that action protects/promotes autonomy of anyone –
minimalist approach
• The principle of welfare
Principle of welfare recognises the social context in which the law must operate and
gives weight to collective goals
find more resources at oneclass.com
find more resources at oneclass.com
Nicola Lacey 1988 The principle of welfare includes ‘the fulfilment of certain basic
interests such as maintaining one’s personal safety, health and capacity to pursue
one’s chosen life plan.’
▪ These basic interests are objectively determined, democratically. This creates
the features of social life and a community.
▪ Issue: Notion of ‘community’ can be taken to support collective goals like
environmental protection, public safety, but these do not give weighting to
individual rights, potentially creating harsh and intrusive policies (Lacey
warns against this)
Conflicting principles:
▪ If principle of individual autonomy requires freedom, then principle of welfare
can work towards that end by ensuring citizens benefit from the existence of
facilities and structures which are protected. However, this argument cannot
be made for matters such as an obligation to state one’s income accurately, for
instance.
▪ Recognition of protected rights (like Human Rights Acts around the world),
and restrictions of some rights where it is adjudged ‘necessary in a democratic
society’ illustrates the inevitable conflict between autonomy and welfare
▪ ‘On any realistic view, the principles of autonomy and welfare have a degree
of mutual interdependence, which should be recognised and structured.’ (FN
A. Brudner)
▪ Ashworth provides the solution of prioritising some rights, ‘and structuring
public interest arguments so they meet criteria such as urgency,
unavoidability, effectiveness, etc’
• The ‘harm principle’ and public wrongs (Mills)
Harm principle:
▪ The principle: the State is justified in criminalising conduct which causes
harm to others, or creates any unacceptable risk of harm to others
▪ Elements: harm and wrongfulness and public element in wrongs. Those
arguing in favour of criminalisation should bear the burden of proof, so
contention lies within these three elements and there is no sharp dividng line
to determine what is harmful, wrong, public
▪ It is a negativing principle – criminal law can’t punish wrongful conduct
unless it causes harm to others
Harm in the harm principle:
▪ Issue: What is harm? What types of harm are incorporated? ‘Harm itself is a
morally loaded concept’ (Neil MacCormick) Harm is defined by moral,
cultural and political nature of interests recognised in a particular system.
What are legitimate interests, and is this a question the state has power to
determine?
Wrongfulness in the harm principle
▪ Act must be wrongful in the sense of culpably assailing a person’s interests or
abusing them by using them as a means to another’s satisfaction
▪ Before criminalisation is justified under the harm principle, ‘there must also
be no strong countervailing considerations, such has the absence of harm, the
creation of unwelcome social consequences, the curtailment of important
rights…’
▪ Main idea of CULPABILITY – rather than wrongfulness being morally
charged, which is not what ultimately underlies the law (laws can CREATE
morals)
Public element in wrongs in the harm principle:
▪ General obligations which are of such great importance that criminalisation
may be utilised as a means of reinforcing such obligations
find more resources at oneclass.com
find more resources at oneclass.com
