LAWS5004 Final: Crime, Law and Morality Exam Guide
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Crime, Law and Morality
AIMS AND FUNCTIONS OF THE CRIMINAL LAW
• The prevention of certain kinds of behavior that society regards as either harmful or potentially harmful.
o A defence against harms that injure the interests and values that are considered fundamental to hits
proper functioning.
• Problem: Deciding whether an interest or value is so fundamental as to warrant the protection of the criminal
law.
Approaches to determining criminal behaviour
Moral wrongness approach
• An approach to deciding whether behavior should be criminalized - propounded by Lord Devlin who regarded
morality as underpinning the social fabric of society, and immoral behavior as eroding that fabric and
consequently destabilizing society.
o Advocated the use of criminal law to deter ‘immoral ‘behaviour’.
• If conduct arouses feelings of indignation or revulsion in people, it is a good indication that the conduct strikes
at the common morality and is a proper object of the criminal law.
Individual autonomy approach (‘harms to others’)
• Places individual autonomy at a premium and contends that this and its attendant individual freedoms are vital
to the proper functioning of society.
• Calls for individuals to be accorded as much freedom as possible, subject only to the minimum restrictions
required to provided other individuals sharing the community with those same freedoms.
o Criminal law should therefore be used only against behavior that injures the rights and interests of
these other people, i.e. behavior that harms others.
• ‘Harms to others’ approach relates to individuals who have reached a sufficient degree of mental maturity to
competently decide what is best for themselves.
• Confines the role of criminal law to proscribing activities that impinge on the freedoms of other individuals
within the same community.
Community welfare approach
• Justifies the use of the criminal law to protect the continued physical well-being of members of a community.
• Places a premium on community interests and would be prepared to override individual autonomy for the
greater good of the community.
Major functions
• To distinguish civil wrongs from criminal wrongs ➞ A person who is harmed by a tort or by a breach of contract
may sue for damages or obtain some other remedy in a civil court. i.e. the harmful conduct may not be
regarded as sufficiently serious to constitute a crime.
• Primary Task: To stipulate the degree of seriousness of criminal conduct. o Knowing the degree of seriousness
of a crime is vital to selecting the proper label of offence and the appropriate penalty.
o Considerations for assessing the seriousness of criminal conduct:
‣ Impact of the conduct on victims of the particular kind of crime.
‣ Extent of culpability of the offender.
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‣ The degree of likelihood of harm.
SOURCES, PRESCRIPIONS AND INFLUENCES OF THE CRIMINAL LAW Sources
• Criminal laws prescribed by statute in each state and case law.
• Commonwealth criminal law regulating matters within the domain of the constitutional powers of the
commonwealth.
• Critique: Inconsistencies in the substantive criminal laws of the Australian jurisdictions.
Prescription of Criminal Law
• Argument: Since the criminal law is society’s most powerful measure in regulating social mischiefs, it should be
the legislature who decides what the law should be as opposed to a small number of unelected judges.
o Criminal law in statutory form would achieve greater certainty when compared with the
common law ➞ members of society are given fair warning of their social responsibilities under the
criminal law and can readily find these out. o
• Contrast: The role of judges in their pronouncements of the criminal law - often vague
Categories of Crime
• Crimes involving death (homocide - causing death to a human being):
o Arguably the most serious harm, e.g.:
‣ Murder
‣ Attempted murder
‣ Manslaughter, infanticide and causing death by reckless driving
• Crimes involving bodily injury:
o Designed to protect bodily integrity; e.g.:
‣ Physical assaults resulting in very serious bodily injury that brings the victim close to death.
‣ Sexual offences.
‣ Psychic assault (threats to apply unlawful force)
• Road traffic offences:
o Minor in nature and perform a regulatory function promoting the smooth flow of traffic - some are
more serious e.g.
‣ Reckless driving; negligent driving and drunk driving.
• Occupational health and public safety offences:
o Offences designed to prevent physical injury in the workplace, from the consumption of goods, in the
use of public transportation etc.
• Offences against public order:
o Range from serious offences as rioting and violent disorder to minor ones such as offensive behavior
or the use of offensive language ➞ designed to enable members of society to move about freely
without fear of violence.
• Offences against the state:
o E.g: treason, sedition, and providing assistance to the enemy in time of war o Seek to protect the
foundations of the state and maintain the stability of the government.
• Property offences:
Document Summary
The prevention of certain kinds of behavior that society regards as either harmful or potentially harmful: a defence against harms that injure the interests and values that are considered fundamental to hits proper functioning. Problem: deciding whether an interest or value is so fundamental as to warrant the protection of the criminal law. If conduct arouses feelings of indignation or revulsion in people, it is a good indication that the conduct strikes at the common morality and is a proper object of the criminal law. Places individual autonomy at a premium and contends that this and its attendant individual freedoms are vital to the proper functioning of society. Confines the role of criminal law to proscribing activities that impinge on the freedoms of other individuals within the same community. Justifies the use of the criminal law to protect the continued physical well-being of members of a community.
