Criminal Legislation

Making criminal legislation is primarily a political process, and it is certainly within

the domain of the competent legislature to define a crime and prescribe its
punishment, however it would be fanatical to argue that such power has no limits.
This can be illustrated by the fact that in a democratic society, the purpose of
representative government is to ensure that the laws of the country reflect the will
the people. This is further buttressed by the fact that the organs of the state are
expected to follow the rule of law and practice separation of powers as also a
system of checks and balances. The system of judicial review is also a manifestation
of the limits imposed on the legislature.
The scrutiny of a legislation on the touchstone of the constitution, establishes
constitutionality as a limit on exercise of state power. The growth of the constitution
as a living document has led to the expansion of what is constitutional, thus leading
to ever expanding characterisation of the limitation on use of state power. Thus it is
practically impossible to assert that there are no limits to criminal law.
The justification for limitations on state's power, results from an expectation of fair
play. This caries within itself an expectation that there shall be no unreasonable
restrictions on liberty and any unwarranted censure. This basically means that the
state does not have absolute authority to proscribe conduct.
The limitations on state power in respect to criminalisation would entail requiring
legitimate, justifiable principles of criminalization. Principles of criminalisation in
this sense, would represent an identifiable set of circumstances, which if satisfied,
would give the state justification for criminalizing certain conduct.
Therefore the more pertinent question is what these limits are, from where they are
derived and how they are applied. An enquiry into this, does not result into any
straightforward answer and instead leads to a plethora of conundrums.
1.1 Nature and Purpose of criminal law

The first difficulty presented by an enquiry into the principles of criminalization

relates to the nature and purpose of criminal law.
Criminal law is distinct from civil law in the sense that there is public censure
inherent in a criminal sanction which is not the case in civil law. Further as Kadish
puts it, 'the central distinguishing aspect of the criminal sanction appears to be the
stigmatization of the morally culpable.'

This moral content of criminal law can be understood in terms of the consequences
of designating a particular act as crime.When society designates as 'crime'
particular acts accompanied by a sufficient degree of subjective awareness or
intent, it makes a critical moral judgment about the wrongfulness of such conduct,
the resulting harm caused or threatened to others, and the culpability of the
perpetrators. And when society punishes an individual for having committed a crime,
the magnitude of the sentence represents a concomitant decision about the degree
of wrongfulness, harmfulness, and culpability, all in service of the legitimate goals of
punishment'namely, to prevent future criminality and/or to justly punish individuals
for past misconduct.
In his excellent discussion of the moral content of criminal law, Stuart Green defines
these three essential concepts as follows:
The term 'culpability' refers to the moral value attributed to a defendant's state of
mind during the commission of a crime . . . . Culpability reflects the degree to which
an individual offender is blameworthy or responsible or can be held accountable . . . .
Social harmfulness reflects the degree to which a criminal act causes, or risks
causing, harm. 'Harm' is normally defined as an intrusion into a person's interest . . . .
Moral wrongfulness involves conduct that violates a moral norm or standard. Like
social harmfulness, it refers to the moral content of a defendant's criminal act,
rather than to the moral status of the actor. Killing, raping, and stealing all are
morally wrongful acts.
Another important distinction between civil and criminal law is the fact that persons
can be subjected to punishment for the breach of criminal law.
As regards the functions of criminal law, a number of philosophers have discussed
and deliberated upon this issue at length, but the only consensus that appears to
exist is on the following two functions of criminal law;
A. Declaratory Function: the declaration of forms of wrongdoing that is serious
enough to justify the public censure inherent in conviction and punishment.
B. The Preventive Function: the declaration of forms of conduct or omission that are
prohibited on the basis of their propensity to lead to significant risk or danger to an
interest protected by the law, and which justify the censure inherent in conviction
and punishment.
Thus, criminal law is not just another technique that is available to the legislature
for regulating human behaviour in a society, rather it is the most coercive of
instruments available in the hands of the state and must be used as a last resort
measure.

1.2 Need for Justification of Criminal Sanction

The state is that body which has monopoly on the legitimate use of force in its
territory. A manifestation of this use of force presents itself in the form of
punishment for breach of criminal law. Punishment for criminal law carries with it
deprivation of liberty, imposition of hard conditions and public censure, all of which if
done without the backing of the criminal justice system would amount to criminal
acts within themselves. It follows that it is the state action which gives justification
to these actions. Criminal sanction is the most intrusive of instruments in the hand
of the state to enforce obedience. Herbert Packard, has very cogently explained this
position is the following words;
The criminal sanction is the law's ultimate threat. Being punished for a crime is
different from being regulated in the public interest, or being forced to compensate
another who has been injured by one's conduct, or being treated for a disease. The
sanction is at once uniquely coercive and, in the broadest sense, uniquely expensive.
There exists an element of coercion and deprivation in a criminal sanction. The
consequences of incarceration are multidimensional and multifaceted. This is further
complicated by the fact that criminal sanction, particularly through incarceration,
exposes a person to not only limitation of liberty and hard conditions, but also, to
many unintended consequences.
With regard to the unintended consequences, the following passage by John Irwin is
worth quoting here:
When persons are arrested and jailed, they suffer more than the obvious forms of
discomfort and deprivation: sudden interruption of their affairs; instant and total loss
of mobility; abrupt initiation into the jail; a subsequent restriction of activities to a
very small area; virtual absence of all opportunities for recreation and expression;
unavoidable and constant close contact with strangers, many of whom are
threatening or repulsive; and a reduced health regimen that can lead to physical
deterioration and occasionally to serious illness. These discomforts and deprivations
are generally well recognized, tolerated and often intended by jail administrators,
other criminal justice decision makers, and most of the public. Officials and the
public want prisoners to suffer and to be controlled. But prisoners are more than
inconvenienced and deprived. They are extricated and held away from outside social
positions and relationships.

Another aspect of criminal sanction is the consequences that a person faces after
release, simply due to the fact of incarceration. These include various barriers, such
as those on right to stand for elections. These are sometimes the most persistent
punishments that are inflicted for crime.

Additionally, "private rights" may be revoked, for instance conviction for a crime is
treated as a valid ground for divorce and is treated as evidence for unfitness in a
custody proceeding, in many countries, including India. In fact in many states, a
parent's criminality is an express ground for terminating parental rights.

Another barrier is the discrimination faced by a convict in obtaining gainful

employment after release which results in the either the offenders being restricted
to menial jobs, or impelling them to return to a life of crime.

It is therefore clear, that any encounter with the criminal justice system as an
accused is highly disruptive to an individual's rights. Fletcher argues,

Given the moral gravity of decision-making in criminal justice and the unparalleled
consequences that flow from such determinations, criminal liability and punishment
must always be justifiable in inception and application.

Thus it becomes the responsibility of the society to ensure that there is a valid
justification for subjecting any person to such tribulations inherent in arrest,
conviction and incarceration.

Further, criminal sanction interferes in what is otherwise within the autonomous

sphere of the individual and criminal sanction in that sense infringes upon the liberty
of the individual. This 'liberty interest of citizens creates a presumption against the
use of the criminal sanction, and that therefore criminal prohibitions stand in need of
justification'.

Joel Feinberg's adequately captures the sentiment when he claims that, "Given the
inherent costs of criminalization, when a particular legal prohibition oversteps the
limit of moral legitimacy, it is itself a serious moral crime.'
Criminalisation is, namely, an act by which the state interferes with (restricts) the
autonomy of the individual by proscribing certain conduct. According to Mill 'all
restraint, qua restraint, is an evil', a 'prima facie wrong' .

All modern criminal legal systems, are based on a liberal premise and thus are bound
by principles of fairness in dealings with its citizens and thus need to be reasonable,
justifiable and non-arbitrary.Criminal law is 'a bluntly coercive system, directed at
controlling the behaviour of citizens' and must be used as a last resort measure
since, even the state cannot be allowed to coerce without good reason, thus
necessitating an enquiry into the need and justification of criminalising a particular
conduct.

The sentiment is adequately captured by Simester and Sullivan when they say that:

No-one, including the State, should coerce others without good reason. The
manipulation of people's conduct calls for justification, especially when it is
accompanied by censorious and punitive treatment of those who do not comply.
Unless there are compelling reasons the criminal law should not be deployed by
Parliament.

Most criminal systems in practice, appear to have no theory governing

criminalization, rather a weighing and balancing process seems to be working,
wherein 'one is to 'weigh' all the reasons in favour of criminalising a particular
action, and 'weigh' all the reasons against criminalisation; the 'weightier' set of
reasons is to prevail.' Conflicting interests 'are all matters to be taken into
consideration, and somehow a 'balance' emerges.'
However, this process has certain inherent flaws, first, as Schonsheck points out,
the metaphor of 'balancing' includes no specification of which 'weights', that is, of
which reasons that are to be placed on the two pans. Second, the reasons in favour
of criminalising are of many different sorts and so are the reasons against it. It is,
therefore, a mistake to 'mix apples and oranges' or 'comparethe incomparable' and
perform a comparative exercise (i.e. weighing) without distinguishing the quality of
reasons.

As has been mentioned earlier, criminal sanction, owing to its coercive and
expensive nature, requires justification in any liberal society. Also the weighing and
balancing system has certain inherent flaws such as its tendency to allow for
arbitrary law-making. Thus there arises a necessity of having principles which
govern criminalization. The most obvious advantage of a principled approach to
criminalization, is the availability of an objective yardstick, to determine legitimacy
of state action in proscribing conducts and prescribing punishment. A principled
approach represents an attempt to set limits on state power and thus ensure that
some basic standards are met.

Contemporary Anglo-American criminal legal philosophy in general recognises four

basic principles of criminalisation.

1. Harm Principle

The harm principle was expounded as a solution to the question as to what are the
legitimate grounds to justify state intervention into the autonomous sphere of the
individual. This principle was propounded by JS Mill in his book On Liberty (1859), in
the following words,

The sole end, for which mankind are warranted, individually or collectively, in
interfering with the liberty of action of any of their number is self-protection. That
the only purpose for which power can be rightfully exercised over any member of a
civilised community, against his will, is to prevent harm to others.
This later came to be known as the extreme liberal position. Joel Feinberg, von
Hirsch and Simester, have subsequently, expounded on this principle. Feinberg in his
excellent treatise, Moral Limits of Criminal law, has taken a less liberal position than
Mill's where he argues that;

It is always a good reason in support of penal legislation that it would be effective in

preventing (eliminating, reducing) harm to persons other than the actor (the one
prohibited from acting) and there is no other means that is equally effective at no
greater cost to other values'.

This came to be known as the, 'moderate liberal position', and has found more
support than Mill's original conception of the Harm Principle.

Feinberg's harm principle, as can be seen, is different from Mill's. Whereas Mill's
conception of the principle is exclusive of any other principles, Feinberg's harm
principle can coexist with other principles (particularly, the offence principle). For
Mill, the harm to others is the sole legitimate reason for repressive state
intervention, for Feinberg it is a good reason but not necessarily the only reason.

Feinberg also distinguishes between the non-normative sense of 'harm' as 'setback

to interest' (an action that makes the harmed party 'worse off') from the normative
sense of 'harm' as a 'wrong', that is, a violation of a person's rights. Harm under the
harm principle is an overlap of the both senses, meaning that only 'wrongful harm',
i.e. harm that sets back someone else's interests and is wrongful, represents the
proper 'harm to others' that may be rightfully criminalised.

2. Offence Principle

Feinberg's moderate liberal position recognises that there might be other good
grounds for criminalising, for example, in cases of various human experiences that
are 'harmless in themselves yet so unpleasant that we can rightly demand legal
protection from them even at a cost to other persons' liberties'.

This came to be known as the offence principle and Feinberg describes this principle
as thus:

It is always a good reason in support of a proposed criminal prohibition that it is

necessary to prevent serious offence (as opposed to injury or harm) of persons other
than the actor and would be an effective means to that end if enacted.

Feinberg, recognises the offence as a legitimate ground for criminalising only so long
as it involves criminalising offensive conduct which is (1) wrongful to some other
party (violation of the other person's rights) and (2) it is a cause of a severely
offended mental state.

3. Legal Paternalism

The third principle is called 'legal paternalism'. Legal paternalism allows the
criminalisation of self-harms (harms to self). This principle is often discarded by
many as it is seen to be infringing on personal liberty by the liberal theorists. They
argue that what this principle seeks to bring within the ambit of state's authority as
far as proscribing conduct is concerned, is actually none of the state's business.

Feinberg describes the principle in the following way:

It is always a good and relevant (though not necessarily decisive) reason in support
of a criminal prohibition that it will prevent harm (physical, psychological, or
economic) to the actor himself.

As is evident from the name of this principle the law is supposed to take the role of a
parent and practice a kind of 'tough love'; it proscribes our self-harming conduct 'for
our own good'.

Mill has raised the most cogent argument against legal paternalism when he claims
that an individual 'cannot rightfully be compelled to do or forbear because it will be
better for him to do so, because it will make him happier, because, in the opinion of
others, to do so would be wise, or even right.'

it is important to bear in mind that there is (ought to be) a difference between the
standards for a criminal and non-criminal state intervention: the legitimacy
requirements for state's penal intervention (i.e. criminalisation) ought to be different
(stricter) than the ones legitimising its non-criminal(ising) interventions.

4. Legal moralism
Feinberg formulates the principle in the following manner:

'It can be morally legitimate to prohibit conduct on the ground that it is inherently
immoral, even though it causes neither harm nor offence to the actor or to others.'

Legal moralists claim that conduct that violates conventional social mores, even
though it does not cause any harm (or offence), warrants criminalisation just
because it violates such mores. Lord Devlin argues, for example, that a society's
existence depends on the maintenance of shared political and moral values.
Violation of the shared morality loosens one of the bonds, which hold the society
together, and thereby threatens it with disintegration (on his view, causes 'tangible'
and 'intangible' harm to society), so the criminal law may therefore be invoked to
protect this shared morality.

This principle however does not find support with the liberals as this invariably leads
to the law's encroachment into a sphere which is not within the scope of its
legitimate business.