CRIMINALIZATION

UNIT 2

Topics in Unit 2
 Criminal law and sentencing
A person who has been found guilty of a criminal offense
is liable to be sentenced by the Court.
The fundamental reason for having a criminal law backed
by sanctions (punishment or penalty for violation) is
deterrent or preventive.
A primary justification for criminal law and sentencing is
that offenders deserve punishment for their offences.
The justice of punishment for culpable and criminalized
wrong-doing may be said to stem from the wrongdoer’s
disrespect for the value enshrined in the law.
The justification for criminal law and punishment should
therefore be sought in two dimensions- as a deserved
response to culpable wrongdoing and as a necessary
institution to deter such wrongdoing.
Criminal law, being society’s strongest form of official
censure and punishment, should be concerned only with
major wrongs, affecting central values and causing
significant harms.
The reach of criminal sanction is determined by a number
of conflicting social, political and historical factors.
 The Principle of Individual Autonomy

• One of the fundamental concepts

in the justification of criminal
laws is the principle of individual
autonomy-that each individual
should be treated as responsible
for his or her own behaviour.

Ashworth, the legal philosopher in

The "individualist principle of autonomy" refers to a England points out that the principle of
perspective that focuses on the independence and individual autonomy has two elements:
self-governance of individuals, often emphasizing the
factual and normative.
freedom to make personal choices without interference.
This is effectively described as the initial perspective that
focuses on personal freedom and the ability to make
individual choices.
 Factual Element in
Autonomy
Individuals in general have the capacity and sufficient free will
to make meaningful choices

Over the centuries the 'free will' argument has been

contradicted by the 'determinist' claim that all
human behaviour is determined by causes that
ultimately each individual cannot control.

Deterministic claim – actions beyond Conditional Nature of Blame:

a person’s control, no individuality or
personality, born to be criminals
beyond their control
Philosophers arrive at compromise propositions –
They accept the fundamental proposition that behaviour is not so
determined that blame is generally unfair and inappropriate, and yet to
accept that, in certain circumstances, behaviour may be so strongly
determined (e.g. by threats from another) that the normal presumption of
free will may be displaced.
•Blame is not an absolute concept but
rather conditional on the degree of
autonomy an individual has in a given
situation.
•In situations where external factors
strongly determine behavior, the usual
presumption of free will might be
displaced, leading to a reconsideration
of the appropriateness of blame.
 Principle of Alternative
Possibilities
Henry Frankfurt : Alternate
Possibilities and Moral
Responsibility
Principle of Alternative Possibilities (PAP): a person is
morally responsible for what she has done only if she could
have done otherwise.

The principle tells us that when alternatives are

Example: One day at the cafeteria, Kurt steals John’s lunch.
Under normal circumstances, we hold Kurt responsible for his
act. But now add that he had to act as he did. Suppose, for
example, that Kurt was coerced by a bully to steal John’s lunch;
or he is suffering from a neurological disorder compelling him
to act; or he was brainwashed. These are some of the many ways
in which his alternatives can be closed off. But however this
happens, once the alternatives are gone—once Kurt must act as
he does—blaming him no longer seems appropriate.
blocked, when only one course of action is available,
you are not responsible for what you do.
Another reason PAP is important is that it intersects
with the philosophy and practice of law. Even if
moral and legal responsibility do not coincide, there
is a region of overlap where PAP and its attendant
literature can inform legal reasoning, especially when
it aims at the just punishment of wrongdoers.
A necessary condition of criminal responsibility is that the
conduct included a voluntary act, one that the accused had a
“reasonable opportunity to avoid”
What is moral responsibility?
PAP is about responsibility for what a
person “has done”
In addition to being responsible for actions, a
person can be responsible for the consequences
of her actions. By putting salt in Sean’s tea,
Meghan is responsible, not just for ruining
Sean’s tea (what she did), but for his tea’s being
ruined (the consequence of what she did).
If Mark was sleepwalking or hypnotized when he broke into
Ken’s house, this could be excused, both morally and legally,
because in his condition, Mark could not have done otherwise.
If, due to delusion, an accused murderer could not avoid
forming the intention to kill his victim—and acting
accordingly—this also could be exculpating. (proving that a
person is not guilty of wrongdoing)
Finally, a person can be responsible for failures to act,
sometimes known as refraining or omissions, and the
consequences of such.
Example: Luke the indifferent lifeguard is accountable for not
saving the drowning swimmer, and thus for the death as well.
PAP has a different cast depending on whether responsibility for
actions, consequences, or omissions is at issue.
 What is the Ability to Do Otherwise?

Most of everyday life is conducted on the basis of beliefs

in individual responsibility, and that in the absence of
proof of determinism we should not abandon those
assumptions of free will that pervade so many of our
social practices.
When a person, S, does something, what is it for her to have
the ability to do otherwise? For help we might look to
alternative locutions: S can do otherwise; S has the power to
do otherwise; this is possible for S; the world in which S does
otherwise is accessible to S; doing so is up to S; this
is open to S. But without further elaboration, these aren’t much
more than synonyms for what’s to be explained.

S’s being able to do otherwise is distinct from its merely being

possible that S do otherwise. Once Lisa the skydiver jumps out
her plane, it is (logically) possible that she float in midair rather
than fall. But it’s not in her power to do so: the world in which
Lisa floats is not accessible to her.
If Kurt is brainwashed to steal John’s lunch, then while it’s
possible that he refrain, he nevertheless can’t. Something must
be added to S’s possibly doing something else to ensure it’s
within S’s power to do so.
 Normative Element in
Autonomy
Individuals should be respected and treated as agents capable
of choosing their acts and omissions, and without recognizing
individuals as capable of independent agency they could hardly
be regarded as moral persons.
Normative Element:
•The normative element of autonomy refers to a set of
principles or values prescribing how individuals
should be treated.
•It suggests that individuals ought to be respected and
treated as agents capable of making choices. Without
this recognition, they might not be considered moral
This is a central element in the'defensive' approach to persons.
criminalization advanced by Nils Jareborg and others, insisting
on the importance of protecting individuals from undue state
power.

The principle of autonomy assigns great importance to

liberty and individual rights in any discussion of what the
state ought to do in a given situation.
Defensive' approach to criminalization advanced by Nils
Jareborg

The defensive approach emphasizes the importance of

protecting individuals from excessive state power. It
suggests that criminalization should primarily serve to
defend individuals from harm rather than being overly
intrusive.
He insisted on the importance of protecting individuals from
undue state power.

•The reference to "undue state power" suggests that the

state's intervention and control over individuals should be
limited to what is necessary to prevent harm or protect
rights.
•This aligns with the defensive approach, which argues
against unnecessary and excessive criminalization that
may infringe on individual autonomy.
It emphasizes the normative element, stressing the
importance of respecting individual rights and liberties,
especially in the context of criminalization where a
defensive approach seeks to protect individuals from
unwarranted state intrusion.
 H.L.A. Hart's famous principle, that an individual should not be
held criminally liable unless he had the capacity and a fair
opportunity to do otherwise, is grounded in the primary
importance of individual autonomy. Capacity to Choose

The principle acknowledges that

Principle of Capacity and Fair Opportunity
individuals must possess the mental
and cognitive capacity to make
H.L.A. Hart's principle asserts that an individual should not be held
meaningful choices. This involves an
criminally liable unless two conditions are met:
understanding of the consequences of
• The individual has the capacity to make choices and decisions.
their actions and the ability to control
• The individual has a fair opportunity to choose otherwise or to act
their behavior.
differently.

Prevention of Unjust Punishment

By emphasizing capacity and fair opportunity, the principle seeks to

prevent the unjust punishment of individuals who may not have had
the freedom to act differently due to external constraints or lack of
mental capacity.
Balancing Accountability and Autonomy
The principle strikes a balance between holding individuals accountable for their actions
and recognizing the importance of autonomy. It ensures that criminal liability is not imposed
in situations where an individual's autonomy is compromised.
Joseph Raz identified three main features characterize the autonomy-based doctrine of freedom
First, its primary concern is the
promotion and protection of positive
freedom which is understood as the
capacity for autonomy, consisting of
the availability of an adequate range
of options, and of the mental
abilities necessary for an
autonomous life.
Second, the state has the duty not
merely to prevent the denial of
freedom, but also to promote it by
creating the conditions of autonomy.
Third, one may not pursue any goal
by means which infringe people's
autonomy unless such action is
justified by the need to protect or
promote the autonomy of those
people or of others.
It emphasizes the promotion and protection of positive freedom. Positive
freedom, in this context, is understood as the capacity for autonomy.
Autonomy, in turn, is seen as consisting of two key elements:
• Availability of Adequate Range of Options: Individuals should
have access to a variety of choices or options in their lives.
• Mental Abilities for Autonomous Life: Autonomy requires mental
abilities necessary for making independent and meaningful
decisions.
It articulates that the state not only has a duty to prevent the denial
of freedom but also to actively promote it by creating conditions
conducive to autonomy.
This suggests that it is not sufficient for the state to refrain from
infringing on individual freedom; it must take affirmative steps to
foster an environment where individuals can exercise their
autonomy.
It sets forth a principle guiding action: individuals may not pursue
any goal using means that infringe on people's autonomy unless
such action is justified by the need to protect or promote the
autonomy of those people or others.
•This feature proposes a minimalist approach to the use of criminal
law, implying that restrictions on individual behavior should be
minimal, and only imposed when there is a clear necessity to protect
or promote autonomy.
 Principles of Welfare
Limitation of individual autonomy: Now, think about
situations where just focusing on personal freedom might
be too narrow. For instance, consider cases where
someone's well-being is not solely determined by their
choices but also by basic needs like safety, health, and
the ability to pursue their life plans.
While the individualist principle of
autonomy focuses on personal
freedom, the principle of welfare
expands the picture to include broader
well-being interests. This is determined
collectively through democratic
decision-making, recognizing that not
every individual preference will be
accommodated.

• Modern communitarian theorists have gone further, often emphasizing the

centrality of collective goals.
• Nicola Lacey describes the principle of welfare as including 'the fulfilment of
certain basic interests such as maintaining one's personal safety, health and
capacity to pursue one's chosen life plan'! The specification of the interests to be
thus protected Should be a matter for democratic (participatory)
decision-making: this means both that the interests will be objectively
determined, not just according to the preference of each individual, and also that
individuals whose preferences are at odds with those of the majority will lose
out.
 Key Points under Nicola Lacey’s Principles of Welfare
Instead of only looking at personal autonomy, this principle
considers broader interests related to well-being.
Basic Interests in Welfare:
•According to Lacey, the principle of welfare includes the
fulfillment of basic interests, such as maintaining personal
safety, health, and the capacity to pursue one's chosen life plan.
•This expansion beyond autonomy reflects a recognition that
individual well-being is not solely determined by personal
choices but also by the satisfaction of fundamental needs and
interests.
Objective Determination of Interests:
•The use of democratic decision-making implies that the interests
to be protected will be objectively determined.
•Objective determination means that these interests are identified
based on a collective assessment of what is essential for
individual well-being rather than being solely subject to the
subjective preferences of each individual.
Democratic Decision-Making:
•He advocates for democratic (participatory)
decision-making in specifying the interests to be protected
under the principle of welfare.
•This means that the determination of which interests are to
be protected is not left solely to individual preferences but
is subject to a collective decision-making process involving
the broader community.
This means that it's not just about what each person
prefers individually, but rather what the community
collectively agrees upon.
Trade-Offs and Minority Interests:
•Democratic decision-making implies that individuals
whose preferences are at odds with the majority may lose
out.
•This implies that some individuals, especially those in the
minority with differing preferences, may not get exactly
what they want. It's about finding a balance that benefits
the majority while respecting everyone's rights.
Potential misuse or overuse of ‘community’
• Ashworth held that “The danger is that the notion of 'community' may sometimes be invoked in
support of policies emphasizing public safety and the need for greater measures to ensure
security.”
• This means that as much as it is important to pursue collective goals such as environmental
protection, public safety, and so on, the result may be to promote an idea of community without
any special weighting of individual rights. According to Ashworth, “This may produce harsh and
intrusive policies—a tendency against which Lacey, in her development of communitarian
perspectives, issues a strong warning.”

Thus, the concept of 'community' might be brought into discussions to support policies that prioritize
public safety and the need for heightened security measures. While pursuing collective goals like
environmental protection and public safety is important, there's a concern that, in doing so,
individual rights might not be given the special consideration they deserve.

If the promotion of community interests takes precedence over the protection of individual rights, it
might lead to policies that, in the pursuit of collective goals, become harsh and intrusive on
individual freedoms.
 Difference
Principles of Autonomy
1. The principle of autonomy suggests that
individual rights should be given high priority in
the legal structure.
2. The principle of autonomy is taken to require a
form of positive liberty (freedom to pursue one's
goals, etc.) rather than merely negative liberty
(freedom from attack, etc.)
3. Criminalization may be justifiable to uphold
certain social practices deemed necessary for
the general good, but decisions like
accurately stating income for taxation might
be challenging to analyze in terms of
individual autonomy.
4. The principle of autonomy suggests that
individuals remain free to decide matters
according to their preferences and may not
be sustainable in the face of collective goals
and necessities.
Principle of Welfare
1. The principle of welfare recognizes the social
context in which the law must operate and gives
weight to collective goals.
2. The principle of welfare may work towards the
same end by ensuring that citizens benefit from
the existence of facilities and structures which are
protected to a last resort by the criminal law.
3. Laws related to industrial safety, food safety,
environmental protection, etc., may be
justifiably criminalized to protect collective
well-being, even if not easily analyzed solely
in terms of individual autonomy.
4. The legitimacy of some criminalization based
on both welfare and autonomy principles is
acknowledged. Criminalization may be
necessary to protect societal interests,
especially in the absence of individual
compliance with rules related to public
welfare.
 Harm Principle and Public
Wrong
• The traditional starting point of any discussion of criminalization I s the 'harm principle'. Its essence is that the State is
justified in criminalizing any conduct that causes harm to others or creates an unacceptable risk of harm to others.
• The core idea is that the state, or government authority, has a legitimate reason to criminalize certain behaviors.
This legitimacy is grounded in the prevention of harm to others or the avoidance of an unacceptable risk of
harm. The harm principle asserts that the state's intervention is warranted when there is a potential for harm to
individuals or society which means that the government has a valid reason or basis for making certain behaviors
illegal or punishable under criminal law.

The harm principle identifies two conditions under

which the state is justified in criminalizing conduct:
A public wrong is thus a wrong against the
Conduct that Causes Harm: Criminalization is polity as a whole, not just against the
justified when the behavior directly causes harm to individual victim. One example of the public
others. element of a wrong is the creation of racially
and religiously aggravated offences of assault,
Unacceptable Risk of Harm: Even if harm has not harassment, and so forth.
occurred yet, the state may intervene if there is an
unacceptable risk that the conduct could lead to
Examples
harm. of Harm:
•Physical harm is relatively straightforward to identify, such as bodily injuries.
•Harm to property involves damage or loss of possessions.
•Harm to feelings refers to emotional or psychological harm inflicted on individuals.
•Indirect harm involves consequences that may not be immediately apparent but still have adverse effects on individuals or
 John Stuart Mill and Joel Feinberg
John Stuart Mill, a prominent philosopher, expressed the
harm principle as follows: "The only purpose for which The harm principle, as advocated by John Stuart
Mill, aims to prevent the state from unfairly
power can be rightfully exercised over any member of a
exercising power over individuals. It ensures that
civilized community, against his will, is to prevent harm to the use of criminal law is justified only when
others." there is a genuine threat of harm to others, thus
Example, if someone's actions put others in immediate danger, protecting individual liberties. The harm principle
like reckless driving that can cause accidents, the harm principle argues that the state should only intervene and
would support criminalization. On the other hand, if an action is make something a crime when there is a clear
purely a matter of personal choice, like a consensual adult risk of harm to others.
relationship, it may not be criminalized as long as it doesn't harm
others.
•Joel Feinberg is credited with developing the harm principle as He instead emphasizes the harm
part of his detailed rejection of two other concepts: 'legal principle as a more appropriate criterion
paternalism' and 'legal moralism' as sufficient reasons for for determining when the state can
criminalization. intervene through criminal law.
•'Legal paternalism' involves the state restricting individual
freedom for their own good, while 'legal moralism' involves the
state restricting freedom based on moral judgments about the
conduct, even if it doesn't harm others.
The Harm Principle by John Stuart
Mill
If we wish to define harm in terms of violations of people's
legitimate interests, we must remain conscious of the moral,
cultural, and political nature of the interests recognized in a
particular system.
Another example to better understand: As per Mill, using legal
penalties and moral coercion of public opinion should not be
used to control the actions of a person unless they harm
others. The better approach would be to reason and entreat
him/her, “I can see that your health is deteriorating since you
started doing cocaine/meth, etc, and it is holding you back from
functioning properly.”
According to Mill, the only conduct of anyone for which he is
amenable so society is that which concerns others.
Example: Even if a person says “I have the right to smoke a
tobacco.” There is evidence that those people who are near a
person smoking tobacco that its injurious to their health as
well. So it doesn’t affect just the smoker but the people around
the person puffing the smoke. Thus laws that prohibit smoking
at public places and restaurants have been enforced.
According to John Stuart Mill:
"The only purpose for which power can be rightfully
exercised over any member of a civilized community,
against his will, is to prevent harm to others.“
2 provisos: 1st is “members of a civilized society”
Means that it doesn’t apply to every culture, he was of
view that some cultures are developed than others.
Harm principle does not apply equally as to children as it
does to adults as children are not yet completely rational.
2nd proviso is “against his will” refers to the usefulness,
utility. According to Mill, “his own good, either physical or
moral is not a sufficient warrant.” It is a rejection of
perfectionism. He is against using force to achieve
perfection or development.
Explained through example: Restricting people’s food
choices in the open market by saying “sodas are not
good for you, you keep drinking it and you’ve become
fat due to that, you clearly have no self control, etc” So
Mill held that this is a wrong approach, to use power
over people even though it is for their own good and
prevent them from harming themselves, it might not be
the person drinking soda’s good, so long as that harm
is not affecting others.
 The Harm Principle by Joel
The harm principle, as originally proposed by
Feinberg John Stuart Mill, is often seen as primarily
Feinbeng proposed the definition: negative. It states that the state can intervene only
It is always a good reason in support of penal legislation that it would to prevent harm to others.
probably be effective in preventing (eliminating, reducing) harm to Feinberg formulates a positive version of the
persons other than the actor and there is probably no other means that harm principle by stating that it's a good reason to
is equally effective at no greater cost to other values. have criminal laws if they are likely to be effective
in preventing, eliminating, or reducing harm to
Feinberg identifies three senses of harm that are in general circulation individuals other than the person committing the
act.
This is harm in a transferred sense. By smashing windows or crops, vandals are said to have harmed
1. Derivative or property. The harm they caused is elliptical for the harm done to those who have interest in the house or
extended harm crops, those who have invested their own well-being to the maintenance and development of the objects.
Not only have they harmed the properties, they have also harmed the interests of the owner, thus,
extended harm in nature.
One’s interest consist of all things that a person has a stake. All interests are types of risks, example: stocks.
2. Harm defeating of Where a person can lose or gain depending on the nature or condition of the market. Such interests can be
an interest thwarted due to bad luck or events of impersonal nature. It is only when an interest is thwarted through an
invasion by oneself or others (by invading his interests, causing him enormous harm or loss) that a person is
harmed in the legal sense. (another example is death)
It is not the causing of harm that alone justifies criminalization, but the wrongful causing of harm-wrongful in
the sense of culpably assailing a person's interests, or abusing them by using them as a means to another's
satisfaction. One person wrongs another when his conduct violates the other’s right. Example: Harmless
3. Wrongful harm trespass on another man’s land violates the landowner’s property rights and thereby “wrongs” him even
though it does not harm the land.
 Public Wrong
How can we tell which wrongs done to individuals are sufficiently
'public' to warrant the condemnation of the criminal law?
Antony Duff argued that the answer lies not in an aspect of the wrong
itself, but in the public valuation of the wrong. He said that we should
The public element does not have anything to do with location:
interpret a 'public wrong, not as a wrong that injures the public, but as
unkind remarks made to a friend in public would not 'concern
one that properly concerns the public, ie the polity as a whole...
the public' unless they tended to provoke a breach of the peace,
A public wrong is thus a wrong against the polity as a whole, not
and a very public breaking of a promise to attend a certain
just against the individual victim: given our identification with the
event may not be regarded as sufficiently important for the
victim as a fellow citizen, and our shared commitment to the values
polity as a whole to be required to take action.
that the rapist violates, we must see the victim's wrong as also being
our wrong.”

Contrast those instances with domestic violence (e.g. a

substantial beating) which, even if it occurs entirely in the
private realm of a home, is a moral and social wrong that the
community should regard as a wrong that ought to be pursued
through the public channels of prosecution and trial.
The state should protect and promote the basic value of security and
freedom from physical attack by prosecuting assaults wherever they
occur. Adultery is also a good candidate for criminalization, harmful and
wrongful though it may be in many instances, since the question is
whether the value of marriage as an institution is so central and
fundamental to the political community that the state is expected to
prosecute through the criminal law those whose conduct threatens it.

Public Wrong
The concept emphasizes a shared commitment among
members of the polity to certain values or norms. When a wrong
occurs that violates these shared values, it is considered a public
wrong.
The identification with the victim as a fellow citizen plays a
crucial role. The idea is that, due to this shared citizenship, the
wrong against an individual is perceived as a wrong against the
entire community.
One example of the public element of a wrong is the creation of racially
and religiously aggravated offences of assault, harassment, and so
forth." Calling someone insulting names is not usually a criminal
offence, but the rationale for these crimes (which provide for greater
punishment when, inter alia, the offence is accompanied by racist or
religious insults) is clearly connected with a belief that it is proper for
the state to promote the basic value of racial tolerance and that this
value is so significant as to justify criminalization. Thus these offences
can be regarded as harmful public wrongs.
Crimes like terrorism, hate crimes, or political
corruption may be considered public wrongs because
they not only harm individuals directly but also
threaten the fabric of the community and violate
shared societal values.
Finally, there is one respect in which the notion of
criminalizing harmful public wrongs is less
indeterminate, and that is where the state has a
positive obligation to protect certain fundamental
rights.
In the English context this means positive obligations under
the European Convention on Human Rights. Thus the right
to life is guaranteed by Article 2, and states must ensure
that they protect this by having, for example, appropriately
restricted rules of self-defence.
The government is not just passively avoiding
doing harmful things; it's also actively putting laws
and protections in place to make sure people's rights
are respected.
There's a balancing act involved – governments
need to protect fundamental rights, but they also
have to consider other factors, like the need for
self-defense or discipline, when creating laws and
regulations.
The Minimalist Approach
• The minimalist approach is based on a particular conception of the criminal law
and its relationship to the principles of autonomy and welfare and to other forms
of social control.
• Its four main components are
• a) the principle of respect for human rights,
• b) the right not to be subjected to state punishment,
• c) the principle that the criminal law should not be invoked unless other
techniques are inappropriate, and
• d) the principle that conduct should not be criminalized if the effects of doing so
would be as bad as, or worse than, not doing so.
 Principle of Respect for Human
Rights
The minimalist approach begins with a foundational commitment
to the principle of respect for human rights. This means that the
criminal law should align with and uphold fundamental human
rights. These rights serve as a core set of principles that
individuals are entitled to, irrespective of any legal or political
considerations, careful consideration should be given to
safeguarding fundamental rights and liberties.
Ashworth explains that freedom of expression, assembly,
association, and thought/religion are considered qualified rights.
This qualification allows for interference or restriction if it is
deemed necessary for specific purposes in a democratic society.
The phrase "necessary in a democratic society" implies that any
limitations should be justifiable and proportionate in preserving
democratic values.
The court justified the interference with his rights to
freedom of religion and expression based on the
disorder and violence provoked by the sign.
For example, any criminal laws should respect freedom of
expression, freedom of assembly and association, freedom
of thought and religion, the right of privacy, and the right
not to be discriminated against in any of those four rights.
Example: Freedom of expression may be curtailed by an
offence of sending a grossly offensive message through a
public communication system, * by offences of speech likely
to stir up racial or religious hatred, * or by offences of
inciting violence.
In a case where an evangelical Christian was convicted under
section 5 of the Public Order Act 1986 for displaying a sign
saying ‘Stop Immorality, Stop Homosexuality, Stop
Lesbianism', the court concluding that the interference with
his rights to freedom of religion and freedom of expression
was justified by the disorder and violence it provoked.
 One of the core components of the minimalist approach is the
Right not to be punished recognition of an individual's right not to be subjected to state
punishment unnecessarily. This emphasizes a restraint in the use of
punitive measures by the state, highlighting the importance of
protecting individuals from unnecessary or excessive punishment.
What this means in practice is that the decision to
criminalize, and therefore to authorize punishment,
should be recognized as being of a different order Husak argues for the recognition of a specific right: the right not to be
from many other legislative decisions. It is different subjected to state punishment. This suggests that individuals have a
from taxation, or from the creation of a regime of fundamental entitlement to be free from the imposition of
administrative regulation state-sanctioned punishments. He emphasizes that being publicly
labeled as a criminal and the associated stigma can have profound
The inclusion of public censure and the potential effects on an individual's life.
override of other rights in criminalization requires
He also held that the burden of proof The decision to criminalize
robust justifications. Public censure refers to the
public condemnation and disapproval associated should lie on those who would is not merely a threshold
with criminal convictions, and overriding rights impose criminal liability. This means decision. It's not about
implies that certain fundamental rights may be that those proposing a certain making a binary choice of
restricted or sacrificed through criminal behavior be classified as a whether or not to
punishment. criminal offense must provide
criminalize; rather, it's
Husak was concerned about the five years strong justifications for doing so.
This means that as the potential
about justifying why a
imprisonment assigned to offences of breaching the
terms of a civil preventive order. If the goal is to punishment becomes more particular conduct should
deter individuals from breaching civil preventive severe, the justifications for be criminalized,
orders, the author may raise concerns about criminalization should become considering the potential
whether such a lengthy sentence is necessary even stronger. impact on individuals' lives
for achieving a deterrent effect. and rights.
 Criminalization as a last
resort
The criminal law is a censuring and preventive mechanism, but there are others.
Morality, social convention, and peer pressure are three informal sources of control, and in many
spheres it seems preferable to leave the regulation of certain unwelcome behaviour to those forces.
Informal sources of control are often more flexible and adaptable than formal legal mechanisms. They
Why informal can evolve over time in response to changing societal values and expectations. While criminal law
source of primarily operates as a punitive mechanism, informal sources of control, such as morality and social
control? convention, often have a preventive nature. They influence behavior before it reaches the stage of legal
intervention. Informal sources of control may vary across cultures and societies, reflecting diverse moral
and social dynamics.
Peer Pressure
Morality Social Convention Peer pressure is the influence exerted
Morality refers to a set of principles or by individuals within one's social circle
Social convention encompasses widely
values that guide individuals and or peer group to conform to certain
accepted norms, practices, and customs
societies regarding what is considered behaviors, attitudes, or expectations. It
within a society. These conventions are
right or wrong. It involves a sense of acts as a form of informal social control,
not necessarily codified into law but are
ethical responsibility and an compelling individuals to align their
ingrained in societal expectations and
internalized understanding of what behavior with the norms of their peer
behavior. Social conventions provide a
behaviors are acceptable or group. Fear of rejection or desire for
framework for behavior that is considered
unacceptable. Morality acts as an social approval often leads individuals
appropriate within a specific cultural or
informal source of control by influencing to conform to the expectations set by
societal context. Individuals tend to
individual decision-making based on their peers. This can discourage
conform to these conventions to gain
personal values and ethical unwanted behavior or encourage
social acceptance and avoid disapproval.
considerations.
adherence to certain standards.
 Criminalization as a last resort

The minimalist's answer, drawing on the considerations, would be

Within the law itself, there are at least two other
major techniques in addition to criminalization:
there is civil liability, best exemplified by the laws of
tort and contract, and also there is administrative
regulation, which includes such measures as
licensing and franchising.
that the law's most coercive and condemnatory technique
(criminalization) should be reserved for the most serious invasions of
interests.
Less serious misconduct is more appropriately dealt with by the
civil law, by administrative regulation, or even by introducing a new
category of non-criminal financial levies.

The key question of appropriateness will depend on other factors such
as the public element in the wrongdoing and the magnitude of the
harm or wrong involved. But the thrust of the principle-known
sometimes as the principle of subsidiarity, and applied so as to ensure
that a right is not infringed where the objective of the interference
could be secured in some other (lesser) way-is that the criminal law
should be reserved as a legislative technique of last resort, used only
for seriously wrongful or harmful conduct
Criminal law should be reserved as a legislative
technique of last resort. This means that lawmakers
and legal authorities should exhaust all available
options before resorting to the enactment or
enforcement of criminal laws. Legislative actions,
especially those carrying the weight of criminal
penalties, should be considered only when dealing with
conduct that is seriously wrongful or harmful.

The principle of subsidiarity emphasizes that if the objective of legal interference can
be achieved through other, less severe means, those alternatives should be explored
first. In other words, the use of criminal law should be proportionate to the severity of
the offense and should not be employed if the same goal can be accomplished through
milder measures.
 The principle of not criminalizing where this would be
counter-productive
• The fourth component of the minimalist approach is the principle of not creating a criminal offence, or set of offences,
where this might cause greater social harm than leaving the conduct outside the criminal law, or where the prohibition is
unlikely to be effective.
• The declaratory purpose may reassure some and deter others. But even if the preventive purpose is largely unfulfilled, it
may achieve some degree of prevention or reduction of the unwanted behaviour.
• Thus limited efficacy is not necessarily an argument against criminalization, although it provides a good reason to search
for supplementary ways of controlling the unwanted conduct.
• Even if the preventive purpose is largely unfulfilled (as, perhaps, with the 30 mph speed limit on urban roads), it may
achieve some degree of prevention or reduction of the unwanted behaviour. Thus limited efficacy is not necessarily an
argument against criminalization, although it provides a good reason to search for supplementary ways of controlling the
unwanted conduct.
Before introducing a new criminal offense, policymakers should weigh the potential social harm caused by
criminalization. If making a particular behavior criminal is likely to result in more harm than good, such as
increased social unrest or negative consequences, then the creation of a criminal offense might be
counterproductive.
The effectiveness of a prohibition in deterring or preventing the unwanted behavior should be a crucial factor in
deciding whether to criminalize. If the prohibition is unlikely to be effective, then relying on criminal law might not
be the most appropriate or efficient approach.
The declaratory purpose involves expressing societal disapproval of certain behaviors, which can reassure some
individuals and deter others from engaging in such conduct. Even if the preventive purpose is not entirely
fulfilled, there may still be some degree of prevention or reduction in the unwanted behavior.
If the preventive purpose is not entirely fulfilled, there should be an exploration of supplementary ways to control
 The principle of not criminalizing where this would be
counter-productive
Perhaps the restrictive policy against 'ineffective' laws is a version of the
argument that the inclusion of unenforceable offences may bring the
criminal law into disrepute: if so, it must be established that the patchy
enforcement of speed limits, for example, really does diminish people's
respect for other parts of the criminal law.
Minimalist Principle and De Minimis Limitation
Argument: The second argument invokes the minimalist
principle, especially as expressed through the de minimis
limitation. The minimalist principle in criminal law suggests
that the legal system should avoid using criminal sanctions
for minor or trivial wrongs. The de minimis limitation
establishes a threshold below which conduct is deemed too
insignificant to warrant criminalization.
Relation to Counter-Productive Criminalization: In the
context of the principle of not criminalizing where it would be
counter-productive, this argument contends that using
criminal law for minor wrongs may be counter-productive. If
the objective is to reserve criminal law for serious offenses,
applying it to minor wrongs might dilute the effectiveness of
the legal system and lead to unintended consequences,
such as overburdening the criminal justice system or
There are two arguments of principle against this policy,
however. One is that culpability is central to the notion of
wrongdoing, and most of these offences contain little or no
culpability require-ment. The other is the minimalist
principle, also expressed in the de minimis limitation, that the
criminal law should not be used for minor wrongs.
De minimis is a legal term meaning “too small to be meaningful.”
Culpability central to the notion of wrongdoing
Argument: The first argument presented is that culpability is
central to the notion of wrongdoing. In legal terms, culpability
refers to the degree of blameworthiness or responsibility attached
to an individual for committing an offense. The argument
suggests that for an action to be considered morally or legally
wrong, there should be a significant element of culpability on the
part of the actor.
Counter-Productive Criminalization: From the perspective of
the principle of not criminalizing where it would be
counter-productive, this argument implies that criminalizing
actions with little or no culpability requirement might be
counter-productive. If the essence of wrongdoing is closely tied to
culpability, using criminal law to punish actions lacking in
 The principle of not criminalizing where this would be
counter-productive
Thus drugs and vice laws may
(i) produce active 'black markets’,
(ii) lead the police to adopt intrusive means of enforcement; (iii) allow
the police to be selective in their enforcement, and (iv) lead to a degree
of police corruption.
The ongoing debate surrounding the penalization of
drug offenses revolves around questioning the
effectiveness, appropriateness, and wisdom of strict
legal measures. Critics argue that the consequences of
such laws, including limited impact on drug-related
activities and potential negative societal effects, warrant
a reevaluation of the current approach, with a focus on
considering alternative and potentially more effective
strategies.
The debate considers the broader impact of drug laws on society.
Excessive penalization might lead to overburdened criminal
justice systems, disproportionately affect certain communities,
and contribute to the perpetuation of a cycle of criminalization
without effectively addressing the root causes of drug-related
issues.
Prohibitions that have these consequences ought to be
reconsidered: there is an ongoing debate about the propriety
and wisdom of penalizing drug offences at all, and certainly so
severely, when it appears that the law has little effect on the
scale of drug use, importation and supply.
The other thrust of this restrictive principle is more powerful: if the
criminalization of certain conduct, such as the possession of 'soft'
drugs or various 'vice' offences, gives rise to social consequences
that are hardly better than the mischief at which the laws aim, this
militates strongly in favour of decriminalization.
One consequence highlighted is that penalizing drug
offenses, even severely, may have little effect on the
scale of drug use, importation, and supply. In other
words, the strict legal measures may not be achieving
their intended goals in terms of reducing drug-related
activities.
Some argue for a shift toward a public health
approach that focuses on treating drug abuse as a
health issue rather than a primarily criminal one. This
approach may involve emphasizing education,
rehabilitation, and harm reduction strategies.
 The principle of not criminalizing where this would be
counter-productive
There are other objections against criminalizing drug use, although
some may still argue (notably in relation to 'hard' drugs) that the case
for criminalization outweighs the other social consequences." This leads
on to a more general argument for restraint in criminalization: that,
since the enforcement of the criminal law is selective and tends to bear
down most heavily on the least advantaged (the enforcement of drug
laws is one reason for the disproportionately high number of non-white
offenders in prison in Britain and the United States), these injustices
should be kept to a minimum.
In contrast to some legal systems that
have a well-developed framework for
civil violations, English law may not
have evolved as comprehensively in
this regard. Civil violations, infractions,
or administrative wrongs may not have
been prioritized or developed to the
same extent as criminal sanctions.
English law lacks a general sanctioning system that does not
involve the censure of criminal law—a system of civil violations,
infractions, or administrative wrongs. This makes it even more
unlikely that decisions to criminalize are preceded by a vigorous
examination of whether some non-criminal sanction would be
sufficient. Small wonder that this inverted form of the
effectiveness principle tends to lead to over-criminalization
Legal systems are often influenced by cultural
and historical traditions. In England, a strong
reliance on criminal law for addressing
violations may be a reflection of historical legal
traditions, where criminal sanctions were seen
as the primary means of maintaining order and
justice. If the existing system has been
functioning, albeit with potential flaws, there
may be a reluctance to overhaul it in favor of a
more nuanced and varied approach to
sanctions.