This essay is going to explain and judge the rules and standardsof criminal law as well as the issues they have in the light of certain guidingprinciples of restraint in the construction and use of the criminal law.The principle of harm presents a concept of crime where a conductmust only be banned if it results in harming another person. This principle putsa standard in place for what types of conducts a liberal should be able to rightlyforbid. The harm principle does not say that conducts that are harmful, shouldbe prohibited; rather, it says that harmful conducts alone should be able to beprohibited.1 JohnStuart Mill’s essay, ‘on liberty,’ regardingthe principle of harm argues that: ‘Powershould only be exercised over civilians against their will if the reason is toprevent harm to others.’ Thus, the idea behind this principle is that individualsshould be able to do as they please if their actions do not harm the interestof others. 2The principle of individual autonomy is one of the crucialconcepts in the justification of criminal laws.
An individual’s right of livinghis or her life as he or she please (The right or autonomy). This principle isused in criminal law to forestall somebody’s exercise of autonomy from obstructinganother individual’s autonomy. The criminalisation of certain conducts,restricts our option by construction of the legal code. In relation ofcriminalising failures to act, the law is hindering the individuals’ decisionsand demanding an explicit course of conduct. Henceforth, if we perceiveautonomy as something that should be perpetuated and increased, criminaloffenses, especially those regarding omissions liability, that restrain ourautonomy ought to be kept to a minimum.Autonomy is also the primary approach for the advancement of’choice’ as a critical component of both legal and moral blame. As a result, conducts that the defendantcannot evade must not be criminalised. The most fundamental implications ofthis would rule out the legislation of, for example, sleeping and respiration,where we carry out these actions without choice.
Accordingly, the fairness orcriminalising unrealistic choices is debateable. In other words, where thedefendant commits an offence to avoid threatened sever violence, the defence orduress is applied. Notwithstanding, duress is not in any way permitted as adefence to murder, irrespective if it is highlighted that a reasonable personwould have responded within same manner, and therefore the defendant’s responsewas in a way an inevitable response.3A principle that assists the role ofthe law in protecting society from harm is the principle of welfare. From apossible victim’s point of view, the principle of welfare is in accordance withthe principle of autonomy mentioned previously: for someone to exercise theirright of autonomy, he should be protected from others that would unfairlyhinder his ability to do so, physically or otherwise.
4 Nonetheless, the protection of an individual’sright to autonomy entails the limitation of another individuals right to autonomy.Therefore, the principle of welfare delivers a counterbalance to that ifautonomy, and one could validate an extremely limiting criminal law. Forinstance, if an individual was to harm someone whilst suffering from anepileptic seizure the concept of autonomy would suggest that there is no liabilityas the individual did not have the necessary men’s rea. This means that harmingsomeone whilst having a seizure is not a voluntary act and only a blameworthy shouldbe punished. However, the welfare principle could potentially favourcriminalisation since the victim’s welfare was still hindered.5 Findingthe stability to encourage maximum autonomy and welfare by making theconditions, through minimum criminalisation, that permit and encourageindividuals to peruse their genuine social goals is a challenge in criminal law.
Joseph Raz argued in ‘The Mortality of Freedom’that: ‘the social conditions requiredfor the full exercise of autonomy must be provided for the states to appreciatethe importance of autonomy.’6The principle of minimum criminalisation proposes that criminal lawought to prohibit a certain conduct only if it is compulsory. This is due to severallogical reasons. Firstly, there is a limitation on the quantity of individualsthat can be incarcerated due to lack of space and facilities in prisons.Creating more offenses regularly would cause courts and prisons to becomeovercrowded. More so, criminalising more serious conduct carries the messagethat there are certain conducts that aren’t simply just immoral, but immoralenough to result in criminal proceedings.
Criminalising conducts that aren’t asserious will remove the importance of this message and will not be as effectivein reducing unpleasant social behaviours. Civil proceedings and gratifying goodbehaviours are other ways in with the law deals with immoral behaviour. Therefore,having such many statutes that create criminal offences is questionable.7This is the principle that people ought to solely be guilty ofconduct that they are accountable.
In other words, individuals must not beguilty for conduct that they are not responsible for or had no control over. Thisprinciple can be infringed if the legal code punished an individual for thebehaviour he carried out while having an episode from an epileptic fit, forinstance. This would be unreasonable as the individual did not have the necessarymen’s rea as he was not in the right state of mind to make the decision for theactions he carried out and therefore didn’t intend on causing harm.8In pursuance for a criminal sanction to take effect, judgesas well as lords must consider numerous conditions and principles before concluding.As the society today would desire a more liberal perspective. Thus, elementssuch as the Human Rights Act 1998 are viewed in more depth by courts.
The rudimental components for conducts to bedeemed as a crime are not as adequate as they previously were as there aremeasures that could potentially developed to enhance the society and make theworld a better place. Bibliography Ashworth A & Horder J, Principles of Criminal Law, (7th edition, OxfordUniversity Press, 2013) Herring J, CriminalLaw: Text, Cases, and Materials, (6th edition, Oxford UniversityPress) Child J & Ormerod D, Smith,Hogan, and Ormerod’s Essentials of Criminal Law, (2nd edition, OxfordUniversity press, 2017) Raz J, The Morality ofFreedom, (1st edition, Oxford University Press, 1986)2014)Allen M , Textbook onCriminal Law, (13th edition, Oxford University Press, 2015)1 John Child & David Ormerod’s, Smith, Hogan, and Ormerod’s Essentials ofCriminal Law, (2nd edition, Oxford University press, 2017) 2 Andrew Ashworth & Jeremy Horder,Principles of Criminal Law, (7thedition, Oxford University Press, 2013) 3 Jonathan Herring, Criminal Law: Text, Cases, and Materials,(6th edition, Oxford University Press) 2014)17 – 184 Andrew Ashworth & Jeremy Horder,Principles of Criminal Law, (7thedition, Oxford University Press, 2013) 265 Michael J. Allen, Textbook on Criminal Law, (13th edition,Oxford University Press, 2015)6 Joseph Raz,The Morality of Freedom, (1stedition, Oxford University Press, 1986)7 JonathanHerring, Criminal Law: Text, Cases, andMaterials, (6th edition, Oxford University Press) 2014)31-338 Michael J.
Allen, Textbook on Criminal Law, (13th edition,Oxford University Press, 2015)