Chapter 2 Review questions answer guidance

The criminal law is a set of legal rules that aim to prevent acts, behaviours and omissions that the state and society see as harmful to them. In doing so, it prescribes penalties to punish and deter people from engaging in harmful acts.

Criminal laws are generally used to prevent actions that are seen as harming other people or the community/state. Agents of the state, such as the police and prosecutors, can bring people believed responsible for a potential crime to court to be prosecuted, to answer for their action or omission. The court, on behalf of the state, can pass judgment and punish. Punishments can include the loss of money (if they are fined), liberty (if they are imprisoned), freedom to choose what to do (if they are required to do unpaid work or to turn up to probation meetings), and in some states even life (if there is the death penalty). In theory, criminal law is supposed to deliver justice and fairness into the community, to level the playing field.

We have seen that the criminal law lists crimes and corresponding penalties. We have also seen that crime itself, which the criminal law covers, is a social construct. Since crimes are social constructs, the criminal law which sets out to identify crimes can also be seen as a social construct. The next step, therefore, is to explore what lies behind the conceptualisation of crime as a social construct. Relevant questions to consider here include the following:

• Based on what criteria are behaviours criminalised?
• Who has the power in society to decide what is criminalised?
• Are definitions of crimes and crime categories stable over time and across cultures?

The harm principle, articulated by John Stuart Mill (1989), holds that only conduct that is harmful to others should be criminal. So, under this principle, behaviour that harms only oneself could not be criminal, no matter how undesirable it may be considered. With any discussion of the harm principle, there is always discussion of what constitutes harm, and this is a question that gives rise to a variety of opinions, some of which are discussed in section 2.4 of this chapter.

Deviance refers to behaviour that is seen as outside the acceptable standards of behaviour in a society. It is almost always a wider concept than crime. Breaking social rules (being deviant) can also involve breaking legal rules (committing a crime), but it doesn’t have to; there are many examples of behaviour considered deviant by societies that does not break their criminal laws. Possibly the most important thing to recognise and remember about deviance is that, unlike crime, it is in the eye of the beholder — what one person classes as deviant another will not. So, as with crime, deviance is socially constructed (Downes et.al., 2016: 216).

Many suggest that the ‘harm principle’ is the best standard by which we can decide whether an activity should be criminal. Therefore, considerations such as how harmful an action is, what kind of harm it is likely to pose, and to whom, are relevant.

Not all criminal laws are based on the harm principle. For example, many criminal laws seem to protect moral interests rather than prevent harm; and people in power may use the criminal law to prevent activities they dislike.

The decision to criminalise an action is informed by considerations such as place and time, society’s values and morals, emergencies, and human rights principles (in other words, crimes are ‘socially constructed’). These factors can compete with one and another, necessitating the prioritisation of some factors over others. 

‘Crime’, because it is directly linked to criminal law, is set by the state. The criminal law is only interested in some harms, generally those where an individual (the perpetrator) can be blamed. It generally assumes that intentional acts are more deserving of punishment than acts of indifference. Many critical criminologists and zemiologists argue that the criminal law ignores many of the more serious harms people suffer. They often view criminal harms as less serious than other major forms of harm (see Boulki and Kotzé, 2018; Hillyard and Tombs, 2004). For example, poverty, inadequate housing, poor diet, poor education, inadequate healthcare, unemployment, pollution, inequalities of treatment, inequality of opportunity, inequality of outcome, unsafe working conditions, unsafe environments, and so on (Hillyard and Tombs, 2004).