Criminal Law Principles and Limits

Study Notes

Criminalization is the decision to make certain behaviors criminal. This involves transforming non-criminal acts into offenses.
Criminalization processes require justification. Liberal states cannot arbitrarily criminalize acts.
There's a wide range of criminal offenses, from minor to serious crimes, like homicides and child abuse. Having a general limit for criminal law, is therefore, quite hard.
Legal doctrine uses different approaches to assess criminalization, including common law (e.g., individual autonomy, harm principle) and civil law (legal goods). These approaches provide legitimacy to criminalization decisions.
Recent societal changes, such as Modern Risk Society, have influenced criminalization processes, shifting from retrospective punishments to harm prevention. The State's role in risk management is now prominent.
A culture of crime control, encompassing a range of preventive measures, has also become significant in criminal policies.
Over-criminalization is rising, which increases criminal offenses and sanctioning mechanisms in response to risk and control culture. Criminal laws are expanding beyond specific harms to encompass broader collective interests.

Individual autonomy is the capacity for self-directed and independent choices. It is crucial for criminal liability.
Criminal law assumes that human conduct is sufficiently free and independent to hold individuals accountable.
Individuals should not be held criminally liable unless they had the capacity and opportunity to act otherwise.

Individuals form a collective, requiring protection of collective interests.
Welfare prioritizes balancing individual autonomy with the state's duty to maintain social conditions enabling autonomy.
Balancing collective interests with individual freedoms is important. Possible conflicts exist, potentially leading to political abuse, discrimination, or infringement of liberties.

This principle, sometimes labelled as the "harm-to-others principle," primarily guides common law traditions.
Mill, famous for "On Liberty (1859)," argued that the use of power against a person should only be done to prevent harm to others.
Criminal intervention is justified by the need to defend individuals, not just the collective.
Criminal laws that only target behaviors causing harm to others.
Not all harms qualify for criminalization. Serious and avoidable harm to others is usually necessary. Activities considered trivial aren't criminalized.
The principle also touches on the controversial area of harm to collective interests. Balancing collective interests with individual freedom and considering vagueness in cases like public security or public peace are crucial issues.

Immorality by itself is insufficient justification for criminalization.
The harm principle needs to be combined with an "offense principle" to cover behaviors causing offense.
Behaviors that cause offense to the community (outrage to sensibility) are appropriate grounds for criminalization even if they do not directly harm others.