Intro to Criminal Law PDF

# CHAPTER ONE ## DEFINITION OF CRIME, PRINCIPLES OF CRIMINALIZATION, HISTORY OF CRIMINAL LAW, SOURCES OF NIGERIAN CRIMINAL LAW ETC. ### 1.0 Introduction This book examines the principles of criminal liability under Nigerian Law. The Criminal Code1 is the principal focus of examination2 because it...

# CHAPTER ONE ## DEFINITION OF CRIME, PRINCIPLES OF CRIMINALIZATION, HISTORY OF CRIMINAL LAW, SOURCES OF NIGERIAN CRIMINAL LAW ETC. ### 1.0 Introduction This book examines the principles of criminal liability under Nigerian Law. The Criminal Code1 is the principal focus of examination2 because its provisions are generally duplicated in the Laws of all the States in Southern Nigeria except Lagos. The author also made references to applicable principles under the Penal Code Law of the States in Northern Nigeria. The reforms introduced by the Criminal Law of Lagos State 2011 are highlighted. The author stresses the need for the courts and practitioners to engage with the provisions of the applicable criminal laws in Nigeria and determine their meaning and scope without undue reliance on cases decided under English Law applying common Law principles and statutory provisions under English Law. The author encourages Nigerian courts interpreting the provisions of the Criminal Code to utilize decisions coming from Australia particularly the State of Queensland because several provisions of the Queensland Criminal Code are identical to the Criminal Code. Consequently, the author referred to relevant cases decided in Queensland. 1 The book examines generally the provisions of the Criminal Code, Schedule to the Criminal Code Act, Cap. C38 Laws of the Federation of Nigeria 2010. This was the Code introduced into the whole of Nigeria in 1916 after the unification of Northern and Southern Protectorates by the British Government in 1914. At that time Nigeria operated a unitary system of Government. The Code became State Law when in the course of Nigerian history, Nigeria adopted a Federal System of Government, and the Code took effect as State law. It became the Criminal Code Schedule to the Criminal Code Law of the States in Southern Nigeria and the Northern Nigeria before the Penal Code Law was enacted in 1960 for Northern Nigeria. 2 Except where otherwise indicated in this book all references to Criminal Code are a reference to the Criminal Code, Schedule to the Criminal Code Act. ### 1.1 Definition of Crime, Principles of Criminalization, History. #### Definition of crime The starting point for the definition of crime is the provision of section 2 of the Criminal Code. The Criminal Code use the word "offence" and defines it as: “An act or omission which renders the person doing the act or making the omission liable to punishment under this Code, or under any Act, or law...'3 A similar definition is contained in section 1(1) of the Criminal Law of Lagos State which defines an offence as: An act or omission which renders the person doing the act or making the omission liable to punishment or other measures under this Law, or under any other Law or Regulation... The above provision is like section 3 of the Penal Code which while not defining an offence provides that: Every person shall be liable to punishment under the Penal Code for every act or omission contrary to the provisions thereof of which he shall be guilty within Northern Nigeria. Section 1(2) of the Criminal Law of Lagos State provides that, 'offence' may be used interchangeably with, 'crime' in a Law or Regulation. If the word "offence" is synonymous with "crime" the essence of the definition in the Criminal Code is that the lawmaker adopts a “formal” definition of crime as distinct from its popular meaning. In its popular meaning, the word crime is used to describe the disapproval or condemnation of society with respect to a particular standard of conduct. The formal definition of crime contained in the Criminal Code does not provide any guidance as to the conduct designated by the legislature as a crime. Conversely, the popular conception of crime is also problematic to the extent that while societal disapproval is usually considered by the legislature in designating conducts as crimes, societal disapproval alone is not sufficient. There are many acts disapproved by societal standards which have not received legislative backing to transform them into crimes. This is almost identical to the definition contained in the Criminal Code, Schedule to the Criminal Code Law applicable in the States in Southern Nigeria. It has been argued that the word "crime" and offence are not meant to be synonymous- T.A. Aguda, "The Definition of Crime" (1963) N.B.J. 26. A. G. Karibi-Whyte, Groundwork of Nigerian Criminal Law, Nigerian Law Publications, Lagos, 1986, on p. 23. #### Features of Criminal law Several scholars have made attempts to define crime with varying degrees of success. Adeyemi examined these definitions and the formal definition under section 2 of the Criminal Code and faulted them on the grounds inter alia that they fail to indicate those criteria or peculiar characteristics which must determine the inclusion of any act or omission in the list of prohibitions contained in the Criminal Code.” Adeyemi then formulated the following definition of crime: An act or omission which amounts, on the part of the doer or omitter, to a disregard of the fundamental values of a society thereby threatening and /or affecting the life, limb, reputation and property of another or other citizen(s), or the safety, security, cohesion and order (be this political, economy, or social) of the community at any given time to the extent that it justifies society's effective interference through and by means of its appropriate legal machinery. The following key features of Adeyemi's definition should guide the legislature's choice in determining acts or omissions worthy of criminalization: * The need for consciousness or deliberation in the act or the omission and the appreciation of the consequences of the act or omission signified by the word “disregard;" * The requirement that the act or omission must disregard the fundamental values of society suggests the need for harmony between the criminal law and moral/cultural values; * The definition addressed the concern that the criminal law should not be an instrument of criminalizing conduct merely because it is immoral or against cultural or religious values by demanding in addition that the prohibited act or omission must threaten or affect the life, limb, reputation and property of another or other citizen(s), or the safety, security, cohesion and order (be this political, economy, or social) of the community; * The requirement that there must be justification for society's effective interference through and by means of its appropriate legal machinery emphasizes the need for a rational basis for See generally for an evaluation of these attempts at defining crime Karibi-Whyte, ibid, on pp. 63-79. A. A. Adeyemi, "The Criminal Process as a Selection Instruments for the Administration of Criminal Justice" in A. A. Adeyemi ed., Nigeria Criminal Process, University of Lagos Press, Lagos, (1977), on pp. 31-32. Ibid. #### Principles of criminalization Feinberg has identified ten guiding principles10 that should provide a guide for making determinations about the type of conduct that should be prohibited by penal legislation. These principles he labelled as 'liberty limiting principles.'¹¹ A liberty limiting principle states that a given type of consideration is always a morally relevant reason in support of penal legislation even if other reasons may in the circumstances outweigh it.12 Feinberg is quick to warn that the diverse liberty-limiting principles proposed by various philosophers, while distinct and separate, are nonetheless not rivals. More than once, and even all of them could be true. 13 Feinberg dedicates Volumes 1-4 of his books to four principles; the harm principle14 and three other principles viz: the offence principle, 15 legal paternalism, 16 and legal moralism.¹" The four principles have generally been recognized by most writers 18 as the basic principles of criminalization by contemporary Anglo-American criminal legal philosophy.19 The import of the principles is examined below. #### The harm principle The harm principle owes its origin to the work of John Stuart Mill. The principal concern of Mill was to formulate a principle designed to chart the parameters of permissible governmental interference with the liberty or autonomy of the citizen. The need for such an approach focused on the objective of placing principled restrictions on the coercive use of state power has always been the concern of human societies. This is because as noted by Schonsheck, 'enforcing the criminal statutes is the most intrusive and coercive exercise of domestic power by a state. '20 Motivated by libertarian ideal, Mill formulated the harm principle or the principle of liberty thus: That principle is, that the sole end for which mankind is 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 civilized community, against his will, is to prevent harm to others. His own good, either physical or moral is not sufficient warrant. 21 * Ibid. * Ibid. * Joel Feinberg, Offence to Others – The Moral Limits of the Criminal Law (New York: Oxford University Press) 1985. * Joel Feinberg, Harm to Self – The Moral Limits of the Criminal Law (New York: Oxford University Press, 1986). * Joel Feinberg, Harmless Wrongdoing – The Moral Limits of the Criminal Law (New York: Oxford University Press, 1988). * Feinberg, Harm to Others, supra note 10, on p. 12. * N. Persak, Criminalising Harmful Conduct –The Harm Principle, its Limits and Continental Counterparts (Springer, 2006) on p. 13. * J. Schonsheck, On Criminalization. An essay in the Philosophy of the Criminal Law (Kluwer: Dordrecht-Boston-London) on p. 1. * John Stuart Mill, On Liberty, with, The Subjection of Women and, Chapters on Socialism, Stefani Collini, ed., (Cambridge, Cambridge University Press, 1989) on p. 13. Mill's harm principle has attracted considerable academic interest and critical commentary. 22 Before critiquing Mill's formulation in relation to the concept of harm and the meaning of harm, a preliminary comment will be made about Mill's claim that the principle is the sole criterion justifying society's interference with liberty. Is the harm principle sufficient as the sole basis for justifying society's interference in individual liberty vide the criminal law? Or are there other principles justifying intervention through the criminal law? Feinberg rightly disagrees with Mill on the harm principle as the sole legitimate criterion for criminalization. Feinberg formulates his version of the harm principle thus: It is always a good reason in support of penal legislation that it would probably be effective in preventing (eliminating, reducing) harm to persons other than the actor (the one prohibited from acting) and there are no other means that is equally effective at no greater cost to other values. 23 The same view is shared by Holtug who argued that the harm principle is a necessary but not a sufficient condition for criminalization.24 While there is no doubt that the harm principle is an important principle of criminalization, it is an oversimplification of criminalization to contend that it is or should be the only principle justifying interference with liberty through the criminal law. The harm principle has been criticized as being 'too broad to map the distinction between conduct ineligible for penal prohibition' and too narrow because it cannot capture intentional interferences with the free exercise of will that might not inflict or risk harm and that might even benefit the person interfered with.25 Feinberg is also worried by the fact that the harm principle as formulated by Mill “is too vague to be of any potential use at all."26 Feinberg's objection to the vagueness of the harm principle and the problems it may cause is best captured in his own words thus: Clearly, not every kind of act that causes harm to others can rightly be prohibited, but only those that cause avoidable and substantial harm. Since the effect of legal coercion may itself be harmful to the interest of the actor it restrains, one would think that only the prevention of still more serious harms to others could justify its infliction...the harm principle must be made sufficiently precise to permit the formulation of a criterion of 'seriousness,' and also, if possible, some way of grading types of harms in terms of their seriousness. Without these further specifications, the harm principle may be taken to invite state interference without limit, for virtually every kind of human conduct can affect the interests of others for better and worse to some degree and thus would properly be state's business.27 We shall now proceed to examine in greater detail what constitutes 'harm' for the purpose of the harm principle. Other issues that would be addressed for which Mill provided no guidance is what qualifies as 'others' and whether 'others' is limited to victims or other abstract entities such as the society or the state? #### The meaning of harm The worth of Mill's contribution to jurisprudence and legal theory is greatly diminished by his failure to clearly delineate the meaning of the term "harm." Failed attempts to develop a plausible version of the harm principle28 have added to the frustration with Mill's famous harm principle. We shall begin a consideration of the notion of harm, by examining the dictionary meaning of the term. "Harm" is defined as 'physical, mental, or oral injury or damage. '29 This definition is not helpful. It does not explain what qualifies as harm, merely concentrating on the effect of harm as an injury or damage. The definition also necessarily requires the determination of the meaning of injury or damage, in which case the meaning becomes circuitous. This sense of harm is rejected by Feinberg as irrelevant to the harm principle. 30 The starting point for understanding the notion of harm as an important criterion for criminalization should perhaps begin with the effort made by Hall. While his conception of criminal harm includes physical harm which he described as the 'simplest type found among them, e.g., a human being dies, dwelling-house burns...,' he was quick to point out that criminal harm is more than physical harm.31 Criminal harm, therefore, includes harm to intangible interests such as autonomy of women and other injuries to 'incorporeal values.' Harm to Hall signifies the 'loss of value. '32 Two important novelties advanced by Hall's conception of harm have been identified. 33 The first is the attempt to find a notion of harm capable of fitting all sorts of crimes; and the second, as a necessary consequence, is the abstraction of harm towards a notion of incorporeal interest and values. 34 Hall also stressed the fact that the "locus of the value or a disvalue is not simply in the thing itself, but is dependent on its perception by people."35 Critiquing this aspect of Hall's thesis, Eser, noted that this necessarily implies the assumption of a normative relationship between the criminal objective and its social evaluation. 36 He regretted that Hall did not say more concerning the normative aspect of the social-legal valuation of harm. 37 Eser formulated a notion of harm as the violation of a legally protected interest. According to him, a 'legal interest' worthy of protection may be: **any factual interest or good of an individual, of a social group or of the state if it is socially recognized and in harmony with the spirit and value order as established by the Constitution.'** 38 Having defined legal interest, he defined 'criminal harm' as the negation, endangering, or destruction of an individual, group or state interest which was deemed socially valuable, in harmony with the Constitution and therefore, protected by a criminal sanction.'39 Commenting on Aser's approach, Kleinig, described it as the legalization of the concept of harm. 40 Kleinig argued that the legalization of harm is a legal fiction designed to provide a unified rationale for legal interference. While this is certainly true in cases of legally protected interest that does not result in any damage to the victim, Kleinig, perhaps misses the point of emphasis in Eser's thesis which stresses the importance of social recognition of a factual interest or good. This aspect of Eser's thesis emphasizes that the criminal law is a selection instrument that weighs the social relevance and worth of factual interest or good and evaluates whether they are deserving of protection by the most invasive arm, of the law- the criminal law. Feinberg has undertaken an extensive and detailed analysis of the meaning of harm. Feinberg considers three senses of the term "harm." The first is what he describes as the derivative or extended sense.41 This is the sense in which we can say that any kind of thing at all can be "harmed." In this sense, reference may be made to harm to people's property not because of feeling aggrieved because of the property 'harmed' but the reference is in a transferred sense to the harm done to those who have interest in the affected objects. 42 It is not difficult to appreciate why Feinberg dismisses the relevance of this sense of harm in relation to understanding the meaning of 'harm' in the harm principle. The derivative sense of harm focuses on doing damage to an object, rather than on why that object is deserving of legal protection. Legal protection of an object is usually relevant when related to an interest possessed in the protected object. * Ibid, on p. 413. * Ibid. * John Kleinig, "Crime and the Concept of Harm” (1978) Vol. 15 No. 1 American Philosophical Quarterly, 27, on p. 27-28. * Joel Feinberg, Harm to Others, supra note 10, on p. 32. * Ibid, on p. 33. Feinberg describes harm in the second sense as consisting of the "thwarting, setting back or defeating an interest."43 A person has an interest in a thing when he “has a stake in its well-being."44 A person has a stake in a thing when he "stands to gain or lose depending on the nature or the condition" of the thing. 45 A person is harmed according to Feinberg, in the legal sense when interest is thwarted through an invasion by self or others.46 Whether an invasion has in fact set back an interest depends on whether that interest is in worse condition than it would otherwise have been in had the invasion not occurred.47 Feinberg identifies the third sense of harm as the normative sense. Harm occurs in the normative sense when one person wrongs another by his indefensible (unjustifiable and inexcusable) conduct which violates the other's rights, and in all but certain special cases such conduct will also invade the other's interest and be harmful. 48 He concluded his explanation on the meaning of harm by arguing that the sense of harm as used in the harm principle must represent the overlap of senses two and three: only setbacks that are wrongs, and wrongs that are setbacks to interest, are to count as harm in the appropriate sense.49 #### The notion of harm to others A critical part of the harm principle is the notion of harm to others. The harm principle does not support the criminalization of just any kind of harm, or harm in general.50 The harm that is needed for the purpose of the harm principle is harm to others.51 Persak has argued that the issue of the identification of "others" in criminal law can perhaps be more easily approached via the identification of "victim" or victims.52 It is generally with respect to the person whose interest or rights is the object of the protection of criminal law that the meaning of "others" in the harm principle can be properly understood. The question, therefore, is: who is a victim of a crime for the purpose of understanding the "others” in the harm principle? Feinberg considers three meanings of the victim and offers a modified version of the third sense of victim as the plausible meaning of victim for the purpose of the harm principle. Harm is not suffered by a victim in this sense unless 'he has been wronged' by any unconsented-to harm to interest. 53 An important question concerns the scope of ‘others.' Is 'others' limited only to individuals or does it extend to abstract entities such as the State, the community etc. While the object of the criminal law's protection of 'others' is primarily concerned with the protection of individuals, some crimes are designed to protect entities such as the State. Feinberg identifies some conducts that rarely causes clear and substantial harm to any specific person or group but are said to cause harm to the public or society, public institutions or practices, the general ambience of the neighbourhood, the economy, the climate or the environment.54 The crimes in this category include smuggling, income tax evasion, contempt of court etc. Feinberg labels the harms produced by these crimes as 'public' as opposed to 'private' harms provided it is kept in mind that the public is composed of private individuals standing in complex social and legal relations. 55 Feinberg explains two closely connected conceptions of public interest and public harm. In the first conception, a 'public interest' is a collection of specific interests of the same kind possessed by a large indefinite number of private individuals." Public harm in this conception is produced by generally dangerous activity that threatens no specific person nameable in advance, 57 but almost, anyone who happens to be in a position to be affected.58 Public interest in the second conception according to Feinberg, is a 'common' or widely shared specific interest.59 Common interest he explains further as interests that all or most persons in a community have in one and precisely the same thing. 60 In the author's view, public interest for the purpose of the harm principle should be a combination of both senses of public interest. Whether the interest is a collection of specific interests of the same kind or a common interest that all or most persons in a community have in the same thing, the basic connecting factor is that the interest is shared not necessarily by all but as a generality of the members of a community and worthy of protection by the criminal law. * Ibid, on p. 11. * Joel Feinberg, Harm to Others, supra note 10, on p. 118. * Ibid. * Ibid, on pp. 222-223. * This is similar to Bentham's "...unassignable indefinite multitude of the whole number of individuals of which the community is composed..." in Jeremy Bentham's, An Introduction to the Principle of Morals and Legislation (eds.) J.H. Burns and H.L.A. Hart (University of London, Athlone Press, 1970) on p. 189. * Joel Feinberg, Harm to Others, supra note 10, on p. 223. * Ibid. #### Legal moralism Legal moralism is concerned with the question of whether the criminal law should be used to punish immorality “as such."61 Legal moralism is subsumed in the bigger issue of the relationship between law and morals generally. 62 Legal moralism conceives that the perceived immorality of conduct may be a good reason for the criminal proscription of that conduct. 63 According to Feinberg, the principle of legal moralism approves that '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. '64 This principle is rejected by liberals who argue that the immorality of an act alone should not be the basis for criminalizing the conduct other than the fact that the conduct causes harm or offence to others. While rejecting legal moralism, liberals however do not deny the fact that large parts of the criminal law do reflect moral values. Offences such as murder, theft, fraud etc., are acts that are generally perceived to violate moral values. The liberals however reject drawing a general justification from such instances as the basis for arguing that the criminal law should punish conducts that are immoral as such. Bentham perhaps put the liberal position clearly when he noted that morality commands everyone to do all that is advantageous to the community, but there are many acts useful to the community which legislation ought not to command.65 He added further that there are many injurious actions that the law ought not to forbid, but which morality forbids. Consequently, he argued that “legislation has the same centre with morals, but it has not the same circumference. "66 #### Devlin/Hart debate The starting point of the modern debate on the propriety of the criminal law enforcing morality as such can be traced to the Devlin/Hart debate in the second half of the 20th century. The debate itself is set against the background of the Report of the Committee on Homosexual Offences and Prostitution67 in England (the Wolfenden Report). In recommending the decriminalization of homosexual practices between consenting adults in private, the Committee identified what it perceived to be the function of the Criminal Law thus: ...the function of the criminal law ...is to 'preserve public order and decency, to protect the citizen from what is offensive and injurious, and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are specially vulnerable because they are young, weak in body or mind, inexperienced, or in a State of special physical, official or economic dependence. It is not, in our view, the function of the law to intervene in the private lives of citizens or to seek to enforce any particular pattern of behaviour, further than is necessary to carry out the purposes we have outlined. 68 The Committee stressed the importance that society and the law ought to give to individual freedom of choice and action in matters of private morality. The Committee noted that: Unless a deliberate attempt is made by society, acting through the agency of the law, to equate the sphere of crime with that of sin, there must remain a realm of private morality and immorality which is, in brief, and crude terms, not the law's business. To say this is not to condone or encourage private immorality.69 * Ibid. * Jeremy Bentham, The Theory of Legislation, (Bombay, N.M. Tripathi Private Limited, 1979) on p. 36. * Ibid. * Report of the Committee on Homosexual Offences and Prostitution (CMD 247) 1957. * Ibid, para. 13. * Ibid, para. 62. Devlin in his critical response to the reasoning underlying the Committee's Report disagreed with the view that there is a realm of private morality and immorality that should not be the business of the Law. Devlin asserted the existence of what he called “public morality." Devlin conceived of society's public morality as a community of ideas about the "way its members should behave and govern their lives. "70 He also postulated how public morality is to be determined. Devlin argued that the legislature is to determine public morality not by considering the opinion of the majority of the citizens because this is impracticable, but by using a standard which does not depend on the counting of heads. It is determined he argued, by using the standard of the reasonable man. This reasonable man Devlin warns should not be confused with "the rational man." The reasonable man who he also described as the "right-minded man" is not expected to reason about anything and his judgment Devlin submitted "may be a matter of feeling."71 Immorality for the purpose of the Law he argued, is what every right-minded person is presumed to consider to be immoral. This is however not sufficient. It must be supplemented by a real feeling of reprobation, intolerance, indignation, and disgust because these are the forces behind the moral law, in the absence of which the "feeling of society cannot be weighty enough to deprive the individual of freedom of choice. "72 The above aspect of Devlin's thesis on how public morality is to be determined has justifiably attracted strong negative critical reviews. Hart queried the logic that has led Devlin to the impossible result: a practice is immoral if the thought of it makes the man in the Clapham omnibus sick. 73 He wonders even if we accept Devlin's view as to what constitutes public morality why we should not summon all the resources of reason, sympathetic understanding, as well as critical intelligence, and insist that before the moral feeling is turned into criminal law it should be submitted to the scrutiny of a different kind. Surely Hart, argues, that the legislator should ask whether the general morality is based on ignorance, superstition, or misunderstanding amongst other relevant considerations. Hart summed up his rejection of Devlin's thesis with a comical undertone: * Patrick Devlin, "Morals and The Criminal Law" in The Enforcement of Morals, (New York: Oxford University Press, 1963) 1 on p. 9. * Ibid, on p. 15. * Ibid, on p. 17. * HLA Hart, "Immorality and Treason" The Listener, 30 July 1959 pp. 162-163. To any theory, which, like this one, asserts that the criminal law may be used on the vague ground that the preservation of morality is essential to society and yet omits to stress the need for critical scrutiny, our reply should be: 'Morality, what crimes may be committed in thy name. 74 While supporting Hart's criticism of Devlin's thesis, Feinberg noted that by appealing to conventional (popular, established) morality as the rightful object of criminal enforcement, Devlin does not do his cause any good if all that the morality consists of is widespread or prevalent feelings without rational support.75 Feinberg, argues that if the simple one-step argument from "x is immoral” to “x should be criminal” is to have any plausibility, x must be immoral by reference to a critical or objectively correct moral principle. This is because as Feinberg, puts it x may be “immoral” only in the sense that it contravenes a particular group's thoroughly mistaken and even wicked established popular morality. 76 Devlin's thesis on what constitutes public morality has also come under the searchlight of another liberal critic in the person of Ronald Dworkin. The critique of Devlin's thesis by Dworkin is anchored on the argument that it is based on the anthropological sense of the use of the terms "moral position" and "moral conviction" as distinct from its discriminatory sense.7" In the anthropological sense, “moral position" or moral conviction is descriptive by referring to the attitudes a group displays about the propriety of human conduct, qualities or goals.78 It is in this sense that we say that the morality of Nazi Germany was based on prejudice, or was irrational.79 This sense is distinct from a discriminatory sense in which we also use the terms “moral position” and “moral conviction” to contrast the positions they describe with prejudices, rationalizations, matters of personal aversion or taste, arbitrary stands, and the like.80 Devlin's thesis fails according to Dworkin because they depend upon using "moral position" in the anthropological sense.81 Devlin's public morality as determined by the reasonable man or the right-minded man need not be supported by reason and may be a matter of feeling. Dworkin argues forcefully that even if it is true that most men think homosexuality an abominable vice and cannot tolerate its presence, it remains possible that this common opinion is a compound of prejudice, rationalizations (based on the assumption of fact so unsupported that they challenge the community's standards of rationality) and personal aversion.*2 If such is the case, it follows then that the principles of democracy which occupy a critical and fundamental position in our popular morality do not justify restricting another's freedom for a consensus reached on the basis of prejudices, personal aversions and rationalizations. 83 Moral positions or moral convictions conceived in the discriminatory and the anthropological senses appear to be like what Hart christened a distinction between "positive morality" and "critical morality."84 Hart describes positive morality as the morality accepted and shared by a given social group. Critical morality is the general moral principle used in the criticism of actual social institutions including positive morality. 85 The criticism of Devlin's public morality by Hart, Dworkin and Feinberg is valid and illuminating. In a liberal democracy, ideas about what is right and wrong, particularly issues concerning the enforcement of morality by the criminal law should not be shielded from rigorous rational inquiry aimed at ensuring that the underlying assumptions justifying such morality are not tainted by considerations that should not feature in rational debates about public morality. It also affords a critical but important tool to ensure that the reach of the criminal law does not extend unduly to matters which cannot be justified after critical and rational interrogation. Furthermore, it ensures that we do not fall prey to the attractive but dangerous assumption that a conduct is wrong because the majority (without a critical rational basis) believes it is wrong, there is always the possibility that the majority may be genuinely or ignorantly wrong. * Ibid. * Ibid. * Hart, Law, Liberty and Morality, supra note 61, on p. 20. * Ibid, on p. 20. #### Morality and harm It is important to briefly examine the link between morality and the harm principle. Hart faulted the attempt by Mill's critics to point to the actual existence of laws punishing morality as if this in some way cast doubt on Mill's claim that the criminal law should not be used for this purpose. 86 Devlin had argued that the only reason why the criminal law discountenanced consent as a defence to murder and criminalized self-regarding conduct like euthanasia, attempted suicide and suicide pact is because these conducts threaten one of the greatest moral principles upon which society is based, that is, the sanctity of human life. 87 Hart countered that Devlin's position is dogmatic and these offences can be explained on other policy grounds other than on the ground of legal moralism. The offences can be explained based on legal paternalism, designed to protect individuals against themselves. Hart argued that paternalism is a perfectly coherent policy. 88 While Hart's argument above is tenable, is it possible to disentangle moralism from the harm principle? In other words, is the concept of harm morally neutral or is there any moral content embedded in the harm principle? MacCormick and Nagel have argued that legal moralism cannot be separated from the harm principle because moral decisions must be made about which legal interest should be protected before a notion of harm can be formulated. This point is implied in the normative definition of harm proffered by Feinberg as the wrongful setback of interest. Harım in this sense does not only consist in setting back another's interest but doing so in a manner considered by the law as wrongful. In developing the element of wrongfulness in the harm principle, Feinberg describes wrongful conduct as one that is morally indefensible as a generic term for actions and omissions that have no adequate justification or excuse. The question of wrongful acts or omissions as one without justification and excuse is however problematic. First, the questions of excuse are typically questions of attribution, rather than of wrongdoing: what is at stake is not whether a wrong was done (of a kind that concerns the criminal law), but whether the wrong can be attributed to the agent as something for which he can be held liable. We agree with Duff's view that to build inexcusability into the criteria of criminalization, conflate distinct questions. Feinberg's postulation of wrongful conduct as one that is morally indefensible shorn off the aspects of "actions and omissions that have no adequate justification or excuse" underscores the important intersection between the harm principle and legal moralism. In addition, to an act or omission qualifying as "harm" within the harm principle as amplified by Feinberg, it must also be a wrongful conduct within Hart's sense of critical morality. * Ibid, on p. 27. * Devlin, "Morals and The Criminal Law," supra note 70, on pp. 6-7. * Hart, Law, Liberty and Morality, supra note 61, on pp. 31-32. * Neil MacCormick, Legal Rights and Social Democracy (Oxford: Claredon Press, 1982) on p. 29. * Ernest Nagel, "The Enforcement of Morals" (May/June 1968) The Humanist on pp.19-27. * Feinberg, Harm to Others, supra note 10, on p.108. * R A Duff, "Harms and Wrongs" (2001) Vol. 5 No. 13 Buffalo Criminal Law Review, 13, on p. 19. #### Principle of offence to others According to Feinberg, the offence principle states that it is always a good reason in support of a criminal prohibition that it would probably be an effective way of preventing serious offence (as opposed to injury or harm) to persons other than the actor and that it is probably a necessary means to that end. The word "offence" has both a general and a specifically normative sense, the former including in its reference any or all of a miscellany of disliked mental states (disgust, shame, hurt, anxiety, etc), and the latter referring to those states only when caused by the wrongful (right violating) conduct of others. The offence principle justifies the need to prevent some people from wrongfully offending others as a reason for coercive legislation. Offence is a less serious thing than harm and usually attracts light punishments. Examples of acts criminalized based on offence principle include insult to a religion section 204 of the Criminal Code, solicitation section 225A of the Criminal Code, indecent acts in public places section 231 of the Criminal Code, common nuisances' section 234 of the Criminal Code and misconduct with regard to corpses section 242 of the Criminal Code. #### Principle of legal paternalism The principle of legal paternalism states that "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." It is premised on the view that the State has a right to protect persons from their folly. Examples include the prohibition of narcotic drugs, rules requiring the wearing of seat belts, inexcusability into the criteria of criminalization, conflate distinct questions. Feinberg's postulation of wrongful conduct as one that is morally indefensible shorn off the aspects of "actions and omissions that have no adequate justification or excuse" underscores the important intersection between the harm principle and legal moralism. In addition, to an act or omission qualifying as "harm" within the harm principle as amplified by Feinberg, it must also be a wrongful conduct within Hart's sense of critical morality. * Ibid. * Joel Feinberg. Offence to Others, supra note 15, on p. 7. * Ibid, on pp. 7-