Crimes, Harms, and Wrongs on the Principles of Criminalisation
Type 1
Simester and Von Hirsch go into detail regarding the wrongfulness of an action. To summarize, the authors begin by stating that criminal law makes actions illegal and creates punishments for those who violate the laws. They emphasize the points of decriminalizing things that are aren’t actually wrong and that by criminalizing these things, it weakens the criminal law system. They first divide up into two parts: first, an action can be wrong because of its harmfulness and second an action can be wrong not because it directly causes harm but starts the harmful act. The examples they give for one is something like murder or vandalization that by themselves cause harm to someone or something. They exemplify the second idea with the idea of blackmail- it is not inherently causing harm; however, can ultimately create someone to be harmed.
Furthermore, they create three theses’ that correlate what is wrong and what is immoral. First, “That φing is wrongful is insufficient to justify its criminalisation (Insufficiency Thesis)” (22). Second, “That φing is wrongful is necessary to justify its criminalisation (Neces- sity Thesis)” (22). Third, “That φing is wrongful is insufficient to establish even a pro tanto ground for its criminalisation (Non-qualifying Thesis)” (22). The first idea focuses on the fact that just because something is wrong, does not make it sufficient enough to be wrongful enough to prohibit, considering the pros and cons. The second idea explains that to justify something as criminal behavior, it must be morally and inherently wrong. The third theses explains that just because an action is immoral does not make it wrong, and that only certain actions are classified as wrongful. This third theses, they state, is the best theses, as they introduce “harm-based constraints on state intervention to regulate wrongs” (21). This constraint would allow the state to intervene when people’s lives are somehow being affected by an action.
The most interesting part to me was the statement that “ when labelling conduct as wrongful, and when labelling those it convicts as culpable wrongdoers, the state should get it right” (19). This seems to be untrue in our current criminal justice system. The state seems to consistently fail at treating all people with equal and fair treatment and labelling them as innocent until proven guilty. Our current climate labels people as guilty just by the color of their skin, and pre labels humans before they are suspects. Also, certain conduct seems to be overdone as ‘wrong’ as well, such as things like being a member of the LGBTQ community. This has been seen as wrong before for some unknown reason, considering no one is harmed by this. Everyone has different morals and standards that create their own views, where is the line drawn?
Simester, A P, and Andreas Von Hirsch. “Crimes, Harms, and Wrongs : On the Principles of Criminalisation.” 2011, doi:10.5040/9781472560964.
