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Overview of the theory of criminal law - Coggle Diagram
Overview of the theory of criminal law
Theory of criminal liability
Harm as the basis for criminalising conduct
The idea that the law should protect us from harming ourselves as well as others is known as paternalism
The view that behaviour which is offensive but not harmful could be criminalised was developed and explored by Joel Feinberg in
The Moral Limits of the Criminal Law
(1984-88). As society progresses and attitudes change, previous crimes can be decriminalised (such as homosexuality), as well as new crimes defined and outlawed (such as those related to computers)
The idea that harm to others is the only justifiable basis for imposing criminal liability is associated with the work of John Stuart Mill,
On Liberty
(originally published in 1859)
Criminalising conduct on the basis of its lack o morality- without the need to establish harm or offensiveness- is known as legal moralism. In his book
The Enforcement of Morals
(1965), Patrick Devlin argued tha a societies shared morality holds it together, and so it is proper to criminalise immoral conduct for the sake of social cohesion and preservation
Autonomy and individual responsibility
This concept is closely linked to fault.
In a legal context, autonomy means being solely responsible, independent and able to speak for oneself, free of influences. This means most adults who are not suffering from debilitating illness or under oppressive and constricting conditions are considered to be autonomous- and therefore responsible for their own actions and their consequences
Principles in formulating rules of criminal law
This is a concept closely linked to the rule of law.
There are a number of ideals that should be adhered to when new criminal laws are introduced
Principles in formulating rules of criminal law
Correspondence principle
the result which the defendant intends or foresees should match the result which actually occurs. They should not be held liable for an act unless they meant to do it, or at least knowingly ran the risk of it
the Law Commission in 2015 criticises current laws of actual bodily harm (ABH, s47 of the Offences Against the Person Act 1861) and grievous bodily harm (GBH, under s20) as they do not conform to the ‘correspondence principle’
Maximum certainty
this is key to they rule of law- decisions are made according to legal rules, i.e. they are lawful
this means providing citizens with the ability to organise their behaviour in such a way that does not break the law, as well as protecting them from arbitrary use of state power
Fair labelling
crimes should be defined to reflect their wrongfulness and severity. This is essential in securing public confidence in the law and a sense of justice
fair labelling has two functions
properly describing the crime
differentiating a crime from other crimes particularly in relation to fault and social condemnation (e.g. the difference between murder and manslaughter)
No retrospective liability
a person cannot be guilty of committing a crime before that act was criminalised- the law does not apply backwards in time
parliamentary laws should not apply retrospectively, but it is possible by virtue of the doctrine of parliamentary soverienty
an example of retrospective criminal law is the Criminal Justice Act 2003, which allows the retrial of people acquitted of murder if there is ‘new, compelling, reliable and substantial evidence’ that the acquitted person is guilty. As a result, the defendants who were acquitted in the murder of Stephen Lawrence were allowed to be retried- see
R v Dobson and Norris
(2012)