In order to achieve a greater understanding of criminal law, it is necessary to explore the intellectual rationale behind universal truths, particularly the belief that society conditions human beings. By this principle, to create a just society, humans must be conditioned by the intervention of criminal law to act as ethical beings that do not cause harm, partake in moral wrongdoing or create public disorder.


A core justification for the existence of criminal law is freedom from harm. Harm may be physical for example subjecting vulnerable children to domestic violence, or it may be psychological, for example harassing an old lady. The principle of freedom from harm safeguards the human rights of the weakest in society. Human rights are a universal principle that is accepted by most societies. Loveless believes that it is “here the law performs a paternalistic role”[1]. Paternalism is the practice of authority to benefit the dependents. The dependents’ “consent or dissent is not a relevant consideration for the initiator”[2] Just like a concerned father may monitor the nature of the music that his son listens to, criminal law is a process for monitoring the actions of citizens to protect the vulnerable from harm.


Another fundamental reason for criminal law is to act as a disincentive for moral wrongdoing, in order to preserve social order as well as provide a framework for justice and punishment. Popular jurist Lord Devlin challenged liberal values at the time of the Wolfenden committee by arguing that the role of the law was to “rightly enforce moral principles and nothing else”[3], therefore taking away the incentive to commit immoral acts. Today, Devlin’s doctrine concerns itself explicitly with vice[4]. Vice or “Moralism” is upheld by the law internationally. For centuries in previous societies, there has been a broad consensus that acts of immorality would create chaos within society; this is proven by their classification of vice in the same category as murder[5]. A philosophical justification for disincentivising moral wrongdoing through the existence of criminal law is that it provides guidelines to live by within society, as Plato said, “it is vital for a society to exercise strict control”[6]. Transgressing against such guidelines or “control” would disrupt societal synchronisation.


Another central motivation for the existence of criminal law is to preserve public order. Devlin’s ideas give rise to the question “Is the role of the government to enforce public morality or public order?” The answer to this is simple. The role of any government is to construct a just society[7]. For this to happen, society cannot be in a position of social disarray, therefore government must work to “maintain a public order”[8] which would by definition preserve public morality. Public disorder, for example terrorism or raves, which threaten the safety of citizens, are disruptive to social stability and criminal law works to terminate these by way of punishment. Self-styled feminist Carol Smart offers the perspective that the average Joe lacks in-depth knowledge concerning gender equality and that the role of criminal law in way of public order in-fact acts to “demystify”[9] the correct rather than acceptable way to behave in a male-dominated society, which would result in long-term social harmony between the sexes.


Although in the long-term, controlling the actions of the public is beneficial. Members of society may feel that their freedom is greatly and unnecessarily sacrificed, just as the son may feel that there is no need for his father to monitor his music consumption.


One reason for there being too much criminal law in the UK is over-criminalisation. This is where crimes are created to deal with a problem with inadequate justification. The criminalisation of squatting in 2012 fuelled criticisms of the way that the UK government dealt with the domestic third world. UK’s largest homeless charity “Crisis” was horrified with the outcome and feared further downfalls, as this wasn’t the only setback. Government had also skimmed off £5m from the funding target for 2012[10] and the Alex Haigh case[11] furthered disillusionment. The occurrence of such events highlighted unnecessary punishment of simple misdemeanors, where criminal law was not being used as a last resort.


Similarly, Regulatory criminalisation is another example of too much criminal law in the UK. Some offences could easily be addressed with civil law. Public services including the police, NHS and social services argue that legislation on minor regulatory issues has led to bureaucracy and unnecessarily extensive paperwork for departments that should be working on tackling harm on the front-line. National scandals similar to the Oldham child abuse scandal 2012 as well as the NHS poor records 2012 scandal are often cited by left-wing academics such as Judy Yun who goes on to explain that the practice of “statutory form at the federal level”[12] is like steering through a maze of regulatory offence hurdles. Regulatory criminalisation therefore devalues the harm principle[13].


On the other hand, there is an increasing pressure to criminalise acts by politicians, pressure groups, journalists and the general public. This is a result of the rise in Social media, Internet transparency, and cyber & Internet crime. Despite being accused of politicisation or “political point-scoring”, the need for legislation to monitor e-crimes is real. Criminologist Prof. Yvonne Jewkes Believes that “for the past 12 years”[14] research has been conducted into Internet crime, yet legislation is sparse, so much so that there is a stigma “experienced by victims”[15] when reporting such crimes to the police. Therefore criminal law is necessary to protect the vulnerable from new methods of crime that will continue to evolve.

In conclusion, it may surmise that the reasoning for the existence of criminal law is an amalgam constructed of three fundamental elements: Freedom from harm, to act as a disincentive for moral wrongdoing and to preserve public order. When considering the volume of criminal law in relation to England and Wales, Over-criminalisation and regulatory-criminalisation prove that, despite the exception of the ever-evolving cyber-crime, criminal law should be limited for the betterment of society.


[1] Janet Loveless, Criminal Law Text, Cases, and Materials Fourth Edition (Oxford, 2014), p.6

[2] H. Tristram Engelhardt, The Journal of Medicine & Philosophy (Oxford, 2014), p.1

[3] Janet Loveless, Criminal Law Text, Cases, and Materials Fourth Edition (Oxford, 2014), p.6

[4] Ronald Dworkin, Lord Devlin and The Enforcement of Morals, The Yale Law Journal (USA, 1966), P.986

[5] Lysander Spooner, Vices Are Not Crimes: A Vindication of Moral Liberty (UK, 2006)

[6] Nicholas D. Smith, The Journal of Ethics Vol.3 (USA, 1999), P.31

[7] M. Aoki, HK Kim, M Okuno-Fujiwara, The Role of Government in East Asian Economic Development: Comparative Institutional Analysis (Oxford, 1997), p.379

[8] Myres Smith MacDougal, Florentino Feliciano, The International Law of War: Transnational Coercion and World Public Order (New Haven, 1994), p.xxiv

[9] Carol Smart, Law, Crime and Sexuality: Essays in Feminism (London, 1995), p.2

[10] David Brindle http://www.theguardian.com/politics/2012/apr/09/homelessness-charities-missing-money-boris-johnson Viewed on 06/10/14

[11] Janet Loveless, Criminal Law Text, Cases, and Materials Fourth Edition (Oxford, 2014), p.3

[12] Judy Yun, A Comprehensive Approach to Child Hearsay Statements in Sex Abuse Cases (Columbia, 1983) p.1748

[13] Professor Sheila A McLean, First Do No Harm: Law, Ethics and Healthcare (Hampshire, 2006)

[14] Yvonne Jewkes, Majid Yar, Handbook of Internet Crime (Oxon, 2011), p.xiii

[15] Yvonne Jewkes, Majid Yar, Handbook of Internet Crime (Oxon, 2011), p.356