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The Oxford Textbook on Criminology

The Oxford Textbook on Criminology (2nd edn)

Steve Case, Phil Johnson, David Manlow, Roger Smith, and Kate Williams
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date: 22 April 2024

p. 26p. 272. What is ‘crime’?free

p. 26p. 272. What is ‘crime’?free

  • Steve Case,
  • Phil Johnson,
  • David Manlow,
  • Roger Smith
  •  and Kate Williams

Abstract

This chapter discusses what crime is. No matter how universally its ideas and regulations are accepted, it is important to understand and not lose sight of the fact that crime is a social construct. Because crime is socially constructed, ideas of unacceptable and criminal behaviour alter across cultures and over time. Many suggest that what is known as the ‘harm principle’ might be the best standard by which we should decide whether an activity should be criminal. This principle holds that if conduct is not harmful to others it should not be criminal, even if others strongly dislike it. The chapter also looks at the concept of deviance and identifies: what kinds of activities are disapproved of (seen as deviant) and why; which of these are criminalised and why; what the criminal law may reveal about society and what matters to it.

Key Issues

After studying this chapter, you should be able to:

identify what the criminal law is and what it is for;

understand why the criminal law can be seen as a social construct that changes over time;

consider the reasons why some actions are criminalised, and assess how well these reasons are applied;

evaluate whether we need the criminal law in order to hold people to account and punish them.

2.1p. 28 Introduction

This chapter is entitled ‘What is “crime”?’, but before we consider what crime is, it’s worth considering why we need to describe and define it at all. Why do we need to term certain behaviours and actions ‘criminal’?

The need to regulate human behaviour stems from the fact that there is an unavoidable conflict between two key aspects of human life: our desire for autonomy (the ability to express our individuality through choosing how we live, free of external control) and our preference for living with others, in communities and societies. It is in our best interests to live with others as they can help us to meet some of our needs, both physical (food, etc.) and emotional (happiness and well-being), but social living limits our autonomy because, in a community, our completely free choices may interfere with the free choices of another. Imagine, for example, that Amy has acquired an iPhone that Beth wants. Beth decides to try and take it. Amy and Beth fight over the iPhone and the strongest, or maybe the most cunning, wins. If nothing in the community stops Beth challenging and fighting (or sneakily stealing) each time she wants something, then every member of that society will give up free choice. Such a society would be less healthy (because it would be more unfair) and less safe, because the weak would not be protected: its social harmony would be threatened because the strong would prosper at the expense of the weak.

We can see that marking some conduct out as unacceptable behaviour—in other words, as ‘crime’—is necessary. But how to define this concept? At one level, the question ‘what is crime?’ is easy to answer by merely saying what a crime is in legal terms. You could say: crime is any act or omission that a state at this time says is criminal, and to which the state attaches criminal consequences. That means that agents of the state such as the police and prosecutors can bring the person they believe is responsible to court to be prosecuted, to answer for their action or omission. If it is considered a crime and they are found guilty then the court may decide they should be punished by the state, so their money (if they are fined), their liberty (if they are imprisoned), their freedom to chose what to do (if they are required to do unpaid work or to turn up to probation meetings), and in some states even their life (if there is the death penalty) may be at risk. In theory, criminal law is supposed to deliver justice and fairness into the community to level the playing field.

To simplify it, in law a crime is:

a norm or set of norms (rules);

backed up by the threat of societal sanctions.

We now know what crime is in legal, technical terms, but this definition does not get criminologists very far. For example, it does not tell us why societies criminalise some activities but not others, nor does it tell us what types of activities might be considered crimes. There are some activities, such as murder, rape, and theft, that are prohibited in almost all societies. However, other activities are less universally considered criminal, for example fox hunting with dogs, smoking in enclosed public places, using certain drugs, dropping litter, swearing in public, not wearing a seat belt, etc. Even with serious, violent crimes like murder and rape there is disagreement about exactly what should be banned, so how does society decide exactly which activities should be classed as crimes?

In this chapter, we will look in some detail at what sorts of activities are criminalised and why; what the criminal law may tell us about our society and what matters to it; and what we can learn about those who choose to break the rules and whether it matters what type of rule they break.

2.2 Crime as a social construct

No matter how universally its ideas and regulations are accepted, it is important to understand and not lose sight of the fact that crime is a social construct. Particular behaviours become controlled through the criminal law because a society (or those who hold power in that society) decides that it wants to control them to achieve certain aims. Society often labels a certain behaviour ‘criminal’ because of the social response it produces: overall, and at that time, society considers this behaviour to be undesirable. There is nothing in acts or behaviours themselves that intrinsically means they have to be prohibited; prohibition is always a societal choice (a social construct).

Because crime is socially constructed, ideas of unacceptable and criminal behaviour alter across cultures, for example, in some largely Arab states, such as Bangladesh, drinking alcohol is a criminal offence, whereas other substances such as cannabis may be legal, but in the UK (and many other western states) it is the other way around. What is criminal also alters over time; every year the UK Parliament alters the criminal law to ensure it continues p. 29serving the needs of our society—adding some activities as new offences and removing others;, that is, legalising them—so the list of prohibited activities is constantly changing. For example, s. 33 of the Criminal Justice and Courts Act 2015 made ‘disclosing private sexual photographs and films with intent to cause distress’ (revenge porn) a criminal offence; and, since the beginning of November 2018, the medical use of cannabis (prescribed through the NHS) is now legal in certain situations. Also, until the Sexual Offences Act 1967 legalised homosexuality, it was a criminal offence in England and Wales and homosexuals were prosecuted. Since then, society has altered so much that gay couples can now be legally married—see Figure 2.1—although it is important to note that legalising a behaviour doesn’t make it instantly acceptable in society: some people are still prejudiced against homosexuality.

Figure 2.1 The legalisation of gay marriage in some states shows that what is considered a crime can change over time, and can depend on societal perspectives

Source: Q Wang/​Shutterstock

Crime is socially constructed (and continually reconstructed) by both the general public and by the powers who lead them—hopefully working together, with the state reflecting and protecting the values of the people, but sometimes in conflict (perhaps you noticed the use of ‘and/or’ in the first paragraph of this section). Let’s consider the state and the public’s influence on what constitutes crime.

The state

Although (theoretically) the state acts on behalf of and reflects a society, it is the state that ultimately solidifies the social constructs of crime. Its leaders have the power to choose which activities to criminalise and how—or how vigorously—to pursue those who offend, so the shape that laws take depends on the priorities of the lawmakers, who are often very powerful people in society. The criminal law is quite malleable, which is positive in that it can evolve to keep pace with societal change, but also means that the powerful within a state may use the law to protect their own interests (cultural, political, and economic) or those of other powerful groups at the expense of ordinary people, the powerless, or minorities (see Chapter 18).

To take an example, one of the activities most feared in our society is terrorism: ‘the unlawful use of violence and intimidation, especially against civilians, in the pursuit of political aims’ (Oxford Dictionary). Most states have laws that prohibit both acts that cause terror (such as murder) and specialist terrorist activities, so it is reasonable to conclude that governments try their best to keep their citizens safe from terrorism. Yet throughout history, most of the very worst acts of terrorism have been carried out by people working for the state. State-sanctioned terror is rarely illegal within a state. Examples are the persecution and murder of Jews in Nazi Germany; the Cambodian genocide (often called the ‘killing fields’, where more than a million people were killed by Pol Pot’s Khmer Rouge regime between 1975 and 1979); the many human rights violations including killings committed by the state in Myanmar (Burma) since the 1960s, including the ongoing victimisation of the Rohingyas, many of whom have been slaughtered and raped, others have fled to Bangladesh; the mass killing of Tutsis by the Hutus in the Rwandan genocide of 1994, and then the expulsion of Hutus by the Tutsis when they regained power about 100 days later. None of these acts were considered criminal within the states at the time; the perpetrators were often following state orders. For a fuller consideration of state terrorism, see Jackson, Murphy, and Poynting (2009) and Coleman et al. (2009).

Is there a limit to the power of the state? Although states have a great deal of control, international standards called human rights aim to prevent them from interfering in individual freedoms. A particular community or society may set standards of behaviour they find acceptable, but in doing this they should respect the human rights of individuals. These form the limits of what the international community believes a state should be permitted to do; they set the standards states or societies should uphold. When states breach these standards, they are sometimes called to account (for example, the Nuremberg trials of 1945–6 and the International Criminal Tribunal for Rwanda (ICTR), 1994), however, often the international community does not intervene because the acts of terror are considered an internal state matter (for example, the cases of Myanmar and Cambodia above). Therefore, although the international community sets standards, such as of human rights, that states are expected to uphold and respect, they do not always punish states who fail to comply.

This demonstrates that what is defined as a crime by a state is socially constructed and serves those in power at the time, sometimes at the expense of the powerless p. 30(Tombs and Whyte, 2003). This means that not only is crime a social construct, but it is shaped to fit the interests (cultural, political, and economic) of those in power. Very often their interests coincide with those of the wider population, and the areas controlled by the criminal law can be seen as acceptable to the broader population, but this is not always the case.

The public

Outside important state interests, what becomes a crime often turns on what the public wants—or more usually on what a strong or powerful social movement wants—to be prohibited or controlled (for example, smoking in public, see the change in the depiction of smoking over time in Figure 2.2). The criminalisation of many activities by the state is often supported by most of the wider public, who disapprove of the people who participate in such activities. Over time, the public talk negatively about the behaviour as being ‘criminal’, and this marks it out as being significantly worse than behaviour that is merely naughty or unpleasant—the switch to negative connotations can happen before a state criminalises the behaviour. Those who participate in prohibited activities are termed criminals and are often excluded from ‘good’ society; they are stigmatised and considered to be unacceptable as friends and colleagues.

Figure 2.2 Changing perceptions of smoking—from sophisticated to frowned upon—illustrate how ideas of acceptable behaviour can shift over time

Source: Keystone Press/Alamy Stock Photo (left); Shutterstock (right)

This exclusion often arises when the activity has a clear victim, such as violence or theft, especially if that victim is another individual. In most societies, including the UK, there is a deeply ingrained ethos—a sort of common-sense feeling—that one should not harm other people. This idea is often discussed in the context of the harm principle for criminal laws, which suggests that activities should only be crimes if they harm other people—see section 2.4. However, someone may be excluded due to engaging in criminal activity where there is no clear victim, but the activity has become ingrained in society as being unacceptable. For example, the use of illegal substances which, although no one is directly harmed (apart from the user), might be seen as immoral or as requiring criminalisation to protect the individual from harming themselves (this is known as paternalism, see Hart, 1963: 30–4). People can even be excluded owing to a perceived association with unacceptability, for example parents trying to stop their children playing with a child whose parents are criminals, the child is thought of as ‘bad’ even though they have done nothing wrong.

Whilst the public generally considers crime to be wrong and unacceptable, there are varying degrees of unacceptability (see What do you think? 2.1). For example, if a worker steals pens and paper from their employer most people would not vilify them in the same way as if they had done the same thing from a shop or an individual’s home. Somehow, we talk about theft from employers as a ‘perk of the job’ or as ‘fiddling’ or ‘pilfering’, and this bending of the language allows us to refrain from thinking of people who do this—including ourselves—as criminals and therefore from considering them ‘bad’ and excluding them from society (see Ditton, 1977). Another example of this flexibility over what is acceptable is that many would view lying on a tax form and so cheating HM Revenue and Customs (HMRC) or bringing in more duty-free goods than permitted from abroad (cheating HMRC) as less bad than ‘proper’ theft. For example, we talk about the MPs’ ‘expenses scandal’ of 2009 rather than MPs’ theft (even the eight who were convicted are rarely described as thieves). Similarly, many of us tell ourselves that everybody drives a little too fast sometimes, so it is excusable, even if a little unacceptable (while we know that it is actually illegal). Generally, people who do these things are not excluded until someone is harmed, for instance in a traffic accident caused by excess speed. Even when someone is injured in a driving accident and the speeding driver is at fault, quite often friends and family will not exclude the driver—they p. 31may remember the times they have exceeded the speed limit and consider the driver unfortunate. The crime of death by dangerous (or reckless) driving was only introduced in the Road Traffic Act 1956 because juries were reluctant to convict a fellow driver of manslaughter. By 1991, this law was focused almost entirely on the nature of the driving rather than the intent to cause harm, again increasing the likelihood that a jury would convict. Over time, these ways in which we ‘neutralise’ criminal acts can alter, for example drunk driving used to be socially acceptable, now it is often recognised as a criminal act. There are many examples of these offences that people turn a blind eye to, what Karstedt and Farrell (2006) refer to as the ‘crimes of the everyday’, see also Ditton (1977) and Henry (1978).

What Do You Think? 2.1

Are some unlawful activities more acceptable than others?

Can you think of any unlawful activities (such as the example given earlier—see the discussion of the state earlier in this section—of stealing pens from a company) that are considered to be more acceptable than others? Would you, for example, think differently about someone who ‘borrowed’ a glass from a pub because she had not finished her drink and another person who took a glass from a shop because she liked it?

Think about your own actions and behaviour; have you ever done something that, even if seemingly minor and the norm amongst your friends, is technically against the law? If so:

How did you justify this?

If that same activity was looked down upon by your immediate community or peers, would this be more of a deterrent against committing the act again than the fact it is illegal?

If you knew that your parents would find out, would that prevent you from participating in the activity?

Listed below are a variety of different excuses for crimes. Consider these reasons and the language used. Do you recognise these excuses, and do you think that we should give them any credibility?

Clare, a CEO, denies her own responsibility and blames her ‘crime’ on the negligence of those working beneath her.

Debbie claims she did not intend to hurt anyone, she was just showing off her knife-throwing skills to friends.

Ehab says that shoplifting is not a real crime because the shop is always insured.

Fred says that hitting his wife is a ‘private matter’, and in any case she deserved it because she nagged him.

Garit says that his victim started the fight so ‘deserved’ what he got.

Ian insists that he did not rape Jane; she was flirting with him and he could not be expected to be able to stop once fully aroused.

Keith claims that he should not be tried for burglary because all police and judges are hypocrites or corrupt; they have all offended as well but no one holds them to account, and ‘look how they let off all those MPs who stole loads more than me in their expenses’.

Lateef is convicted for assault and says that he does not care what society thinks because his friends think he was right to hit his girlfriend when she disrespected him.

We have so far noted that the concept of crime can vary according to culture, the suggestion being that each state or society has a set of agreed standards. However, societies are more complex than that. Different groups in a society may have different standards or ideas of what is criminal or unacceptable. So, a group of young people may applaud one of their members for defacing someone’s property with graffiti, whereas the owners of the property and others in the neighbourhood may want that person prosecuted and punished, and see them as bad people who should be excluded from society. In fact, the owner and others in the neighbourhood may well wish to exclude not just the person who actually drew the graffiti but also those who applauded them, they may consider the whole group to be undesirables, the media may join in and write about the individual and the group in very negative ways. Even if no crime is committed by anyone in the group—if they sit on a street corner or hang around a park, being a little noisy and calling out to people but not doing anything ‘wrong’—adults may still consider them ‘bad’, because they feel intimidated by them or feel they spoil the look and feel of the neighbourhood. We therefore also need to look at the intersection of groups within a society. See Becker’s (1963) seminal discussion of how certain groups get treated as ‘outsiders’ and Quinney’s p. 32(1977) critical Marxist discussion of criminal law and criminal justice which shows us how we can question the conventional ideas which we have been brought up to consider to be ‘right’.

It will be becoming clear that whilst only the state can make an act criminal, the route to behaviour being criminalised is complex. It might start with society, the state, a pressure group, or the media, and the ways in which these four elements interact affect both whether the activity is made criminal and how society views those who take part in the behaviour. The two-way relationships between these elements are shown diagrammatically in Figure 2.3.

Figure 2.3 The interrelating factors that lead to an action becoming criminalised

We have seen that what makes up the criminal law (the motivations and perceptions that help to shape it) and how those who break the law are treated are both very complicated areas of discussion. Each depends on the society you are considering and the period of history you are looking at. For most of the rest of this chapter we will focus on England and Wales today, in the early 2020s, looking at:

the difference between crime and ‘deviance’;

how a society may decide which actions to criminalise;

some of the legal requirements of criminalisation; and

whether we should have criminal laws at all—does criminalising activity cause more harm than it solves?

Test your understanding of this section by attempting the self-test questions here.

2.3 Crime and deviance

Many criminologists discuss ‘deviance’ rather than crime. They construct theories that explain why people may be deviant rather than why they offend. Are deviance and crime different and, if so, how? Deviance is almost always a wider concept than crime. It includes behaviour that is different, out of the ordinary, or not accepted but is not legally controlled (Downes et al., 2016: 21–6). In general usage, to say that behaviour is deviant simply means that it is odd or unacceptable and, in sociology, deviant behaviour is outside the acceptable standards of behaviour in a society, particularly social or sexual standards of behaviour. Breaking social rules (being deviant) can also involve breaking legal rules (committing a crime), but not necessarily (for a fuller discussion see Goode, 2016; Erikson, 1966). Deviance could be stealing a chocolate bar or carrying out a murder (both of which are also crimes) but it might also include picking your nose or scratching your private parts in public, and is very much based on the cultural standards in a society, or even the cultural expectations of part of a society.

In the case of deviance, it is often difficult to work out exactly how certain acts get classified as deviant or how one that used to be deviant becomes acceptable, if there is no criminalisation the state does not need to be involved. It is possible for the movement to come from normal people, especially if they use the internet to garner support. However, those in power (or famous film and sports stars) are still more influential both online and on social media where their tweets or ideas may be circulated more widely and agreed with or ‘liked’ more frequently. More normally, even today, apart from local ideas of deviance, the actions to be thought of as deviant or acceptable are still very much influenced by powerful organisations such as the church (and other religious bodies), the media, education, and even the state.

Adhering to social rules and norms

Most societies have an unwritten, though largely accepted, set of norms (rules, standards, or values) that members of that society are expected to live by. These are social rules and not legally enforceable. The norms or rules are specific to each culture; what is deviant in one society may not be deviant in another. In some Islamic societies (or parts of p. 33societies), women may be expected to wear the hijab or the burqa and failure to dress correctly would be considered deviant. Whereas in some societies wearing the hijab or burqa may be considered deviant, in France to wear a burqa in public is a crime. It is often not the behaviour that is deviant, but the behaviour in that context. For example, it is perfectly acceptable to tackle someone and take their legs from under them in a rugby match, but to do that to someone on the street would be both deviant and a crime; to shout at a rugby match might be acceptable, but to do so at an orchestral concert is generally not (it is deviant); to have sexual intercourse in the privacy of your own home is acceptable, but to do so on the central reservation of a motorway would be deviant, maybe even criminal.

Even the acts at the centre of the most serious crimes are sometimes allowed, and even called for by a society in certain situations. For example, killing is generally considered to be a very serious crime (murder or manslaughter), but governments condone (accept) killing in some circumstances, such as to defend yourself (you can use appropriate force to defend yourself, even if that results in the death of another person) or where it is accidental (a failed operation to try to help the patient), and even call on people to kill others in the act of war (see Controversy and debate 2.1). The social and cultural rules governing each society are complex, never written down, and are finely balanced, often difficult for an outsider to understand and live by. The way in which the rules are applied is often perplexing. For example, the actions of many heroes might just as easily be defined as deviant. Some criminal acts are not thought of as deviant: driving over 60 mph on the open road in England and Wales is a crime but is often thought of as normal rather than deviant behaviour.

Controversy and Debate 2.1

Attitudes towards killing

Killing is a complex issue and there is a lot of disagreement about its nature; how it is viewed depends on the perspective of the individual and the society. These two famous quotes give a flavour of some of the disagreements:

To my mind, to kill in war is not a whit better than to commit ordinary murder.

Kill a man, and you are an assassin. Kill millions of men, and you are a conqueror. Kill everyone, and you are a god.

(Albert Einstein)(Jean Rostand, famous French botanist)

Intentionally killing another person leads to many difficult questions about where we should draw the line concerning what should be considered illegal killing (murder or manslaughter), and what should be condoned, or even glorified. The drawing of this line was the issue in these two real-life controversies.

Kay Gilderdale

In 2010, a judge criticised the Crown Prosecution Service for pursuing a case of attempted murder against a loving mother, Kay Gilderdale, who helped her seriously ill adult daughter to die after the daughter failed in a suicide attempt. The judge praised the jury for taking only two hours to clear Ms Gilderdale.

This is a controversial case because when a jury acquits a person who has clearly committed a criminal act, they are saying that they believe that it would be unjust or immoral to punish in this particular case; they are saying the law is wrong. Although it was clear that they did not want the law to be applied in this case, it is difficult to interpret exactly what they thought the law should be. Did they think that assisted dying should be legalised, or just that the law on it should not apply in this particular case? It is also impossible to know whether that jury was representative of society as a whole, in other words whether the rest of society would support the legalisation of assisted dying in certain cases.

Read more about this case online (try this article, BBC News Magazine, ‘Why I helped my daughter to die’, 1 February 2010) and consider the following questions:

What do you think should have happened?

Would your answer change if the daughter was a child?

If you think the jury made the right decision, how can we ensure that relatives are not killed because they are a burden, rather than because they are terminally ill and want to die?

Nicolas Bonnemaison

In 2014, a French doctor, Nicolas Bonnemaison, was acquitted of killing seven of his vulnerable and terminally ill patients over a 14-month period. Again, strictly speaking, the doctor had committed murder under French law. He admitted giving injections but claimed to be relieving pain not intending to kill, though he knew that the dose was likely to cause the patient to die. He was acquitted, though he was struck off the medical register so that he could no longer practise as a doctor.

This decision was controversial because doctors are supposed to save lives, not take them. In France, the decision of whether someone is guilty or innocent is taken by judges, so it is difficult to gauge from the decision alone whether it would be generally supported, but those in the courtroom applauded when the doctor was acquitted and the case was positively reported in the media.

Do you agree with the decision in this case? Should a doctor be able to kill, or assist their patients to die?

If so, under what circumstances? Should it be only when patients ask them to or, if patients are incapable, should their relatives be able to make such a request?

Should all doctors be expected to help their patients to die, or should it be possible for doctors and nurses to say it contravenes their beliefs and they do not want to assist anyone to die?

(Note: a year later, the appeal court upheld the acquittal of six of the cases but convicted on one, they sentenced him leniently, a two-year suspended sentence, a punishment that is not enforced unless the person commits another offence within that period.)

These two cases reveal some of the many issues around the idea of illegal killing (murder and manslaughter), and when it should be condoned or permitted. You need to be able to consider these kinds of cases from all angles and build your own arguments as to what you believe should be permitted and why.

Societies and parts of societies (often referred to as ‘subcultures’ in criminological writing) use positive and negative reinforcements (encouragements or punishments) to try to encourage people to conform to their group or subcultural social norms. This is called social control. So, a child will be praised for saying please and thank you in the right places; or a child will be told off and may have to stay late at school if they fail to do their homework. Similarly, an adult who does as an employer asks or expects at work may get promotion, whereas one who is constantly late or fails to perform tasks correctly may lose their employment. None of these things is criminal but such incentives and punishments are used to enforce criminal laws. So, individuals and society might praise someone for good behaviour and for recognising (and reporting) criminal behaviour in others through, for example, honours (such as the Queen’s Honours List, published biannually) and positive stories about them in the media. However, if a person is violent to another they may be punished by the state (imprisonment) and on release they may also be ‘punished’, in a sense, by society through a display of disapproval, for example rejection by employers or exclusion from certain groups or activities. The media may also publicly humiliate them in some way.

Deviance as healthy: Durkheim’s view

Émile Durkheim (1858–1917) was a famous French sociologist who saw deviance as a normal and necessary part of people living together in social groups; he saw a certain level of deviance as an indication of a healthy society (Durkheim, 1895). Durkheim suggested that all groups of people had to set out certain agreed standards or values by which they should live, and these boundaries allowed people to learn what was acceptable. In every group there is always someone who is prepared to intentionally break the expected standards, to offend or be a deviant, often for their own gain. Durkheim also argued that the group is not entirely homogeneous (the same): each person would interpret the boundaries as being in a slightly different place, so one person might believe they are acting within the boundaries set by the group whereas in fact other members believe they have overstepped the boundaries. In this case, they are deviant. We have seen this very clearly in recent years in the #MeToo campaign, where some of the men who have been accused clearly do not feel that they did anything wrong (for example, touching a woman on the knee without asking, as Adam Sandler did on the Graham Norton Show in October 2017), whereas society considers their acts deviant and judges them in that light. For Durkheim, the fact that someone breaks the norm gives the rule a purpose: to try to prevent others from following suit and to allow the group to show what should happen in such circumstances, to show their idea of justice. It also allows the group to mark the deviant person out as different and as someone who should not be copied.

The frequency with which deviant acts are committed can affect how society perceives the deviant person. If lots of people break a particular rule, then the breach starts to become normal and the society may decide to change the rule: this deviance can lead to social change and renewal. For example, the use of marijuana used to be a criminal offence which was heavily punished and considered very deviant by most people in society. Today it remains a crime, but those who are found to have a small amount of the drug for personal use are often not prosecuted (this is called decriminalisation because it is still technically illegal but not usually prosecuted). This movement towards cannabis being more widely accepted in the UK came into clear focus when the prescription and use of cannabis to treat certain well-defined medical problems was legalised in October 2018. Since this development, there has been a lot of discussion about whether p. 34the production, sale, and use of cannabis should be fully legalised, as this would allow it to be regulated and provided in safe doses.

On the other hand, Durkheim recognised that if in a particular community an act which might be legal becomes thought of as deviant by society, with those who participate p. 35increasingly excluded, then it will be committed less and less frequently. It might even be criminalised, or if it is already criminal, the sentencing might become increasingly harsh. An example of these changing views of deviance is society’s attitudes to smoking. In the 1950s and 1960s, smoking was widespread and was glamorised in films, but slowly the view of this activity has altered. Today it is illegal to smoke in confined public spaces and smokers are often looked down upon or negatively judged; they often apologise for their habit and are expected to ask permission before lighting up when other people are present. This type of social change can happen in pockets of society, for example in many low crime areas people are concerned for very low-level offences, or actions which are not even crimes, and will exclude people who fail to act in what they consider to be acceptable ways. For example, some communities are very intolerant of anyone who drops litter, whereas in other communities the dropping of litter is almost the norm.

At this point, it might be helpful to briefly summarise what deviance is:

Deviance is any violation of social norms, values, or expectations.

It changes over time and is different in different cultures or societies. It may even be different in different parts of a society, for example youth culture can accept acts which older people find deviant.

People who break societal expectations are often called deviant.

People who make the rules and decide who is deviant and how they should be treated have social power and can control others in the society.

Possibly the most important thing to recognise and remember about deviance is that unlike crime (breaches of the criminal law), it is in the eye of the beholder—what one person classes as deviant another will not and so, as with crime, deviance is socially constructed (Downes et al., 2016: 21–6). It is very important to remember this because many of the theories in this book try to explain why some people take part in deviant behaviour and try to find the causes of deviance. If we cannot agree on what behaviour is deviant, it becomes more difficult to explain or find causes for that behaviour (see What do you think? 2.2).

What Do You Think? 2.2

What kinds of behaviour should be considered deviant?

Consider which, if any, of the following acts are deviant.

Smoking.

Writing a special scientific theory and winning a Nobel prize. (This person is clearly out of the ordinary, but are they deviant?)

Drinking alcohol. (Alcohol is very common in our society—it is offered at almost all social functions and is used to symbolise celebration of success on many greetings cards. In such a society, is the deviant person the alcoholic or the teetotaller; that is, someone who does not drink?)

Living as a hermit.

Cheating at cards. (What about cheating when playing Patience, a card game against yourself?)

Being rude to people.

Failing to pick up after your dog if it fouls:

on the pavement,

in the park,

in the woods or the open countryside.

(In light of environmental concern about our use of plastics, is it now more deviant to pick up the dog mess with a plastic bag or to leave it where it is?)

Becoming an eco-warrior.

The final point is a particularly interesting one, given how quickly societal views are changing about the environment, and what is and is not acceptable. Do you think it is acceptable or deviant to:

discuss your views on the need to protect the environment with friends or make TV programmes about the dangers plastic poses for sea life;

try to make friends and other people feel uncomfortable if they buy or use lots of plastic;

go out on marches to call on government to change the laws to support the environment;

physically attack people or companies (by attacking their premises) for their failure to protect the environment;

use your fame to try to influence others to protect the environment, and make public verbal attacks on individuals and corporations for doing things which are damaging to the environment (verbal attacks)?

p. 36We have seen that although deviance is an important concept for criminologists, crime is more than deviance. This means that to attempt to define crime, we need to try to isolate the factor or factors that mark it out as different to ‘just’ non-criminal, deviant acts—what makes criminal behaviour worthy of criminalising? This is an important question because—as we have discussed—those in positions of influence need to have limits placed on their power. If members of a government could each choose things they merely did not like and have them criminalised then that would clearly be unacceptable. For example, burping might be criminalised and punishable with imprisonment, but most people would think that was absurd and unfair. Some dictators have passed some odd laws, for example in Romania in the 1980s, Ceaușescu made it a criminal offence to own a typewriter without a government licence, and in the 1990s the President of Turkmenistan, Saparmurat Niyazov, banned dogs in the capital city and closed all libraries and hospitals outside it. What if the government decided to criminalise crossing the road, talking with your mouth full, showering or bathing, or even breathing on Mondays? Need we go on? Without limits, without some guiding principles to decide whether an activity should be criminalised, justice would be left to chance.

Test your understanding of this section by attempting the self-test questions here.

2.4 Defining ‘crime’: the harm principle

Many suggest that what is known as the ‘harm principle’ might be the best standard by which we should decide whether an activity should be criminal. By this principle, set out by John Stuart Mill (1806–73), an English philosopher, any conduct or activity should be legal unless it harms other people. Mill stated that:

the only purpose for which power can be rightfully exercised over any member of a civilised community against his will is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant. He cannot rightfully be compelled to do or forebear because in the opinion of others to do so would be wise or even right.

(Mill, 1859: 6)

What constitutes ‘harm’?

This principle holds that if conduct is not harmful to others it should not be criminal, even if others strongly dislike it. For example, picking your nose may be considered disgusting and unpleasant but it does not harm others; therefore it should not be criminal. Another example could be being naked in public (see Controversy and debate 2.2). Taking your clothes off does not harm anyone else. The most complete discussion of the harm principle and where its limits lie was by Joel Feinberg (1984–8), who in four large volumes considered the issues in detail. Here we will only look briefly at some of the concerns and areas where there is still a lot of debate.

Controversy and Debate 2.2

Legal moralism: debates about public nudity

A good example of a moral issue that is the subject of much debate is that of public nudity. Consider the following example.

On a warm sunny day, Meryl and Ned are enjoying a picnic in the local park and decide to remove their clothes, to feel free. Other park visitors have different reactions: some find it amusing; others find it odd but are willing to tolerate it; many are offended, even outraged by their behaviour. Meryl and Ned argue that they enjoy the feeling of freedom they get from not wearing clothes, that it does not harm anyone, and that they should not be judged by the moral standards of others. Those who are offended want them to put their clothes back on, and some are so upset that they will feel excluded from using the park unless such behaviour is prohibited, limiting their freedom to use this amenity.

What do you think should happen in this situation?

Should Meryl and Ned be free to go nude in the park?

Should society make nudity unacceptable and deviant so that nudists are treated less favourably?

Should nudity be made criminal? At the moment it is not illegal to be nude in public unless you expose your genitals intending to cause ‘alarm or distress’, see s. 66 of the Sexual Offences Act 2003.

This is a difficult case to decide. To force Meryl and Ned to wear clothes because others are offended is to criminalise the activity on largely moral grounds, because it offends some people and this goes against the harm principle. It interferes with Meryl and Ned’s autonomy and does not harm others. Mill would argue that an individual ‘cannot rightfully be compelled to do or forebear because in the opinion of others to do so would be wise or even right’ (1859: 6). However, to fail to prevent nudity may lead those offended to feel their experience and feelings are less important, they may feel unable to visit places where people are nude.

A real-life example which, though it may seem silly, has brought up similar issues and proved very expensive for the state, is that of Stephen Gough, also known as the ‘naked rambler’. Gough is an advocate for public nudity and, as a political statement, he refuses to wear clothes—see Figure 2.4. Gough has spent over nine years in prison simply for refusing to cover his private parts. As we have noted, nudity in public is not a criminal offence unless you intend to cause alarm or distress, but under the Crime and Disorder Act 1998, any person who acts in a way that has ‘caused or is likely to cause harassment alarm or distress to one or more persons’ can be required, through a civil Anti-Social Behaviour Order (ASBO), to refrain from acting in that way. Mr Gough, an ex-soldier, was given an ASBO that requires him to cover his genitals and buttocks when he is in public (note: now these laws are largely found in the Anti-Social Behaviour, Crime and Policing Act 2014). He refuses to wear anything except his rucksack, so breaches the order and is then imprisoned for that breach. At the time of writing, Gough has spent longer in prison than most rapists would, as long as those who rape a young child, and his case has probably cost the state about £465,000 already—the imprisonment alone is expensive but there is also the cost of the police and court time (he has been to the Court of Appeal).

Figure 2.4 The ‘naked rambler’ on a ‘from fear to freedom’ protest walk in London

Source: Tom Pilston/The Independent/Shutterstock

All of this has happened despite the fact that in 2001 a jury refused to convict another nudist, Vincent Bethell, because they did not think that merely being naked on the streets necessarily caused harm and distress. Therefore, the debate we considered earlier in relation to the hypothetical example of Meryl and Ned is, in fact, very real. The ‘naked rambler’ is not a sexual predator, he is not violent or a threat to anyone, he commits no crime, he only breaches his ASBO (something designed specifically to control him). Is anyone harmed from his actions? Is it just to imprison him for this lifestyle choice? Is this a breach of his human rights?

With any discussion of the harm principle there is always discussion about what constitutes harm. Does it need to be physical harm or will emotional or psychological harm count? And, if we include psychological harm, then what about actions which disgust us or offend our sensibilities (are disagreeable to us, hurt our feelings or our sense of dignity)? Each person who writes about harm disagrees about its limits (Mill, 1859; Feinberg, 1985). Is public nudity harmful or is it merely a moral issue? Does harm include acts of omission? If you fail to jump into a lake to save a drowning child or fail to stop to help someone injured in a car accident have you harmed them and, if so, should your failures be criminal? If you are a match as a donor, should failure to donate a kidney be an offence?

These are very difficult questions which have concerned criminologists, lawyers, and philosophers for a long time. Sometimes, understanding why the harm principle is important can help us to find answers to these questions. Many argue that applying the harm principle as the test for criminalising activities is the best way of protecting our autonomy. All of us should be able to choose to do lots of silly things. For example, you may choose to never step on the cracks when you walk along the pavement, or to talk to yourself all the time, to watch television for 15 hours a day, to only eat toast during term time, to listen to advertising jingles, to only communicate through tweets: these choices may be a little strange to others but they are not harming anyone, so others should respect your right to make them. This is a sort of ‘live and let live’ policy; in any society there needs to be tolerance of others even if we find them a little odd. Finding something odd or disliking it does not mean that it causes us any harm.

As well as protecting our freedom of choice, the harm principle also ensures that we are each protected from the actions of others when they might harm us or diminish our freedom of choice. As Isiah Berlin (1958) wrote, ‘Freedom for the pike is death for the minnows’ (at page 4, Berlin attributes the quote to Tawney though most people attribute it to Berlin); in other words, the liberty of some must depend on the restraint of others, usually those who are less powerful. For example, if you choose to save up money to travel to London and someone steals the money, p. 37p. 38they not only steal the money itself but also your freedom to choose to spend it as you like and, in this instance, your freedom to travel to London. Society hopes that having a law against theft of this sort will make people less likely to steal from one another, so the law is intended to protect us all, to protect our autonomy.

Before we move on to discuss other aspects of the harm principle, it is important to note that whilst this principle may allow a society to make a harm-producing act criminal and to punish those who transgress, it does not require the society to make all harmful activities criminal. It is therefore a necessary (only things which are harmful should be crimes) but not a sufficient test (not all things which are harmful must be made into crimes) (see Duff, 2007). For example, if a parent goes out every week and spends all their wages on gambling and alcohol, clearly the family suffers or is harmed, but should the society make gambling and drinking alcohol illegal?

It is clear that the harm principle as a basis for understanding why actions are made crimes is attractive, and few people reject it entirely, but it has been argued to be too vague to use as a hard-and-fast test as to whether to make an act into a criminal offence. We therefore need to consider the limits of the idea in more detail. In this section, we will consider whether and how the harm principle applies to the following:

moral issues, including offence and anxiety;

harm to the self;

indirect harm.

We will conclude our consideration of the harm principle by summing up its limitations.

Acts causing offence and anxiety: moral issues

We have seen that the harm principle does not permit criminalising something just because it is immoral, because it breaks the general norms of behaviour, or because others dislike it or find it offensive. Criminalisation on moral grounds is usually referred to as legal moralism and it involves prohibiting acts merely because they are offensive to the majority in that society, or because it is believed that if one fails to prohibit them they might destroy the very fabric of a society. In the past, many acts were criminalised because they broke some of our moral codes, usually because they went against Christian principles and performance of these acts was thought to harm that religion or question the divine authority, for example blasphemy, suicide, and many sexual practices.

However, as society in the UK has become more secular (non-religious), as well as more multicultural and multifaith, it has moved away from the idea that morals in our society are fixed and never alter, and must be protected from change. One of the most famous arguments given for this kind of protection against change was a pamphlet written by Lord Justice Devlin in 1965. At this time, Parliament in England and Wales was considering legalising homosexual acts between adults (aged 21 or over, at that time) in private, and Devlin argued that it was important to retain homosexuality as illegal in order to ‘protect the moral fibre’ of our society. For Devlin, the moral fibre of a society (its essential ideas about morality) was essential to its existence, so failing to protect society against seriously immoral behaviour would lead to social disintegration and therefore prove harmful. Whilst this is a moral argument, it could also be seen as citing the harm principle by claiming that the moral standing of a society is linked to its health. Whilst few would now align themselves with Devlin, we retain many criminal laws which might be seen as part of legal moralism; laws such as the use of illegal substances, laws against common prostitution or against brothels, and laws that prohibit sadomasochism among consenting adults (this arose from R v Brown [1994] 1 AC 212) are just a few examples. Many would wish to retain these as crimes, but it is very difficult to argue for their retention on anything other than moral (or maybe paternal) grounds. Take a look at Controversy and debate 2.2.

The simple harm principle offers little in the way of resolving the issue put forward in Controversy and debate 2.2, but there are some possible solutions. Feinberg (1985: Ch. 8) suggested that where something might cause serious offence then it is harmful and could be prohibited. He describes ‘serious offence’ as being more than causing squeamishness, disgust, or being unpleasant. To qualify, the activity should cause a psychological reaction or emotional trauma (shock, maybe) in someone of a normal disposition (not overly susceptible to offence), and to test for this one should consider the intensity, duration, and extent of the feeling.

An offence becomes more serious if a large proportion of the population find it more than just unpleasant. This is not really measurable and therefore Feinberg also suggests that even if there is such a reaction, if individuals can reasonably avoid the behaviour which causes them to feel that way it should not be criminal. People can avoid the park where Meryl and Ned are naked (but is it reasonable to expect them to do that, especially if it is the only park in their area), whereas, in the example of the naked rambler, people cannot avoid his behaviour. If a sufficient number of people are seriously offended by public nudity and it is not something they can reasonably and easily avoid, then Feinberg argues that it should be criminalised. He seems to argue for this outcome because serious offence is akin to harm. For Feinberg, there is a two-pronged test: is the activity seriously offensive; can it be reasonably avoided? Now try applying this test to Controversy and debate 2.2 p. 39(is there an argument for setting aside part of a public park for nudity, or for making simple nudity in public a criminal offence?) and to the other crimes noted earlier: the use of illegal substances; laws against common prostitution or against brothels; laws that prohibit sadomasochism among consenting adults.

Take a look at another example, set out in What do you think? 2.3. If that situation happened 80 years ago, the number of people of Ola’s race in the society may have been small, and the majority might not have been concerned about this kind of incident. Today, however, UK society is multicultural, so many would strongly argue that this kind of speech should not be legal (does this indicate a more or less tolerant society?—see Waldron, 2012). This suggests that if only a few people are offended, everything is acceptable, and the activity should not be criminalised, but if many people are offended then the state should criminalise the activity. Does this make sense? Should this decision depend on the number of people offended or on something more? Does hate speech (such as racial hatred) differ from insulting speech or behaviour? In some ways, it does not differ as both racial hatred and other insulting speech is usually aimed at someone and is intentionally used to offend them and hurt their feelings. However, many would argue that hate speech goes further than other forms of verbal abuse, such as insulting someone for something they have done: it hurts or harms a whole race (or other group) so although there is or may be a particular victim, there is also a whole race (or other group) which is attacked. The perpetrator(s) of such speech choose the victim because of what that person represents—here a racial group, but it might also be religion, sexual orientation, etc., or what the perpetrator thinks they represent and what they disapprove of or hate. The harm is intentional, or at least done knowing it is likely to offend, and the victim or immediate target (as arguably the whole group is victimised) is chosen because of something they cannot change—their race or sexual orientation—or could only change by denying a core part of who they are—their religion—so they cannot really escape vulnerability.

What Do You Think? 2.3

What constitutes hate speech and should it be legal?

A young woman, Ola, visits a local 24-hour shop late in the evening to pick up some small items for her family for the next morning. Just outside the shop, she is verbally attacked by two young men, Peter and Quinn, that she has never seen before and who have never seen her before. They are shouting racial hatred at her. She is very shaken by the events but was not physically attacked and no one in the shop thought twice about it, they see it as a bit insulting but nothing more.

What do you think would or should happen in this type of case?

What would be the outcome of applying Feinberg’s rule to the situation?

See Figure 2.5 and the associated press release, ‘Government launches new national hate crime awareness campaign’ (https://www.gov.uk/government/news/government-launches-new-national-hate-crime-awareness-campaign).

Figure 2.5 An advert from the 2018 government campaign aimed at increasing awareness of hate crime

Source: HM Government/Crown copyright

These factors mark racial hatred out as different from other insults and actions that may cause offence. Feinberg (1985: Ch. 8) allows for this eventuality by calling on a society to take into account the personal importance of the behaviour to the actor themselves (for instance, if they are trying to make a political point) and whether it serves any social value. Racial hatred may be important to the person espousing it—they may believe in the truth of what they say and wish to enjoy freedom of speech to express themselves—but the social value of such speech is low, if not negative. Feinberg also calls on society to take account of two other things:

1.

Where and when the conduct took place—could the freedom to express these views have been enjoyed somewhere else or at a different time?

2.

The extent to which there was a spiteful intention.

These two considerations would often permit an inference against normal freedom of speech towards that of racial hatred, as the latter is most inflammatory when it takes p. 40place in public or is directed at those most likely to be offended.

What do you think? 2.4 provides examples of activities in which it is assumed that if there is consent there should be no crime. Without consent, the first would be rape and the second actual or grievous bodily harm (ABH or GBH depending on the extent of the injuries)—they would be crimes because they would harm the non-consenting participants. However, if there is true consent there is no harm (except that consented to and welcomed), so it would seem that the only reason to criminalise is the protection of morals. Dempsey (2005) would disagree and argues that in the first example there is potential harm which is so great that we need to protect against it by criminalising all sales of sexual favours. She argues that when someone pays for sex they cannot be sure that the sex worker is willingly consenting. The sex worker may appear willing but may (a) have been trafficked, (b) have been forced into this by a pimp, or (c) be too young to consent. In (a) or (b), the central crime is by another person (in our example, the trafficker or the pimp, not Steve), but in all three, without consent Steve would be guilty of a sexual offence. The situation could be viewed as similar in the case of the sadomasochists, as a third party may traffic or otherwise pressurise someone to participate to provide sexual gratification. Where, for example, Tom and Una have been trafficked (clearly that is a crime but the activities later may not be) and are being paid to inflict pain on Vicky and Wahib, there may be no harm to Tom and Una (who might be happy to inflict pain) and the harm to Vicky and Wahib is consensual (paid for, even) so still there should be no crime.

What Do You Think? 2.4

Should consensual harm be criminal?

Example 1: Rachel is 20 and a sex worker. Steve regularly visits her to pay for sex.

Is there any crime in this scenario?

Should it be possible to prosecute Steve for his behaviour?

Is Steve’s behaviour harmful?

Note: If Rachel willingly consents then arguably there is no harm—it is a victimless activity so should it be a crime at all? Many might argue that morals provide the only reason for this being a crime, do you agree and, if so, should it be criminalised at all?

Example 2: Tom, Una, Vicky, and Wahib are all adults and good friends. They are also sadomasochists who meet regularly to participate in sadomasochism for sexual gratification. They all consent to the behaviour and each of them enjoys it equally, no one is being exploited.

This behaviour is criminal.

Should it be?

Is it harmful?

Note: If they all consent and no one is exploited, is there any harm apart from harm to self (as assessed by others) and, in that case, should the activities be legal? Should these actions be criminalised merely because some people are morally appalled that anyone should find this behaviour sexually gratifying?

These are both examples of activities which might be criminalised merely because some people find them immoral. Is that acceptable?

Under the harm principle, a crime has only been committed if someone does not fully consent. To criminalise without direct harm and in case there is a harm (such as people trafficked for prostitution) is known as controlling due to remote harm. The decision in R v Brown [1994] 1 AC 212 at 246 (this case was discussed earlier in this section) opened up another type of remote harm; the judges were concerned that others, particularly children, might be tempted to imitate and so participate in sadomasochistic acts. Many would argue that remote harm takes harm too far (see, for example, Baker, 2007) and the law should seek to prosecute the direct wrongdoers (the trafficker and the pimp) rather than the person who buys the sexual favour. Husak (2007), for example, would suggest that no one should face criminal charges because of a remote harm unless:

they have some degree of culpability for the ultimate harm risked. It is not enough that the performance of the proscribed conduct just happens to make the occurrence of the ultimate harm more likely.

(Husak, 2007: 174)

Therefore, in our examples (What do you think 2.4), Steve’s buying of sexual favours should not be criminalised unless his actions make the trafficking more likely. Some might argue that they do. However, in this sort of example remote harm is hiding a moral wrong—here maybe not the sexual morals but the exploitation of certain groups, particularly women (see the discussion in Chapters 13 and 14). In some instances, people are trafficked to work on farms or to clean people’s homes (where they may work as slaves, p. 41unpaid, and unable to leave). Does that mean that we should outlaw the hiring of farm labourers or domestic cleaners? Is the suggestion to criminalise the buying of sexual favours made in relation to prostitution partly on moral grounds and partly to protect a vulnerable group—women—from being exploited? Dempsey (2005) would recognise that where there is genuine consent buying sex involves no direct harm, but would find that potentially there is a very serious harm (rape). There is no social gain in selling sex, so she would argue that Steve’s activity should be criminalised. This is not the same in the case of farm labourers and domestic cleaners who provide what others see as a positive benefit to society, to get food on the table or have a clean house. This appears to ignore the moral dilemma until one asks why there is no social gain for selling sexual favours—surely it is because we consider it to have less worth (morally or ethically) than other occupations, though arguably it fulfils a sexual need (particularly for those who cannot get sexual gratification elsewhere). Why is this less valuable than a need for a clean house? For a more in-depth discussion of moral issues, see Millie (2016: Ch. 3).

Harm to self

Where behaviour harms someone else it clearly falls within the harm principle and is activity which may be criminalised. However, what about behaviour that only harms one person? The harm principle does not normally protect people from themselves. Rock climbing may be dangerous and to do it without proper equipment may not be in a person’s best interests, but it should not be a crime and people should be allowed to take part in rock climbing even if it is not very sensible, as long as it does not harm other people. Here, the argument is that harm (or potential harm) to one person should not be sufficient; this certainly falls in line with Mill’s principle (1859) which refers to ‘harm to others’ and specifically states that ‘His own good, either physical or moral, is not sufficient warrant’ (1859: 6).

Taking actions for the good of an adult (to protect their life, health, or safety) when they do not choose to be protected is called paternalism (you might have heard the phrase ‘nanny state’ used in the media to suggest that the state is trying to exert too much control over individuals’ choices and lifestyles for societal good; for example, the introduction of the sugar tax to try to limit childhood obesity). Generally, the fact that an action could result in an individual harming themselves should not be sufficient to make it criminal, but there are examples of paternalism in our criminal laws, such as requiring people to wear seat belts in cars or helmets on motorbikes. Each of these is paternalistic, so would be difficult to justify under the harm principle. They do limit individual autonomy, but having to wear a seat belt or helmet is a small infringement on our freedom and does not impinge our life choices so maybe we should tolerate laws like these, particularly if they produce positive benefits for society, such as fewer injuries as a result of traffic accidents. Furthermore, wearing seat belts and helmets prevents greater reliance on the (already struggling) health service, saving all taxpayers money. Supporters of these laws also say that if one suggested seat belts and helmets to rational people and explained all the reasons for using them, they would choose to use them.

All these arguments may be true, but they do not make the requirement to wear a seat belt/helmet (or face a criminal penalty) any less paternalistic. Some other examples that may interfere more with real-life choices or which rational people might well reject are listed in What do you think? 2.5.

What Do You Think? 2.5

Criminalising harm to the self

Xavia, Yara, and Zach are all 18 and each of them uses illegal substances.

Xavia smokes cannabis regularly as he enjoys how mellow it makes him feel (see Figure 2.6). He does not drink alcohol as he believes this is more harmful. When his friends drink, he notices that they become aggressive and attack other people and he does not want this to happen to him. Cannabis never makes him feel aggressive. He sometimes thinks about the law and about the feeling of unease he gets from the people he meets to buy his drugs.

Figure 2.6 Cannabis is a Class B illegal drug

Source: Ryan Lange/Unsplash

Yara uses party drugs and sometimes some cocaine or similar substances. She is studying to be a lawyer and when she unwinds she likes the feeling drugs give her of losing herself and letting go of all her tensions. But Yara is very worried that if she is caught using illegal drugs she will lose her chance of becoming a lawyer. She used to try to stay ahead of the law and to use ‘legal highs’, though she worried a lot about how dangerous these might be as their effects were still unknown. She knows that there is now no such thing as legal highs but she continues to buy her drugs online as she feels safer sourcing them that way. Now she worries both about what the chemicals are doing and that just by possessing the drugs she is breaking the law.

Zach is addicted to heroin. He would like to give it up, but all his friends use and he cannot see a life beyond using. He craves the drug’s effect but hates what it is doing to him.

Should their drug use be criminal? Is it harmful?

Is the harm caused by using the substance or by the fact that the substance is illegal?

In all three of the examples described in What do you think 2.5, some people might argue that each individual is being harmed by the substance. However, others might suggest that they are being more seriously harmed by the criminalisation of the behaviour. Feinberg, 1988: introduction to Vol. 4, Harmless Wrongdoing), noted that the concept of harm is both vague and unclear and may be linked to wrongdoing; harm is therefore difficult to tie down and this is particularly the case when the person harmed is oneself. Clearly, this also shows that ‘harm’ is a constructed idea, meaning different things to different people and in different contexts. An interesting issue to examine in the context of relative harm to self, and the efforts to control this, is drug use: see Table 2.1 for a discussion about this issue (note: legalising substance possession and use would still leave dealing through illegitimate means as a serious crime). We can see that whilst many substances (some of which are already legal) are harmful to individual users, a lot of the harm from substances comes from their misuse and some of this is exacerbated due to criminalisation. Many academics and some police officers also argue that there is little proof that criminalisation performs useful functions and advocate legalisation, or at least a more harm-based approach to the resolution of issues caused by substance misuse (Brunstrom, 2007; see more generally the websites for the Drug Equality Alliance (www.drugequality.org/reading.htm) and the Film Exchange on Alcohol and Drugs (www.fead.org.uk/)).

Table 2.1 Harms caused by the use and control of the use of drugs

Harms caused by non-medical use of drugs

Death or health problems as a result of taking drugs

Addiction and side effects as a result of taking drugs

Accidents involving drug users and others which occur as a result of performing activities (such as driving) while under the influence of drugs.

Current solution

Criminalisation of drug use.

Harms at least partially caused by current solution—caused by criminalisation of substance use

The emergence of an illegal, unregulated ‘black market’ in which many dealers add substances to the drugs to ‘pad them out’. These substances can be toxic or ‘safe’, but both cause harm:

the toxic substances cause many deaths;

the ‘safe’ substances mean that users do not know what dose of the drug they are using, leading to some accidental overdoses.

Drugs are more expensive and more addictive as dealers try to ensure they have a market. This drives users into poverty and addiction, and leading to people committing theft to ‘feed their habit’.

It is difficult for users to request help, whether to combat addiction or because they are experiencing negative side effects, if they are using illegal substances.

Users have to connect with criminals to obtain drugs. Being seen to befriend criminals may lead to them being socially excluded, meaning they will socialise mainly with other users and find it more difficult to break their habit.

People who are otherwise upstanding and law-abiding are criminalised for using certain substances. This costs the justice system time and money and if the criminalised person—or others—consider the criminalisation unjust, this could reduce their respect for and dedication to the law.

Alternative solutions—consider decriminalisation and addressing harms in other ways

Medical and then social interventions.

Legalising and selling by licence, meaning that:

the content of each substance would be controlled and they would be carefully labelled, so unknown substances would not be added (the substances would be safer);

the user would know what dose they were taking so reducing the likelihood of overdosing (certainly unintentional overdosing would reduce);

fewer people would be criminalised, saving time and money. The justice system could focus on other offences and taxes could help pay for the healthcare needed by drug users;

prices may drop or at least stop rising, reducing the likelihood of people committing other crimes (theft and burglary) to ‘feed their habit’. Addicts might also be able to get some substances free as part of their health treatment;

legalising and selling by licence might prevent people moving to ever stronger and more addictive substances—there would be no dealers to tempt or persuade them;

legalising and selling by licence would reduce the need for and size of the black market so might help to reduce serious and organised crime.

Testing for substances (and offering healthcare) to deter people from performing tasks under the influence of drugs and identify and address drug use before accidents happen.

Note: Even if possession and use were legalised, dealing and smuggling would remain serious offences.

Indirect harm and harm to non-humans

At a number of points in this chapter, harm has been mentioned as something which does not directly hurt an individual but is more indirect, for example not wearing p. 42a seat belt means more people will suffer serious injuries due to accidents (direct harm) and the cost to the National Health Service, and therefore also the taxpayer, will rise (indirect harm). There are many other examples too, such as non-payment of taxes or erroneous applications for benefits. There may also be cases where there is the capacity to do harm, but no harm may arise; examples include breaches of health and safety, carrying weapons such as knives or guns, acts preparatory to an offence (planning a robbery and starting to collect the items necessary to carrying it out), or acts leading to terrorism.

These are an eclectic collection of crimes that are awkward to explain under the harm principle as there is no clear ‘other’ who is harmed. Von Hirsch (1996) argues that the harm principle can be extended to encompass at least some of these remote or indirect harms if there is a strong public interest which has been or might be breached. For example, it is harmful to us all if too much money is spent on car accidents or too little collected via taxation, or if our streets are made potentially more dangerous because people take potentially harmful items out with them and do not intend to do anything useful with those items. The last example is interesting, a car is potentially dangerous but serves the purpose of moving people and things around, whereas a gun is dangerous but carrying it on the street rarely serves any useful purpose. It is therefore possible to explain these offences using the harm principle, but this needs great care as the argument could permit the state to interfere in our lives in many and surprising ways by claiming its actions are for the public good. Certainly, Ashworth and Zedner (2008) have suggested that the way in which the criminal law is being used now is too broad; they argue that it is used to manage social order, for easy governance and control, rather than to protect the public.

Another area of indirect harm that is presently causing a lot of controversy is environmental or ecological harm—an idea we consider further in Chapter 12. This does not harm people directly, but it harms other species or the environment. Furthermore, the harm is not generally suffered by one individual or group, but causes a problem for everyone within and outside a nation’s borders. Whilst increasingly people are arguing that this should be regulated through the criminal law (some even argue for an international crime of ecocide, see Mehta and Merz, p. 43p. 442015), would this argument stand on the harm principle or on some other basis? Most of the discussion seems based on indirect harm, similar to that of economic harms but would this bring it into conflict with Ashworth and Zedner’s (2008) overcriminalisation thesis?

The final area of harm to be briefly mentioned here is that done to non-human sentient species, and would include animal cruelty. This is particularly difficult to fit within the harm principle as it is so focused on harms to humans, and yet increasingly it is an area of behaviour that people want controlled at both a national and international level (see Maher et al., 2017). Our cruelty to and protection of animals has had a complex history, and religion, rights, and moral and ethical arguments have all been used to both protect the right of humans to use animals as we choose and to protect animals against our abusive acts. The debate will not be opened here and is mentioned only to illustrate the complexity of the concept of harm and who and what it should protect (see Figure 2.7).

Figure 2.7 Insect decline is an example of one of the consequences of ecological harm

Source: Kathy Servian/Unsplash

The limits of the harm principle

We have seen that the harm principle has many limitations: just because something is harmful does not mean that it should be criminalised (Duff, 2007). If you go to work with a cold, you may be contagious and cause harm to your colleagues, but that should not be a criminal act. So, it is not logical to say ‘actions should be criminalised if they are harmful to others’. You can say: ‘the state should not criminalise activities which are not harmful to others’; or ‘if an action is harmful then the state may be sensible to consider whether it should be criminalised’. In other words, ‘harm to others’ acts as a gatekeeper. It should be necessary to show that an activity harms others before you criminalise it, but that alone should not be sufficient grounds to say an activity should be criminalised. As Gardner states:

[t]he harm principle says that the law should not be used to restrict or punish harmless activities. … it adds that the law should not restrict or punish harmful activities in ways which are disproportionate to the harm. But beyond this, it says nothing about how, or even when, harmful activities should be dealt with by the law.

(Gardner, 1994: 213–14)

In conclusion, the harm principle is sometimes useful to test which activities should not be criminalised but is not very useful in deciding which activities should be criminalised. For a clear discussion of all of these issues, see Herring (2015), Williams (2012), and, for a rather different perspective, Dorling et al. (2008).

Test your understanding of this section by attempting the self-test questions here.

2.5 Other ways to decide whether an action should be a crime

If we return to our starting point, setting out the need for criminal law as an arbiter (solver of a dispute) between individual freedoms and harmonious social living, including social interactions, then this provides both the impetus towards criminalising certain acts, but also the reason for limiting the types of actions which attract a criminal sanction. Criminalisation, especially when backed up with punishment, is harmful: it imposes extreme restrictions on a person’s freedom via, for example, imprisonment, which can cause some offenders psychological harm or lead to social exclusion or removal of funds (fines), which may mean that the individual and their family have less money to spend. Acts should therefore only be criminalised and punished if there is a very good reason for this. If a state interferes with the rights and freedoms of an individual in cases where there is no harm to others or no acceptable reason for the intervention, then it is an abuse of power (Henry and Milivanovic, 1996; Quinney, 1977). However, some state interference is necessary to protect citizens from the abuse of power or rights by some people, so many argue that some criminal law is necessary.

In this section we recognise that whilst in many cases the harm principle is central to deciding whether an act should be criminal, it is not useful in all cases. It is often suggested p. 45that when deciding whether an act should be a crime we should also take account of values (such as human rights or protecting groups of people) and the need to protect people through regulating potentially dangerous acts, or the use of potentially dangerous objects. In this section we will examine issues which may be taken into consideration alongside or instead of the harm principle when deciding whether and how to criminalise certain behaviours:

Deciding on crimes using values and regulations: whether the group interest is sometimes more important than the individual interest, and how regulations can be used to provide order or safety, with breach of the regulation being a criminal offence.

How rights can form the basis for and act as limits to criminal laws.

Deciding on ‘crimes’ using values and regulations

We briefly touched on the idea that the criminal law can be used to protect group interests when discussing the example of Ola given in What do you think? 2.3. Cane had this to say about the issue of individual freedom and group interests:

individual freedom would have little or no value in the absence of external constraints. In this light, it seems hard to justify giving the individual’s interest in freedom of choice lexical priority over the interest in social cooperation and coordination.

(Cane, 2006: 23)

Few would dispute that without criminal law the freedoms of many might be reduced, but is Cane right to suggest that the group be prioritised over the individual? The question here is whether we should use the criminal law to protect the group interest when this will lead to individuals being convicted and punished if they break the law. In some situations where the group interests are strong, this might be the correct way forward. In the context of the example of Ola, we considered the case for making racial hatred a crime where other verbal abuse should escape and there we noted that where the group was disadvantaged and there was no social gain to the abuse, more harm might be done by permitting the speech (because a whole group would be harmed) than prohibiting it. This illustrates that, in some cases, the community or group interest must be considered. Furthermore, Marshall and Duff (1998) suggest that a community may need to protect its values because some of these:

are so central to a community’s identity and self-understanding, to its conception of its members’ good, that actions which attack or flout those values are not merely individual matters … but attacks on the community.

(Marshall and Duff, 1998: 21–2)

They do not indicate which values fall into this category but in modern Britain racism may breach our societal value to respect each person equally. The question still arises as to whether this should attract a criminal level of control by that community; is the community permitted to harm the perpetrator because they breach that value? Presumably, we only need to criminalise actions which are so dangerous to society as to necessitate the use of punishment if someone breaches the value, but Marshall and Duff were silent on which values should be protected in that way. However, they argued that it was an inquiry that should be made, and they wanted to place community values at the centre of the process of deciding which actions should be criminalised (presumably to replace or rival the harm principle).

The question here, therefore, is whether there are any actions which are so abhorrent to our values that they should be controlled through the criminal law; whether in the absence of harm (or only minimal harm) to an individual there should still be an offence (see the sadomasochist case of Tom, Una, Vicky, and Wahib in What do you think? 2.4). See also the discussion on rights-based systems in the following section.

The second area to discuss is the regulation of certain actions in order to prevent harm. As we have seen, many of our criminal laws permit punishment despite the absence of direct harms: dangerous driving, attempted robbery (attempting almost any crime), selling firearms, selling or dealing in drugs or any other illicit substance, selling infected meat, controls to protect public hygiene, firing a gun (not on a firing range or at a gun club), almost all driving offences (speeding, no lights, on the wrong side of the road), health and safety at work, rules governing some professions (such as training for a doctor).

You might also include Rachel and Steve’s case in What do you think? 2.4 (visiting the sex worker who may have been trafficked). None of these necessarily or directly involves any harm so presumably they are prohibited because they increase the possibility or risk of harm occurring. For example, driving offences may increase danger on the road even if the driver is careful to only speed (or break other rules) when there is no problem ahead, when it will cause no harm. However, whether the driver is careful or not, whether they only intend to hurry and not to harm anyone, the risk is still there. Road travel is, in many cases, a public good which needs to be facilitated but people also need to be protected from unnecessary harms or dangers, so regulation is used to deliver a safe mode of transport; regulation lowers the risk. For example, we need to specify which side of the road cars should travel on. There is nothing automatically safe about driving on the left and dangerous p. 46about driving on the right or vice versa; it is just that each state needs to specify which side it will use because if the decision was left to individuals, the dangers of road travel would be immense. Similarly, the sale of firearms does not cause harm unless and until the purchaser shoots someone, but there is no other use for a firearm other than for shooting so the seller needs to ensure that the gun is only to be used for sporting purposes. On the other hand, crowbars are often used in burglary but their sale is not similarly restricted as they have legitimate uses in the building trade. Potentially dangerous actions and objects need to be regulated for the smooth running of a society and sometimes this may require use of the criminal law.

A more recent example of the use of restriction in order to control potential harm were the restrictions enforced on individuals and businesses in the UK during the Covid-19 pandemic in 2020. The freedom of movement, religious worship, and rights to family and to freedom of association (to meet with people when you would like) were all severely restricted in order to try to protect the community (and particularly some vulnerable individuals within the community) from the disease. The desire was to protect the group and the group ideal of safety by restricting individual freedoms. It is important to consider whether the restrictions on individual freedoms were acceptable, whether the end of containing the virus and reducing deaths was worth the loss of liberty. Furthermore, we should consider whether some in the community had their freedoms interfered with more seriously than others in order to deliver safety, and whether this was fair. Here we will not answer these questions, but we hope you understand how important it is to ask them. In this case, it might be argued that two group values—individual rights and individual and group safety—were set against each other and the latter were found more compelling. You need to consider whether the rules were fair and whether they were fairly applied—see, for example, how MPs and others in the public light were not prosecuted despite breaking the rules (for example, Dominic Cummings, a senior adviser to the Prime Minister who broke lockdown rules in March 2020, see BBC News, 26 May 2020). In some cases, MPs were not even required to resign from their positions, whilst others in our communities faced fines and convictions for breaking the restrictions. It might be asked whether there was justice in how these restrictions were applied, and whether the lapses mean that the activities should never have been regulated by the criminal law, or do they show the necessity for activities to be criminally restricted?

We (criminologists, lawmakers, and members of the public) have to look carefully at our criminal laws to decide whether each and every one of them should remain criminal or whether they could be dealt with through other processes. Most people would use the harm principle as the core of this test; some might use values and some might use regulation. In some cases, all three considerations (the harm principle, values, and regulation) may come together, but none sufficient alone to argue for criminalisation. For example, what should happen about pollution by an industry? There may be some harm from each factory or other working unit, though the pollution by each alone may not be sufficient to harm anyone; however, when others in the industry behave in a similar manner, the cumulative effect may be very large, such as the cumulative effect of substances farmers have put on their fields being washed into rivers or of plastic packaging being dumped in the environment (see also Chapter 12). There may be a need to regulate the use or disposal of certain substances by all in certain industries in order to prevent this cumulative problem of pollution, which might adversely affect the health of many people. This might also affect a value of a community, that of respect for the environment. Should individuals then be criminalised if they dispose of their rubbish in a way which might be harmful, for example dropping litter in the street or failing to recycle rubbish, and if they breach societal expectations should they face conviction and punishment under the criminal law?

If we permit these ideas of protection from harm, the need for regulation, and protection of values to be used together, are we allowing too much power to those who make the criminal laws? Might they use and abuse that power to restrict our freedoms in an illegitimate way—see Figure 2.8? We touched on this idea earlier, and later chapters will explore the ways in which power can be used to protect certain parts of a society—often at the expense of other parts. Arguably, actions of the powerful (for instance, tax evasion) are treated less severely than those of the powerless (for instance, benefit fraud) for this reason. Some see this unfairness as necessarily underlying all criminal laws since it is always those in power who set the rules (if, for example, following a revolution the revolutionaries win, then the acts of the previous government are often criminalised and vice versa). Therefore, whilst academics may try to rationalise the extent and content of the criminal law, it may be power and the protection of vested interests that finally decides it. This is problematic because if we thoughtlessly apply the harm or value principles, it may be the harms to and values of the powerful (but proportionately small) elite that are protected (Vold, Bernard, and Snipes, 2002; Alvesto and Tombs, 2002; Tombs and Whyte, 2003; Green and Ward, 2004). This need not always be true; some groups may manage to be heard by those in power and may achieve protection for some vulnerable sections of society. For example, some feminists fought hard for the legal definition of domestic violence to be broadened to encompass domestic abuse; others to ensure that the laws protecting against sexual violence remained largely gendered (Jones, 2004: 62). There is no justice in the way that some vulnerable groups are heard whilst others are not, and it might still be considered an abuse of power (see Chapter 18), but p. 47between 1997 and 2010, leaving things to politicians and the elite led to over 3,000 new criminal offences being created (Law Commission, 2010). Not all can possibly pass the standards set out here, so why were they passed and whose interests did they serve?

Figure 2.8 Hong Kong citizens began large-scale protests in 2019 against proposed laws seen as infringing civil liberties

Source: Manson Yim/Unsplash

Rights-based systems

To minimise the risk of our becoming subject to laws that are potentially shaped and created to benefit the powerful, some have argued that we should rely on a widely accepted standard such as human rights; a framework that we touched upon earlier (see the discussion of the state in section 2.1). This is a system based on individual rights and autonomy (as claimed by the harm principle) but which recognises that certain rights should always be protected.

The European Convention on Human Rights (ECHR)

International human rights conventions suggest that states must protect their citizens against some conduct and, at the time of writing, the UK is subject to the ECHR. It is important to remember that the ECHR is completely separate from the European Union (EU). The former regulates our rights, whereas the latter was concerned with many other areas of our lives until, in June 2016, the British people voted to leave the EU. Even after Brexit, the UK will still be a member of the ECHR, and will still be bound to respect human rights.

The ECHR requires, under Art. 3, that states protect their citizens from torture and inhuman and degrading treatment. Not only are states required to refrain from torture or from using inhuman and degrading treatment, but they are also expected to ensure that no one in their country is subjected to such treatment at the hands of anyone else. In a case from Germany, the European Court of Human Rights decided that police officers who threatened the applicant with imminent (though brief) pain in order to get information they hoped would save the life of his victim (a child; unfortunately it transpired that he had already killed the child), were breaching the article because this was ‘inhuman treatment’ (Gäfgen v Germany (2011) 52 EHRR 1; see also Controversy and debate 2.1). In a decision involving the UK, the same court decided that Parliament had failed to protect children because the level of chastisement parents are allowed to use to control their children—under UK law—permitted ‘inhuman treatment’ (A v United Kingdom (1999) 27 EHRR 611). In such situations, the state is obligated, under international law, to ensure that individuals are protected, and one of the most sure ways of fulfilling that obligation is to criminalise the activity, especially as any breaches in the case of Art. 3 of the ECHR are likely to harm the individual as well as break the values of European nations that no individual should ever face torture or inhuman treatment at the hands of the state or any other person or group. Other aspects of the ECHR are similarly protected. There is a general expectation that individuals feel sufficiently secure to enjoy the freedoms guaranteed under the Convention such as, under Art. 8, a family life, meaning that if the state fails to protect citizens against something like racial hatred, this might make people feel so insecure as to undermine their Art. 8 rights, and offences of racial hatred might legitimately be criminalised.

This reliance on human rights brings an important difference: a system based on rights recognises that states themselves (or those acting for them, such as presidents) can be perpetrators of criminal wrongs. Human rights put responsibilities on states to ensure the rights of their citizens. Here, therefore, those acting on behalf of states can offend; this is important and was at the core of human rights conventions and declarations post-Second World War. It underlies the United Nations conventions and the ECHR and the idea can be seen most clearly in the International Criminal Court (set up in 2002 to try people accused of serious international violations such as genocide, war crimes, and crimes against humanity). For an academic discussion of rights or the protection of dignity as the basis for crime, see Schwendinger and Schwendinger (1970).

p. 48Broader, non-legal rights

The discussion of a rights-based system has, so far, been based on the rights guaranteed under the ECHR or other international conventions, but some authors suggest they need not be bound to such legal documents. For example, Von Hirsch and Jareborg (1991) have a broader scheme, intended to protect four types of interests: physical integrity, privacy, autonomy, and freedom from humiliation or degrading treatment. Schwendinger and Schwendinger (1970) would go further, claiming that all violations of basic human rights should be considered as criminal violations, whether included in the criminal law or not. In many instances it would be state actors who would be the perpetrators, so the powerful in the state would be called to account when they breached either internationally recognised standards of human rights or activities which undermine physical integrity, privacy, or autonomy or that humiliate or degrade individuals, and this would mean the criminal law would be a tool of rights rather than of state control.

The Schwendinger approach is a criminal law system based on rights violations and, like that based on harm, it might go too far; it might criminalise minor instances, leading to an abuse of power under the criminal law in punishing when no punishment is warranted. It may perhaps be better to control some rights violations through other means, for example education or civil law.

Test your understanding of this section by attempting the self-test questions here.

2.6 Do we need the criminal law?

One question we have not yet addressed is whether we need the criminal law at all. We discussed in section 2.1, and have mentioned at other points, the need to regulate human behaviour in some way, owing to the conflict between individual freedoms and social living, but many critical criminologists have questioned whether several aspects of the criminal law are really needed, and even whether we require a criminal law at all. Those who fall into the latter category are often known as zemiologists (see also the discussion in Chapter 19). Zemiologists focus on harm rather than crime. Having just spent much of this chapter considering the harm principle and its place in the criminalisation of activities, this may sound strange and you may think ‘So what, what is the difference?’ The difference is enormous.

The criminal law is only interested in some harms, generally those where an individual (the perpetrator) can be blamed. It assumes that intentional acts are more deserving of punishment than acts of indifference, but this is questioned by Box (1983) and Pemberton (2004). If Adam intentionally kills Bob, is it worse than Chopak, acting as part of a company, choosing to make and sell a dangerous baby float, knowing that the straps tend to break, allowing the baby to slip through and drown, so it will likely kill some babies, but not caring about this or taking steps to prevent it? (A company called Aqua-Leisure actually did this and 31 babies died before the product was recalled. The recall was for at least 4 million floats. The company was fined $650,000—a regulatory fine, but no director or employee was charged with a crime.) And is an intentional act worse than Dean, a dictator, choosing to spend state money on sending a rocket to space, knowing that many who could have been saved from starvation in his country will now die because the money was spent on the space race rather than on food? In the first example, a clearly criminal case, one person dies so there is a clear victim. In both the others, more than one person will die (or does die); however, they may not be considered at all by the criminal law and are unlikely to be considered victims in the same way. A further example of this is explored in Controversy and debate 2.3.

Controversy and Debate 2.3

The limitations of the criminal law

Consider the opening scenes of the film Fight Club (see Figure 2.9), when there is a conversation about how a fictional major car company makes decisions around recalling cars.

Figure 2.9 Has the narrator of the film Fight Club—or the company he works for—committed a crime?

Source: 20th Century Fox/The Kobal Collection
  • Narrator:
    A new car built by my company leaves somewhere travelling at 60 mph. The rear differential locks up. The car crashes and burns with everyone trapped inside. Now, should we initiate a recall? Take the number of vehicles in the field, A, multiply by the probable rate of failure, B, multiply by the average out-of-court settlement, C. A times B times C equals X. If X is less than the cost of a recall, we don’t do one.
  • Woman on plane:
    Are there a lot of these kinds of accidents?
  • Narrator:
    You wouldn’t believe.
  • Woman on plane:
    Which car company do you work for?
  • Narrator:
    A major one.

Do you think the narrator committed a crime, if so what is it? Has he acted in a deviant way? Has the company committed a crime, if so what is it? Can a company or a state commit a crime? We can’t imprison a company so how can we punish them?

Controversially, financial considerations like this can supersede the potential of harm in decisions made by large companies.

Many critical criminologists and zemiologists often view criminal harms as less serious than other major forms of harm (see Boulki and Kotzé, 2018; Hillyard and Tombs, 2004). The criminal law, they argue, ignores many of the more serious social harms people suffer, not all of which are crimes, for example poverty, inadequate housing, poor diet, poor education, inadequate healthcare, unemployment, pollution, inequalities of treatment, inequality of opportunity, inequality of outcome, unsafe working conditions, unsafe environments, and so on (Hillyard and Tombs, 2004). They ask us to consider all harms suffered by individuals, families, groups, or communities, however caused, and whether the harm be physical, psychological, cultural (especially cultural safety), or economic (Hillyard and Tombs, 2004). They question the prioritising of criminal harms (some of which are minor) over other harms (some of which are serious) and suggest that we should have more sympathy for those who suffer other harms and be angrier about the causes of these harms. Consequently, they argue that we should strive to both redress harm (however caused) and prevent further harm (from whatever source). More money and energy should be spent on resolving harms such as poverty, rather than just focusing on blaming and calling criminals to account.

Many of the examples already considered in this chapter, including poverty, may be considered to be outcomes of the capitalist economic model prevalent in western societies, but there are also social harms caused by other types of system, such as communism (especially the p. 49limiting of autonomy, see Dorling et al., 2008). Thinking of harms in a broader sense may serve to question the way in which some of our criminal laws are framed (see the discussion of harm to self in section 2.4). It may also make us think more carefully about what is important and how to make our society safer (see the earlier examples of Bob, Chopak, and Dean). Who are the true victims: only direct victims of crime or also others who suffer? What is harm and what is harmful to either an individual or a community is not self-evident and needs to be carefully discussed. Who takes responsibility, how, and to what extent also needs to be teased out. These last questions are immensely problematic. For example, the responsibility issue is important. Clearly, we do not wish to criminalise all activities that cause all forms of harm but if we are to address the problem and change things for the better, we need to understand what needs to be altered and how making these changes will reduce overall harm (Reiman, 2006; Pemberton, 2004). Put simply, most critical criminologists recognise that life will always involve problematic and potentially harmful situations. Problematic situations and harm are a natural part of social living. These theorists recognise that some harms may be intended but that calling this ‘crime’ and punishing those who harm others does not improve our society. They argue that the ideal is to influence society, its structures, and the individuals who live in our communities to reduce those situations as far as possible and that this will not be achieved through criminalising behaviours but rather through civilising people and supporting and respecting all those who are harmed. It is also important to remember that some situations:

are seen as problematic for all those directly concerned (all those facing a gunman are likely to feel fear at the prospect that they may be killed);

are problematic for some of those directly involved (if the gunman only threatens those with blonde hair the others may feel relieved and their fear may dissipate);

p. 50 may not be considered problematic by any of those directly involved but people viewing things from the outside may consider them problematic (if the gunman tells them all it is a toy gun then it is only a problem for those not directly involved).

In each of these situations, the problem may arise from different sources. Hulsman (1986) calls these frames of reference and suggests that for each frame of reference the action and need may differ. Hulsman takes the example of a collision on the road where one driver, Eve, is injured:

This may be an accident—a natural part of life—if, say, a tyre blows out or there is black ice and then the community needs to do all it can to help the injured party to heal.

The incident may result from a structural problem, such as the way traffic is managed in that spot (in other cases it might be a problem with the community), it will still be called an accident and we should work to change the social/structural problem so as to prevent future harms.

If one person, Faye, is to blame then the other, Eve, may want compensation or for the ‘perpetrator’ to be punished. If the ‘victim’, Eve, is willing to forgive, then should the compensation/punishment be reduced? If the injured party, Eve, is the one to blame then should the compensation/punishment reflect the injury they’ve already suffered? Why/why not? If the injured party, Eve, is also the perpetrator should we prosecute? Why/why not?

Hulsman goes through a number of examples but the core of his message is that addressing the harm is the most important aspect and that this is rarely achieved through punishment, and therefore rarely through criminal law.

This perspective calls into question the need for criminal law and, by implication, the need for the study of criminology. Whilst this is an interesting way of thinking, it is not one shared by everyone, and therefore we will continue for the rest of this book to assume that most societies feel the need to censure and to ban certain activities and so states will continue to choose to call some behaviours criminal. In this situation, some people will choose both to deviate from accepted ways of behaving and to commit offences, either because they do not think the activities should be criminal or because they choose to break the law.

Test your understanding of this section by attempting the self-test questions here.

2.7 Conclusion

In this chapter we have considered the question ‘What is “crime”?’ From our discussion, it is clear that criminal laws are set by the state, they are not a natural set of laws that are accepted at all times and in all places, rather they change over time and each state sets its own criminal laws. This quality means that crime is clearly socially constructed—there is nothing about particular acts that of themselves means that they are always crimes, each state decides what should be prohibited at any particular time. Whilst it is true that a state (through its government or its courts) dictates what the law should be, what is defined as a crime is often led by society and what society seems to think and want at that time. At various times there may be social movements calling for something to be criminalised or decriminalised, and so some activities that many people in a society disapprove of might become criminal laws. However, many things that a society may disapprove of are never criminalised, they are just seen as deviant and are controlled in other ways (see Figure 2.10).

Figure 2.10 Ways through which a state or society can control and regulate behaviour

In a democracy, the willingness to follow the calls of a group in society may be seen as a strength—a government listening to its people. However, it might also be used by a powerful group (such as a racial majority or the rich) in order to control a less powerful group (a minority, racial or other, or powerless group such as the poor). This means that although the criminal law is intended to protect a community and its people from crime, it may in fact prove to be unfair and actually harm some people. At times, the criminal law may not be ethical and might not even live up to human rights standards.

Much of our discussion in this chapter considered how a state might best decide what should be criminalised. Generally, harm is an important factor in the decision—if an activity is harmful, it should be considered to see whether it should be criminalised. However, as we have learned, harm is a complex concept that might not be restricted to physical harm, but should take into account other aspects, possibly even (in some circumstances) moral upset. There is debate as to whether we should prevent people from harming themselves (participating in dangerous sports or using some substances such as tobacco or alcohol) or harming those who consent to or maybe even enjoy the harm (sadomasochists). However we define harm, we need to be careful—just because an activity is harmful, we do not always need to criminalise it to control the behaviour (Duff, 2007). Harm—at least harm to others—should necessarily be identified as a consequence of a behaviour before it can be prohibited, but this consequence should not require the behaviour to be made illegal. The harm principle may, in fact, be a more p. 51useful test as to which activities should not be criminalised but is not very useful in deciding which activities should be criminalised.

Some criminal laws are not based on the harm principle. Some may arise because those in power take advantage and protect against behaviours they do not agree with, while others arise because many in a society want to protect the moral interests of the group even if there is no actual harm. From this, it is clear that the harm principle is something that is not always followed and that no one rule can explain how a state chooses which activities to criminalise. Despite the fact that the harm principle is important in deciding what to criminalise, other things also need to be considered. For example, if something is potentially harmful, such as driving or smoking, it might be sensible to regulate how or where the behaviour occurs so as to reduce its harmful effects, even if it only harms the participants. This regulation may be done through the criminal law or in other ways (see Figure 2.10). In any use of the criminal law, it is important to ask whether the criminalisation is justified. An interesting test situation arises out of the use of the criminal law to control some of our most basic freedoms, such as freedom of movement, association, and the right to a family life in order to protect society from Covid-19. Are these restrictions acceptable and necessary in a modern society? Should the control have occurred in other ways—through social criticism, seeing those who endangered us all as social deviants rather than criminals (such as the MPs who were not prosecuted for breaking Covid-19 restrictions, but were vilified by the press). Is the use of the criminal law justified if it delivers a safer society—should the ends justify the means or not?

Overall, the message has to be that crime is a social construct, each society chooses what to criminalise and how to punish those who transgress.

p. 52Summary

Identify what the criminal law is and what it is for

Basically, the criminal law is a set of rules backed up by sanctions designed to prevent behaviour that a state (or community) wants to control. Criminal laws are generally used to prevent actions that harm other people or harm the community/state. Therefore, crime is socially constructed—each state decides what should be prohibited, and there is no one act or behaviour that is always considered a crime.

Understand why the criminal law can be seen as a social construct that changes over time

As the criminal law is a social construct, social movements such as calls to legalise assisted suicide or to criminalise smoking in public often shape the criminal law—the law bends to the conventions that society most wants. This allows the criminal law to represent people’s views of what is acceptable behaviour. However, it may allow the criminal law to protect one (powerful) group at the expense of another, less powerful (or minority) group. Therefore, social construction may not be fair, and it may not protect people; it is not required to follow any particular ethical or human rights standards.

Consider the reasons why some actions are criminalised, and assess how well these reasons are applied

Most activities are only criminalised if they are harmful to other people—known as the harm principle. Not all harmful acts must be criminalised, but people should be allowed to do things that are not harmful to others. Some criminal laws are not based on the harm principle, as those in power may use their position to prevent activities they dislike or may refuse to criminalise harmful behaviour if it is useful to them. Many criminal laws seem to protect moral interests rather than prevent harm to others, while some criminal laws regulate potentially dangerous activities (for example, driving) before any harm arises. So, the harm principle is not always followed, and no single rule can explain how a state chooses which activities to criminalise.

Evaluate whether we need the criminal law in order to hold people to account and punish them

The criminal law deals with problems by blaming individuals and punishing them. Punishment may be considered the best way of persuading most of us not to participate in crime. However, if you ask most people why they do not offend, few will answer that they do not want to be punished. Most people either believe criminal acts to be ‘wrong’ or they do not want to disappoint loved ones by participating in activities they know are unacceptable to most people. Behaviour control is therefore part of our general upbringing and education that may be very effective at preventing crime. If the criminal law does not deliver safer societies then some thinkers, zemiologists, argue that we should stop blaming people and instead spend money on supporting victims, those who suffer harm, however that harm arises.

Further Reading

  • Dorling, D. et al. (2008) Criminal obsessions: Why harm matters more than crime (2nd edn). London: Centre for Crime and Justice Studies. Especially Ch. 5, pp. 70–90.
  • A discussion of harm has been central to this chapter. For a clear and novel consideration of how to differentiate harm and crime, it would be sensible to consult this book.

  • Herring, J. (2012) Great Debates: Criminal Law. Basingstoke: Palgrave Macmillan. Ch. 1.
  • A useful, clear, and easily understood discussion of the subject. It is a brilliant place to start your extra reading and introduces the debates in an easily readable manner.

  • Lacey, N. and Zedner, L. (2017) ‘Criminalization: Historical, Legal, and Criminological Perspectives’ in A. Liebling, S. Maruna, and L. McAra (eds) The Oxford Handbook of Criminology (6th edn). Oxford: Oxford University Press.
  • A particularly incisive and analytical discussion. This book gives a more detailed consideration of the legal and contextual construction of crime. It introduces some of the more complex legal and criminological theories and guides the reader through the ways in which they might be analysed.

  • Williams, K. S. (2012) Textbook on Criminology (8th edn). Oxford: Oxford University Press. Ch. 2, especially pp. 20–39.
  • There are many textbooks which consider where we should set the limits of the criminal law. Most criminal law books have a brief section set aside to discuss these issues though many of these are overly legalistic for your use. However, this book (and the last) is particularly helpful and approachable.

  • Steve Case discussing the question ‘What is crime?’: www.youtube.com/watch?v=a2lIcZPW6oU
  • In this YouTube video, Steve Case, one of this book’s authors, reflects on the difficulties of trying to define ‘crime’.

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