Harm and Morality

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This article is a topic within the subject Crime & the Criminal Process.


Required Reading

Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 73-86.


This section considers what should make something criminal - ie, it attempts to highlight supposed characteristics of crime. Different theories are discussed:


[1] A common theory is that everything which harms public interest should be a crime, whilst everything which harms private interests should be handled by the civil sphere. This theory was advanced by William Blackstone:[2]

  • Private wrongs, or civil injuries, are an infringement of the civil rights which belong to individuals.
  • Public wrongs, or crimes and misdemeanors, are a breach and violation of the public rights and duties, are an offence against the whole community.
  • Yes, public offences are also private wrongs (since all crimes include an injury), but it is somewhat more; it affects the community.
  • Murder is an injury to the life of an individual, but it is also an injury to the community which is deprived of one of its members.
  • The law has a double view: it compensates the injured party through the civil law (torts etc), but also prevents or punishes every breach and violation of the laws which the country established, to ensure order and peace.

This theory has its problems:

  • Almost everything can be thought of in terms of both private and public - should breach of contracts (a civil matter at the moment) be a crime because it is in the interest of the public community that contracts should be honoured?
    • Some would argue that on the whole, social order and peace would be more disturbed by people refusing to honour commercial contracts than by crimes such as talking on the phone whilst driving, or even theft.

There is another way of thinking about the public notion of crime: that some things done in the public arena would be crimes whilst if done in private they would not be. Obviously, this is a very problematic definition:

  • There are a lot of people who constantly in the public arena by necessity (homeless, youths etc) and they would thus be subjugated.
  • Things like domestic violence should still be crimes even though they are done in the private sphere.

Whilst the public/private distinction has some appeal, it does not go far enough in helping us to understand the phenomenon of crime.

Privacy: the Human Rights (Sexual Conduct) Act 1994

[3] The concept of privacy is utilised in the Human Rights (Sexual Conduct) Act 1994 (Cth). This was a response to the decision in Toonen v Australia,[4] where the United Nations Human Rights Committee (UNHCR) found that the criminalisation of certain sexual behaviour (relating to sexual acts between men) in the Criminal Code (Tas) violated the International Covenant on Civil and Political Rights.


[5] Another theory is that everything which causes harm should be criminal (from a different perspective, that only harmful activities be criminal). This theory was advanced by J S Mill:[6]

Whilst this initially sounds plausible and logical, it becomes a complicated and problematic approach:

  • What is harm? There are many types (ie physical, mental, financial etc - are all included?[7])
    • If all those become criminal, then the definition is useless (because it encompasses everything).
  • What degree of harm is considered harm enough to become criminal?
  • What about self harm?

For example, there is the dispute whether pornography is harmful. It is considered in the following piece:[8]

  • Some people think that pornography is a private matter which results in no harm to others and therefore should be outside the sphere of criminal law.
  • Others believe that it does cause harm (from a moralist, feminist or a conservative perspective).

The definition of crime using harm is thus problematic. It can only avoid the defect of under-inclusiveness by stretching the meaning of 'harm', to the point that it fails to set significant constraints on the criminal law. It thus loses its meaning.[9]


[10] This theory states that everything that is immoral should be criminalised. There are several arguments as to why immoral conduct should be criminal:

  1. The immorality of the conduct supplies a sufficient reason for criminalisation (there has not, however, been a clear equation between crime and sin, eg attempted suicide may breach positive morality but it is not a crime).
  2. Immorality is a necessary condition for criminalisation.
  3. Certain forms of immoral conduct undermine the shared beliefs essential to social cohesion, and should therefore be criminal.
    • This reflects an indirect form of the argument based on harm: the harm is to the social order rather than any individual.

The morality conception of crime was discussed by P Devlin, who criticises the Wolfenden Report (which argued that criminal law should not enter area sof private morality):[11]

  • It is clear that the criminal law as we know it is based upon moral principle.
  • What makes a society of any sort is community of ideas, not only political but also ideas about the way its members should behave and govern their lives; these latter ideas are its morals.
  • A common morality is part of the bondage of the society. Public morality is the invisible bonds of common thought. That is why morals should be enforced.

Devlin thus argues for the consideration of morality in the process of criminalisation. He qualifies his discussion by asserting three principles to be taken into account in deciding whether morality should be legislated:

  1. There must be 'toleration of the maximum individual freedom that is consistent with the integrity of society'.
  2. Because, in matters of morals, 'the limits of tolerance shift', so 'in any new matter of morals the law should be slow to act'.
  3. 'As far as possible, privacy should be respected'.

He was opposed by Hart, who argued that morality doesn’t have a place in law:[12]

  • Rejected Devlin’s argument. He regarded the claim that society depended on shared moral beliefs as not proved. Shared moral beliefs changed from time to time, eg attitudes to homosexuality have evidently moved away from the view that it would disintegrate the moral code and society.
  • Also argued that paternalism (the protection of people against themselves) was a ‘perfectly coherent policy’ (eg, where people take illegal drugs without fully appreciating the consequences).


[13] This theory states that only offensive acts should be criminalised. While offensiveness and immorality are often similar, especially with respect to sexual behaviour, there are important differences:

  1. Offensive behaviour in law involves publicness, with acts that are moral and are permitted in private possibly regarded as offensive if done in public.
  2. Society may view immoral behaviour as legally permissible when in private, but legally impermissible, because offensive, if carried out in public.
  3. Morally neutral behavior such as public drunkenness can be offensive, and therefore be prohibited.

In cases 1 and 2, publicness rather than immorality is the heart of the concern. They are more readily assimilable to ‘harm’ since the interests of 3rd parties may be adversely affected. Offensiveness can be seen as a sort of mix between publicness and morality theories.

The following article by S Hall deals with the aforementioned Wolfenden Report and regarding a legislation which was passed to relax 'offensiveness' prohibitions:[14]

  • Wolfenden identified two areas of legal and moral practice – those of sin and crime, of immorality and illegality. In effect, the Wolfenden Report sanctioned, through its strict application of the key distinction between 'public good' and 'private morality', the emergence of a double morality.
  • Privatisation of selective aspects of sexual conduct (i.e. prostitution) - take it away from the streets and make it into a business. 
  • Public morality which keeps society clean against private morality whose key interpellative structure is ‘economic man’ whose practical foundations rest on the exchange in private between equivalences. 

Morality is often assumed to be the prior state of affairs to which the law responds. Two points should be made here:

  1. Positive morality changes from time to time and place to place.
  2. The relationship between law and morality is complex and the form of the law will affect perceptions of the morality of a particular practice or behaviour.

This next extract by T Duster aims to illustrate how the conception morality changes throughout time. It uses drug use as an exmaple:[15]

  • Changes in the legal status of drug use law could lead people to think of an activity as immoral even though they had not thought so previously.
  • The development of immoral connotations in relation to drugs such as morphine was conditioned by the process of social stigmatization of people using these drugs, as official policy went through transitions from regulation by the free market, by doctors and finally by police agencies.
  • By 1920, the purchase of narcotics was not only criminal (that happened overnight in 1914), but some men had become assured that the purchase was immoral.
  • Certain social categories lend themselves more to moral condemnation than others (difference in the way lower class addicts were regarded).
  • The law drastically altered the conditions that produced the shifts in these categories. It is a short trip across the bridge to a moral judgment.


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Textbook refers to Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011).

  1. Textbook, pp. 73-5.
  2. W Blackstone, Commentaries on the Laws of England, (Chicago UP 1979, originally published 1765) in Textbook, pp. 73-4.
  3. Textbook, pp. 75-6.
  4. (1994) 1 PLPR 50.
  5. Textbook, pp. 76-9.
  6. J Mill, 'On Liberty', in Warnock (ed), Utilitarianism (Fontana, 1970) in Textbook, pp. 76-7.
  7. P Hillyard & S Tombs, 'Beyond Criminalogy?', in P Hillyard et all (eds), Beyond Criminalogy Taking Harm Seriously, (2004) in Textbook, p. 78-9.
  8. Ian Hunter, David Saunders & Dugald Williamson, On Pornography: Literature, Sexuality and Obscenity Law (1993) in Textbook, pp. 77-8.
  9. Anthony Duff, Answering for Crime, (2007) in Textbook, p. 79.
  10. Textbook, pp. 79-82.
  11. P Devlin, The Enforcement of Morals (1965) in Textbook, pp. 80-1.
  12. Hart, Law, Liberty and Morality (1962) in Textbook, p. 82.
  13. Textbook, pp. 83-6.
  14. S Hall, 'Reformism and the Legislation of Consent', National Deviancy Conference, Permissiveness and Control (1980) in Textbook, 83-5.
  15. T Duster, The Legislation of Morality (1970) in Textbook, 85-6.
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