The Minimalist Principle Fundamental in this connection is the minimalist
principle, which holds that criminal law should only be used as a last resort (ultima
ratio). Morality, social convention, peer pressure, and also civil (law of tort or
contract) and administrative laws are other (informal) techniques of control, and in
many instances it seems preferable to leave the enforcement of certain forms of
behavior to those forces. The state’s most powerful weapon should be used
scarcely—Thor’s hammer was simply not meant to drive nails!
The Principle of Individual Autonomy A further important principle within the
criminalization debate is that ofindividual autonomy. The principle is central to
most liberal political theories and essentially holds that citizens should be free from
undue state powers in making their own choices and should be the masters of their
own fate. This arguably limits the creation of offenses based on paternalistic
grounds, i.e. offenses where the state deprives citizens of individual choice
supposedly for their own good. Many drug offenses (including violations of alcohol
and tobacco laws) are, for instance, often based on paternalistic considerations.
The Principle of WelfareHowever, the principle of autonomy is certainly not
absolute. Besides issues such as whose autonomy should function as a yardstick
(e.g., the autonomy of men and women, the rich or the poor, respectively), it is
evident that a citizen will never be able to fully exercise his/her autonomy if the
state fails to create the necessary conditions for the exercise of autonomy. Certain
collective goals and interests, such as environmental protection, economic and
financial stability, and food and product safety, are pivotal in a society and therefore
also warrant protection under criminal law.
This line of thought often finds expression in theprinciple of welfare, which
emphasizes the social context in which the law must operate and gives weight to
collective goals and interest such as protecting the environment we live in or
maintaining law and order in society. The principle of welfare and the principle
of individual autonomy should however not be perceived as opposites but rather as
connected and mutually interdependent principles that deserve careful consider-
ation within the criminalization debate. When do the needs of the many really
outweigh the needs of the few? While there clearly can be conflicts between the two
principles, if the principle of individual autonomy is taken to require that people are
free to and can peruse their own goals (positive liberty), the principle of welfare
may work towards the same end by protecting common facilities (e.g., schools),
structures (e.g., unemployment or pension schemes), and systems (e.g., the tax or
criminal justice system), from which citizens benefit.
The Harm Principle In any case, the central notion and starting point of any
criminalization debate is theharm principle. In the words of John Stuart Mill:
[...] the only purpose for which power can be rightfully exercised over any member of a
civilized community, against his will, is to prevent harm to others.7 Criminal Law 125