The principle was initially designed to prevent the criminalization of conduct
exclusively based on moral or paternalistic grounds. A conduct that may be
immoral (such as adultery) but that is not harmful to others should not be the
concern of criminal law, so the argument runs. However, the problem is that the
notion of harm is a very flexible one. How can we define harm properly so that it
retains a critical and limiting dimension? It seems obvious that if we define harm as
“harm to society”, almost any conduct could be fitted under this definition.
Legal MoralismThe counterpart to the harm principle can be found inlegal
moralism. It seems evident that criminal law has close ties to morality. Crimes such
as murder or rape arguably criminalize moral wrongdoing and are therefore almost
universally condemned. One may therefore wonder if the simple fact that a certain
conduct is considered morally wrong is in itself already sufficient to criminalize it.
In practice, morality is certainly influential for the criminalization of some forms
of behavior. Consider, for instance, the offenses of bestiality (a.k.a., animal sex),
disturbing a funeral, or desecration of graves, which are arguably to a large extent
founded on moral values. Yet reliance on morality is inherently problematic for a
variety of reasons. First, we would need to determine which morals are to guide the
criminalization debate—liberal morals, communist morals, or the morals of the
church or other religious groups? Second, moral values are subject to constant
changes and are therefore problematic to guide the legal debate. For many years,
public nudity was, for instance, prohibited as it was considered immoral, but
nowadays in Europe nudity, for instance on beaches, hardly raises eyebrows
anymore. In addition, contentious issues such as abortion, prostitution, and eutha-
nasia are the subject of a diverse and shifting debate in modern multicultural
societies, which makes it doubtful that morality will always provide a good
compass to explore the limits of criminal law.
The principles outlined above all deserve careful consideration and should guide
and inform the political debate with regard to the creation of new offenses.
Unfortunately, in practice, it is often political opportunism, as well as moral outrage
and panic in society, rather than a carefully balanced principled approach that
drives the creation of new offenses.
7.3 Theories of Legal Punishment
Since punishment involves pain or deprivation of some fundamental rights (e.g.,
freedom), its intentional imposition by the state requires justification: what could
justify a state in using criminal law to inflict burdensome sanctions upon its citizens
when they violate certain legal rules? Due to its inherent painful character and
far-reaching impact, punishment requires a solid legitimization. In the philosophi-
cal and political debate, one may distinguish two main types of theories of punish-
ment: utilitarian and retributive. On purpose we leave out some mixed or hybrid
theories and theories that give alternatives to criminal sanctions, like restorative
justice.
126 J. Keiler et al.