On criminalisation

If a lot of the recent debate in this area has been about over-criminalisation and looking for grounds or principles by which the scope or exercise of the criminal law might be constrained, it is equally important to think about reason to criminalise. What conduct should be criminalised and why? There are two main strands in liberal thought about these questions, though they tend to come together in contemporary thought. The first derives from, and is animated by, John Stuart Mill's famous 'harm' principle: that "the only purpose for which power can be rightfully exercised against any member of a civilised community, against his will, is to prevent harm to others." (from On Liberty, 1859).

In this tradition efforts have focused on attempting to define the concept of harm: what is harm? does it include forms of potential as well as actual harm? Are forms of paternalism justified? And so on. This has achieved its most complete modern expression in the four volume work of Joel Feinberg (The Moral Limits of the Criminal Law, 1985). The alternative approach - legal moralism - argues that we should begin from the idea of wrongdoing, since it would be unjustifiable for the state to punish a person for conduct which is not morally wrong.
How do these come together? Well, advocates of the harm principle concede that a criminal law which punished all harmful conduct would be too broad and therefore seek to introduce a limiting principle, which is that only wrongful harms should be subject to criminal punishment. Conversely, legal moralists concede that not all wrongful conduct (lying, cheating at games) should be the subject of the criminal law because, once again, it would be too broad, and that therefore the criminal law should be concerned only with harmful wrongs.

While it is clear that there are still differences between the two positions (a harmful wrong may not be the same thing as a wrongful harm), I wonder if something is missing from these kind of debates. The aim is that of determining the proper scope of the criminal law, but there is not much discussion of the criminal law itself, except as a means for the imposition of punishment (which requires special justification). The criminal law is surely more than just an aggregate of individual wrongs, that is to say that it would seem be more than just the sum of its individual parts.
There seems to be some acknowledgement of this in theories which suggest that the criminal law should be concerned with forms of 'public' wrong, in that what is being sought for in these formulations is to capture something about the public role or function of the criminal law. All of which brings me back to the formulation of Neil MacCormick, discussed in an earlier post, that the criminal law should contribute to securing the conditions of civility and social peace. This kind of formulation seems to suggest that the criminal law has a more positive social function than just the protection of a series of individual wrongs, and one of the tasks of a theory of criminalisation must be to begin to tease out what this function is.