What Is The Proper Role Of Criminal Law?

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WHAT IS THE PROPER ROLE OF CRIMINAL LAW? Introduction When the Wolfenden Committee set out their recommendation to decriminalize male homosexual activities in private, the question of the relationship between morality and the law and the limits of criminal law was raised. The Committee felt that it was important that the law allowed for the freedom of choice and that even though certain acts might be deemed as immoral, it should not be a criminal offence unless it causes harm to others. The role of criminal law is to preserve public order and to protect the society from offensive and injurious acts. It is not to interfere or enforce a particular pattern or moral behaviour. The only justification for when the law can step outside its purpose and function is when the behaviour causes harm to the society. Harm is not just physical harm but also mental distress. A distinction needs to be drawn when the question of mental distress is raised. It would be absurd to think that there is a need to criminalize a conduct if an individual’s feelings are hurt or an individual is offended by another’s actions. The harm done must be towards protected interests and conduct that are not just offensive in nature. In response to the Report, Devlin argued that criminal law was not just for the protection of individuals but also for society as a whole. The society, Devlin felt, was a community of shared ideas about how people should live their lives. As such, the law is entitled to create laws that protect the society even if it means infringing on an individual freedom to make his or her own decisions. Hart on the other hand, argued that people’s right to freedom, to act as they deem fit, should be upheld and the only justification for infringing on that right is when the behaviour causes harm to others. This paper argues that an individual’s freedom of choice, to act as
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