Law and Morality: State Control Through Criminal Law

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Morality is defined as a system of principles and judgments based on cultural, religious, and philosophical concepts and beliefs, by which we determine whether actions are right or wrong. The concepts that are based upon this idea are often generalized and codified by a culture or group, and conformity to such codification is a method of regulation. The complete Criminal Code of Canada was achieved in July 1892 under the leadership of Prime Minister Sir John Thompson. Since then, the Criminal Code has been revised numerous times to accommodate the needs of changing principles of what is “right” and “wrong”. This is where the control of “areas of morality” comes into question how did, and does, our Canadian Criminal Code control morality, and where does this leave our future criminal legal system? Most recently Supreme Court cases regarding the legality of marijuana and prostitution have become the face of challenging morality in our current Criminal Code, and also bring a new concept of the “Harm Principle”. J.S. Mill expressed what should be considered a fundamental principle of liberty, which he called the Harm Principle: a person should be allowed to do whatever he/she desires until there is reasonable and substantial harm on another, or an intentional situation was created with a reasonable likelihood of harming another. It follows then that laws should regulate only acts that infringe upon another's rights or liberties, which will be further discussed below. In 2005, the cases of R v. Labaye and R v. Kouri saw the first direct use of the harm principle by the Supreme Court and will only open the floodgate for future cases. In brief, “The state should not control any areas of morality through its criminal laws” and should reassess our current Criminal Code through an adoption and adaptation of J.S. Mills’ Harm Principle instead of theories that incorporate an all-encompassing morality such as legal moralism, paternalism, or positive freedom.

Firstly it must be established that the theories encompassing a definitive “morality” is an invalid approach in our criminal law system, as well as being in the direct opposite of the harm principle theory. The most famous legal moralist Patrick Devlin discussed this theory in his book “The Enforcement of Morals”:

[I]f men and women try to create a society in which there is no fundamental agreement about good and evil they will fail; if, having based it on common agreement, the agreement goes, the society will disintegrate. For society is not something that is kept together physically; it is held by the invisible bonds of common thought. If the bonds were too far relaxed the members would drift apart. A common morality is part of the bondage. The bondage is part of the price of society; and mankind, which needs society, must pay its price. (Devlin 1965, p. 10)

Legal moralism therefore denotes that the government has not only the responsibility to use its policies to be a guardian of public order and protector of non-independent persons, but also the responsibility to maintain a common morality within society. The government then has recourse to criminal law in response to behavior that threatens the “established morality” and to prevent the disintegration of society through loss of a “common morality”, an essential element of social cohesion and economic prosperity. A report written by Ian Campbell submitted to the Le Dain Commission in 1972 applied legal moralism to drug use. His disapproval of drug use stemmed from legal moralism in that users should be condemned for their choice of “vice” over “virtue”. This approach justifies drug prohibitions on the basis of morality rather than public health. However, this is an inability to separate immorality and illegality, two very different terms.

Under the doctrine of Positive Freedom, activities are made illegal because they are “bad” for the person. Essentially, it is forcing someone to act in his or her best interest...
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