‘WHAT CONDUCT OUGHT TO BE CRIMINAL?’ UNDERSTANDING THE
JURISPRUDENCE OF CRIME AND LIBERTY
Alunegbe Oziegbe-Anozie*
ABSTRACT
One of the inalienable rights of man is the liberty to do and to live as he
pleases. The need for a law or better put, a criminal law designed to deter
overbearing conduct becomes necessary to ensure compliance including
appropriate sanctions to back up the rules. The challenge is that not every
perceived wrong may be regarded as criminal attracting some form of
punishment. It is to this end that the question arises – What Conduct
Ought to be Criminal? This work is intended to examine the concept of
crime through the views of various academics in an attempt to determine
the scope of liberty and to realise the point in which a perceived wrong
may be said to become criminal. Also, what are the tests if any that can
be used in determining criminal conduct? The essence of this paper is to
ensure contemporary criminal law legislative drafting keeps in line with a
vital individual fundamental right- liberty. It recommends that in
determining crime or criminal conduct, there should be a clear line
between crime, morality and private and public immorality.
Keywords: Criminal conduct, Crime, Liberty, Jurisprudence
1.0 INTRODUCTION
The essence of law in every society is to induce positive conduct and also, to restrain negative
conduct. For Thomas Aquinas, ‘a just law is an ordinance of reason promulgated by competent
authority for the sake of COMMON GOOD’.1 Invariably, a good law must be one enacted by a
legitimate authority and it must be rational; it must be based on what wrong it intends to prevent
and as such, it must be effectively promulgated to all people’s concerned and finally, it must be
for the sole purpose of the common good of all.2 That being said, it has become worrisome that
not all state crimes qualify to be crimes; some in fact, are issues of morality and immorality that
are not a necessary condition for imposing the criminal law.3 The restraint of free human will,
including, the threat of punishment; the negative attitude of the community culminating into
promulgated laws such as those targeted against the LGBTQ4 community for instance, including
* LLB, BL, LLM; PhD candidate, Rivers State University, Port Harcourt and Part-Time Law Lecturer in the
Department of Social Sciences, Federal Polytechnic Nekede, Owerri, Imo State; E-mail: acanozie@gmail.com;
08037332080..
1
Ella Rose Cabalatungan, ‘St. Thomas Definition of Just Law’ Prezi (Hungary, 27 September 2014)
<https://prezi.com/m/guxxzxczxbk5/stthomas-aquinas-definition-of-law/> accessed 28 June 2020.
2
Ibid.
3
C. M. V. Clarkson and H. M. Keating, Criminal Law: Text and Materials (5th edn, Sweet & Maxwell 2003) 12.
4
Lesbian, Gay, Bisexuals, Transgenders and Queer people.
1
the recently acclaimed GSA right5 are not entirely justified for their course. In Nigeria, the claim
has always been to preserve public morals;6 however, while it is the duty of law to ensure a safe
and moral society, it seems inappropriate to stretch the arms of the law so much as to regulate
what is to be the ‘private’ life of the citizenry.
In this sense, does the law still constitute a just law? In other words, is the law rational and what
is the test for rationality? What wrong does it seek to prevent? Is it wrong to the individual, to
another individual or the community? What is the basis for qualifying conduct as wrongful? In
what way can the law be proven to be for the common good? Why should individual autonomy
become the business of criminal law? In legislative drafting, every draft instruction must be
carefully analyzed to ensure that areas of potential danger are identified so as to avoid conflict in
the future. Areas of potential danger would include a law that infringes on the fundamental
human rights of the people. Thus, it is always best to ensure that the proposed legislation is not
subjected to any form of moral, ethical or religious considerations. Again, the proposed
legislation must be practicable. That is, offences which appear to be difficult to enforce need not
be created at all.
In order to address the issues aforementioned, the meaning of what crime is or should be will be
appreciated. The Legal Moralist, Paternalistic and Liberalist schools of thought will be critically
appraised as jurisprudential basis for determining criminal conduct so that the extent, to which
individual autonomy may be exercised as well as the point when law may restrain liberty and in
fact punish the actor, may be determined. The essence of this is to further debate into existing
laws for example, the Same Sex Marriage (Prohibition) Act 2013 as well as any such other
law(s) which arguably are in breach of human rights and, act as some sort of guide that may be
taken into consideration by both the courts and the legislature for purposes of determining what
conduct ought should be or should not be criminal in criminal law legislative drafting and for
amendment purposes.
1.1 WHAT IS A CRIME?
Crime is diverse in nature and this has posed a huge challenge making it practically impossible to
arrive at a general definition of the concept which identifies the quality of an act or omission that
makes it an offence. Clearly, various conducts may be the basis for criminal offences for
example, homicide, theft, traffic offences as well as environmental pollution. In this instance, it
is imagined if a definition of ‘a crime’ can be found which circumscribes all these offences?
Basically therefore, the meaning of a crime is dependent on individual perspective.7
Genetic Sexual Attraction relationships. GSA is defined as ‘sexual attraction between close relatives, such as
siblings or half-siblings, a parent and offspring, or first and second cousins, who first meet as adults’. For details,
visit
<https://www.google.com/amp/s/www.dailymail.co.uk/news/article-3725551/amp/Mother-36-son-fell-lovemet-year-gave-adoption-baby-say-willing-risk-JAIL-defend-love.html> accessed 29 June 2020.
6
See the Same Sex Marriage (Prohibition) Act 2013; particularly, note the meaning of ‘same sex marriage’ and
‘civil union’ in section 7; see generally, s7(a)(b)(c)(e)(f).
7
R. White and F. Haines, Crime and Criminology (2nd edn, OUP 2000) 4-5.
5
2
A formal legal definition of crime is that which the state identifies to be a crime.8 By drafting it
into the criminal law and making it subject to state sanction by way of penalty, instantly qualifies
any such activity as crime. On another hand, a social harm conception of crime perceives both
criminal and civil offences as crime. This rationale is that both kind of actions cause some sort of
harm to another and by implication, there should be penalty awarded any action or inaction of
the sort.9 For human rights, a crime occurs when there has been a violation of a right which it is
believed is an entitlement on the sole basis of humanity. This is why a denial of food, shelter,
and clothing’s etc to the needy may amount to a crime against humanity. In other words, racism,
sexism etc are regarded as oppressive practices which fall within the human rights conception of
a crime.10
Unable to arrive at a universal definition of what a crime is, scholars have abandoned the search
of an acceptable nature and rather base lame definitions depending on the type of legal
proceedings following from the offensive act.11 However the difficulty, the Wolfenden
Committee on Homosexual Offences and Prostitution 1957 was of the view that the purpose of
criminal law is:
To preserve public order and decency. To protect the
citizen from what is offensive or injurious and to provide
sufficient safeguard against exploitation and corruption of
orders, particularly those who are especially vulnerable. It
is not the function of the law to intervene in the private
lives of citizens or to seek to enforce any particular pattern
of behaviour further than is necessary to carry out the
purposes we have outlined.12
In appreciating the purpose of criminal law as outlined above, it appears that the aim of criminal
law is to ‘preserve
“public” order and decency’, and to protect the citizenry especially
vulnerable persons from whom or what would otherwise be offensive or injurious to them but in
so doing, the privacy of the individual must be respected. Thus, it is not the business of the law
to regulate the private lives of individuals let alone, ‘enforce any particular pattern of behaviour
further than is necessary to carry out the purpose…’ If this is the case, what is or should be the
scope of liberty and what conduct is or ought to be criminal?
2.0 DETERMINING CRIMINAL CONDUCT
According to Parker,13 two conditions must be satisfied before criminalization of a conduct is
justified:
a)
The conduct must be wrongful;
b)
It must be necessary to employ the criminal law to prevent or condemn such conduct.
8
Jonathan Herring, Criminal Law: Text, Cases, and Materials (3rd edn, OUP 2008) 2.
Ibid.
10
Ibid.
11
Professor Glanville Williams feels that an act is a crime if it is capable of being followed by criminal
proceeding…
12
Report of the Departmental Committee on Homosexual Offences and Prostitution 1957 (Cmnd 247), famously
known as ‘The Wolfenden Report’.
13
See Herbert L. Packer, The Limits of the Criminal Sanction (Stanford University Press 1969).
9
3
For (a) above, the question therefore arises as to what conducts are wrongful? There is no
general principle establishing wrongful conduct. However, three schools of thought have
emerged in an attempt to establish a frame work within which wrongful conduct can be
discerned. They are:
i.
Legal Moralism,
ii.
Paternalism and
iii.
The Harm Principle / Liberalism
2.1
LEGAL MORALISM
The principal of legal moralism states that conduct becomes wrongful if it is immoral. It is the
argument of Lord Devlin that society is kept together by a ‘moral cement’ and is the duty of that
the State to employ the use of the criminal law to guard the cement from damage as a result of
behaviour which infringes on those principles.14 He recommended that the extent of disgust a
society feels towards a particular kind of activity would suggest whether it challenged a
fundamental value that forms the basis of the society.15 In other words, for the legal moralist,
conducts that are morally wrong ought to be criminalised. An example will suffice: if in a bus for
instance, a man gases, largely, such conduct can be seen as morally wrong. For the moralist
therefore, such conduct should be criminalised.
Critic:
The challenge with this principle is that it is unrealistic. It is impossible to criminalise every
conduct because it is immoral. Lord Devlin cannot be completely correct when he suggests that
mere disgust indicates how precious value is to society.
Tony Honore therefore attempted a definition of morality when he said:
How are we to understand morality, a term with rather
uncertain limits. It is concerned with conduct that has a
significant impact on other people and perhaps also
animals, individually or collectively and with the restraints
of behaviour that we should accept because of this. Moral
criticism accesses behaviour in the light of its impact on
others. It excludes purely self-regarding behaviour.
Moreover, since we live in groups and communities and
belong to states and other political entities, the central core
of morality is concerned with how to co-exist, and cooperate with others. The core of morality is in a broad
sense political. To assume a common culture or a
normative consensus, in an American society for example
as in most modern societies, is to ignore the deep and
decisive roles of class, ethnic, religious status and regional
culture conflicts which often produce widely opposing
definitions of goodness, truth and moral virtue. 16
Tony Honores’ definition of morality raises some questions:
a.
What borders on a person’s liberty?
E.V. Rostow, ‘The Enforcement of Morals’ [1960] (174) Cambridge Law Journal; 174-98
Ibid.
16
Tony Honore, Making Law Bind: Essays, Legal and Philosophical (Clarendon Press 1987); [Emphasis added].
14
15
4
b.
How do we determine the sphere of the issue of morality and privacy and liberty?
c.
In what way is morality political?
Taking a trip back to the social contract theory where man lived in the state of nature, he had
liberty/autonomy to do as he pleased. In that instance, anything he did within the privacy of his
home was his business because it was personal to him. If for example, he had sex with a dog,
such conduct generally is immoral but because it was personal to him, it need not be the basis for
criminalisation. But on the other hand, if he did it in the public, say, an amusement park, such
conduct would have a significant impact on society as it tends to pollute public morals. In this
case, the moralist demands that such conduct be criminalised. In other words, for Tony Honore,
there should be a distinction between private and public immorality. A person has the liberty to
do as he pleases in the privacy of his home but he has a duty to society to refrain from such
conducts that have a huge impact on others in order for us to co-exist harmoniously.
Furthermore, morality is political because it is largely what the majority feel is immoral that will
in essence be determined as criminal conduct. Thus, if majority of the people passing by the man
having sex with the dog in public turn a blind eye, nobody raises an alarm; nothing is in fact
done about it and he may not be penalized. However, in event of a public outcry criticizing such
behaviour, the authority becomes compelled to say - such a conduct is or has become criminal.
In discussing the last segment of Tony Honore’s quote, ‘for society to come together and live in
peaceful co-existence’ means to put aside culture, tradition which to an extent defer with civility.
Therefore, for the principle of legal moralism, conduct which ought to be criminal must satisfy
the following conditions:
1.
They must in themselves be morally wrong;
2.
They must have had a significant impact on society either as a group or even individually.
With regard to the above, Hyman Gross did not seem comfortable with the position of the legal
moralist and so he tried to strike a balance when he said:
It seems obvious that those crimes of violence, theft and
destruction that stand as paradigms of crime and comprise
the core of any pinnacle are also morally wrongs.
Everyone has a right to be free of such harm inflicted by
others and when murder, rape, arson, assault is committed,
there is also a moral wrong since a moral duty to refrain
from doing harm to others has being breached. The right
to be free of such harm does not have its origin in law but
in a general consensus on the rights enjoyed by any
member of society or even by any person no matter how
he lives. This consensus is a more fundamental element of
society even than the law and for that reason, the violation
of such a right is a moral wrong and not simply a legal
wrong. 17
H. A. Gross, A Theory of Criminal Justice in Vincent Luizzi, ‘A Theory of Criminal Justice. By Hyman Gross.
New York: Oxford University Press’ [1978] (23)(1) The American Journal of Jurisprudence; 232-237
17
5
In other words, crimes such as rape, theft, arson are already moral wrongs even before they have
been made a crime and any conduct that affects the liberty of others in terms of their ‘protection’
is immoral and should be criminalised.
2.2 THE PRINCIPLE OF LIBERALISM / THE HARM PRINCIPLE
The principle of liberalism is hinged on individual autonomy. It is of the notion that people
possess free will and must be allowed to the maximum extent possible to make free choices. The
State should only intervene to restrict autonomy when it is necessary to prevent harm or serious
offence to others. The difference between the harm and offence principle from legal moralism is
that the liberalist is not concerned on whether such a conduct had a huge impact on society or
not. For him, he is concerned with preventing harm from being done to others. He will only
restrict the conduct when he sees that it is likely to cause harm or serious offence to others
otherwise, the autonomy of that individual should not be restricted at any cost. Proposing this
school of thought, Mills formulated an essay on liberty and was of the opinion that:
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. His own
good, either physical or moral, is not a sufficient warrant.
He cannot rightfully be compelled to do or forbear …
because in the opinion of others to do so would be wise or
even right. 18
From Mills comments, the principle of liberalism raises some questions:
a.
To what extent can individual autonomy be exercised?
b.
What happens when a person gives consent to the harm done?
c.
What is the effect of communism on individualism?
d.
What level of harm attracts criminalization?
2.2.1 THE EXTENT TO WHICH INDIVIDUAL AUTONOMY CAN BE EXERCISED
The Wolfenden Committee on Homosexual Offences and Prostitution recommended that
homosexual behaviour between consenting adults in private should no longer be a criminal
offence. One of the grounds for this recommendation was that, ‘there must remain a realm of
private morality and immorality which in brief and crude terms is not the law’s business.’ No
doubt therefore, individual autonomy can only operate or be exercised effectively where those
rights are personal to him. This is because as earlier mentioned, in the exercise of his liberty
while living in the state of nature, man had the capacity to do as he willed. It did not however
mean that what he did did not attract reaction. This is because if in that state of nature, a man
sleeps with an animal, so long as he is in the privacy of his home, it would not attract reaction
hence he is exercising his personal/private right. On the other hand, if he goes out and takes his
neighbour’s wife or property, he has infringed on the right of another and so if the other man
18
H. L. A. Hart, ‘Immorality and Treason’ The Listener (London, 30 July 1959) 162-163.
6
decides to react, the liberalist will permit him since the actor is no longer acting within his
private rights. This position takes us a step further:2.2.2 THE EFFECT OF COMMUNISM ON INDIVIDUALISM
At the point man decided to surrender some of his rights in order to form a community, the good
of the community at that point exceeded man’s individual autonomy. And so, man cannot in
exercising his liberty, exercise it so much as to cause harm to his neighbour. It is to this extent
that the saying goes - ‘where one man’s right ends, another begins.’ For the better good of the
community therefore, individualism is restricted. J. Kaplan was of the view that, ‘typically, the
use of the law to prevent conduct which harms only the actor himself is distinguished from the
use of the law as a means of preventing the individual from harming others, including society at
large.’ 19 He therefore gave instances where in communism can be affected by individualism in
which case, the exercise of the conduct ought to be curtailed:
a)
Statutes requiring the driver of a motor cycle to wear a protective helmet. In this case
though the helmet less cyclist does not expose others to any appreciable physical danger, he
drives in a society that is committed to preventing people from dyeing of their injuries. Professor
Robert Bartel feels that the helmetless cyclist exposes others to ‘public ward’ harm by the danger
of having to treat him so he does not die out rightly and also, he exposes the society to some
level of expense and inconvenience as he forces it to assume the cost of his neglected
responsibilities. It is based on this theory that society feels it has the right to demand that he do
his share to protect himself failure of which he will be sanctioned.20
b)
Non – support Justification: Public interest can justify laws criminalizing conduct which
at first glance seem to be lawful only to the doer but on a deeper look, such conduct to an extent
affects society.21
c)
Modeling Justification: Modeling of behavior occurs when one repeats a type of behavior
he sees in others. He simply gets the idea by watching and then he imitates. This happens mainly
in children and so, the individual modeling the helmetless cyclist for example does so without
coercion and causes harm to himself. In a bid to protect the occurrence of harm by modelling, the
autonomy of the individual is restricted.22
d)
Categorical Imperative Justification: This relies on the fact that although an act might
harm only the actor if performed by relatively few people, it could cause havoc to everyone if
performed by almost all. e.g. Drug taking. The use of drugs can affect not only the person taking
it, but also, everyone else. The sale of such drug is therefore prohibited by making it criminal. 23
2.2.3 WHEN CONSENT IS GIVEN TO HARM
If we apply Kaplan’s distinction between direct harm done to a person otherwise referred to as
primary harm and indirect harm on a person otherwise known as secondary harm, theft would
belong to the primary category, likewise incest on a non – consenting child. The question
therefore arises as to what of consensual incest between a brother and sister who have attained
J. Kaplan, ‘The Role of the Law In Drug Control’ [1971] (1971:1065) Duke Law Journal; 1065-1104
Clarkson and Keating (n3) 15.
21
Ibid.
22
Clarkson and Keating (n3) 15.
23
Ibid.
19
20
7
the age of majority – 21? With respect to this issue, recommendations have been made that it
should cease to be unlawful if both parties are over 21.24 There have been arguments that there
should still be protection from the law since it is most likely that the incest would have
commenced when the victim was under age and the reality of the relationship is more likely to
have been founded on coercion and exploitation of consent.25 The researcher is of the view that
such consent would have been under duress. And so, for consensual incest where both parties
have attained the age of majority when in fact the relationship began at an early age- below
majority, such conduct ought to be criminalized but if on the other hand, the relationship had in
fact started after they both attained the age of majority then following from the recommendations
of the Wolfenden Committee,26 such a private immorality should not be the laws business. The
rationale for this position can be found in the words of Kardish when he said:
However one may deplore homosexual conduct, no one
can lightly accept a criminal law which requires for its
enforcement that officers of the law sit concealed in
ceilings, their eyes fixed to ‘peepholes’ searching for
criminal sexuality in the lavatories below…27
Therefore, the incestuous relationships performed in private should not be the concern of the law.
In fact, there is no harm done at any point because ideally, it is mutual. Thus, this is simply an
issue of morality. On the other hand, similar arguments were raised in the case of Brown28 as was
an incident of corruption of a young man into the sado–masochistic ring. It was shown that it was
obvious from the onset that the reality for harm to others existed. Accordingly, if a victim
consents to injury or the risk of injury as in this case, it is submitted that in no way has he been
wronged and so has not been harmed and cannot claim to be harmed. In the above case, the court
held that the majority felt that public interest took over at the point of bodily harm and so he was
wronged. A contrary opinion is held because consent can vitiate harm. Louis Blom – Cooper put
it better when he said:
This was not a case of one person using ‘sex’ as a
shield or mask for assertion of power and infliction of
violence upon helpless victims. What could be more
fundamental to individual autonomy than being able to
express one’s sexuality with other like-minded
persons?29
2.2.4 WHAT LEVEL OF HARM ATTRACTS CRIMINALISATION?
Joel Feinberg made one of the most sophisticated efforts at defining the harm and offence
principle. For him:
Harm … (means) the thwarting, setting back, or
defeating of an interest … One’s interests … consist of
all those things in which one has a stake …. Only
setbacks of interests that are wrongs, and wrongs that
24
Ibid; Criminal Law Revision Committee, Fifteenth Report, Sexual Offences (Cmnd.9213) 8, 15-18, 36, 24.
Jennifer Tempkin, ‘Do We Need The Crime of Incest?’ [1991] (44) Current Legal Problems; 201.
26
The Wolfenden Report (n12).
27
Sanford H. Kadish, ‘The Crisis of Overcriminalisation’ [1967] (374) Annals; 157 at 159-162
28
[1994] 1 A.C 212.
29
Louis Blom – Cooper, ‘Criminal Law That Leaves Children at Risk’ in Clarkson and Keating (n3) 24.
25
8
are setbacks to interest, are to count as harms in the
appropriate sense …30
Appreciating the above definition, it would mean that harm would not include justified or
excused conducts. Likewise, minor or trivial harms would not suffice within the harm principle
because legal interference with unimportant issues is likely to cause more harm than it prevents.
He goes further saying, that in criminalizing conduct, it should be an effective way of preventing
serious offence (as opposed to injury or harm) to others and this is probably a necessary means to
an end.31 In so doing, it is necessary to weigh in each case, the context of the offense, the
seriousness of the offence caused to unwilling witnesses against the reasonableness of the
offenders conduct.
The test for seriousness of the offence would be determined by a)
The degree and lasting effect of the repugnance produced, and the extent to which
repugnance could be anticipated to the general reaction of strangers to the conduct displayed or
represented. Conduct which is offensive only to persons with an abnormal susceptibility to
offence would not suffice.
b)
The ease with which the unwilling witness can avoid the offensive displays and
c)
Whether or not the witnesses have willingly assumed the risk of being offended either
through curiosity or the anticipation of pleasure.
For him i.e. Feinberg, these factors should be weighed together against the reasonableness of the
offending party’s conduct as determined by a)
How important it is to the actors themselves as well as its general social utility, bearing in
mind always, the enormous social utility of unhampered expression in cases where expression is
involved;
b)
The availability of alternative time and places where the conduct in question would cause
less offence.
c)
The extent, if any, to which the offence is caused with spiteful motives.
Adding, the legislature should examine the prior established character of various
neighbourhoods, and consider establishing licensed zones in area where the conduct in question
is known to be already prevalent, so that people inclined to be offended are not likely to stumble
on it to their surprise …32 Following from the suggestions of Feinberg, the level of harm that
should attract criminalization must be one which affects the liberty of another and which has no
justifiable excuse. In other words, unimportant harms need not be criminalized.
For the harm principle therefore, conduct that ought to be criminal must fulfil the following
conditions:
1. The harm must not be one which morally affects a person
2. It must be shown to have violated the persons interests
30
J. Feinberg, Harm to Others: The Moral Limits of the Criminal Law (OUP 1984) 33, 34, 36, 215-216.
Joel Feinberg, Offense to Others: The Moral Limits of the Criminal Law (OUP 1985) 1-2, 26.
32
Clarkson and Keating (n3) 17-18.
31
9
3. The harm would have no justifiable excuse
4. It must be a serious harm to the interest and trivial harms would not suffice.
2.3
LEGAL PATTERNALISM
The principle of legal paternalism involves allowing the criminal law to be used to protect a
person from causing harm to himself. It states that the law is entitled to interfere with a person’s
autonomy for his own good and to enhance his welfare. The issues arising from this principle
are:
a) Can law effectively restrict somebody’s conduct not because he causes harm unto others but
unto himself?
b) What becomes of the concepts of autonomy, individualism?
c) The concept of conceptualism with respect to criminalization of conduct.
2.3.1 WHETHER THE LAW CAN EFFECTIVELY RESTRICT CONDUCT BECAUSE
THE ACTOR CAUSES HARM TO HIMSELF
Where it is shown that the conduct of the actor can cause harm to himself, the law can effectively
restrict such a conduct. Going back to man in his state of nature, at the point he decided to form a
community, he surrendered some of those excess rights which includes the right to life. So if for
instance, it is shown that a man intends to take his own life, the law can restrict his conduct. This
however, depends on the circumstances of the case and so, does not without exceptions. In one
instance for example, the continuous use of drugs is obviously dangerous to health. By reason of
this fact, the paternalist suggests that the law restrict the man from taking those drugs. This is
because those rights which he thinks are his are in fact the responsibility of the state i.e. one of
those rights man surrendered to the state for protection. In allowing him to use such dangerous
drugs therefore, where the consequences could lead to severe health hazards such as from
addiction to mental deterioration to becoming a nuisance to society until he finally dies, would
amount to a neglect on the part of the state with whom he had earlier entrusted his life and every
other of his vital interests to and which includes his health and safety of well being. This point is
evident in State laws. In Nigeria, the Constitution33 provides for them.
In the second instance, an exception can be made by the law in allowing a man to cause harm
unto himself. Instances like euthanasia. Euthanasia can be defined as the deliberate ending of life
of a person suffering from an incurable disease.34 This is because although a person has an
inherent and a necessary corollary to the right to life as well as to the right to dignity of his
person plus, a right to be free of a permanent state of torture and inhuman or degrading
treatment,35 the image of a terminally ill patient trapped within a body and undergoing constant
and permanent pains, torture and suffering with no hope of recovering and without a possibility
of medical euthanasia or assisted suicide cannot be the intention of the makers of our laws. And
The Constitution of the Federal Republic of Nigeria 1999 (as amended), hereinafter ‘CFRN 1999 (as amended)’,
chp IV ss33 and 34.
34
The Free Dictionary <https://medical-dictionary.thefreedictionary.com/> accessed 1 July 2020.
35
CFRN 1999 (as amended), ss33(1), 34(1)(a).
33
10
so, the corresponding right of a terminally ill patient to his basic human rights cannot be ignored
simply because his life is guaranteed by the law of the land. One can say that this right to life is
basic and is the most important of all rights, upon which plank other rights rest, but it is
submitted that the right to life must necessarily go beyond continuous functionality of basic
human organs. Consideration must be given to the nature and quality of such life36 it is my
submission therefore, that cases like this are an exception to when the law can effectively restrict
a person from causing harm to himself. See the following cases: The case of Terri Schiavo,37
also, the case of Tony Nicklinson.38
2.3.2
THE
EFFECT
OF
RESTRICTING
CONDUCT
ON
AUTONOMY,
INDIVIDUALISM
Regardless of exceptional cases where law can effectively restrict one from causing harm to
himself, the essence of society in the very first instance is to protect and to promote
individualism. Therefore, if a state cannot effectively do so by way of checks and balances, all
hope is indeed lost. The essence of man forsaking some of those excess rights (going back to the
social contract theory) would be of no use in the first place. There will be chaos and a disorderly
society. In other words, the effect of the law in restricting harmful conduct to oneself is to
promote individualism. What is left of autonomy is to act within individualism as allowed by the
law in order for a sane society which will protect the man’s personal rights eventually.
2.3.3
THE
CONCEPT
OF
CONSENTUALISM
WITH
RESPECT
TO
CRIMINALISATION OF CONDUCT
The concept of consentualism in itself raises some issues – what role does consent play when a
determination is to be made with respect to criminalization of conduct? Whose consent must be
sought? What nature of consent should be sought? Is it material that there is a large minority that
does not consent? Would consent be deemed to be given immediately the majority consents?
Consent plays a major role in the determination of criminalization of conduct. It vitiates
punishment on another who ordinarily would have been penalized for causing harm on the
‘victim’. It is the consent of the individual that must be sought and given. No other person has
the right to make such a choice for him so long as he has attained the age of majority.
The law commission noted that while people should be generally entitled to make choices for
themselves and consent to injury, even fairly serious injury, they should not be permitted to
consent to seriously disabling injury. (Exception in cases of euthanasia or in relation to conducts
that are very widely regarded as beneficial such as surgery, risky sports). This is because people
have interest in their physical health, the normal functioning of their bodies and intense pain or
grotesque disfigurement.39 The law commission is therefore of the view that anybody who
consents to seriously disabling injury “has made a mistake and that to be really disabled is
B. E. Oniha and O. M. Oniha, ‘Euthanasia and Assisted Suicide as Basic Constitutional Rights Under the 1999
Constitution of Nigeria <www.nigerianIawguru.com> accessed 1 July 2020.
37
M. Katme, ‘The Sanctity of Human Life is a Basic Concept in Islam <http://www.spuc.org.uk/about/muslimdivision/euthanasia> accessed 1 July 2020.
38
Law Center, ‘Background on the Schiavo Case’ CNN.com (Atlanta, 25 March 2005)
<http://www.cnn.com/2005/LAW/03/schiavo.qa/> accessed 1 July 2020.
39
The Law Commission, ‘Consent In the Criminal Law’ (Consultation Paper No. 139, 1995) Appendix C, para C63.
36
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against his or her interests. Therefore, the nature of consent that should be sought includes injury,
fairly serious injury but not seriously disabling injury.40 Ear and nose piercing for example, are
fairly serious injuries as well as taking punches during a boxing ring or wrestling match but does
not include maiming the consenting party so that he is confined to a wheel chair or becomes an
invalid.
Furthermore, it is immaterial that there is a large minority that that does not consent. This is
because, what is important here is individualism. It is also immaterial that majority consents;
consent that must be sought and given must be the specific or direct consent of the individual.
For the paternalist therefore, conduct which ought to be criminal must be one showing:
a) That the individual intends to cause harm or even serious bodily harm to himself which
will affect the individuals own interests. Save for the exceptions.
b) That he consented to serious disabling injury on himself. Save for the exception.
c) Where it is shown that consent received was of a serious disabling nature, the receiver
will himself be penalized.
3.0 THE NEED TO EMPLOY THE CRIMINAL LAW TO PREVENT OR CONDEMN
SUCH CONDUCT
In order to employ the criminal law, Parker noted that there are criteria which can be used in
making up a kind of priority list of conduct for which the legislature might consider when
invoking criminal sanction. However, as a form of threshold question, ‘harm to others’ needs to
be considered first. The ‘harm to others’ formula is important not so much in itself as in focusing
attention on further considerations relevant to the ultimate decision. 41
In considering ‘harm to others’ as a threshold question, the question should not be whether or not
there will be harm done but rather a consideration of the remoteness and probability of the harm.
Reason being, that some things are more harmful than others. Further, harm should also include
victimless crimes because although there is an absence of an identifiable victim, it should not end
the inquiry into the necessity for criminalizing such a conduct. 42 Furthermore, the need for the
formula ‘harm to others’ has two uses which justify its inclusion in the list of limiting criteria for
invoking the criminal sanction. They are:
a.
To make sure that a given form of conduct is not subjected to criminal sanction primarily
because such conduct is thought to be immoral.
b.
The advantages and disadvantages of ‘harm to others’ must be weighed because in
talking about it, immediately, it brings to mind secular inquiries about the effects of
criminalizing the conduct in question. In summary, the basis for considering harm to others is
because it is not in all cases that harm done to others attracts punishment. Take for instance,
while driving on the road, a passing vehicle exhumes heavy smoke; in that situation, that harm
40
Clarkson and Keating (n3) 18.
H. L. Parker, The Limits of the Criminal Sanction (1969) 266-72.
42
Clarkson and Keating (n3) 21.
41
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can hardly be considered severe in order to become criminal but, it is indeed harm unto the
person. Such cases should be taken to the civil court for determination.
3.1 CRITERIA FOR CONSIDERATION WHEN INVOKING THE CRIMINAL LAW
a.
The aim of punishment – What conduct does the punishment seek to redress? For Parker,
unless there is at least one realistic method of prevention that is likely to be served in employing
the criminal sanction against a particular form of conduct, it is better to forget about it. For
instance, if it is to prevent sneezing in church, it is of no consequence but rather, if it is to deter
crimes like rape, theft, arson which not only cause harm but lead to serious harm or injury on the
‘victim’, then there is indeed the need to employ the criminal law in order to prevent such
conduct(s). This gives thought to whether the criminal law can in fact be used to deter sexual
attraction simply because it is perceived to be immoral.43
b.
Proximity and Significance – In determining whether or not to employ the criminal law,
it is necessary to consider how remote or important the conduct is to another conduct so as to aid
each other in the commission of an offence or series of offences. For instance, a man who has not
been licensed to carry a gun intends to buy one solely for the protection of himself, family and
property. However, note that the sale of gun to unlicensed persons are prohibited for likely uses
such as this – to prevent the gun from being used to commit robbery (an offence) in the course of
the robbery, rape is committed (an offence), in that same process, murder (an offence) is
committed. We can see that at first it seemed to be no big deal to sell firearms to the man who is
unlicensed for his own initial protection but eventually, the firearms innocently sold and
purchased is used to commit mayhem even though that was not the initial intention of the buyer
at the time of purchase. The problem with determining proximity and significance is in locating
the point farthest removed from the ultimate harm apprehended at which meaningful intervention
can take place. The reason for this is that it is risky to make a wide range of conducts criminal
solely in the interest of early intervention. What should be of utmost consideration should be
how high the probability is that the preparatory conduct if not impeded by the threat of criminal
sanction will result in an ultimate harm and therefore the need to prevent it. Again, the need to
determine whether the risk apprehended is substantial and justifiable.44
c.
Crime tariff – Before criminalizing conduct, crime tariff needs to be considered. The
reason is that where the need to criminalize an illegal activity is high, rather than reducing the
incidence of the criminal activity, it is rather driven underground and forces the price up. An
example will be the sale of narcotics.45
Generally, the challenge of enforcement needs to be considered in determining whether to
employ the criminal law to prevent conduct. Important issues need to be taken into consideration
and not simply as a means of expressing disapproval of conduct. There must be a clear line
43
Clarkson and Keating (n3) 20.
Ibid, 21.
45
Ibid.
44
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between moral and immoral public or private conduct which causes harm to others or to the
actor, significantly or otherwise.
4.0 CONCLUSION
In determining what conduct ought to be criminal, there is no clear cut answer to the question. A
framework has been laid down by which actions may be examined. Though the conduct is
immoral or causes harm to others or even the actor, it is not enough. The harm done must be a
serious one which in itself cannot be justified. A determination also has to be made as to the
effects of subjecting such conduct to criminal sanction and the goal it seeks to achieve. All these
are to be done yet still considering the remoteness of the conduct against the ultimate harm
which the law seeks to prevent.
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