Law and Morality: State Control Through Criminal Law Essay Example

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.

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