A Theory of Justification: Societal Harm as a Prerequisite for Criminal Liability
Paul H. Robinson
University of Pennsylvania Law School
UCLA Law Review, Vol. 23, pp. 266-292, 1975; reprinted in JUSTIFICATION AND EXCUSE IN THE CRIMINAL LAW: A COLLECTION OF ESSAYS, M. Corrado, ed., p. 283, 1994
All would agree that the criminal law seeks to prevent harmful results rather than to punish evil intent that produces no harm. If one views deterrence as the proper function of the criminal law, a harm requirement is appropriate. To the extent that the criminal law punishes nonharmful conduct, it weakens the stigma and deterrent effect of criminal conviction for harmful conduct. If a defendant who has caused no harm feels that he is punished unjustifiably, rehabilitative efforts will be hampered. Indeed, one may ask: If no harm has been caused, what harm will be deterred by punishment, and what harm-causing characteristic will be rehabilitated? If one believes that the role of the criminal law is to provide retribution, a harm requirement is also proper; in the absence of harm there is nothing for which to seek retribution. The consistency of a requirement of harm with these fundamental purposes of the criminal law is reflected in the fact that harm has, from the earliest of civilized times, been treated as a de facto requirement. If the criminal law is limited in operation to situations involving a harm of some sort, then an act found to be beneficial, or at least not harmful, should be of no concern to the criminal law.
Number of Pages in PDF File: 27
Keywords: criminal liability, harm, deterrence, retribution
JEL Classification: K14Accepted Paper Series
Date posted: February 10, 2005
© 2013 Social Science Electronic Publishing, Inc. All Rights Reserved.
This page was processed by apollo3 in 0.422 seconds