A Theory of Justification: Societal Harm as a Prerequisite for Criminal Liability

Abstract

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.

Keywords: criminal liability, harm, deterrence, retribution

JEL Classification: K14