The Harm Principle

'Since no man has a natural authority over his fellow, and force creates no right, we must conclude that conventions form the basis of all legitimate authority among men... Each of us puts his person and all his power in common under the supreme direction of the general will, and in our corporate capacity, we receive each member as an indivisible part of the whole... on the violation of the social compact [contract], each regains his original rights and resumes his natural liberty.'¹

According to the social contract theory therefore we have entered into a contract with each other as 'each man, in giving himself to all, gives himself to nobody' ² thus creating a 'collective body' which we call the state.

This article will go to the heart of this contract so as to answer a deceptively simple question: Should prostitution be criminalised? The focus is prostitution as it has been in the news recently, however we are more concerned with a category to which prostitution belongs, such as private sexual affairs amongst consenting adults, sex games, euthanasia. In other words, we are seeking to establish the limits of the power of this collective body by asking whether an act or omission should be made illegal on the bases of a perceived immorality alone. To answer this question, the starting point will be a critical evaluation of the principle of autonomy which will be balanced against the welfare principle. The conflict between these two principles will be played through the harm principle and the place of morality in the criminal system. Paternalism will then be analysed only briefly to focus more thoroughly on the strict liability aspect of the proposed governmental plans by suggesting other means of achieving the desired results, and then conclude.

Autonomy vs. Social Welfare

Our criminal system punishes less severely a minor than an adult, so too acts under automatism, by mentally ill individuals, when forced to do the act. The criminal law therefore punishes less severely, or none at all, acts which the individual has no power over. In the case of juveniles, we recognise their diminished culpability as their mental capacity is not fully developed to be legally considered autonomous individuals. The pinnacle of the criminal law therefore is the principle that one is an autonomous individual who chooses to act illegally, therefore responsible for breaking the law, hence ought to be punished accordingly. Without this autonomy, without our ability to choose and our choice of acting or not acting, the law would seem utterly unjust and unfair in punishing us for doing something we have no choice but to do.³

Some however consider the principle of autonomy to be an artificial construction which has no bearing in reality as it assumes that we have the capacity 'and sufficient free will to make meaningful choices.'⁴ However the ability to truly choose freely may not necessarily be found in each individual.⁵ Social deprivation might make such autonomous choice less likely, uneducated individuals, or those with lower intelligence certainly have the capacity for autonomous meaningful choices, however in reality such capacity might not materialise.⁶ It is therefore argued through the retributivism theory that this principle does not only set the limits of what may be criminalised, but also confers upon the states positive obligations to create an environment for individuals in which they are able to use their capacity for choice.⁷

As each individual therefore must be able to exercise free choice for the state's sanctions to be considered legitimate, the state must keep illegal acts and omission to the absolute minimum so that we may have the greatest freedom to choose. However the welfare of society as a whole might be a persuasive reason for curtailing individual autonomy when criminalising certain behaviour. As such, although the criminalisation of not wearing a seat belt may be considered as a curtailment of ones individual choice, the social welfare considerations are so strong as to attract the censure of the state.

The autonomy principle therefore is concerned with the curtailment of the power of the state to criminalise behaviour, while the welfare principle is concerned with the expansion of such power. A clash between these two principles is inevitable. The question is not which ought to prevail, they both are certainly important. The question is one of proportionality. Which ought to be weighing heavier on the scales of justice?

The Harm Principle vs. Morality

What conduct has been criminalised is of course historically contingent⁹ and religion has certainly played a major role towards criminalising certain behaviour. Murder, theft, rape, are all immoral acts and also illegal, they protect the individual as well as society. However, in the fringes of immoral behaviour, in the thin edge of social welfare and individual freedom is where the question of proportionality is opened to a fierce debate. It may be necessary for a criminalised act or omission to be immoral, or perceived so, for an agent to obey it willingly. However it is questionable whether an act or omission which might be considered immoral can be criminalised on this basis alone.

According to Hart and the minimal harm principle, the law may not criminalise behaviour which does not harm another individual. Harm to oneself is not a sufficient basis for the law to criminalise, nor is the fact that a certain act is immoral.¹⁰ This restriction is in order to protect individual liberty and autonomy. It is so because humans are fallible and what we might consider immoral may in fact be not so. We may find out that it might be a better way of living or perhaps indirectly influence a change which then leads to a better way of living.¹¹ The state, nor the church nor any one individual knows what the best way of living is, therefore what one does with their own body, or their own self, is 'none of the law's business'.

However, some hold the view that morality plays a role in criminalising behaviour, and although it might not always be a sufficient consideration, there are times when: 'a vice [is] so abominable that its mere presence is an offence'¹² hence must be criminalised. The disintegration theory¹³ considers morality as the cement of society, the 'product' which keeps the community together. The state therefore ought to protect the morality of a community by criminalising certain acts which generate a feeling of 'deeply felt'¹⁴ disgust so as to protect society from disintegrating and basically 'failing'.¹⁵

The rightful place of morality in the law and whether it should have a place at all is a divide which is held by the judiciary also. In R v Brown [1993] 2 All ER 75 two of the Law Lords dissented as they saw it as none of the law's business to declare sex games illegal. Lord Mustill stated:

However, other judges support Lord Devlin's argument. Winn L.J states in Crook v Edmondson [1966] 2 Q.B. 81:

They certainly do find support for such stance from the European Convention of Human Rights and Fundamental Freedoms as it states that the right to privacy can be interfered with when it is 'necessary in a democratic society... for the protection of health or morals'.¹⁸

It is questionable however whether society would disintegrate if prostitution was criminalised or otherwise. It has not disintegrated in other countries, nor in the past. Unlike modern homosexuality, prostitution has been in our communities for a rather long time. Who is then protected by criminalising prostitution?

Our society is a monogamous society. Our marital relations are built on the idea of love between two individuals. Prostitution seems to threaten these convictions as it turns ones body into a commodity to be sold much as one sells apples.¹⁹ By criminalising prostitution therefore we might be protecting our youth from being corrupted into joining this profession which is perceived as degrading.²⁰ We might want to be caring towards our youth and protect them from such corruption by instead encourage them to fall in love and marry. By making such argument we are of course denying any existence of free will or autonomous choice, insisting instead that we know best for our youth and like a parent be protective towards them, which might be justified²¹ as perhaps they have not developed fully to be able to make meaningful choices. To take this view we would be speaking of indirect harm and suggesting that prostitution indirectly harms society through corrupting its youths into becoming prostitutes therefore depriving them of conducting a good life. We could of course take the idea further and suggest that when a husband drinks heavily he is depriving his children of a good family life. We could say that when a member of the family harms himself he is harming his family also hence a prostitute is harming her family by prostituting herself therefore ought to be criminalised.²² The question of course then becomes, where would this indirect relationship end? Is not everything inter-related indirectly so as to speak?

Furthermore, this paternalistic discussion often extended to adults also. Although the theory is called paternalistic, the ones who supposedly know better are no longer in a paternalistic relationship but in a relationship of equals.

We are all concerned with the good life. That is indeed the controversy regarding the question. The issue is whether the good life is achieved by imposing the morality of the majority upon the minority, or whether, as the majority has so often in the past been wrong, each and every individual of sufficient capacity ought to choose for himself what the good life is, provided that he does not harm someone else, or even society. For if prostitution is indeed particularly and exclusively related to drug use, if prostitution is related to an increase in sexually transmitted diseases, if prostitution is related to violence, and by banning prostitution we are protecting society from drugs, violence, disease, then the liberal view as well as Lord Devlin's view might find it acceptable for such behaviour to be criminalised. However the debate of whether to criminalise prostitution revolves around the notion that commercialising sex is immoral, rather than whether such behaviour harms the individuals who engage in it, or others who have to come into contact with it.

That said, the governmental plans suggest that they are concerned with women being trafficked for prostitution. It is the prostitute user who creates a demand for prostitution therefore he should be criminalised for creating such a demand. According to such logic, we should criminalise those who listen to someone preaching hate as they are creating the demand for such preaching and not the preacher himself, or we could criminalise those who download copyrighted material and not the provider. On a principled basis, the criminalisation of the one who buys the goods and not the one who steal them, infringes our notion of equal and fair justice and all principles of autonomy and individual responsibility. Even so, the argument might be acceptable if such proposals would have a deterring effect and would indeed stop women being trafficked.²³ It is instead argued that such proposals will drive prostitution underground and increase the harm to the prostitute due to her fear of now contacting the authorities.²⁴ Moreover, many women do choose such a profession as an easier way of generating a profitable income, therefore prostitution may be considered as a victimless crime.

Whether the prostitute is trafficked or otherwise, when asked if she consents to being used in return for money she would most probably say yes. The prostitute user therefore is unable to know whether the prostitute is in fact consenting in the way the law recognises such consent. It may be argued that the prostitute user is skating on thin ice, and if he falls, he should have not been there in the first place. Yet, should one not know if their action is illegal, should the criminalising of an act be so uncertain and impossible perhaps to gain any level of certainty whatever?

This high level of uncertainty, which infringes the certainty principle and perhaps European Convention also, seems to be precisely the aim of the proposed plans by the government. By forming the proposal in such a way, they might in theory uphold the choice for an individual to engage in this behaviour. Yet, the inability of finding out whether the prostitute is legally consenting might lead to there being no demand for prostitutes which would in return deprive many women from using their autonomous right to choose how they live their life. It can be argued that it is not in society's interest that certain individuals should restrain from releasing their sexual tensions, nor is it in society's interest that those individuals who are rather poor and have the only mean of existing by prostituting themselves, starve or die instead.²⁵

A more favourable suggestion may be the integration of the theory of minimal harm and Lord Devlin's theory of morality so as to allow agents freedom of sexual expression while also protecting the morals of society by restricting prostitution and their use to certain areas out of sight from the community, but accessible. Such restriction of prostitution can be compared to nudity zones in the beach, nakedness in public would certainly create a feeling of disgust in many, however, we tolerate it if they are restricted to a certain area. So too it would seem that the morality of society is not threatened with disintegration if prostitution and its use was restricted out of sight.²⁶

Conclusion

This debate therefore is certainly not settled. However it seems that the argument is waged along absolute lines²⁷ of a strict 'realm of private morality and immorality which is, in brief and crude terms, not the law's business.'²⁸ The supporters of Lord Devlin are unwilling to accept such strict line and suggest that although it certainly is not always the law's business, there are times when it is. They both are strong arguments and rather appealing. However the law is almost never absolute. It is concerned with balancing competing rights, or more correctly with finding the right proportion between these competing rights. In answering whether we as a society can tolerate deviant sexual acts, euthanasia, abortion, the answer can hardly be a yes or no. It must instead be a compromise of individual autonomy and of the welfare of society so as to weigh heavier on granting the greatest freedom to an individual while also not injuring significantly society as a whole.

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