The Proper Purpose of Criminal Law Is to Enforce Moral Principles

"The proper purpose of criminal law is to enforce moral principles."

Do you agree? Give reasons for your answer.

Before an opinion can be formed on the purpose of criminal law a number of areas must first be defined. Definitions are not restricted to dictionaries and in this area it was "characteristic of the literature to take a philosophical plane"1. This essay will therefore give the different definitions of criminal law and morality, cite the current arguments about the role of morality with criminal law and conclude on observations of morality being used within criminal law.

WHAT IS CRIMINAL LAW?

"A body of rules and statutes that defines conduct prohibited by the government because it threatens and harms public safety and welfare and that establishes punishment to be imposed for the commission of such acts".2

This is a very modern and functional approach to criminal law taken from a website. Definitions traditionally fall into three main areas, natural law theories, analytical theories and normative theories. One looks back to the natural law theories to understand where the law has come from, looks forward to the normative law theories to understand where the law should be going, and look to the analytical law theories to understand where and why the law currently stands.

A NATURAL LAWYER'S ANSWER TO 'WHAT IS CRIMINAL LAW?'

St. Thomas Aquinas3 used a hierarchical approach, that there is an Eternal law that God governs all creation and a Divine law which is the Eternal law revealed in the scriptures. The Natural law therefore is human participation in the Eternal law, which is discovered by reason, and Human law is positive law applied by the government.4

This philosophy is based on Christian principles derived from the Bible. Criminal law in particular developed directly from the Ten Commandments5 which were given directly from God to man (Eternal Law), revealed in the biblical scriptures of Exodus (Divine Law) and followed as common law (Natural Law) until being applied through positive law (Human Law).

AN ANALYTICAL LAWYER'S ANSWER TO 'WHAT IS CRIMINAL LAW?'

Positive law theories are an acknowledgement of the law at the 'Human law' stage, i.e. manmade law. Consequently, the purpose of criminal law to a positivist is to validate already socially satisfactory rules. Hart6 favoured paternalism and stated simply, "the law is a system of rules7." Interpretive law theorists such as Dorkwin8 and Llewllyn9 see criminal law as an interpretative concept where judges find the best fitting solution. Law "is little more than putty in the hands of the judges10",

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