Being tough on crime requires making intelligent distinctions between conduct that truly threatens the public and conduct that is better handled by fines or civil law
Jerry Seinfeld famously described the show created by him (and named after him), as a show about ‘nothing’. In the final episode, the principal characters – having gloried in selfishness for many years – watch an unfortunate man being mugged. They make light of it and do nothing to help. A police officer present on the spot does nothing to stop the incident either. Instead, he arrests the four friends under the ‘Good Samaritan Law’. The law makes it a criminal offence to not help those in need. Jerry and his friends are ultimately sentenced to a year in prison.
The episode was keenly dissected by fans. It also initiated a debate in legal circles. Can you be charged criminally for ‘doing nothing’? If recent legislative activity is anything to go by, it seems you can.
Criminal law and the harm principle
The traditional starting point of criminalisation is the “harm principle”. John Stuart Mill stated “the only purpose for which power can be rightly exercised over the member of a civilised community against his will is to prevent harm to others”. This was approved by the Supreme Court in its ‘adultery judgment’, in September, 2018.
Mill’s argument seems to have collapsed in Parliament. Our ideas about “harm” have become sufficiently capacious to take in almost anything legislators might wish to criminalise. It is impossible to arrive at a conclusive number of the laws that provide for criminal sanction. But they are certainly more than what we require.
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