In accordance with the Harm Principle suggested by J.S. Mill the activities of human being can only be prohibited if they might cause harm to other people. The author clearly stated that the government of any state can limit or prohibit the activities of its citizen only in case they might be harmful to other residents (Ogunkova, 2011). In this regard it is rather crucial to clearly address the meaning of the term ‘harm’. And it seems unlikely that the government or any other kind of institution would be able to exhaustively define it as any phenomenon is a two-edged stick since it always brings in negative and positive consequences. Following the theory of the Harm Principle, a lot of crimes might be decriminalized as they do not cause any harm to others. Such offences include gambling, illegal drug use, and others.
The Harm Principle is highly appreciated in advanced liberal societies when the individuals are allowed to do anything which is not directly prohibited by law. Following the Harm Principle, they are permitted to cause harm to themselves but not to others. Therefore, people are basically free to dedicate their life to alcohol drinking, drug addictiveness or gambling or to the painting, learning, exploring etc. The point is that the individual holds a power of choice which is however, limited by this Harm Principle, which means that no damage could be made to other individuals. Thus, the concept serves as a strong foundation for the functioning and developing of the free liberal societies.
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The problem is that what seems to be a harmless activity, in fact, still causes damages to the society. There is no need to say that in order to ensure that drug user gets his regular or extra dose; numerous laws on drugs traffic are violated. Gambling is also closely associated with crimes of various natures as money is not always at stake. Sometimes the players offer a kind of ‘service’ as a contribution to the game. Such kind of service might be illegal. Prostitution is another example of the activity that is supposed to be harmless. In fact, a lot of women, who work as prostitutes are forced to live this way. Prostitution causes such crimes as kidnapping of females and their killings aftermath. Moreover, in most cases, while considering the harm that could result from crime committing, one usually points at actual, physical harm that is obvious. However, the society still remains silent on the impact that such ‘harmless’ activities might have on the life of its members, as well as on their mental capacities. Is prostitution, gambling, illegal drug use and other similar ‘harmless’ crimes a final point can be their decriminalization in the future. According to such approach, we can eventually justify rape or assaults. Obviously, everything depends on strong argumentation which might lead to unexpected consequences.
Approaches to Criminal Law Punishments
There are a lot of approaches to understanding the role of punishments in criminal law. However, the presented paper will specifically focus on the retributivist and reductionist theories. In accordance with the first approach, punishment should fit the crime. It should not be less or more severe but it has to absolutely correspond to the level of felony that has been committed. This approach cares less about preventative goals of criminal law. The only aim of the punishment is to punish the offender for the actions he has committed before. On the contrary to retributivist approach, the reductionist theory provides that the aim of the punishment is to prevent the criminal from committing offences in the future. Long-term imprisonment actually falls into this category of punishments. At the same time, there are the cases when both theories might be applicable. For example, when the person is sentenced to 15 years of imprisonment for committing fraud or steal, the punishment is expected to both deter him/her from committing further crimes and to punish the offender. On the other hand, when a person is mentally ill so that he or she does not realize the meaning of actions committed or realizes it partially, he or she might be exempted from the punishment or the latter might be significantly mitigated. In such a case, however, no one can ensure that it will prevent person from committing crimes in the future as his or her actions are out of control. At the same time, the punishment might not correspond to the level of the offence that has been done so that the retributivist theory would not apply as well.
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The presented case provides an example of the situation when the person might be found guilty because of not-involvement that means not committing any kind of activities. From the legalistic point of view, the only person who might carry the responsibility for refusal to rescue Charlie is inspector Derek who was responsible for keeping the visitors of swimming-pool alive. He might be convicted on the grounds of negligence. Gavin could be found guilty as he unintentionally pushed Charlie in the swimming-pool. His actions were completely reflective and natural. Harvey, who was willing to kill Charlie, might be found guilty if any connection among his intention and present situation is found.
At the same time, considering morality, all of the witnesses were obliged at least to try to rescue the person who died. In this case the theory of the Harm Principle will actually ensure that no person would be recognized responsible as actually no harm was caused to another person. This is how the theory works in practice. Therefore, the theory of the Harm Principle could not be considered as a model to follow while criminalizing or decriminalizing specific activities. To some extent, application of this principle might eventually lead to the dominance of human indifference in relation to one another.
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The outcome would not significantly change in the second version of the case as well as no intentional harm or damage is made. The fact that Charlie was pushed in the swimming-pool by Gavin does not make the latter automatically guilty for failure to rescue the person.
Considering all of it, one should notice that the application of the Harm Principle should be questioned in every single case as it might lead to the situation when guilty people are left unpunished as no actual harm is made.