Practice question · Put in order
Arrange the questions a legislator committed to these limits should ask, in order, before creating a new offence.
- Is the proposed penalty range proportionate to the seriousness of the attack?
- Would a civil or administrative response protect it adequately?
- Is there an identifiable legal good worth protecting?
- Is the conduct genuinely harmful to that good?
Hints
- Nothing can be shown harmful before the interest is identified.
- Choosing the instrument comes before setting the amount.
Show the answer
- Is there an identifiable legal good worth protecting?
- Is the conduct genuinely harmful to that good?
- Would a civil or administrative response protect it adequately?
- Is the proposed penalty range proportionate to the seriousness of the attack?
Why
The order is the argument in miniature, and each step can stop the process. No legal good, and there is nothing to protect; no harm, and there is nothing to prevent; an adequate lesser instrument, and criminal law is not the last resort; a disproportionate range, and the offence is objectionable even though everything before it was satisfied.
Practise The Other Limits on the Power to Punish
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