Essay, Research Paper: Fundamental Factors In Creating A Law

Fundamental Factors


To criminilize something, that is to say make it illegal, requires months sometimes, even years of thought. When the lengthy process is underway, the creators of the law must ask themselves two important questions: "Does the action that will be made illegal violate fundamental social values?" and "Is making this action illegal the best way to protect social values?" If the answer in both these cases is a 'yes' then the law should be created. If they are not, then the law should be considered further.

The first factor, seemingly obvious should is critically important in the creation of a law. This is where one asks oneself if the law is actually protects society or if it is just another law that will simply get in the way of people's right to choose their own actions. For instance, if an anti-smoking law were in the midst of being created, the law would effectively make smoking anywhere, even in the privacy of one's own home, illegal. After thinking of the law, we must now ask the question "Will making smoking illegal protect society and is smoking really against our social values?" The answer depends on who you ask, but for the majority people will agree that smoking is a disgusting habit that kills thousands of Canadians, even those who do not smoke. Second hand smoke caused approximately one tenth of deaths from lung cancer and other related illnesses. Effectively, since the "innocent" are dying from this habit, the answer to the question obvious: "Yes, smoking does violate fundamental social values and should be made illegal."

The second factor that needs to be considered is not quite as obvious as the first but equally as important. This is the place where one should ask oneself if creating this law is the only way to stop people from continuing with behavior that has already been declared as a 'violation of fundamental values'. In the case of the smoking law, we must consider if making the action illegal will effectively cause more problems than it solved. In this case it would because several people are addicted to nicotine and simply banning smoking without any kind of warning would be a violation of their rights as free citizens. The answer to this question is as follows: "No, making smoking illegal right away is not the best way to enforce social values because it will simply violate others." Since this law cannot be created, alternative methods to enforce this value should be considered. For example educating people of the dangers of smoking or positioning tougher and tougher laws on tabaco companies and cigarette consumers until the problem is eventually extinct and therefore not causing one big step that would cause smokers to become angry.

In the above example, it has been proven that an anti-smoking law cannot be created because it does not fulfill the second fundamental social value. It is easy to see why laws take such a lengthy amount of time to pass.

"Explain in your own words the two factors to consider in deciding whether or not to criminalize something"