Let's Talk About: The Importance of Asking "Why" When Discussing Criminal Law

In teaching criminal law, I like the class to think about why certain behaviour is deemed criminal and why other behaviour is acceptable. In learning, it is far too easy to memorize principles without a true understanding of why the principle is given and the reason behind it. The importance of why can lead to a deeper and better understanding of a concept, which can lead one to question the ideas contained therein and can ultimately lead to innovative and unique perspectives on a familiar issue.

 For some forms of behaviour we can quickly understand why the underlying acts are contrary to the law. Murder, theft, and assault are such examples. These are all acts, which we all agree are worthy of sanction. These crimes, which we call true crimes, lies at the essence of what we as a society believe is wrongful and immoral conduct. Not every immoral act is a crime, but in the case of true crimes, morality and legality are both present as philosophy and jurisprudence connect.

However, it is when law and morality do not connect and do not occur contemporaneously that we may be uncertain or unable to agree to the underlying reason or the why such behaviour is prohibited. Then, we may turn to our courts and our judges to decide whether the behaviour does in fact deserve sanctioning. Such an example is the abortion laws, which made abortion and the concomitant acts illegal and the judge-made law, through the interpretation of our Charter, which turned this prohibited conduct into acceptable behaviour.

Or we may question the efficacy of making the behavior contrary to the law and the subsequent public pressure may lead to the government changing the law to make the conduct acceptable and therefore not sanctionable. This ability of public opinion to change the law can be most clearly seen in the consumption of alcohol and the end of Prohibition or Temperance. Thus, our criminal law shifts and changes as our fundamental values as a society change and grow.

It is this flexible concept of the law, which makes learning the law so refreshing and exciting. It is the "why" which makes law relevant to us all and makes us mindful of the transformative effect law can have on a society.