The Moral and Legal Foundations of Fair-labelling in Our Criminal Law
Authors Khomotso Moshikaro
Affiliations: Lecturer in Private Law, University of Cape Town
Source: South African Law Journal, Volume 135 Number 2, p. 262 – 284
The aims of this article are threefold. The first is to justify why the specific moral wrongfulness of a crime must be reflected in the taxonomy of offences and the particular requirements of an offence in our criminal law. We call this the principle of fair-labelling. This can only be done once we appreciate the reputational interest at stake in such matters. The second is to explain an accurate conception of the separation-of-powers concern when judges are vested with the potential power to reframe offences in order to protect this reputational interest. The third is to identify the correct legal norm in which to ground fair-labelling for effective legal enforcement. In doing so, we see how misguidedly genuflecting to particular popular norms in our jurisprudence serves only to obscure the proper grounding of fair-labelling.