Contrastingly, the judicial ruling in the case of Laskey, Jaggard and Brown v. United Kingdom differs from the reasoning in R v. Brown due to the presence of moral undertones in the formation of the judgement. The use of moral judgements undermines the authority and legitimacy of the government due to the subjective nature of its rulings. Lord Templeman states that society has a right to be protected by a cult of evil. And the pleasure derived from pain is an evil thing and that cruelty is uncivilized6. This statement resonates with a disparaging tone over the lifestyle choices that some members of societies choose to engage in.
Moral judgements are such a subjective matter that it would be unfair to the masses for the judges to impose upon their own moral assessments. However, with physical harm, it is a much more empirical and easier to regulate. The imposition of a moral judgement on those that engage in these activities greatly compromises the autonomy of these individuals. The courts are essentially casting a moral judgement towards their character and thus defining what is 'right' and what is 'wrong'. In this case, the courts do not have a well-founded argument for interfering within the private sphere of individuals because morality is highly subjective.
This subjectivity is further perpetuated by Article 8 of the European Convention. It states that: "everyone has the right to respect for his private and family life, his home and his correspondence and there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others".
7 This clause therefore shows that the courts indeed recognize, to some extent the need for citizens to have autonomy and privacy. In addition, this clause is vague in its use of the words: "protect and private life", allowing for interpretations of what protect and private life entail. This open interpretation allows for the courts to have some latitude in defining what is private life and what is not when cases present itself. There seems to be an unregulated and almost arbitrary process in deducing which acts are permissible and which are not in the realm of the criminal justice system.
There needs to be more institutional regulation and structure in the differentiation of what needs the interference of the state and what does not. In order for a happy medium to exist between state interference in the private lives of individuals, and that of individual autonomy, there needs to be more clear definitions of what is or is not permissible in the private lives of individuals. The current rights of individuals as stated in Article 8 are much too vague for the public to understand what is allowed and what is not.
Those clauses in essence give the courts great power and discretion to exercise their authority and own subjective rulings. Further analysis of the two judgements, shows that the harm principle is the key proponent in the justification of criminalization in the private sphere. This suggests that should your actions be harmful to other members of society, then the prevention of harm to them (or your criminalization) takes priority to your autonomous rights. 8 So in other words the state needs to step in when citizens are purposely put through unwanted physical harm.
This is perhaps a purposeful moment for the judicial outcome of these cases which is to proactively minimize future occurrences of these types of situations which may spiral out of control. The solution here is to find a harmonious balance between individuals and the state. This can be executed with a more regulatory justice system because rbitrariness and moral undertones in judicial proceedings undermine the legitimacy of the courts and the trust in them by society.
In conclusion, one can see the obscurity and lack of cohesion when it comes to exploring the ideas of whether the criminal justice system needs to have a role in the bedrooms of individuals. From the discussion of the cases, one can see the necessity of role of the criminal justice system especially in situations involving sadomasochism. The law is there to protect the safety of individuals from harm. The law in effect mitigates the potential for this harm.
Criminal law allows for the regulation of autonomous behaviour which are inherent to people especially those that live in a democratic society. People may feel as though their lifestyles are justifiable behind the veil of freedom and autonomy, but the interference of the criminal law is necessary to ensure that one's autonomous acts do not impose on other citizens. It is, however, important for the courts to ensure that objectivity is taken into consideration when making rulings.
This allows for a more fair justification of the imposition of the state in the affairs of individuals. If the judicial rulings are consistently bounded on moral grounds, this would not satisfy the masses as there is no uniformity in what morality entails amongst individuals. Therefore one of the distinctive purposes of criminal law is to secure a safe society wherein people are living without distress from other people's behaviour and that this is done in an objective manner.