Author: Pragnya Vasishtha, Research Associate
The concept of criminal law has its roots in various traditions. India, having a substantial part of its law derived from the Common Law traditions, a brief overview on the development of criminal law in the western ideology becomes necessary prior to discussing the concept of crime. As per Richard Frase, there are three things every law student (and lawyer) should know about comparative and international criminal justice at the close of the twentieth century: “first, that foreign systems… have successfully employed very different approaches …..on important procedural and substantive issues; second, that foreign systems are increasingly similar to ours, in important ways; and third, that regional and international human rights conventions include many provisions relevant to criminal justice, some of which are more fully complied with in foreign countries than they are [in the domestic criminal justice system]1.”
It all began with the Greeks- Plato in his Laws2has discussed the role of criminal law at great length. Plato casts light on retributive theories of punishment by suggesting that an adjudicator can be committed to retribution and yet rightly believes that it is inappropriate to give an offender the full punishment he deserves. He laid a basis for the view that the “causation” (of the crime), lays the foundation for the just punishment of offenders. Otherwise, the public’s intuitive anger at offenders may lead to civil unrest3. He also discusses the mental disease and intoxication, negligence, attempts, intentions4- basically all the trappings of a general principles of criminal law in modern times. This immaculate differentiation is at odds with the early Anglo-Saxon and criminal jurisprudence which barely had any classification of crimes. The analysis and works of most of the Criminal Law jurors5focussed on the procedural issues.
Various English writers in the law applied in the English criminal law in royal courts-from Glanvill and Bracton in the twelfth and thirteenth to Sir John Fortes cue and Christopher St. German in the late fifteenth and early sixteenth centuries6. The next addition to English Criminal law came in the form of Hale’s Historia Placitorium Coronae (also known as the History to Pleas of the Crown)7in 1736 which defined and consolidated criminal laws not only in conventional arenas, but also in many controversial fields, such as witchcraft and crimes against God. Hale’s work found much praise and acceptance by later jurists such as Blackstone and Fitzjames Stephen. The later work of Pollock and Maitland (1895) has been cited as a path breaking academic analysis of the development of law in the United Kingdom.
A crime has been defined in the Halsbury’s Laws of England as “a wrong which affects the security or well-being of the public generally so that the public has an interest in its suppression8.” However, this definition is incomplete in many aspects. A precise definition is not possible as the very nature and concept of crime as envisaged by the society keeps changing with the times. There is no better example than the Naz Foundation9case where the Delhi High Court decriminalised homosexuality- something which was unimaginable even a decade back.
In India, the development of Criminal Law has been slightly erratic- prior to the entry of the British East India Company, the customs, usages and laws were not uniform in India10. Arthashastra, Manu Smriti and Yajnavalkya Smriti were the three leading law codes of ancient India11. The Indian Penal Code of 1860, Code of Criminal Procedure of 1861 (amended in 1973) and Indian Evidence Act, 1872 are the major criminal legislations in India. Besides these major acts, special Criminal Laws are also passed by Indian Parliament.
As per the Tagore Law Lectures, the following concepts ought to be present in every crime12:
1) A human being under a legal obligation to act in a particular way and a fit subject for the infliction of punishment;
2) An evil intent on the part of such a human being.
3) An act committed or omitted in furtherance of such an intent;
4) An injury to another human being or to Society at large by such act.
This definition is found lacking in many terms as crimes need not be committed by human beings alone. Artificial persons such as corporations can also be held liable for crimes. This is remedied by Section 11 of the Indian Penal Code which reads: “The word person includes any Company or Association or body of persons, whether incorporated or not.”
Crimes and Torts – two broad categories of law are criminal and civil with civil law covering all law other than criminal law, including property law, contract law, and tort law. Tort is a civil action in which an individual asks to be compensated for personal harm, either physical or mental.
A theory of penal law should be tested by the significance of its explanation of existing penal law, and the scholar’s primary vocation is to increase that knowledge. If he foregoes the rigours of that task because of his desire to reform law, the results are bound to be problematical13. According to Henry M. Hart, focus and effort ought to be spent in comprehending “the method of criminal law” rather than analysing the concept of crime as a natural and social phenomenon14. Hart goes on to postulate that criminal law needs to be viewed as the pursuit of human purposes through the forms and modes of social organisation. According to him, criminal law is a series of commands binding upon the community the disobedience of which is met with enforceable sanctions15. The solemn and formal condemnation of the community of the wrong act characterizes physical hardship as punishment16.
Broadly, the main concepts in Criminal law revolve on the principles of criminal liability. This includes the nature of crime, the elements actus reus (wrongful act) and mens rea (guilty conscience or the intention), general defences including those based on the maxim actus me invite factus non set mens actus (An act done by me against my will is not my act), capacity to commit the crime (doli incapax) and immunity from the same. Abetment in the performance of the crimes and inchoate (i.e., incomplete) offences are also included in the same.
The main function of criminal law is to enforce social control so as to control the behaviour of people within its jurisdiction. Criminal law is a written statement of rules to which people must conform. It discourages revenge by delegating enforcement to others (authority in whom power is vested to do so by law), criminal law controls an individual’s need to seek revenge or vengeance against those who violated his or her rights. It reflects the constantly changing public opinions and moral values. The boundaries of moral and immoral behaviour are defined by criminal law. When law fails to keep up with the changing social behaviour, it leads to a crisis in the law and order system. The deterrent power of criminal law is tied to the authority it gives the state to sanction or punish offenders.
“The chief reason for the ferocity of the penalties was the weakness of the machinery of justice. It is generally true that a strong government is a mild one, and that a weak administration of the laws tries to make up for its inefficiency by its cruelty17.” Any punishment which does more than what is necessary to disarm the enemy of society is barbarous18. Criminal law thus has a social control function to control, restrain, and direct human behaviour through its ability to punish and correct law violations. The threat of punishment associated with violating the law is designed to prevent crimes before they occur.
- Richard S. Frase, Main-Streaming Comparative Criminal Justice: How To Incorporate Comparative And International Concepts And Materials Into Basic Criminal Law And Procedure Courses, 100 W. Va. L. Rev. 773 1997-1998, p. 775 [↩]
- English translation by Benjamin Jowett, available at http://www.gutenberg.org/catalog/world/readfile?fk_files=3274645, (last visited July 14, 2013). [↩]
- Westen, Peter K., Why Criminal Harms Matter: Plato’s Abiding Insight in the Laws. Available at SSRN: http://ssrn.com/abstract=1008965 (last visited July 8, 2013). [↩]
- See Jerome Hall, General Principles of Criminal Law, The Law book Exchange Ltd. (2008). [↩]
- Including Bracton, who wrote De Legibus et Consuetudinibus Angliae 399, 400 (Twiss, ed.1879). [↩]
- Harold J. Berman, The Origins of Historical Jurisprudence: Coke, Selden, Hale, 103 Yale L.J. 1651 1993-1994, p. 1654 [↩]
- Available at http://www.archive.org/stream/pleasofcrownorme00hale#page/n7/mode/2up, (last visited on July 13, 2013). [↩]
- Halsbury’s Laws of England, 1 Vol 25, Criminal Procedure, 5th ed. Lexis-Nexis [↩]
- Naz Foundation v. Govt. of NCT of Delhi, 160 Delhi Law Times 277 [↩]
- See M.P. Singh, Outlines of Indian Legal and Constitutional History, Lexis Nexis Butterworths Wadhwa, (2009). [↩]
- PSA Pillai’s Criminal Law 14, Lexis-Nexis Butterworths Wadhwa (KS. Vibhute ed., 2012). [↩]
- Syed Shamsul Huda, The Principles of the Law of Crimes in British India 14, Tagore Law Lectures 1902, Eastern Book Company, (1993). [↩]
- Jerome Hall, General Principles of Criminal Law 2, The Lawbook Exchange Ltd., (2008). [↩]
- Henry Hart, Jr., The Aims of Criminal Law, 23 Law & Contemp. Probs. 401 1958, p.402 [↩]
- Ibid, p.403 [↩]
- Gardner, Bailey v. Richardson and the Constitution of the United States, 33 B.U.L. Rev. 176, 193 (1953). [↩]
- Leon R. Yankwich, Changing Concepts of Crime and Punishment, 32 Geo. L. J. 1 1943-1944, p.12 [↩]
- Ibid, p.22 [↩]