“The purpose of criminal law is to express a formal social condemnation of forbidden conduct, buttressed by sanctions calculated to prevent it.”
- W Friedman.
What is crime?
When one has to talk about criminal law, the discussion on what is crime is inevitable. In a society where all kinds of humans are co-existing, every human has his/her own behavioural pattern. In simple terms, the behavioural pattern which is prohibited by the criminal law becomes a crime at that given point in time. How and why a certain behaviour becomes a crime depends on a variety of factors. It depends on time, place, social and political factors, moral and philosophical influence on the state etc. An act that was considered a crime now may not be considered a crime ten years from now, and this uncertainty with respect to behavioural patterns makes it harder to give a proper definition of the term crime. It is dynamic and continuously changing with respect to society. Therefore instead of defining crime by giving it a rigid definition (which is not possible), scholars have tried to define it with respect to the purpose which it needs to serve and the ‘social interest’ which it needs to protect.
Nigel Walker has given a list of purposes of criminal law that is as follows-
- The protection of the human person against violence, cruelty, or unwelcome sexual approaches
- The protection of people against unintended harms.
- The protection of particularly vulnerable individuals against abuse of the person or property
- The defence of the state.
- The prevention of certain forms of behaviour which, if performed in public might corrupt other people.
- The protection of property against theft, fraud, damage etc.
- The protection of social institutions, such as marriage and family.
If human conduct is defeating these purposes of criminal law then it may be labelled as crime.
Definitions of Crime
In general parlance, any act or omission which is prohibited by law is a crime. To understand the term properly, it is helpful to look at certain definitions of crimes given by some prominent scholars. These are as follows-
- Blackstone – “crime is a violation of public rights and duties due to the whole community considered as a community.” This definition doesn’t fit the exact nature of the crime. The nature of crime is not to infringe any right but it is to do something which is prohibited. But it has an essential aspect that it is a harm to the community at large. Thought this premise is not true in all circumstances. Crime can also be against an individual.
- John Gillin – “an act that has been shown harmful to the society, or that is believed to be socially harmful by a group of people that have a power to enforce its belief, and that laces such act under the ban of positive penalties.” He tried to describe crime in terms of harm. But what is considered as harm is a question of morality and the definition should not have relied only on the moral compass.
- Professor Kenny – “crimes are wrongs whose sanction is punitive and is in no way remissible by any private person, but is remissible by the crown alone, if remissible at all.” This definition is considered a very apt definition but it is totally based on the procedure and the like of the crown. This definition could not serve the purpose in a democratic society.
- Professor Goodhart – he tried to solve the problem in prof. Kenny’s definition and said that crime is an act that is prohibited by the state.
- Halsbury’s laws of England define crime as “an unlawful act or default which is an offence against the public and renders the person guilty of the act or default liable to legal punishment.” This definition is the closest to including the essential elements of a crime.
- Jerome Hall – he provided an extensive and thorough analysis of crime by giving retain points which should be kept in mind –
- There are some external consequences or “harm” to “social interests”.
- The harm must be prohibited by penal law.
- There must be conduct that brings the prohibited harm.
- There must be mens rea or criminal intent.
- Mens rea and the conduct should be in concurrence.
- There must be a relationship between the legally prohibited harm and the voluntary misconduct.
- There must be legally prescribed punishment or threat of punishment.
All these definitions bring us closer to understanding the term crime. Though it should be kept in mind that defining the crime in terms of these definitions is not sufficient. The term should be described in terms of the functions which it needs to serve.
- Nigel Walker, Sentencing in a Rational Society, Penguin, 1972, p 41.
- P S A Pillai’s Criminal Law, LexisNexis, 2019