LECTURE 1: INTRODUCTION TO CRIMINAL LAW

1.1 Introduction

1.2 Objectives

1.3 What is a crime?

1.4 .Crime and morality

1.5 Summary

1.1 Introduction

What is criminal law?

Criminal law is a part of public law. Public law consists of those fields of law which
are concerned with the state and its relationship with the individual as opposed
to private Law which deals with The relationship between individuals. The thrust
of criminal law is to discourage and prevent certain types of conduct or
actions/omissions and this aim is pursued by the prohibition of the conduct in
question, together with the assignment of a punishment for disregard of the
prohibition. This is clearly different from private or- civil law which is intended to
regulate relationships between individuals. A default in the later is called a civil
wrong and a person who is proved to have committed a civil wrong is normally
ordered to pay compensation to the victim

It is a common practice to start with definitions of the main concepts in any

academic discourse. The most important term you need to know is crime

1.2 OBJECTIVES
At the end of lecture you will be:

 aware of the definitional problems of the term crime and the various
outlooks on criminal law.

 enlightened on the distinction between crime and morality.

1.3 What is a crime?

There is no agreed definition of the term crime. Various authors have defined the
term differently depending on their philosophical outlooks and various other
material factors in the society they come from. Up to the 19th century it was still
fashionable to explain crime in biological terms i.e. some people were born
criminals! With the development of the science of crime (criminology) another
approach, growing out of the philosophy of enlightenment asserting that crime
was the result of an exercise of free will, developed. As a result some
criminologists advocated for the right of the individual for a fair trial and a fair
punishment.

Out of this individualistic and isolated outlook legalistic definitions of crime i.e.
determined by legal codes, emerged. This trend was mainly influenced by the
positivist. outlook prevalent in Europe in the second part of the 19th century.
Positivists, at that time, tended to concentrate on the legal provisions as they
stood (law as it is) and ignored all other social factors. This trend was also joined
by two criminologists namely Michael, J., and Mortimer. J., who in 1930 made a
study on the state of knowledge on crime,. In their book Crime Law and Social
Science, New York, 1933 at p. 2 they defined the term crime as follows:-
"The most precise and least ambiguous definition of crime is that which defines it
as a behaviour which is prohibited by the criminal code.... this is the only possible
definition of crime."

Another criminologist, one, Paul W. Tappon. clarified further the above definition
of crime by arguing that a person is a criminal only because his or her behavior
has been defined as criminal by the state (see his article: "who is the criminal?" in
American Sociological Review of 12th February 1947 at p. 100). Many
criminologists have called for legalistic conception of crime and have suggested
that crime should be studied within the framework of criminal law, from which
one could ascertain under what conditions behavior becomes defined as criminal
and how legal codes interact with other normative systems. Other authorities
defining crime in the like manner include encyclopedia Britannica vol. 6 which, at
p. 701, defines crime as:-

"... an act or omission forbidden by law under the pain of punishment."

Another legalistic definition says crimes are:-

"... wrongs which judges have held or parliament has from time to time laid down,
as sufficiently injurious to the public to warrant the application of criminal
procedure to deal with them." [see Smith J.C., and Hogan, B., Criminal Law 6th
edn].

You can easily notice that all these definitions do not enable you to recognize an
act as a crime when you see one.

To sociologists and social scientists these positivist definitions are too narrow and
not readily comprehensible. Their main drawback is that they take the legal
system for granted and questions like: why the law exists? Is the law necessary?
or what a just system of law would look like? are not asked. Around 1900 several
legal scholars began to consider the social nature of law. This approach had its
origin in a legal philosophy known as "Sociological jurisprudence." The early
sociologists incorporated law in their social framework. Roscoe Pond, one of the
major proponents of sociological jurisprudence, drew from those sociologists
when he asserted that law shouiri be studied as a social institution. Pond viewed
law as a specialized form of social control that brought pressure to bear on a
person in order to constrain him to do his duty in society and deter him from anti-
social conduct i.e. conduct at variance with the postulates of social order (see
Roscoe Pond, Outlines of Lectures On Jurisprudence: Havard University press, !
928).

Although Roscoe Pond does not state it expressly yet the only inference you can
draw from his statement is that the decision whether to make a certain conduct
criminal is political and social but not legal. It is done by a public power - the
state, in a particular society. This trend led to sociological definitions of the term
"crime." The term was defined in the social context and no longer under the
restrictions of criminal codes as before. In Kenny's Outlines of Criminal Law, (17th
ed) at p. 5 three major characteristics of crime are pointed out:-

(i) that it is a harm brought about by human conduct which the sovereign power
in the state desires to prevent;

(ii) that among the measures of prevention selected is the threat of punishment;

(iii) that legal proceedings of a special kind are employed to determine the guilt of
the accused before being punished.
The emergence of socialism after the 1971 October revolution led to a more
critical analysis of crime and criminal law. The study was founded on a Marxist
approach to social reality i.e. understanding social life in relation to the underlying
mode of production and class struggle. Crime was focused on the relation of the
economic system to the production of crime. In the Marxist perspective criminal
law is a political and economic phenomenon. It began at the same time as the
state i.e. during the slave mode of production.

The Marxist approach has influenced a number of authors. Chamblis in his book,
the Political Economy of Crime (vol. 2, 1975), attempted to develop a Marxist
theory of crime and Criminal law. He defined criminal law as:-" a set of rules, laid
down by the state in the interest of the ruling class and resulting from the conflict
that inhere in class structured societies."

According to Chamblis,

"Criminal behaviour is, then, an inevitable expression of class conflict resulting

from the inherently exploitative nature of economic relations."

There may be several arguments for or against any of the above definitions but
for the purpose of showing the definitional problem the above samples are
sufficient.

1.4 CRIME AND MORALITY

Every society has its morals. Incidentally morals and crimes may to a certain
degree coincide. However it is important that you distinguish them. This part of
the lecture is intended to show you the distinctions. As a form of social
consciousness morals emerged earlier than state and law. Customs and morals
regulated the interrelations between people in the primitive mode of production.
In class society the dominant system of morals is that of the ruling class. This is
why at times criminal law and morals interact up to a certain point. The reason is
that with the help of the apparatus of ideological influence, political and legal
institutions, the dominant class strives to impose its morals on the whole society.
However, you have to take note that many of the rules enforced by criminal law
have nothing to do with morality. Moreover, many of the rules of morality are not
enforced in criminal law.

Attempts by courts to extend criminal law to morals has led to some legal
problems. A good example is the case of Shaw v. DPP [1962] A.C. 220. In this case
Shaw published a "Ladies Directory" designed to assist prostitutes to get
customers, and he was charged, w • r alia, with conspiracy to corrupt public
morals. He was convicted of this offence, as i his conviction was upheld by the
Court of Criminal Appeal and the House of Lords. Lord Simonds, at p. 267, said he
entertained no doubt that in the sphere of criminal law:-

"There remains in common law residual power to enforce the supreme and
fundamental purpose of the law, to conserve not only the safety and order but
also the moral welfare of the state, and that it is their duty to guard against
attacks which may be more insidious because they are moral..."

This decision, which seemingly was extending criminal law to morals, was un-
usual. History defeated it and could not stand a test of time. The position had to
be reversed in the case of Knuller Ltd v. DPP [1973] A.C. 435. In this case the
House of Lords emphasized that the courts did not have residual power to extend
criminal law, by creating newer offences and widening existing ones, to enforce
good morals. From the foregoing you can note that it is the state which decides
what should be a crime and not the court. For this reason the question whether
or not any conduct constitutes a crime in law depends solely on whether or not
such conduct has been declared as criminal by the state. The hallmark of
criminality is that it is a breach of criminal law and not morals.

Morals and law have also distinguishing features. Law consists of rules established
in a specific way by the State organs and fixed in legal Acts. Morals, however, do
not include just norms, but also conceptions, views and feelings. Legal Acts
consist of the will of the class in power while morals may include this will in the
form of public opinion. Moral norms embrace a sphere of relations that is
considerably broader than that regulated by law. For example many interrelations
between people at home, in their work places and in the family are subject to
morals, but are not subject to legal regulation. The contents of rules of law are
also specific in nature.

Law and morals are also based on measures of coercion, yet the nature of these
measures and methods used for implementing them differ in law and in morals, in
the sphere of morals coercion takes the form of public opinion. In addition moral
norms do not regulate in advance specific measures and forms of coercion. In the
event of violation of law. However, corresponding law enforcement agencies arc
obliged to take measures envisaged by the law.