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What is Crime,
Anyway?
A crime in a non-technical sense is an act that violates a political or moral
rule. But in many nations, the governments have discovered that informal
sanctions are ineffective to control some types of antisocial behavior, so the
system of social control has to be formalized. Laws are designed to regulate
human behavior and the state provides remedies and sanctions to protect its
citizens if the laws are broken. But not all breaches of the law are considered
crimes, e.g. breaches of contract. The label of "crime" and the accompanying
social stigma are usually reserved for those activities causing more serious
loss and damage to the citizens of the state. Its use is intended to reflect a
consensus of condemnation for the identified behavior and, in the event that an
accused is convicted following a trial applying principles of due process, to
justify the state imposing punishment. The term is also applied to minor
regulatory offences or infractions, e.g. where the criminal law is used to keep
order on the roads.
Definition of crime in general
The systematic study of the causes (etiology), prevention, control, and penal
responses to crime is called criminology. For these purposes, the definition of
crime depends on the theoretical stance taken. The nature of crime could be
viewed from either a legal or normative perspective. A legalistic definition
takes as its starting point the common law or the statutory/codified definitions
contained in the laws enacted by the sovereign government. Thus, a crime is any
culpable action or omission prohibited by law and punished by the state. This is
an uncomplicated view: a crime is a crime because the law defines it as such.
A normative definition views crime as deviant behavior that violates prevailing
norms, i.e. cultural standards specifying how humans ought to behave. This
approach considers the complex realities surrounding the concept of crime and
seeks to understand how changing social, political, psychological, and economic
conditions may affect the current definitions of crime and the form of the
legal, law enforcement, and penal responses made by the state. These structural
realities are fluid and often contentious. For example, as cultures change and
the political environment shifts, behavior may be criminalized or decriminalized
which will directly affect the statistical crime rates, determine the allocation
of resources for the enforcement of such laws, and influence public opinion.
Similarly, changes in the way that crime data is collected and/or calculated may
affect the public perceptions of the extent of any given "crime problem". All
such adjustments to crime statistics, allied with the experience of people in
their everyday lives, shape attitudes on the extent to which law should be used
to enforce any particular social norm. There are many ways in which behavior can
be controlled without having to resort to using the criminal law. Indeed, in
those cases where there is no clear consensus on the given norm, the use of the
criminal law by the group in power to prohibit the behavior of another group may
be considered an improper limitation of the second group's freedom, and the
ordinary members of society may lose some of their respect for the law in
general whether the disputed law is actively enforced or not.
Why criminalize?
Criminalization is intended as a pre-emptive, harm-reduction device, using the
threat of punishment as a deterrent to those proposing to engage in the behavior
causing harm. The state becomes involved because the costs of not criminalizing
(i.e. allowing the harms to continue unabated) outweigh the costs of
criminalizing it (i.e. restricting individual liberty and so minimizing harm to
others). The process of criminalization should be controlled by the state
because:
Victims or witnesses of crimes might be deterred from taking any action if they
fear retaliation. Even in policed societies, fear may inhibit reporting or
co-operation in a trial.
The victims may only want compensation for the injuries suffered, while being
indifferent to the more general need for deterrence: see Polinsky & Shavell
(1997) on the fundamental divergence between the private and the social
motivation for using the legal system.
Even if the victims recognize that they are victims, they may not have the
resources to investigate and seek legal redress for the injuries suffered: the
enforcers formally appointed by the state have the expertise and the resources.
Victims do not have economies of scale to administer a penal system, let alone
collect any fines levied by a court (see Polinsky (1980) on the enforcement of
fines). Garoupa & Klerman (2002) warn that a rent-seeking government's primary
motivation is to maximize revenue and so, if offenders have sufficient wealth, a
rent-seeking government is more aggressive than a social-welfare-maximizing
government in enforcing laws against minor crimes (usually with a fixed penalty
such as parking and routine traffic violations), but more lax in enforcing laws
against major crimes.
History
The first civilizations had codes of law, containing both civil and penal rules
mixed together, though these codes were not always recorded. According to
Oppenheim (1964), the first known written codes were produced by the Sumerians,
and it was probably their king Ur-Nammu (who ruled over Ur in the 21st century
BC) who acted as the first legislator, creating a formal system in thirty-two
articles. The Sumerians later issued other codes including the "code of
Lipit-Istar" (last king of the 3rd dynasty of Ur, Isin - 20th century BC). This
code contains some fifty articles and has been reconstructed by the comparison
among several sources. Kramer (1971: 4) adds a further element: "The Sumarian
was deeply conscious of his personal rights and resented any encroachment on
them, whether by his King, his superior, or his equal. No wonder that the
Sumerians were the first to compile laws and law codes."
In Babylon, Driver and Mills (1952-55) and Skaist (1994) describe the successive
legal codes, including the code of Hammurabi (one of the richest of ancient
times), which reflected society's belief that law was derived from the will of
the gods (see Babylonian law. Many of the states at this time were theocratic,
and their codes of conduct were religious in origin or reference.
Maine (1861) studied the ancient codes and failed to find any criminal law in
the modern sense of the word. While modern systems distinguish between offences
against the "State" or "Community", and offences against the "Individual", what
was termed the penal law of ancient communities was not the law of "Crimes" (crimina);
it was the law of "Wrongs" (delicta). Thus, the Hellenic laws (see Gagarin:
1986; and Garner: 1987) treated all forms of theft, assault, rape, and murder as
private wrongs, and action for enforcement was up to the victim or their
survivors (which was a challenge in that although there was law, there were no
formalised courts in the earliest system). It was the Romans who systematised
law and exported it to their Empire. Again, the initial rules of Roman Law were
that assaults were a matter of private compensation. The significant Roman Law
concept was of dominion (see Daube: 1969). The pater familias was in possession
of all the family and its property (including slaves). Hence, interference with
any property was enforced by the pater. The Commentaries of Gaius on the Twelve
Tables treated furtum (modern theft) as if it was a tort. Similarly, assault and
violent robbery were allied with trespass as to the pater's property (so, for
example, the rape of a female slave, would be the subject of compensation to the
pater as having trespassed on his "property") and breach of such laws created a
vinculum juris (an obligation of law) that could only be discharged by the
payment of monetary compensation (modern damages). Similarly, in the
consolidated Teutonic Laws of the Germanic tribes (see Guterman: 1990), there
was a complex system of money compensations for what would now be considered the
complete range of criminal offences against the person from murder down.
Even though Rome abandoned England sometime around 400 AD, the Germanic
mercenaries who had largely been enforcing the Roman occupation, stayed on and
continued to use a mixture of Roman and Teutonic Law, with much written down by
the early Anglo-Saxon Kings (see Attenborough: 1963). But, it was not until a
more unified Kingdom emerged following the Norman invasion and the King was
attempting to assert power over the land and its peoples, that the modern
concept emerged, namely that a crime is not only an offence against the
"individual", it is also a wrong against the "state" (see Kern: 1948; Blythe:
1992; and Pennington: 1993.). This is a common law idea and the earliest
conception of a criminal act involved events of such major significance that the
"state" had to usurp the usual functions of the civil tribunals and direct a
special law or privilegium against the perpetrator. All the earliest criminal
trials were wholly extraordinary and arbitrary without any settled law to apply,
whereas the civil delictual law was highly developed and consistent in its
operation (except where the King wanted to raise money by selling a new form of
Writ). The development of the idea that it is the "state" dispensing justice in
a court only emerges in parallel with or after the emergence of the concept of
sovereignty. In continental Europe, Vinogradoff (1909) reports the persistence
of Roman Law, but with a stronger influence from the Church (see Tierney: 1964,
1979). Coupled with the more diffuse political structure based on smaller state
units, rather different legal traditions emerged, remaining more strongly rooted
in Roman jurisprudence modified to meet the prevailing political climate.
From the Hellenic system onwards, the policy rationale for requiring the payment
of monetary compensation for wrongs committed has been to avoid feuding between
clans and families (note the concept of pater familias as a unifying factor in
extended kin groups, and the later practice of wergild in this context). If
families' feelings could be mollified by compensation, this would help to keep
the peace. It did not always work but, in the earliest times, the "states" were
not prepared to provide an independent police force. Thus, criminal law grew out
of what is now tort and, in real terms, many acts and omissions that are
classified as crimes overlap civil law concepts.
Natural law theory
The consistent theoretical problem has been to justify the state's use of force
to coerce compliance with its laws. One of the earliest justifications was the
theory of natural law. This posits that the standards of morality are derived
from or constructed by the nature of the world or of human beings. Thomas
Aquinas said: "the rule and measure of human acts is the reason, which is the
first principle of human acts" (Aquinas, ST I-II, Q.90, A.I), i.e. since people
are by nature rational beings, it is morally appropriate that they should behave
in a way that conforms to their rational nature. Thus, to be valid, any law must
conform to natural law and coercing people to conform to that law is morally
acceptable. William Blackstone (1979: 41) describes the thesis:
"This law of nature, being co-eval with mankind and dictated by God himself, is
of course superior in obligation to any other. It is binding over all the globe,
in all countries, and at all times: no human laws are of any validity, if
contrary to this; and such of them as are valid derive all their force, and all
their authority, mediately or immediately, from this original."
But John Austin, an early positivist, applied utilitarianism in accepting the
calculating nature of human beings and the existence of an objective morality,
but denied that the legal validity of a norm depends on whether its content
conforms to morality, i.e. a moral code can objectively determine what people
ought to do, the law can embody whatever norms the legislature decrees to
achieve social utility, but every individual is free to choose what he or she
will do. Similarly, Hart (1961) saw the law as an aspect of sovereignty with
lawmakers able to adopt any law as a means to a moral end. Thus, the necessary
and sufficient conditions for the truth of a proposition of law were simply that
the law was internally logical and consistent, and that state power was being
used with responsibility. Dworkin (2005) rejects Hart's theory and argues that
fundamental among political rights is the right of each individual to the equal
respect and concern of those who govern him. He offers a theory of compliance
overlaid by a theory of deference (the citizen's duty to obey the law) and a
theory of enforcement, which identifies the legitimate goals of enforcement and
punishment. Legislation must conform to a theory of legitimacy, which describes
the circumstances under which a particular person or group is entitled to make
law, and a theory of legislative justice, which describes the law they are
entitled or obliged to make.
Indeed, the majority of natural law theorists accept that a primary function of
the law is to enforce the prevailing morality. The problem with this view is
that it makes any moral criticism of the law impossible in that, if conformity
with natural law is a necessary condition for legal validity, all valid law
must, by definition, be morally just. Thus, on this line of reasoning, the legal
validity of a norm necessarily entails its moral justice. The solution to this
problem is to admit some degree of moral relativism and to accept that norms may
evolve over time and, therefore, the continued enforcement of old laws may be
criticized in the light of the current norms. The law may be acceptable but the
use of state power to coerce citizens to comply with that law is not morally
justified. In more modern conceptions of the theory, crime is characterized as
the violation of individual rights. Since rights are considered as natural,
rather than man-made, what constitutes a crime is also natural, in contrast to
laws, which are man-made. Adam Smith illustrates this view, saying that a
smuggler would be an excellent citizen, "...had not the laws of his country made
that a crime which nature never meant to be so."
Natural law theory therefore distinguishes between "criminality" which is
derived from human nature, and "illegality" which is derived from the interests
of those in power. The two concepts are sometimes expressed with the phrases
malum in se and malum prohibitum. A crime malum in se is argued to be inherently
criminal; whereas a crime malum prohibitum is argued to be criminal only because
the law has decreed it so. This view leads to a seeming paradox, that an act can
be illegal that is no crime, while a criminal act could be perfectly legal. Many
Enlightenment thinkers such as Adam Smith and the American Founding Fathers
subscribed to this view to some extent, and it remains influential among
so-called classical liberals and libertarians.
Trial
The form of the trial
There are two primary systems for conducting a trial:
Adversarial: In the common law systems, an adversarial or accusatory approach is
used to adjudicate guilt or innocence. The assumption is that the truth is more
likely to emerge from the open contest between the prosecution and the defence
in presenting the evidence and opposing legal arguments with a judge acting as a
neutral referee and as the arbiter of the law. In more serious cases, there is a
jury to determine the facts. This polarises the issues, with each competitor
acting in its own self-interest, and so presenting the facts and interpretations
of the law in a deliberately biased way. The intention is that through a process
of argument and counter-argument, examination-in-chief and cross-examination,
each side will test the truthfulness, relevancy, and sufficiency of the
opponent's evidence and arguments. To maintain fairness, there is a presumption
of innocence, and the burden of proof lies on the prosecution. Critics of the
system argue that the desire to win is more important than the search for truth.
Further, the results are likely to be affected by structural inequalities. Those
defendants with resources can afford to hire a the best lawyers, whereas those
who are poor are more easily victimised because, even when the state operates a
system of financial support for defendants, the quality of legal representation
is often inferior to the lawyers acting for the state.
Inquisitorial: In the civil law systems, the responsibility for supervising the
investigation by the police into whether a crime has been committed falls on an
examining magistrate or judge who then conducts the trial. The assumption is
that the truth is more likely to emerge from an impartial and exhaustive
investigation both before and during the trial itself. The examining magistrate
or judge acts as an inquisitor who directs the fact-gathering process by
questioning witnesses, interrogating the suspect, and collecting other evidence.
The lawyers who represent the interests of the state and the accused have a
limited role to offer legal arguments and alternative interpretations to the
facts that emerge during the process. All the interested parties are expected to
co-operate in the investigation by answering the magistrate or judge's questions
and, when asked, supplying all relevant evidence. The trial only takes place
after all the evidence has been collected and the investigation is completed.
Thus, most of the factual uncertainties will already be resolved, and the
examining magistrate or judge will already have resolved that there is prima
facie of guilt. The trial is no more than the public resolution of the ongoing
investigation where the accused has the burden of rebutting the presumption of
guilt. Critics argue that the examining magistrate or judge has too much power
in that he or she will both investigate and adjudicate on the merits of the
case. Although lay assessors do sit as a form of jury to offer advice to the
magistrate or judge at the conclusion of the trial, their role is subordinate.
Further, because a professional has been in charge of all aspects of the case to
the conclusion of the trial, there are fewer opportunities to appeal the
conviction alleging some procedural error.
There are two forms of deterrence:
Specific: The intention underlying the penal system is to deter future
wrongdoing by the defendant if convicted. The punishment is supposed to
demonstrate the unfortunate consequences that will follow any decision to break
the law. If the convicted person considers the possibility of breaking the law
again in the future, the assumption is that the individual will choose not to
break the law and so avoid further punishment.
General: The punishment imposed on the particular accused is also a warning to
other potential wrongdoers. Thus the function of the trial is to gain the
maximum publicity for the crime and its punishment so that others will be
deterred from following in the particular accuser's footsteps.
Reasons
Antisocial behavior is criminalized and treated as offences against society
which justifies punishment by the government. A series of distinctions are made
depending on the passive subject of the crime (the victim), or on the offended
interest(s), in crimes against:
Personality of the state.
Rights of the citizen.
Public administration.
Administration of justice.
Religious sentiment and faith.
Public order.
Public economy, industry, and commerce.
Public morality.
Person and honour.
Patrimony.
Or they can be distinguished depending on the related punishment with sentencing
tariffs prescribed in line with the perceived seriousness of the offence with
fines and noncustodial sentences for the least serious, and in some states,
capital punishment for the most serious.
Classification
In the United States since 1930, Uniform Crime Reports (UCR) have been tabulated
annually by the FBI from crime data submitted by law enforcement agencies across
the United States. This data is compiled at the city, county, and state levels
into the Uniform crime reports (UCR). Violations of laws, which are derived from
common law, are classified as Part I (index) crimes in UCR data, and further
categorised as violent and property crimes. Part I violent crimes include murder
and criminal homicide (voluntary manslaughter), forcible rape, aggravated
assault, and robbery, while Part I property crimes include burglary, arson,
larceny/theft, and motor vehicle theft. All other crimes are classified as Part
II crimes.
Crimes are also grouped by severity, some common categorical terms being:
felonies, indictable offences, misdemeanors, and summary offences. For
convenience, infractions are also usually included in such lists although, in
the U.S., they may not be the subject of the criminal law, but rather of the
civil law.
The following are crimes in many criminal jurisdictions:
Arson (not in English law)
Assaults
Battery
Blackmail
Burglary
Child sexual abuse
Counterfeiting
Drug possession
Embezzlement
Espionage
Extortion
Forgery
Fraud/Deception offences
Homicide
Identity theft
Illegal gambling
Inchoate offenses
Kidnapping
Larceny
Looting
Motor vehicle theft/TWOC
Perjury
Rape
Robbery
Sexual assaults
Smuggling
Stalking
Tax evasion
Theft
Treason
Trespass (not in English law)
Vandalism (see Criminal Damage Act 1971 for the codified offence in English law)
Weapon possession
Reference: Wikipedi, accessed on May 19, 2006, at
www.wikipedia.org.
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