Crime

A crime in a broad sense is an act that violates a political or moral law. Laws are designed to regulate human behaviour but, in many nations, the governments discover that informal sanctions are ineffective to control some types of antisocial behaviour, so the state provides remedies and sanctions 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 either for those activities causing more serious loss and damage to the citizens of the state, or for minor regulatory offences or infractions, e.g. where the criminal law is used to keep order on the roads.

Definition of crime in general

This section describes usual criminal classifications applicable at present in Western countries. They may differ significantly with those applicable in other cultures; also, they may differ significantly with earlier practices.

The systematic study of the causes (aetiology), 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 behaviour 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. These structural realities are fluid and often contentious. For example, as cultures change and the political environment shifts, behaviour may be criminalised or decriminalised which will directly affect the statistical crime rates 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 manipulations of statistical evidence allied with the experience of people in their everyday lives shapes attitudes on the extent to which law should be used to enforce social norms. There are many ways in which behaviour can be controlled without having to resort to using the criminal law. 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 behaviour 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 criminalise?

Criminalisation is intended as a pre-emptive, harm-reduction device, using the threat of punishment as a deterrent to those proposing to engage in the behaviour causing harm. The state becomes involved because the costs of not criminalising (i.e. allowing the harms to continue unabated) outweigh the costs of criminalising it (i.e. restricting individual liberty and so minimising harm to others). The process of criminalisation 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 recognise 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). But Garoupa & Klerman (2002) warn that a rent-seeking government's primary motivation is to maximise revenue and so, if offenders have sufficient wealth, a rent-seeking government is more aggressive than a social-welfare-maximising 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 civilisations had codes of law, containing both civil and penal rules mixed together, though these codes were not always recorded. 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.

In Babylon, Driver and Mills (1952-55) and Skaist (1994) describe the code of Esnunna and 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. Similarly, some codes of conduct of religious origin or reference were included in later penal codes, commonly among the theocratic states.

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: 1986) 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 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 and 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 such 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 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.

The entire policy of monetary compensation from the Hellenic system onwards, has been to avoid feuding between clans and families (note the concept of pater familias 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 get involved. 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

An alternative view of crime is derived from the theory of natural law in jurisprudence which 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. William Blackstone 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" (1979, 41). 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 law makers 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 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 the 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 criticised in the light of the current norms. The law may be acceptable but the use of state power to coerce citizens is not. In more modern conceptions of the theory, crime is characterised 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 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 thus distinguishes between criminality and illegality, the former being derived from human nature, the latter being 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 the 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.

The function of the trial

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 accused's footsteps.

Reasons

Crimes are viewed as offences against society, and as such are punished by government. The distinctions are made depending on the passive subject of the crime (the victim), or on the offended interest, in crimes against:

Personality of the State
Rights of the citizen
Public administration
Administration of justice
Religious sentiment and the pity for dead
Public order
Public faith
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 non-custodial sentences for the least serious, and in some states, capital punishment for the most serious.

Classification

In the United States since 1930, the FBI has annually received crime data from law enforcement agencies, which it compiles 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 categorized as violent and property crimes. Part I violent crimes include murder and criminal homicide (nonnegligent 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:

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

External links

Crime incidence by country

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