Criminalization

What is considered a crime varies between different countries and time periods. Something that was a crime in the past may not be a crime today.

For example, in the past in some places like India and other countries, homosexuality or being intimate with someone of the same sex was against the law and seen as a crime. But now many countries don’t see it as a crime anymore.

In the same way, suicide used to be against the law in some countries like England in the past. But now it is not a crime to harm yourself in England. However, suicide is still illegal in some countries like Bangladesh according to their law books.

So what exactly is a crime? It can be difficult to define. While we can give many examples of crimes, it’s not easy to explain exactly what makes an act a crime.

A famous law professor named Ashworth said the best way to know if something is a crime is to check the laws. He said if the law specifically says an act is illegal and you can go to jail for it if found guilty, then it’s a crime.

The law decides what is criminal in a place by making rules called statutes or through decisions of judges in court cases. Acts become crimes if the law says they could hurt people or society.

While crimes hurt specific individuals, they are also considered public wrongs. This means they negatively impact everyone in the community by making people feel less safe and secure. Even if a crime only directly affects one person, it threatens public order and security.

So in summary, a crime is an act that the laws in a country or area say is illegal and punishable because it can harm individuals or society as a whole. What counts as a crime changes over time and place depending on the applicable laws.

The Harm Principle

The Harm Principle is a concept that helps determine whether certain actions should be considered as criminal offenses or not. Figuring out if an action is a criminal offense is usually easy because laws clearly state what is against the law. However, deciding whether an action should be a crime is often more difficult.

The main reason for making certain actions criminal offenses, like murder or hurting others, is that they cause harm to people. When the government interferes with a person’s freedom by punishing them for their actions, it can be justified because it prevents harm to others in society. We usually judge whether an action is wrong by considering if it takes away someone’s freedom or causes serious harm to them. This principle is relatively easy to apply because we use an objective standard to determine if harm is done to others.

However, this principle alone is not enough to decide if an action should be a crime. It doesn’t provide a good enough reason to make something illegal if it doesn’t cause harm to anyone. So, while preventing harm is an important factor in determining criminal offenses, it’s not the only factor to consider.

Enforcing Morality

Enforcing morality is a topic that has been discussed for a long time. The traditional belief is that crimes are essentially immoral acts and should be punished. However, whether the law should be used to punish immoral behavior has been a subject of ongoing debate.

In the 1960s, there was a famous debate between Professor Hart and Lord Devlin that exemplified this discussion. Lord Devlin, a retired Law Lord, argued that society cannot function without morals, and these morals are the standards of conduct that reasonable people approve of. According to him, the law is necessary to enforce these morals. On the other hand, Professor Hart argued that there is no universal agreement on what is moral, and there is no evidence to suggest that those who deviate from conventional morality are otherwise harmful to society.

Currently, there are debates on certain topics like abortion or euthanasia, which indicate that there is no easily identifiable common moral thread. It is also widely accepted that the criminal law should not make certain activities illegal as long as they occur in private and do not harm others. However, is this distinction between public and private actions a valid one? Domestic violence, for instance, is not acceptable even though it occurs in private.

To sum up, the question of whether the law should enforce morality is complex and has been debated extensively. Traditional views argue in favor of using the law to punish immoral behavior, while others believe that morality is subjective and not everyone agrees on what is moral. The distinction between public and private actions is also a matter of discussion, as some actions, like domestic violence, can be considered immoral even if they happen in private.

Purpose of Criminal Law

The purpose of criminal law is to establish the rules and boundaries that determine what behavior is considered criminal and punishable by the state. While it may seem straightforward to distinguish criminal law from other areas of law, the lines can sometimes be blurry. To better understand the limits and scope of criminal law, it is helpful to identify certain fundamental principles.

According to Ashworth, one of the foundational principles of criminal liability is individual autonomy. This means that individuals, in general, have the capacity and freedom to make meaningful choices, and their autonomy should be respected by others and the legal system. Ashworth also highlights several other key principles that should underpin criminal law:

• Making society better for everyone (welfare).
• Stopping people from harming each other or doing things that could seriously hurt others.
• The law should not say too many things are against the law.
• People need to work together in society and follow some basic rules.
• The law should not punish people for things that were not against the rules when they did it.
• People need to know clearly what is against the law so they can stay out of trouble.
• The punishment for breaking the law should fit how bad the behavior was.
• Crimes should have names that show how serious they are.
• If the law’s meaning is not clear, it should be read in the way that is best for the defendant.
• Everyone should be thought innocent until proven guilty in court.

The goal of criminal law is to have rules that respect people’s freedom but also make society safe and honest using these important principles. The principles help decide what should and should not be part of criminal law.

Distinguishing Criminal Law and Civil Law such as Law of Contracts or Law of Tort

Criminal law, tort law, and contract law are different types of laws. While they overlap in some areas, there are also important differences between them.

Criminal law deals with acts that harm society as a whole or violate public order and safety. Things against criminal law are called crimes. If someone commits a crime, the government or state will try to punish them. The purpose is to punish people who break rules and deter other people from committing crimes.

Tort law and contract law deal with private disputes between individuals or companies. Tort law handles situations where one person’s wrong actions hurt another person or their property. Contract law governs agreements people or businesses make with each other, like paying for goods or services.

The main differences are:

• Criminal cases are brought by the government to protect the public. Tort and contract cases are private, where one individual sues another.
• In criminal cases, the charges are brought by the state or government against the defendant. In tort and contract cases, one private party (person or company) sues another private party.
• Criminal law aims to punish lawbreakers to uphold social order. Tort and contract law aim to fairly resolve private disputes and compensate those who were harmed.
• Criminal cases can lead to jail time, fines or probation if found guilty. Tort and contract cases result in monetary damages paid to the plaintiff if found liable.
• Burden of proof is higher in criminal cases. Government must prove guilt beyond reasonable doubt. In civil tort and contract suits, plaintiff needs only prove liability based on balance of probabilities.

The Burden and Standard of Proof

Burden of proof refers to which side has to present evidence to prove their case – either the prosecution or the defense.

In a criminal trial, the burden of proof is always on the prosecution. This means it is up to the prosecution/state to present evidence that proves the defendant is guilty beyond a reasonable doubt.

The defense does not have to present any evidence or witnesses. They can simply argue that the prosecution has failed to meet its burden of proof.

Standard of proof refers to how strong the evidence must be for that side to win the case. There are different standards used in criminal vs civil law.

In a criminal case, the standard of proof is “beyond reasonable doubt”. This means that based on the evidence presented, the prosecution must prove the defendant committed the crime to such a high level that there is no reasonable doubt of guilt.

If there is any reasonable possibility the defendant is innocent, the prosecution has failed to meet this strict standard and the defendant must be found not guilty.

In civil/tort cases, the lower standard is usually “on the balance of probabilities”. This means it is more likely than not (greater than 50% chance) that the defendant is liable.

There are a few exceptions. If the defendant claims an excuse like being insane, then the burden is on the defense to prove this is true. But the standard of proof is lower – they only need to show it is more likely than not, not beyond reasonable doubt.

Elements of an Offence

There are three main parts to every crime:

1. Actus Reus – The guilty act This means the actual physical act or actions that are against the law. For example, if the crime is theft, the actus reus would be taking someone else’s property without their permission.
2. Mens Rea – The guilty mind This refers to the mental part – what was the person thinking or intending when they committed the act. For theft, the mens rea is the intent to permanently deprive the owner of their property. It is not enough to just do the physical act – the person must also have had the wrong state of mind at the time. Accidents or mistakes are usually not crimes.
3. No legal defense Even if the actus reus and mens rea are proved, the person is not guilty if they can show a legal reason (defense) why what they did was okay. For example, self-defense or necessity.

So for any crime, the prosecution must prove:

• The person did the physical act (actus reus)
• They had the wrong state of mind when doing it (mens rea)
• There is no legal defense that applies

If any one of these three things is missing, the person cannot be found guilty of the crime. The actus reus and mens rea must also happen at the same time for a crime to occur. I hope this helps explain the elements of a crime in a simpler way! Let me know if any part needs more explanation.

Actus reus

Actus reus means the guilty act that is prohibited by criminal law. For a crime to have occurred, there must be both an actus reus and a guilty mind (mens rea).

The actus reus is not just the physical action or conduct of the accused person. It can also include:

• Causing a certain result or consequence to happen. For example, causing injury to someone.
• Creating a certain state of affairs or situation. For example, possessing illegal drugs.
• Failing or omitting to do something when there was a duty to act. For example, not providing food to someone under your care.

The actus reus looks at all the circumstances around the conduct or result, not just the physical movement. It is sometimes difficult to separate the mental state from the physical acts.

The law usually does not punish people for failing or omitting to act. But it can if a law specifically says so, either directly or indirectly. The courts can also find a duty to act if there is a special relationship like between a parent and child.

The actus reus must be done voluntarily. This means the person must have freely chosen to act that way and could have chosen not to. If the action was not under the person’s control, like in an accident, there is no crime.

Mens Rea

Mens rea refers to the mental element or guilty mind that is required for a crime, along with the guilty act (actus reus).

For a crime to have been committed, the offender must have had a certain state of mind at the same time they carried out the actus reus.

The mens rea can consist of different types of mental states like intention, knowledge, or recklessness. The exact mental state needed is defined in the law or can be decided by courts.

Intention means the person wanted to cause the result. Motive is why they intended it, which does not matter for guilt. If the result was very likely to happen because of the act, courts can say the person intended it.

A person acts recklessly if they take an unreasonable risk of harming someone else or their property. If the person was drunk when committing the act, they are considered reckless even if they did not realize the risk, because they chose to drink.

Sometimes a person intends to harm one person but ends up harming someone else. In this case, the law says we can “transfer” the mens rea from the intended victim to the actual victim – meaning the guilty mind still applies to the person harmed.

Often we don’t need this “transfer” because the crime is defined in a way that covers harming anyone, or because it can be proven the person was reckless about harming whoever they ended up harming.

Historical Development of Penal Code

The history of criminal law in India goes back to ancient times. During this period, Hindu religious texts like the Vedas, Smritis and Shrutis mentioned provisions to govern criminal offenses. There is evidence that detailed rules and regulations existed to conduct criminal trials.

After this ancient era, the Mughal empire ruled India. During this time, laws became more classified and complex. Before the Mughals, the Delhi Sultanate had introduced Shariat law based on Islamic teachings. Important Islamic legal texts like the Quran, Qiyas and Hadith were followed. Muslim law divided crimes into three parts – crimes against God, crimes against the state, and crimes against individuals. Punishments were also divided into categories like capital punishment, fines, penalties and exile.

During the Muslim period, both Hindus and Muslims were governed by Muslim criminal law. However, Hindus were allowed to follow their personal or Hindu laws in matters related to their religion and community. Some parts of Muslim civil law related to trade, contracts etc. applied to both Hindus and Muslims. If any civil dispute involved a Muslim, Muslim law would be followed.

Brahmin priests were not allowed to exercise criminal jurisdiction, which was under Muslim legal experts. Brahmin courts existed locally and followed Hindu laws where they still applied.

Later, when the British took control of Bengal, Bihar and Odisha, they found the Muslim legal system unsuitable. They wanted to change laws related to evidence and crimes as per modern systems. Muslim law continued with some modifications during initial British rule. It was replaced only if British regulations prescribed different penalties for the same crime.

From 1832, non-Muslims in Bengal, Bihar and Odisha could choose to not follow Muslim criminal law. By 1827 and the time, criminal laws in Bombay and Madras Presidencies too mostly came from British regulations rather than Muslim law.

Eventually, to bring uniformity, the British Governor-General alone had authority to make laws for all courts. A law commission was formed including Indian members. Under Macaulay, they prepared the Indian Penal Code by comparing different systems but not adopting any fully. After revisions, the Code was passed by the Indian Legislative Council in 1860 and implemented from 1862.

While some Indians disliked foreign legal procedures, no community celebrated the end of the Muslim criminal law system in India.

• Ancient period: Hindu religious texts (Vedas, Smritis, Shrutis) outline criminal provisions and trial rules.
• Delhi Sultanate (13th-16th centuries): Introduced Shariat law preceding Mughal rule.
• Mughal period (16th-18th centuries): Codified laws from Quran and Hadith, categorizing crimes and punishments.
• British period (18th-19th centuries):
• British control in Bengal, Bihar, Odisha; adaptation of British regulations.
• 1827: British regulations replace Muslim law in Bombay, Madras Presidencies.
• 1832: Non-Muslims in Bengal, Bihar, Odisha allowed exemption from Muslim law.
• 1860: Indian Penal Code (IPC) passed, integrating various legal systems.
• Post-IPC (1862 onwards): IPC implementation; mixed responses to foreign legal procedures in India.