Sie sind auf Seite 1von 9

LAW OF CRIMES

ASSIGNMENT 1

The Indian Penal Code (Code of 1860), in the Preamble in Para (2)
describes what is crime. Paul Tappan’s definition of crime - “crime is an
intentional ....” and then Glanville william’s definition - “ A crime ( or
offence ) is a legal wrong that can be followed by criminal proceedings
which may result in punishments “ and Black’s “ crime is a positive or
negative act in violation of criminal law” has been incorporated.

CRIME AS A PUBLIC WRONG

SERJEANT STEPHEN

Blackstone defined crime as “An act committed or omitted in violation of


public law forbidding or commanding it”.
This definition has been slightly altered by the learned editor of
Blackstone, Serjeant Stephen, who states, “A crime is a violation of a right
considered in reference to the evil tendency of such violation as regards
the community at large”.

APPRAISAL
 The idea incorporated in this definition gives that crimes are
breaches of those laws which injure the community. Stephen has put
stress on the fact that a criminal act causes harm and injury caused
to the community at large. The same was the idea which was noted
by Roman jurists as well.
 This definition gives a rough and general description of crime,
making public mischief a salient feature of crime.

CRITICISM
 Stephen dropped the word “duties” from Blackstone’s definition
narrowing down the scope of crime to the violation of rights only,
whereas criminal law fastens criminal liability even on those
persons who omit to perform duty required by law.
 There are other acts, which do not violate anyone’s right but are
nevertheless crimes, for instance, being in possession of arms and
ammunition.
 Another error committed by Stephen in editing Blackstone’s
definition lies in the expression “evil tendency of such violation as
regards the community at large”. It indicates that crimes are
breaches of those laws, which injure the community. However, all
acts that are injurious to the community are not necessarily
crimes. Transactions of civil nature can injure community. For
example, where the Directors of a company fail to manage its affairs
properly, it is an act which is injurious to the society, but is not a
criminal offence.

PAUL TAPPAN

Paul Tappan has defined crime as "an intentional act or omission in


violation of criminal law committed without defence or justification and
sanctioned by the state for punishment as a felony or a misdemeanor".

APPRAISAL
 Crime is a legal concept as seen in the definition of Paul Tappan, and
has a sanction of law.

 Crime is an intentional act or omission according to this definition.


Mere thinking about committing an act will not constitute crime.
Sometimes words may also be construed as acts, as in treason or
abetting another to commit a crime. Likewise failure to do an act
may also constitute crime, however, there must be a legal duty for a
person to act in a particular case.

 Such an act or omission must also be intentional, that is, criminal


intent or mens rea must be present. There are, however, exceptions
granted to the existence of criminal intent. There must be an act or
omission in violation of a criminal law.
 Tappan says in his definition that the act should be a violation of a
criminal law, as distinct from a non-criminal law or civil and
administrative law. This is necessary so that the state can take action
against the accused. Further, the act should be committed without
defence or justification. Thus, if the act is proved to be in self-
defence or to have been committed in insanity, it will not be
considered a crime even if it causes harm or injury to others.

 Lastly, the act should be sanctioned by the state as a felony or a


misdemeanor. A person can be punished only for those acts that
may be considered to be socially harmful and for which society has
provided punishment.

 The reason why this definition of Paul Tappan has been accepted
and adopted for this study is that there exists in India an established
procedure, criminal and penal laws, including laws of evidence, in
the form of the Criminal Procedure Code, the Indian Penal Code and
the Indian Evidence Act. The task of enforcing law and
administering the criminal justice through various organs of the
mechanism established for the purpose is followed in the strict legal
terms. In a society where ‘Rule of Law’ reigns supreme, there has to
be a well-built legal system. To run the affairs in the most effective
manner, enforcement of law is of utmost necessity.

CRITICISM
 The legal meaning of intent is complicated, and legal scholars are
not in complete agreement on this issue.

 Further, the essential requirement of mens rea does not mean that
the actor must always intend specifically what actually happens.
One might also be criminally held liable for the unintended
consequence of an intended act in circumstances in which a
reasonable person should have known those consequences were
substantially certain to result from the forbidden act. For instance,
a person might be criminally held liable for injury or death to a
victim other than the intended victim.
CRIME AS A CONVENTIONAL WRONG

EDWIN SUTHERLAND

Edwin Sutherland, noted criminologist defines crime in terms of


criminal behaviour as: “Criminal behaviour is behaviour in violation of
criminal law. No matter what the degree of immorality, reprehensibility,
or indecency of an act, it is not a crime unless it is prohibited by criminal
law. The criminal law in turn, is defined conventionally as a body of
specific rules regarding human conduct which have been promulgated by
political authority, which apply uniformly to all members of the class to
which the rules refer, and which are enforced by punishment
administered by the state, characteristics which distinguish the body of
rules regarding human conduct from other rules, are therefore,
politicality , specificity, uniformity and penal sanction.”

APPRAISAL

 This definition is also consistent with the concept ‘nulla poena sine
lege’.Nulla poena sine lege (Latin for "no penalty without a
law") is a legal principle, requiring that one cannot be punished for
doing something that is not prohibited by law. This principle is
accepted and codified in modern democratic states as a basic
requirement of the rule of law.

 This definition given by Sutherland clearly enunciates that no


matter what the degree of immorality ,reprehensibility, or
indecency of an act the act is not a crime unless it is prohibited by
criminal law.

CRITICISM
 Sutherland does not define crime as such.

 He merely enumerates the characteristics of a crime and says that


crime is a violation of a criminal law, the essentials of crime being
a behaviour which is prohibited by the state as an injury to the
state and against which the state may react, at least as a last resort,
by punishment.
CRIME AS A SOCIAL WRONG

JOHN GILLIN

John Gillin, a sociologist, also defined crime in terms of ‘harm’ to


society. He said:
“Crime is an act that has been shown to be actually harmful to society, or
that is believed to be socially harmful by a group of people that has the
power to enforce its beliefs, and that places such act under the ban of
positive penalties.”
The question is, can we define a crime in terms of morality? Can we limit
the idea of crime to those legal wrongs which violently offend our moral
feelings?

APPRAISAL

 He considers crime as an offence against the law of the land.

 Crime and social policy are inter-related and the concept of crime
depends largely on the social values, accepted norms and
behavioural patterns of a particular society at a given time.

CRITICISM

 Although most of the crimes are moral wrongs as well, there are
many cases in which the test of morality will not stand scrutiny.
For example, although treason is legally the gravest of all crimes, it
has very often been applied in the past against great patriots and
national leaders like George Washington and Mahatma Gandhi. A
mere omission to keep a highway in repair shocks nobody, but it is
a crime whilst many grossly cruel and fraudulent breaches of trust
are mere civil wrongs.

 A conduct may, indeed be grossly cruel and yet be no breach of


penal law at all. A man, for example, who is a good swimmer
callously stands by and watches a child drowning in a pond, would
be guilty of committing a grossly wicked immoral act which may
arouse universal indignation but by no standards would he be
criminally liable.

 Similarly, immoral acts like ingratitude, hard- heartedness,


insensitivity to the sufferings of others have never been crimes.

 Further, defining crime on the basis of purported immorality


encounters with a problem having no convincing answer, i.e.
whose morality should form the bench mark for criminalisation?
The issue of de-criminalisation of consensual homosexuality, for
example, has evoked different responses by the liberal, the
paternalists and by the legal moralists.

 Criminalisation of an act simply on the ground of its immoral


nature has been the subject of vigorous debate.

 It fails to explain the criminal behaviour. For example- Dowry is a


crime; yet there is hardly any change in the people’s attitude.
CRIME AS A MORAL WRONG

RAFFAELE GAROFALO

Raffaele Garofalo defines crime in some sociological perspective in the


following words:
“Crime is an immoral and harmful act that is regarded as criminal by
public opinion, because it is an injury to so much of the moral sense as
is possessed by a community- a measure which is indispensable for the
adaptation of the individual society.”
In this definition Garofalo says that crimes are those acts, which no
civilized society can refuse to recognise as criminal and are redressible
by punishment. He considers crime to have been some act ‘labelled’ as
criminal by public opinion.

APPRAISAL

 Garofolo rightly saw, with a clarity not matched by many who came
before and after him, which the prior question to be resolved
centre about the proper formulation of the concept of crime- the
“criminal” presupposes “crime.”

 "Natural Crime" consists of that conduct which offends the basic


moral sentiments of pity (revulsion against the voluntary infliction
of suffering on others)': and probity (respect for property rights of
others). The basic moral sensibilities appear in more or less
advanced form in all civilized societies and are, indeed, essential to
the coexistence of individuals in society. Hence, the true criminal
against whom society must make defence is he who has revealed
the absence or deficiency of either or both these essential moral
capacities.

 He makes clear that the concept of natural crime does not consist
of a catalogue of acts which are universally or widely conceived to
be criminal. History, chance, and the varying levels of social
development have produced great differences, in the kinds of overt
behaviour characterized as crime at various times and places.
The uniformity lies rather in the basic altruistic sentiments of
mankind; and true crime is that conduct which, upon evaluation by
the average moral sense of the particular society under
consideration, is deemed offensive to those sentiments.

 His insistence that there are problems here which demand


systematic investigation of the underlying facts of social and
individual behaviour produces an emphasis of a value which has
not diminished with the passing of the years.

CRITICISM

 His emphasis is on moral wrong, but there is quite an array of


conduct which, though derogate from the cherished value of the
community, is not considered crime. For instance, immoral acts
like ingratitude, hard heartedness, callous disregard for sufferings
of others, though immoral, do not constitute crime.

 There are, likewise, some harmless crimes like vagrancy and


loitering, some prophylactic crimes like consorting and possession
of prohibited goods, for example, weapons, drugs, illegal imports,
and goods unlawfully obtained, but because social expediency
requires that.

 An analysis which attaches the idea of criminality only to violations


of the moral "sentiments" of pity and probity is incomplete and
insufficiently sophisticated. One doubts, for example, whether the
particular horror often associated with certain kinds of sexual
offenses can be completely or adequately explained as a
manifestation of pity for the victim.

 Nor do these categories comfortably encompass serious political


crime, particularly in a period of intense political conformity when
conceptions of morality are identified in significant measure with
patriotic sentiments.